### §6992. National Appeals Division and Director

#### (a) Establishment of Division

The Secretary shall establish and maintain an independent National Appeals Division within the Department to carry out this subchapter.

#### (b) Director

#### (1) Appointment

The Division shall be headed by a Director, appointed by the Secretary from among persons who have substantial experience in practicing administrative law. In considering applicants for the position of Director, the Secretary shall consider persons currently employed outside Government as well as Government employees.

#### (2) Term and removal

The Director shall serve for a 6-year term of office, and shall be eligible for reappointment. The Director shall not be subject to removal during the term of office, except for cause established in accordance with law.

#### (3) Position classification

The position of the Director may not be a position in the excepted service or filled by a noncareer appointee.

#### (c) Direction, control, and support

#### (1) Direction and control

#### (A) In general

Except as provided in paragraph (2), the Director shall be free from the direction and control of any person other than the Secretary or the Deputy Secretary of Agriculture.

#### (B) Administrative support

The Division shall not receive administrative support (except on a reimbursable basis) from any agency other than the Office of the Secretary.

#### (C) Prohibition on delegation

The Secretary may not delegate to any other officer or employee of the Department, other than the Deputy Secretary of Agriculture or the Director, the authority of the Secretary with respect to the Division.

#### (2) Exception

The Assistant Secretary for Administration is authorized to investigate, enforce, and implement the provisions in law, Executive order, or regulations that relate in general to competitive and excepted service positions and employment within the Division, including the position of Director, and such authority may be further delegated to subordinate officials.

#### (d) Determination of appealability of agency decisions

If an officer, employee, or committee of an agency determines that a decision is not appealable and a participant appeals the decision to the Director, the Director shall determine whether the decision is adverse to the individual participant and thus appealable or is a matter of general applicability and thus not subject to appeal. The determination of the Director as to whether a decision is appealable shall be administratively final.

#### (e) Division personnel

#### (1) In general

The Director shall recommend to the Secretary persons for appointment as hearing officers as are necessary for the conduct of hearings under section 6997 of this title. The Director shall appoint such other employees as are necessary for the administration of the Division. A hearing officer or other employee of the Division shall have no duties other than those that are necessary to carry out this subchapter. Each position of the Division shall be filled by an individual who is not a political appointee.

#### (2) Political appointee

In this subsection, the term "political appointee" means an individual occupying—

(A) a position described under sections 5312 through 5316 of title 5 (relating to the Executive Schedule);

(B) a noncareer position in the Senior Executive Service, as described under section 3132(a)(7) of that title;

(C) a position in the executive branch of the Government of a confidential or policy-determining character under schedule C of subpart C of part 213 of title 5, Code of Federal Regulations; or

(D) a position which has been excepted from the competitive service by reason of its confidential, policy-determining, policy-making, or policy-advocating character.

(Pub. L. 103–354, title II, §272, Oct. 13, 1994, 108 Stat. 3229; Pub. L. 113–79, title I, §1610(a), Feb. 7, 2014, 128 Stat. 709; Pub. L. 115–334, title XII, §12412, Dec. 20, 2018, 132 Stat. 4980.)

#### **Editorial Notes**

#### References in Text

This subchapter, referred to in subsec. (e), was in the original "this subtitle", meaning subtitle H (§§271–283) of title II of Pub. L. 103–354, Oct. 13, 1994, 108 Stat. 3228, which enacted this subchapter, amended sections 2006 and 5101 to 5106 of this title and section 2202e of Title 12, Banks and Banking, and repealed sections 1433e and 1983b of this title.

#### Amendments

2018—Subsec. (e). Pub. L. 115–334 amended subsec. (e) generally. Prior to amendment, text read as follows: "The Director shall appoint such hearing officers and other employees as are necessary for the administration of the Division. A hearing officer or other employee of the Division shall have no duties other than those that are necessary to carry out this subchapter."

2014—Subsec. (c). Pub. L. 113–79 added subsec. (c) and struck out former subsec. (c). Prior to amendment, text read as follows: "The Director shall be free from the direction and control of any person other than the Secretary. The Division shall not receive administrative support (except on a reimbursable basis) from any agency other than the Office of the Secretary. The Secretary may not delegate to any other officer or employee of the Department, other than the Director, the authority of the Secretary with respect to the Division."