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Conservation Program Appeals

Conservation Program Appeals. The USDA Informal and Formal Administrative Appeals Process August 2004. Appeals Training . Section 1 – Determinations Preliminary Final Expedited Finality Section 2 – Appealability Section 3 – Informal Review FSA – COC State Conservationist

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Conservation Program Appeals

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  1. Conservation Program Appeals The USDA Informal and Formal Administrative Appeals Process August 2004

  2. Appeals Training • Section 1 – Determinations • Preliminary • Final • Expedited Finality • Section 2 – Appealability • Section 3 – Informal Review • FSA – COC • State Conservationist • Section 4 – Formal Review • Section 5 – Exercises

  3. Appeals Background Information

  4. Agency Appeals Procedure (Pre 1996 Appeals) • Only certain decisions could be appealed within the agency (SCS then NRCS) primarily those relating to HELC/WC provisions and conservation program contracts • Four “levels” for appeal: FO; AO; SO; NHQ

  5. Agency Appeals Procedure (Pre 1996 Appeals) • Perceived as being biased toward the Agency by farmers and ranchers • Often took up to 2 years to arrive at a decision

  6. USDA Appeals Procedure (January 5, 1996) • Replaced the previous Agency appeals procedures as of January 16, 1996 • Appeal “levels” done away with • Two paths for appeal based on program authority

  7. USDA Appeals Procedure (January 5, 1996) • Appeals procedure for all NRCS programs, not just HELC/WC • Formal appeals agency of USDA, the National Appeals Division (NAD)

  8. Legal Authority

  9. Statutory Authority The Federal Crop Insurance and Department of Agriculture Reorganization Act of 1994, Public Law 103-354, 108 Stat. 3228, Title II, Sections 226 and 275, Pub. L. 103-354 (7 U.S.C. 6932 and 6995); 7 U.S.C. 6991 et seq. ; 5 U.S.C. 301, 16 U.S.C. 3843(a); and Pub. L. 107-171.

  10. Published Rules • NRCS Appeals Rule – 7 CFR 614, Dec. 29, 1995 Interim-Final Rule; Final Rule currently being promulgated. • FSA Appeals Rule – 7 CFR 780, Dec. 29, 1995, Interim-Final Rule; Final Rule currently being promulgated.

  11. Published Rules • NAD Appeals Rules of Procedure, 7 CFR 11, June 23, 1999, Final Rule • Equal Access to Justice, 7 CFR 1, Subpart J, October 11, 2002 , Final Rule

  12. Agency Appeals Policy and Other Information

  13. General Appeal Procedures • NRCS -- Conservation Programs Manual Part 510 – Appeals & Mediation http://policy.nrcs.usda.gov/scripts/lpsiis.dll/M/M_440_510.htm • FSA – Handbook 1-APP, Program Appeals, Mediation, and Litigation http://dmis.fsa.usda.gov/rware/home.html#83799 • NAD – NAD Hearing Officer’s Guide http://www.nad.usda.gov/nadguide.pdf

  14. Appeals and Mediation Websites NRCS – Appeals http://www.nrcs.usda.gov/programs/appeals/ NRCS – Mediation http://www.nrcs.usda.gov/programs/mediation/

  15. Appeals and Mediation Websites FSA – Appeals http://www.fsa.usda.gov/nd/ndprogramappeals.html FSA – Mediation http://www.fsa.usda.gov/outreach/mediation.htm NAD -- http://www.nad.usda.gov

  16. Appeal Definitions

  17. Appeal • Means a written request by a participant asking for review by the National Appeals Division (NAD). (7 CFR 11.1)

  18. Agency Representative • Means any person, whether or not an attorney, who is authorized to represent the agency in an administrative appeal under this part. (7 CFR 11.1)

  19. Adverse Decision • includes, in addition to the definition of adverse decision in 7 CFR Part 11, an NRCS technical determination or decision that affects the legal substantive status of the land, though it may not necessarily be adverse. (7 CFR 614.2)

  20. Adverse Decision - NAD • means an administrative decision made by an officer, employee, or committee of an agency that is adverse to the participant (7 CFR 11.1)

  21. Agency Record • Means all the materials maintained by an agency related to an adverse decision which are submitted to the Division (NAD) by an agency for consideration in connection with an appeal…

  22. Agency Record • Includes: • All materials prepared or reviewed by the agency during its consideration and decisionmaking process, • Does not include records or information not related to the adverse decision at issue.

  23. Agency Record (con't) • All materials contained in the agency record submitted to NAD shall be deemed admitted as evidence for purposes of a hearing or a record review. (7 CFR 11.1)

  24. Appealability review • A review of an agency’s decision or technical determination that a determination is not appealable. The decision is subject to review according to 7 CFR 11.6 to determine whether the decision involves a factual dispute that is appealable or is, instead, an attempt to challenge generally applicable program policies, provisions, technical standards and formulas, funding availability and allocations, regulations, or statutes that were not appealable.

  25. Decision • means a conclusion reached by an NRCS official based on applicable regulations and program instructions which relates to eligibility for program benefits, including a technical determination used as a basis for the decision. (7 CFR 614.2)

  26. Final Decision • means the program decision rendered by the county or State Committee (or in the case of NRCS, the decision that becomes final as set forth in 7 CFR 614.103 or 7 CFR 614.201), upon written request of the participant. A decision that is otherwise final shall remain final unless the decision is timely appealed to the State Committee or NAD…. (7 CFR 780.1)

  27. Preliminary technicaldetermination • means the initial written technical determination provided to a client which will become final after 30 days unless the client takes action in accordance with Sec. 614.101 to stay the preliminary technical determination from becoming final. (7 CFR 614.2)

  28. Reconsideration • means the subsequent consideration of a prior decision or determination by the same reviewing authority. (7 CFR 780.1)

  29. Reviewing Authority • means a person or committee assigned the responsibility of making a decision on the appeal filed by the participant in accordance with [the applicable regulation]. (7 CFR 780.1)

  30. Technical determination • means a conclusion concerning the status and condition of the natural resources and cultural practices based on science and best professional judgment of natural resource professionals concerning the soils, water, air, plants, and animals. (7 CFR 614.2)

  31. Section 1 - Determinations

  32. Notice of Determination or Decision Requires that NRCS to provide the following information to the person: • Written notice of the decision no later than 10 working days after the decision is made • Applicable appeal and mediation rights.

  33. Requirements All decisions or technical determinations must: • Specify the applicable regulations (rules) • Specify the generally applicable interpretations of regulations (Agency policy) • Give notice of the rights and options that a participant may have in the NRCS informal appeals process or through appeal to NAD.

  34. Preliminary Technical Determinations Title XII Conservation Programs Only

  35. Preliminary Process Program Participant requests field review or mediation? • NRCS issues a preliminary determination • Letter transmitting the determination offers the following: • Field Review • Mediation No Yes Determination becomes a final NRCS determination 30 days from the date of the notification Field review and/or mediation conducted. Final NRCS determination issued.

  36. Preliminary Technical Determinations 7 CFR 614.101 Title XII Conservation Programs ONLY Preliminary technical determination will become final 30 calendar days from the notification date if the landowner or program participant does not request any of the following:

  37. Preliminary Technical Determinations (continued) • A field visit for reconsideration • Mediation • Expedited finality

  38. All preliminary technical determinations … • Must be in writing. • Shall inform the landowner or program participant of the following: • The statutory or regulatory basis for the technical determination or decision; • Specify the regulations and generally applicable interpretations of the regulations governing the technical determination or decision;

  39. All preliminary technical determinations … • Specify the factual basis for the technical determination or decision; and • Give notice of the rights and options that a program participant may have in the NRCS informal appeals process.

  40. Required Documentation • All decisions, whether preliminary or final MUST be fully documented, including any verbal discussions held between the client and the NRCS representative. • Any information conveyed verbally should be confirmed in writing with the client (email can be used.)

  41. Determinations issued for Program Eligibility… • Determination notifications issued strictly to inform a program applicant of eligibility for or participation in an NRCS financial assistance conservation program shall be final upon issue.

  42. Reconsideration… • A request for reconsideration must be submitted in writing by a participant or by a participant’s authorized representative. • A participant’s right to request reconsideration is waived if, before requesting reconsideration, a participant:

  43. Reconsideration… • Has requested and begun mediation of the preliminary technical determination or decision; • Has requested an appeal of the final determination or decision to either a higher reviewing authority within NRCS or to the FSA county committee of jurisdiction. • Has appealed to NAD.

  44. Reconsideration… • NRCS will consider a request for reconsideration of an adverse determination or decision except when the request concerns a determination or decision that has been mediated, the decision or determination has been previously reconsidered, or the decision-maker is the Chief, or other official outside of NRCS’s informal appeals process.

  45. Reconsideration… • The official record of a decision on reconsideration will be the decision letter that is issued following disposition of the reconsideration request.

  46. Final Technical Determinations Title XII Conservation Programs Only

  47. Final Technical Determinations • 7 CFR 614.103 – Title XII Preliminary technical determinations shall become final: • 30 days after receipt of the notification • After a field visit • After mediation • After a request for expedited finality

  48. Expedited Finality… • A program participant may request, in writing, that a preliminary technical determination become final prior to the expiration of the 30-day period and without a field review for reconsideration.

  49. Added Definition of Final Determination… Where eligibility for participation in a conservation program (e.g. Conservation Reserve Program; Environmental Quality Incentives Program) relies upon a technical determination by NRCS that otherwise would not present an adverse technical determination or decision as set forth in Sec. 614.1(a) until use by the agency personnel or county or area FSA committee or personnel for the purposes of determining program eligibility shall be final when NRCS provides the technical determination or decision to the conservation program officials that requested the technical determination or decision. This authority does not apply to technical determinations made strictly for adherence to the provisions of Part 12 of this Title.

  50. Final Decisions Non-Title XII Conservation Programs Only

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