II

103D CONGRESS

1ST SESSION S. 1425

To establish a National Appeals Division of the Department of Agriculture

to hear appeals of adverse decisions made by certain agencies of the

Department, and for other purposes.

IN THE SENATE OF THE UNITED STATES

AUGUST 6 (legislative day, JUNE 30), 1993

Mr. CONRAD (for himself, Mr. DASCHLE, and Mr. DORGAN) introduced the

following bill; which was read twice and referred to the Committee on Agriculture, Nutrition, and Forestry

A BILL

To establish a National Appeals Division of the Department

of Agriculture to hear appeals of adverse decisions made

by certain agencies of the Department, and for other

purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘USDA National Appeals Division Act of 1993’’.

6 (b) TABLE OF CONTENTS.—The table of contents of

7 this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Definitions.
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Sec. 3. National Appeals Division.

Sec. 4. Notice and opportunity for hearing.

Sec. 5. Informal hearings and meetings; appealable decisions.

Sec. 6. Access to materials.

Sec. 7. Hearings.

Sec. 8. Administrative appeal review.

Sec. 9. Judicial review.

Sec. 10. Implementation of final determinations of Division.

Sec. 11. Evaluation of employees.

Sec. 12. Prohibition on adverse action while appeal pending.

Sec. 13. Registry of advocates.

Sec. 14. Relationship to other laws.

Sec. 15. Transfer of functions.

Sec. 16. Authorization of appropriations.

Sec. 17. State mediation programs.

Sec. 18. Conforming amendments.

Sec. 19. Effective date.

1 SEC. 2. DEFINITIONS.

2 As used in this Act (unless the context clearly re3 quires otherwise):

4 (1) ADVERSE DECISION.—

5 (A) IN GENERAL.—The term ‘‘adverse de6 cision’’ means an administrative decision made

7 by a decision-maker that is adverse to an appel8 lant, including a denial of equitable relief, ex9 cept that the term shall not include a decision

10 made by the Board of Contract Appeals with

11 respect to a contract appeal.

12 (B) FAILURE TO ISSUE DECISION.—The

13 failure of an agency to issue a decision on the

14 request or right of an appellant to participate

15 in, or receive payments, loans, or other benefits

16 in accordance with, any of the programs admin17 istered by an agency—
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1 (i) shall be considered an adverse de2 cision if the decision is not issued within a

3 period prescribed by statute or regulation;

4 or

5 (ii) may be considered an adverse de6 cision if—

7 (I) a period is not prescribed by

8 statute or regulation; or

9 (II) the decision is not issued

10 within a reasonable period of time.

11 (2) AGENCY.—The term ‘‘agency’’ means—

12 (A) the Agricultural Stabilization and Con13 servation Service;

14 (B) the Commodity Credit Corporation;

15 (C) the Farmers Home Administration;

16 (D) the Federal Crop Insurance Corpora17 tion;

18 (E) the Rural Development Administra19 tion;

20 (F) the Soil Conservation Service;

21 (G) a State or county committee estab22 lished under section 8(b) of the Soil Conserva23 tion and Domestic Allotment Act (16 U.S.C.

24 590h(b)); or
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1 (H) a successor to an agency referred to in

2 subparagraphs (A) through (G).

3 (3) APPELLANT.—The term ‘‘appellant’’ means

4 any person or entity—

5 (A) whose request or right to participate

6 in, or receive payments, loans, or other benefits

7 in accordance with, any of the programs admin8 istered by an agency is affected by an adverse

9 decision made by a decisionmaker; and

10 (B) who appeals the adverse decision in ac11 cordance with this Act.

12 (4) CASE RECORD.—The term ‘‘case record’’

13 means all the materials maintained by the Secretary

14 that concern the appellant, including materials so

15 maintained that are used to make the adverse

16 decision.

17 (5) DECISIONMAKER.—The term ‘‘decision18 maker’’ means—

19 (A) an officer or employee of an agency; or

20 (B) in the case of a State or county com21 mittee referred to in paragraph (2)(G), the

22 State or county committee,

23 who makes an adverse decision that is appealed by

24 an appellant.
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1 (6) DEPARTMENT.—The term ‘‘Department’’

2 means the United States Department of Agriculture.

3 (7) DIRECTOR.—The term ‘‘Director’’ means

4 the Director of the Division.

5 (8) DIVISION.—The term ‘‘Division’’ means the

6 National Appeals Division established by this Act.

7 (9) EMPLOYEE.—The term ‘‘employee’’ means

8 an individual employed by an agency, including an

9 individual who enters into a contract with an agency

10 to perform services for the agency.

11 (10) EX PARTE COMMUNICATION.—The term

12 ‘‘ex parte communication’’ means an oral or written

13 communication not on the public record with respect

14 to which reasonable prior notice to all parties is not

15 given, except that the term shall not include a re16 quest for a status report on any matter or proceed17 ing.

18 (11) FINAL DETERMINATION.—The term ‘‘final

19 determination’’ means a determination of an appeal

20 by the Division that is administratively final, conclu21 sive, and binding.

22 (12) FINAL DETERMINATION NOTICE.—The

23 term ‘‘final determination notice’’ means a written

24 determination on an appeal sent to an appellant
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1 under paragraph (8) of section 7(b) or subsection

2 (d) or (e)(4) of section 8.

3 (13) FUNCTION.—The term ‘‘function’’ means

4 any duty, obligation, power, authority, responsibility,

5 right, privilege, activity, or program.

6 (14) HEARING OFFICER.—The term ‘‘hearing

7 officer’’ means an individual employed by the Divi8 sion who hears and determines appeals.

9 (15) HEARING RECORD.—The term ‘‘hearing

10 record’’ means the transcript of a hearing, any audio

11 tape or similar recording of a hearing, any informa12 tion from the case record that a hearing officer con13 siders relevant or that is raised by the appellant or

14 agency, and all documents and other evidence pre15 sented to a hearing officer.

16 (16) IMPLEMENT.—The term ‘‘implement’’

17 means to effectuate fully and promptly a final deter18 mination of the Division not later than 30 calendar

19 days after the effective date of the final determina20 tion specified in section 7(h)(2).

21 (17) PARTICIPANT.—The term ‘‘participant’’

22 means any person whose application for or right to

23 participate in, or receive payments, loans, or other

24 benefits in accordance with, any of the programs ad-
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1 ministered by an agency is affected by an adverse

2 decision made by a decisionmaker.

3 (18) SECRETARY.—The term ‘‘Secretary’’

4 means the Secretary of Agriculture.

5 (19) STATE DIRECTOR.—The term ‘‘State di6 rector’’ means the individual who is primarily re7 sponsible for carrying out the program of an agency

8 within a State.

9 SEC. 3. NATIONAL APPEALS DIVISION.

10 (a) ESTABLISHMENT.—The Secretary shall establish

11 and maintain a National Appeals Division, within the Of12 fice of the Secretary, to carry out this Act.

13 (b) DIRECTOR.—

14 (1) IN GENERAL.—

15 (A) APPOINTMENT.—The Division shall be

16 headed by a Director, appointed by the Sec17 retary from among individuals (including indi18 viduals who are attorneys and individuals who

19 are not attorneys) with substantial experience

20 in practicing administrative law. The position of

21 the Director shall be a Senior Executive Service

22 position (as defined in section 3132(a)(2) of

23 title 5, United States Code) that shall be filled

24 by a career appointee (as defined in section
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1 3132(a)(4) of such title) or noncareer appointee

2 (as defined in section 3132(a)(7) of such title).

3 (B) REMOVAL.—The Secretary may only

4 remove the Director for maladministration, mal5 feasance, neglect of duty, or otherwise in ac6 cordance with statutes and regulations govern7 ing Federal employee personnel.

8 (2) POWERS.—

9 (A) IN GENERAL.—To carry out this Act,

10 the Secretary shall promulgate procedural regu11 lations and policies governing the conduct of

12 the business of the Division consistent with this

13 Act and chapters 5 and 6 of title 5, United

14 States Code, including—

15 (i) the conduct of appeals;

16 (ii) the standard of review;

17 (iii) guidelines for the type of evidence

18 that is necessary to justify an adverse deci19 sion by an agency;

20 (iv) the conduct of reviews of appeals;

21 (v) the appeals process; and

22 (vi) other actions affecting the proce23 dural rights of appellants.

24 (B) REGULATIONS.—In promulgating reg25 ulations under subparagraph (A), the Secretary
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1 shall ensure and enhance the independence, in2 tegrity, and efficiency of the Division, the Di3 rector, hearing officers, and other employees of

4 the Division.

5 (C) DELEGATION.—The Secretary may

6 delegate the authority of the Secretary to pro7 mulgate the regulations to the Director.

8 (D) APPEALABLE DECISIONS.—If a

9 decisionmaker determines that an adverse deci10 sion is not appealable and the participant ap11 peals the determination to the Director, the Di12 rector shall determine whether the decision is

13 appealable.

14 (3) DIRECTION, CONTROL, AND SUPPORT.—The

15 Director shall be free from the direction and control

16 of any person other than the Secretary, and shall

17 not receive administrative support (except on a reim18 bursable basis) from any person other than the Of19 fice of the Secretary.

20 (4) LEVEL V OF EXECUTIVE SCHEDULE.—Sec21 tion 5316 of title 5, United States Code, is amended

22 by adding at the end the following:

23 ‘‘Director, National Appeals Division, Depart24 ment of Agriculture.’’.

25 (c) LEGAL COUNSEL.—
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1 (1) IN GENERAL.—The Director shall employ

2 legal counsel to advise the Director and hearing offi3 cers of the Division with respect to such legal ques4 tions as the Director considers appropriate for the

5 Division. A legal counsel shall not serve as a counsel

6 to any other division or agency of the Department.

7 (2) CONSTRUCTION.—Paragraph (1) is not in8 tended to affect the role of the Office of General

9 Counsel in representing the Department in civil or

10 criminal actions or as a liaison between the Depart11 ment and the Department of Justice.

12 (d) DIRECTOR, HEARING OFFICERS, AND OTHER

13 EMPLOYEES.—

14 (1) IN GENERAL.—The Director shall appoint

15 such hearing officers and other employees as are

16 necessary for the administration of the Division.

17 (2) POWERS OF THE DIRECTOR AND HEARING

18 OFFICERS.—To carry out this Act, the Director and

19 hearing officers—

20 (A) shall have access to all records, re21 ports, audits, reviews, documents, papers, rec22 ommendations, or other material available that

23 relate to programs and operations with respect

24 to which an appeal has been taken;
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1 (B) may request such information or as2 sistance as may be necessary for carrying out

3 the duties and responsibilities established under

4 this Act from any Federal, State, or local gov5 ernmental agency or unit of the agency;

6 (C) may, or shall at the request of an ap7 pellant with good cause shown, require the at8 tendance of witnesses, the production of all

9 information, documents, reports, answers,

10 records, accounts, papers, and other data and

11 documentary evidence necessary to the proper

12 resolution of appeals;

13 (D) may permit testimony to be taken by

14 deposition, if it is inconvenient for a witness to

15 attend a hearing;

16 (E) may, if appropriate, require the at17 tendance of witnesses and production of docu18 mentary evidence by subpoena, which subpoena,

19 in the case of contumacy or refusal to obey,

20 shall be enforceable by order of any appropriate

21 United States district court;

22 (F) may administer oaths and affirma23 tions, whenever necessary in the process of

24 hearing appeals; and
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1 (G) in the case of the Director, may enter

2 into contracts and other arrangements for re3 porting and other services and make such pay4 ments as may be necessary to carry out this

5 Act.

6 (3) EXCLUSIVE EMPLOYMENT.—An employee of

7 the Division shall have no duties other than those

8 that are necessary to carry out this Act.

9 (4) DIRECTION AND CONTROL.—

10 (A) HEARING OFFICERS.—Hearing offi11 cers—

12 (i) shall be generally supervised by the

13 Director; and

14 (ii) shall not receive administrative

15 support (except on a reimbursable basis)

16 from offices other than the Division.

17 (B) OTHER EMPLOYEES.—All other em18 ployees of the Division—

19 (i) shall report to the Director; and

20 (ii) shall not be under the direction or

21 control of, or receive administrative sup22 port (except on a reimbursable basis) from,

23 offices other than the Division.

24 (5) EX PARTE COMMUNICATIONS.—
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1 (A) IN GENERAL.—While a proceeding is

2 in adjudicative status within the Division, ex3 cept to the extent required for the disposition of

4 ex parte matters as authorized by law—

5 (i) no person not employed by the Di6 vision, and no employee or agent of the Di7 vision who performs investigative or pros8 ecuting functions in adjudicative proceed9 ings shall make or knowingly cause to be

10 made to any member of the Division or to

11 any other employee who is or who reason12 ably may be expected to be involved in the

13 decisional process in the proceeding, an ex

14 parte communication relevant to the merits

15 of the proceeding or a factually related

16 proceeding; and

17 (ii) no member of the Division or any

18 other employee who is or who reasonably

19 may be expected to be involved in the

20 decisional process in the proceeding shall

21 make or knowingly cause to be made to

22 any person not employed by the Division,

23 or to any employee or agent of the Division

24 who performs investigative or prosecuting

25 functions in adjudicative proceedings, an
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1 ex parte communication relevant to the

2 merits of the proceeding or a factually re3 lated proceeding.

4 (B) PROCEDURES.—

5 (i) IN GENERAL.—The Director or

6 any other employee who is or who may rea7 sonably be expected to be involved in the

8 decisional process who receives or who

9 makes or knowingly causes to be made, a

10 communication prohibited by subparagraph

11 (A) shall promptly provide to the Direc12 tor—

13 (I) all such written communica14 tions;

15 (II) memoranda stating the sub16 stance of and circumstances of all

17 such oral communications; and

18 (III) all written responses, and

19 memoranda stating the substance of

20 all oral responses, to the materials de21 scribed in subclauses (I) and (II).

22 (ii) HEARING RECORD.—The Director

23 shall make relevant portions of any such

24 materials part of the hearing record, ex25 cept that the materials shall not be consid-
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1 ered by the Division as part of the hearing

2 record for purposes of decision unless in3 troduced into evidence in the proceeding.

4 (iii) PARTIES.—The Director shall

5 also send copies of the materials to or oth6 erwise notify all parties to the proceeding.

7 (C) DIVISION EMPLOYEES.—The prohibi8 tions of subparagraph (A) shall not apply to a

9 communication between—

10 (i) any member of the Division or any

11 other employee who is or who reasonably

12 may be expected to be involved in the

13 decisional process; and

14 (ii) any employee who has been di15 rected by the Division or requested by the

16 Division to assist in the decision of the ad17 judicative proceeding, other than an em18 ployee who performs an investigative or

19 prosecuting function in the proceeding or a

20 factually related proceeding.

21 (e) RESOURCES AND PERSONNEL.—The Secretary

22 shall ensure that—

23 (1) the Division has resources and personnel

24 that are adequate to hear and determine all initial

25 appeals in the State of residence of an appellant on
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1 a timely basis and to otherwise carry out this Act;

2 and

3 (2) hearing officers, and employees who assist

4 the Director in reviewing appeals and determina5 tions, receive training and retraining adequate for

6 the duties on initial employment and at regular in7 tervals after initial employment.

8 (f) DELEGATION AND REVIEW.—The Secretary may

9 not delegate to any other person (other than the Director)

10 the authority of the Secretary with respect to the Division.

11 (g) REPORTS AND STUDIES.—

12 (1) IN GENERAL.—The Director shall issue

13 such reports, and conduct and provide such studies,

14 to the Secretary and the head of an agency as the

15 Director determines are necessary to identify and re16 solve problems of the agency with respect to imple17 mentation of—

18 (A) statutes, policies, procedures, and reg19 ulations of the agency, based on final deter20 minations of the Division; and

21 (B) final determinations of the Division.

22 (2) SUBMISSION OF REPORTS TO CONGRESS.—

23 Not later than 30 days after receipt of the reports,

24 the Secretary shall transmit the reports unaltered to

25 the Committee on Agriculture of the House of Rep-
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1 resentatives and the Committee on Agriculture, Nu2 trition, and Forestry of the Senate, together with

3 any report by the Secretary or the relevant agency

4 head containing any comments the Secretary or rel5 evant agency head considers appropriate.

6 (3) AVAILABILITY TO PUBLIC.—The reports

7 and studies referred to in paragraph (1) shall be

8 made available to the public.

9 (h) INDEX OF DETERMINATIONS.—

10 (1) IN GENERAL.—The Director shall develop a

11 subject-matter index of all significant final deter12 minations of the Division that are considered by the

13 Director to—

14 (A) be precedential; or

15 (B) otherwise establish a principle that—

16 (i) governs recurring cases with simi17 lar facts;

18 (ii) develops Division policy and ex19 ceptions to the policy in areas in which the

20 law is unsettled;

21 (iii) deals with important emerging

22 trends; or

23 (iv) provides examples of the appro24 priate resolution of major types of cases

25 not otherwise indexed.
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1 (2) AVAILABILITY TO PUBLIC.—The Director

2 shall publicize the index and make the index and the

3 final determinations so indexed available to the pub4 lic.

5 (3) PUBLIC INFORMATION.—A final determina6 tion of the Division shall be subject to the require7 ments of section 552 of title 5, United States Code.

8 SEC. 4. NOTICE AND OPPORTUNITY FOR HEARING.

9 (a) IN GENERAL.—Not later than 10 working days

10 after an adverse decision affecting a participant, the Sec11 retary shall provide the participant with written notice

12 of—

13 (1) the decision, including all of the reasons,

14 facts, and conclusions underlying the adverse deci15 sion;

16 (2) the right of the participant to have an infor17 mal hearing or meeting with the decisionmaker on

18 the adverse decision;

19 (3) the availability of any State mediation pro20 gram under section 501 of the Agricultural Credit

21 Act of 1987 (7 U.S.C. 5101) to assist the partici22 pant in resolving a dispute with the agency that is23 sued the adverse decision;
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1 (4) the availability of any formal administrative

2 appeals within an agency and any requirement to ex3 haust the administrative appeals;

4 (5) the right of the participant to have a hear5 ing by the Division on the adverse decision not later

6 than 45 calendar days after receipt of the request of

7 the participant for a hearing, except that the Direc8 tor may establish an earlier deadline for a hearing

9 on an appeal relating to a time sensitive decision,

10 such as a decision relating to a release of normal in11 come security or an operating loan;

12 (6) if the decisionmaker asserts that the ad13 verse decision is nonappealable, an opportunity to

14 request a determination by the Director concerning

15 whether an adverse decision is appealable; and

16 (7) a description of the procedure to—

17 (A) exhaust all formal administrative ap18 peals within the agency;

19 (B) appeal the adverse decision to the Di20 vision (including any deadlines for filing an ap21 peal); and

22 (C) if the decisionmaker asserts that the

23 adverse decision is not appealable, request a de24 termination by the Director of whether the deci25 sion is appealable.
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1 (b) RECORDS.—The Secretary shall maintain all of

2 the materials on which an adverse decision is based with

3 respect to a participant at least until the expiration of the

4 period during which the participant may seek administra5 tive or judicial review of the decision.

6 (c) JOINDER.—

7 (1) IN GENERAL.—A borrower or applicant who

8 applies for a loan on which a guarantee is requested,

9 or who has received a guaranteed loan, under the

10 Consolidated Farm and Rural Development Act (7

11 U.S.C. 1921 et seq.) and who is directly and ad12 versely affected by a decision of the Secretary, may

13 appeal the decision under this Act without the lender

14 joining in the appeal.

15 (2) RENTAL HOUSING.—A tenant in rental

16 housing of an agency who is individually, directly

17 and adversely affected by a decision of the Sec18 retary, may appeal the decision under this Act with19 out the landlord joining in the appeal.

20 (3) THIRD PARTIES.—

21 (A) IN GENERAL.—If appropriate to pro22 tect the rights of a participant (other than the

23 appellant) that may be directly, substantially,

24 and adversely affected by a decision of the Divi25 sion, a hearing officer may invite the partici-
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1 pant to participate in a hearing if the final de2 termination resulting from the hearing would,

3 as a practical matter, foreclose the participant

4 from protecting the rights of the participant

5 that may be adversely affected by the final de6 termination.

7 (B) PROCEDURAL RIGHTS FOR PARTICI8 PANTS.—If the participant elects to participate

9 in the hearing, the participant shall have the

10 same procedural rights as the appellant with re11 gard to the hearing and other procedures de12 scribed in this Act.

13 (C) NO APPEAL RIGHTS FOR

14 NONPARTICIPANTS.—If the participant is in15 vited to participate in a hearing by the hearing

16 officer and the participant elects not to partici17 pate in the hearing, the participant may not in18 stitute an appeal with respect to the implemen19 tation of any final determination resulting from

20 the hearing.

21 (D) BASIS FOR INVITING PARTICIPANTS.—

22 The decision to invite a participant under sub23 paragraph (A) shall be made at the discretion

24 of the hearing officer taking into account—
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1 (i) any request to participate made by

2 the participant;

3 (ii) any request by the appellant to in4 clude or exclude the participant;

5 (iii) any request by the decisionmaker

6 to include or exclude the participant;

7 (iv) the opportunity the participant

8 would have to appeal the decision in a sep9 arate proceeding and whether the appeal

10 would be adequate to protect the rights of

11 the participant; and

12 (v) such other factors as may be spec13 ified in regulations issued by the Director.

14 (d) BASIS FOR DECISIONS.—A decisionmaker—

15 (1) shall base an adverse decision on the infor16 mation that is available to the decisionmaker at the

17 time the initial adverse decision is made; and

18 (2) may not base any subsequent adverse deci19 sion on information that was previously available to

20 the decisionmaker if that information could have

21 been used to support the initial adverse decision.

22 SEC. 5. INFORMAL HEARINGS AND MEETINGS; APPEAL23 ABLE DECISIONS.

24 (a) INFORMAL HEARINGS.—If an officer or employee

25 of the Agricultural Stabilization and Conservation Service,
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1 Commodity Credit Corporation, or Soil Conservation Serv2 ice makes an adverse decision, the appropriate State or

3 county committee established under section 8(b) of the

4 Soil Conservation and Domestic Allotment Act (16 U.S.C.

5 590h(b)), or (if applicable) an officer or employee of the

6 Agricultural Stabilization and Conservation Service or the

7 Soil Conservation Service, may, at the request of the par8 ticipant, hold an informal hearing on the decision.

9 (b) INFORMAL MEETINGS.—If the Farmers Home

10 Administration or the Rural Development Administration

11 makes an adverse decision, the decisionmaker may, at the

12 request of the appellant, hold an informal meeting with

13 the appellant after the appellant has requested a hearing,

14 and before any hearing on the decision of the

15 decisionmaker by the Division. At a reasonable time prior

16 to the informal meeting, the decisionmaker shall provide

17 to the appellant, and any representative of the appellant,

18 access to materials in accordance with section 6(a).

19 (c) APPEALABLE DECISIONS.—In a case described in

20 paragraph (5) or (6) of section 4(a), the determination

21 of the Director as to whether an adverse decision is ap22 pealable shall be administratively final, conclusive, and

23 binding.
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1 SEC. 6. ACCESS TO MATERIALS.

2 (a) IN GENERAL.—An appellant shall have the right

3 to have—

4 (1) access to all of the materials in the case

5 record, including a reasonable opportunity to inspect

6 and reproduce the record at an office of the agency

7 located in the area of the appellant;

8 (2) representation by an attorney or a person

9 who is not an attorney during the inspection and re10 production of records under paragraph (1) and at

11 any informal meeting or hearing or Division hearing;

12 and

13 (3) witnesses present at the hearing.

14 (b) CHARGES.—The Secretary may charge an appel15 lant for any reasonable costs incurred in the reproduction

16 of records under subsection (a)(1).

17 SEC. 7. HEARINGS.

18 (a) CONDUCT OF HEARING.—At a minimum, at a

19 hearing conducted under this Act, the appellant shall be

20 given a full opportunity to present argument, oral and

21 written evidence, facts, and information relevant to the

22 matter at issue.

23 (b) HEARINGS.—

24 (1) TIMING.—An appellant shall have the right

25 to have a hearing by the Division on an adverse de26 cision not later than 45 calendar days after receipt
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1 of the request of the participant for a hearing, ex2 cept that the Director may establish an earlier dead3 line for a hearing on an appeal relating to a time

4 sensitive decision, such as a decision relating to a re5 lease of normal income security or an operating

6 loan.

7 (2) DE NOVO HEARING.—A hearing before a

8 hearing officer shall be de novo. An appellant shall

9 have a full opportunity to present information rel10 evant to the appeal.

11 (3) HEARING OFFICERS.—A hearing officer

12 within the Division in a State shall hear and deter13 mine a formal appeal of an adverse decision, that is

14 subject to this Act and is made by a county super15 visor, county committee, State committee, district di16 rector, State director, or other officer or employee of

17 an agency, in a fair and impartial manner and free

18 of undue influence. The determination shall be based

19 on information from the hearing record and the ap20 plicable statutes and regulations described in sub21 section (g).

22 (4) LOCATION OF HEARINGS.—A hearing shall

23 be held in the State of residence of the appellant or

24 at a location that is otherwise convenient to the ap25 pellant and the Division.
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1 (5) TELEPHONE.—At the request of an appel2 lant, a hearing may be conducted over the telephone.

3 (6) WAIVER OF HEARING.—An appellant may

4 waive the right to a hearing on an adverse decision.

5 If an appellant waives the right to a hearing, the

6 hearing officer shall issue a determination based on

7 a review of the case record of the appellant and on

8 information submitted by the appellant or the agen9 cy to the hearing officer.

10 (7) BURDEN OF PROOF.—An agency shall bear

11 the burden of justifying an adverse decision of the

12 agency at a hearing, including the burden of proving

13 the justifying evidence and the basis for the decision

14 in statutes and regulations.

15 (8) DETERMINATION NOTICE.—The hearing of16 ficer shall issue a determination notice on the appeal

17 of the adverse decision not later than 30 calendar

18 days after a hearing or after receipt of the request

19 of the appellant to waive a hearing, except that the

20 Director may establish an earlier deadline for a de21 termination notice relating to a time sensitive deci22 sion, such as a decision relating to a release of nor23 mal income security or an operating loan.

24 (9) REVIEW BY DIRECTOR.—
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1 (A) REFERRAL.—A determination of a

2 hearing officer shall, on request and election of

3 the appellant, be referred to the Director for re4 view.

5 (B) ACTIONS.—Not later than 30 calendar

6 days after the referral to the Director, the Di7 rector shall—

8 (i) review the hearing record and the

9 determination;

10 (ii) uphold the determination, issue a

11 new determination, require that a new

12 hearing be held on one or more of the is13 sues considered at the original hearing, or

14 take any combination of the actions de15 scribed in this clause; and

16 (iii) issue a determination notice.

17 (c) PRODUCTION OF RECORD.—

18 (1) VERBATIM RECORDING.—Each hearing be19 fore a hearing officer in the Division shall be re20 corded verbatim by voice recorder, stenographer, or

21 other method.

22 (2) PERSONAL RECORD.—An appellant or agen23 cy representative may record a hearing with a voice

24 recorder or stenographer for personal use. A record

25 made under this paragraph shall be excluded from
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1 consideration during any review of the determination

2 of the hearing officer.

3 (3) AVAILABILITY TO APPELLANT.—A tran4 script of the hearing, together with a copy of any

5 audio recording of the hearing under paragraph (1)

6 and copies of all documents and evidence submitted,

7 shall be made available to the appellant, on request,

8 if the decision of the hearing officer is appealed.

9 (d) USE OF RECORD.—If the decision of a hearing

10 officer is appealed, the hearing officer shall certify the

11 hearing record and otherwise provide the certified hearing

12 record to the Director. The hearing record, and any addi13 tional information from any further appeal proceedings,

14 shall be retained by the Division at least until the expira15 tion of the period during which the appellant may seek

16 judicial review of the adverse decision or final determina17 tion notice.

18 (e) NEW INFORMATION.—

19 (1) HEARING.—A hearing officer shall consider

20 information presented at the hearing without regard

21 to whether the evidence was known to the

22 decisionmaker at the time the adverse decision was

23 made. The hearing officer shall leave the record

24 open for a reasonable period of time and allow the

25 submission of information after the hearing to the
29

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1 extent necessary to prevent the appellant or the

2 decisionmaker from being prejudiced by new facts,

3 information, arguments, or evidence presented or

4 raised by the decisionmaker or appellant.

5 (2) REVIEW.—The Director may, under ex6 traordinary circumstances, consider new information

7 in reviewing a determination under this section or

8 section 8. An appellant and the decisionmaker shall

9 receive and have the opportunity to comment on the

10 new information. If a determination of a hearing of11 ficer is reviewed by the Director, and new informa12 tion is considered, the hearing officer shall have the

13 opportunity to comment on the new information.

14 (f) FINDINGS OF FACT.—The Director shall not re15 verse the determination of a hearing officer or the Direc16 tor under this section or section 8 as to a finding of fact

17 that is based on oral testimony or inspection of evidence

18 unless—

19 (1) the finding of fact is clearly erroneous; or

20 (2) the Director is considering new information

21 under subsection (e)(2) with respect to the finding

22 of fact.

23 (g) CONSIDERATION OF STATUTES AND REGULA24 TIONS.—In considering the merits of an appeal, a hearing

25 officer and the Director shall base a determination on and
30

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1 consider applicable statutes, and regulations published in

2 the Code of Federal Regulations, in effect and available

3 to the public on the date the decision appealed from was

4 made. The Director shall have the same authority as the

5 Secretary to grant equitable relief.

6 (h) FINALITY.—

7 (1) IN GENERAL.—Except as provided in sub8 section (b) of section 7 and in section 8, the deter9 mination of a hearing officer or the Director shall be

10 administratively final, conclusive, and binding on the

11 relevant agency.

12 (2) EFFECTIVE DATE OF FINAL DETERMINA13 TIONS.—A final determination made by the Division

14 under this Act shall be effective as of—

15 (A) in the case of the Agricultural Sta16 bilization Service, the Commodity Credit Cor17 poration, the Federal Crop Insurance Corpora18 tion, or the Soil Conservation Service, the date

19 of filing an application or the date of the trans20 action or event in question, whichever is appli21 cable; and

22 (B) in the case of the Farmers Home Ad23 ministration and the Rural Development Ad24 ministration the date of the original adverse de25 cision.
31

•S 1425 IS

1 SEC. 8. ADMINISTRATIVE APPEAL REVIEW.

2 (a) REVIEW OF DECISION OF HEARING OFFICER OR

3 DIRECTOR.—In extraordinary circumstances, if an agency

4 head believes that the decision of a hearing officer or the

5 Director is contrary to a statute or regulation of the agen6 cy, the agency head may request (in writing) that the Di7 rector review the decision of the hearing officer or the Di8 rector.

9 (b) REQUESTS FOR REVIEW.—

10 (1) TIMING.—A request for review under sub11 section (a) shall be made within 10 working days

12 after receipt by the decisionmaker of the decision of

13 the hearing officer or Director. If the relevant agen14 cy head fails to make a request for review in accord15 ance with this section, the decision of the hearing of16 ficer or the Director shall be administratively final

17 and shall be promptly implemented.

18 (2) CONTENTS.—A request for review shall in19 clude a full description of—

20 (A) the extraordinary circumstances justi21 fying the request for review; and

22 (B) the reasons that the relevant agency

23 head claims the decision is contrary to applica24 ble statutes or regulations of the relevant agen25 cy and the citations for the statutes or regula26 tions.
32

•S 1425 IS

1 (3) COPY TO APPELLANT AND HEARING OFFI2 CER.—A copy of the request shall be provided to the

3 appellant and the hearing officer at the same time

4 the request is provided to the Director. The hearing

5 officer shall immediately forward the case record to

6 the Director on receipt of a copy of the request.

7 (c) TIMING OF DETERMINATIONS BY DIRECTOR.—

8 On receiving a request for review and the case record, the

9 Director shall determine within 5 working days after re10 ceipt whether the request has merit.

11 (d) REQUESTS WITHOUT MERIT.—If the Director

12 determines that the request does not have merit, the Di13 rector shall notify the relevant agency head, the appellant,

14 and the hearing officer, in writing, that the determination

15 of the hearing officer or Director is a final determination.

16 (e) REQUESTS WITH MERIT.—

17 (1) IN GENERAL.—If the Director determines

18 that a request by the relevant agency head has

19 merit, within 10 working days after the receipt of

20 the request for review and receipt of the case record

21 (subject to paragraph (4)), the Director shall—

22 (A)(i) conduct a review of the decision

23 (based on the hearing record), the assertions

24 raised by the relevant agency head in the letter

25 of the relevant agency head requesting an ad-
33

•S 1425 IS

1 ministrative appeal review, any additional argu2 ment submitted by the appellant or the hearing

3 officer pursuant to paragraph (2), and (in ex4 traordinary circumstances) any new information

5 submitted by the relevant agency head or the

6 appellant; and

7 (ii) issue a final decision on the appeal; or

8 (B) if the Director determines the hearing

9 record is inadequate, remand the decision for

10 further proceedings to complete the hearing

11 record or, at the option of the Director, to hold

12 a new hearing.

13 (2) OPPORTUNITY FOR COMMENT.—In a review

14 conducted under paragraph (1)(A), an appellant and

15 the hearing officer (if the decision being reviewed

16 was made by a hearing officer) shall have the oppor17 tunity to—

18 (A) provide written rebuttal to a claim of

19 the relevant agency head, and in extraordinary

20 circumstances provide new information with re21 gard to the review of the Director; and

22 (B) comment in writing with regard to the

23 review.

24 (3) NEW HEARING.—If the Director remands a

25 decision to a hearing officer and directs the hearing
34

•S 1425 IS

1 officer to conduct a new hearing on the decision

2 under paragraph (1)(B), the hearing officer shall

3 make a new determination with respect to the deci4 sion based on the case record and the hearing record

5 (as modified on remand).

6 (4) NOTICE OF FINAL DETERMINATION.—The

7 Director shall notify the hearing officer, any relevant

8 agency head, and the appellant, in writing, of the

9 final determination or other disposition of the re10 quest for review.

11 (5) EXTENSION OF DEADLINE.—The period of

12 time for a review may be extended by the Director

13 to the extent that an appellant or hearing officer has

14 requested and received additional time during which

15 to submit arguments, rebuttal, or new information.

16 (6) FINALITY.—Subject to section 9, the deter17 mination of the Director shall be administratively

18 final and shall be promptly implemented. The rel19 evant agency may not request a second review as to

20 the determination of the hearing officer or the Di21 rector on the same issues.

22 (f) RECOMMENDATIONS.—The Director or a hearing

23 officer may include recommendations in a final determina24 tion notice.
35

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1 SEC. 9. JUDICIAL REVIEW.

2 A final determination of the Division under the proc3 ess provided for in this Act shall be reviewable and en4 forceable by a United States district court of competent

5 jurisdiction in accordance with chapter 7 of title 5, United

6 States Code.

7 SEC. 10. IMPLEMENTATION OF FINAL DETERMINATIONS OF

8 DIVISION.

9 (a) IN GENERAL.—Except as provided in sections

10 7(c) and 8, on the return of a case to a State pursuant

11 to the final determination of a hearing officer or the Direc12 tor, the State committee, county committee, or employee

13 of the relevant agency shall implement the final deter14 mination.

15 (b) ACTIONS BY RELEVANT AGENCY HEAD.—The

16 relevant agency head shall correct implementation prob17 lems, and shall make available to the public a report on

18 the status of implementation of final determinations of the

19 relevant agency head that reversed or modified an adverse

20 decision of the agency.

21 (c) IMPLEMENTATION.—

22 (1) STATE DIRECTOR.—A State director shall

23 be—

24 (A) responsible for reviewing all appeal re25 quests of adverse decisions of the State director

26 or subordinates, prior to hearings, to determine
36

•S 1425 IS

1 whether the adverse decisions should be modi2 fied or withdrawn by the decisionmaker, rather

3 than proceed with the appeals;

4 (B) required to implement final determina5 tions of a hearing officer or the Director that

6 affect appellants in the State; and

7 (C) responsible for monitoring and ensur8 ing the implementation of final determinations

9 that reverse and modify adverse decisions.

10 (2) AGENCY HEADS.—Relevant agency heads

11 shall be responsible for—

12 (A) the performance of State directors

13 under paragraph (1); and

14 (B) the implementation of all final deter15 minations of the Division that reverse or modify

16 adverse decisions of the agency.

17 (d) PROTECTION OF APPELLANTS’ RIGHTS.—

18 (1) IN GENERAL.—No officer or employee of

19 the Federal Government shall make or engage in

20 threats or intimidation, or solicit action, to prevent

21 any potential appellant from exercising the rights of

22 the appellant under this Act or make, solicit, or en23 gage in retaliation or retribution for the exercise of

24 a right of an appellant under this Act.
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•S 1425 IS

1 (2) CORRECTIVE ACTION.—If an officer or em2 ployee of the Federal Government violates paragraph

3 (1), the Secretary shall take corrective action (in4 cluding the imposition of sanctions, when necessary).

5 (e) IMPLEMENTATION PROBLEMS.—

6 (1) IN GENERAL.—The Secretary shall assign

7 employees within the Office of the Secretary whom

8 appellants may contact concerning problems with the

9 implementation of final determinations of the Divi10 sion. The employees shall investigate and, to the ex11 tent practicable, resolve the implementation prob12 lems.

13 (2) IDENTITY OF EMPLOYEES.—The Secretary

14 shall notify the Director of the name, business ad15 dress, and telephone numbers of employees assigned

16 under paragraph (1). The Director shall include this

17 information in the final determination notice of the

18 Director to an appellant.

19 (3) LETTER TO APPELLANT.—Not later than

20 30 calendar days following the issuance of a final

21 determination, the appropriate assigned employee

22 shall mail a letter to the appellant soliciting con23 firmation from the appellant that the final deter24 mination has been implemented or, if the appellant

25 believes that the decision has not been implemented,
38

•S 1425 IS

1 a description of the failure to implement the deci2 sion.

3 (4) DECISION NOT IMPLEMENTED.—If the ap4 pellant indicates that the decision has not been im5 plemented, the assigned employee shall immediately

6 undertake to ensure that the final determination is

7 implemented in accordance with this Act.

8 (5) DESCRIPTION OF IMPLEMENTING STEPS.—

9 On determining that the final determination has

10 been implemented, the relevant agency head shall

11 provide the appellant and the assigned employee

12 with a description of the steps taken by the relevant

13 agency to implement the final determination.

14 SEC. 11. EVALUATION OF EMPLOYEES.

15 (a) IN GENERAL.—The Secretary shall promulgate

16 regulations that include in an annual review the evaluation

17 of the performance of employees and officials of each

18 agency in accordance with subsection (b).

19 (b) PERFORMANCE.—As part of the review and eval20 uation, a decisionmaker, a State director, or the relevant

21 agency head shall be considered to have performed poorly

22 if the decisionmaker, State director, or relevant agency

23 head—

24 (1) takes action that leads to numerous appeals

25 that result in—
39

•S 1425 IS

1 (A) adverse decisions that are reversed or

2 modified; or

3 (B) administrative appeal reviews that are

4 determined to not have merit by the Division;

5 (2) fails to properly implement decisions;

6 (3) fails to satisfactorily perform the reviewing

7 and monitoring responsibilities required under sec8 tion 10(c); or

9 (4) threatens or intimidates, or engages in re10 taliation or retribution against, an appellant in viola11 tion of section 10(d).

12 (c) SANCTIONS.—If a decisionmaker, State director,

13 or relevant agency head has performed poorly (as de14 scribed in subsection (b) or paragraph (2) or (4) of sub15 section (d)), the Secretary shall issue sanctions against the

16 decisionmaker, State director, or relevant agency head, re17 spectively, which may include a formal reprimand or dis18 missal.

19 (d) EVALUATIONS.—

20 (1) IN GENERAL.—The Director shall establish

21 policies that, with regard to the hearing and deter22 minations of appeals, provide for the evaluation of

23 hearing officers, the Director, and other employees

24 involved in the review of appeals and determinations

25 or supervision of employees of the Division, or both,
40

•S 1425 IS

1 by parties outside the Department, which may in2 clude peers. The policies shall be made available to

3 the public.

4 (2) PROCESS.—The evaluation process shall en5 sure and enhance the independence, integrity, and

6 efficiency of the employees and the Director.

7 (3) CONSULTATION.—The policies shall be de8 veloped in consultation with the Administrative Con9 ference of the United States, appropriate organiza10 tions of administrative law judges, the Director of

11 the Office of Personnel Management, the Judicial

12 College located at the University of Nevada at Reno,

13 and hearing officers.

14 (e) BASIS FOR REVERSALS.—In conducting the eval15 uation of the number of appeals decided against the

16 decisionmaker, the Secretary should consider mitigating

17 circumstances, such as whether the reversal was based

18 solely on—

19 (1) new information not previously available to

20 the decisionmaker;

21 (2) erroneous advice from a superior to the

22 decisionmaker;

23 (3) published agency interpretations or proce24 dures that were determined to be invalid by the Di25 vision; or
41

•S 1425 IS

1 (4) the failure of a superior to provide clear in2 structions to the decisionmaker.

3 SEC. 12. PROHIBITION ON ADVERSE ACTION WHILE AP4 PEAL PENDING.

5 (a) IN GENERAL.—The Secretary may not take an

6 adverse action against an appellant relating to an appeal

7 while any proceeding authorized or required under this Act

8 is pending. In particular, the Secretary may not take any

9 action that would prevent the implementation of a final

10 determination in favor of the appellant.

11 (b) WITHHOLDING.—This section shall not preclude

12 the Secretary from withholding a payment if the eligibility

13 for, or amount of, the payment is an issue on appeal, ex14 cept that ongoing assistance to existing borrowers and

15 grantees shall not be discontinued pending the outcome

16 of an appeal.

17 SEC. 13. REGISTRY OF ADVOCATES.

18 (a) IN GENERAL.—The Director shall establish a reg19 istry consisting of individuals (including individuals who

20 are attorneys and individuals who are not attorneys) who

21 are available to represent appellants during the appeals

22 process and who apply to the Director to be included in

23 the registry.

24 (b) USE OF REGISTRY.—The Director shall provide

25 information contained in the registry to an appellant upon
42

•S 1425 IS

1 request. The Director may not recommend individuals in2 cluded in the registry.

3 SEC. 14. RELATIONSHIP TO OTHER LAWS.

4 (a) OTHER RIGHTS.—This Act is not intended to su5 persede or deprive a recipient of assistance from the rel6 evant agency of any rights that the recipient may have

7 under any other law, including section 510(g) of the Hous8 ing Act of 1949 (42 U.S.C. 1480(g)).

9 (b) EQUITABLE RELIEF.—This Act is not intended

10 to affect the authority of an agency head to grant equi11 table relief.

12 SEC. 15. TRANSFER OF FUNCTIONS.

13 (a) IN GENERAL.—There are transferred to the Divi14 sion established by this Act all functions exercised before

15 the effective date of this Act (including all related func16 tions of any officer or employee) of or relating to—

17 (1) the National Appeals Division established

18 by section 426(c) of the Agricultural Act of 1949 (7

19 U.S.C. 1433e(c)) (in effect before the amendment

20 made by section 18(a)(3));

21 (2) the National Appeals Division established

22 by subsections (d) through (g) of section 333B of

23 the Consolidated Farm and Rural Development Act

24 (7 U.S.C. 1983b) (in effect before the amendment

25 made by section 18(b)(1));
43

•S 1425 IS

1 (3) appeals of decisions made by the Federal

2 Crop Insurance Corporation; and

3 (4) appeals of decisions made by the Soil Con4 servation Service.

5 (b) CONSTRUCTION.—

6 (1) IN GENERAL.—If other provisions of this

7 Act or law conflict with this section, the other provi8 sions of this Act or law shall apply.

9 (2) TRANSFER OF FUNCTIONS ONLY.—This sec10 tion applies only to and during the transfer of func11 tions in accordance with subsection (a).

12 (c) DETERMINATIONS OF CERTAIN FUNCTIONS.—If

13 necessary, the Secretary shall make any determination of

14 the functions that are transferred under this section.

15 (d) PERSONNEL PROVISIONS.—

16 (1) APPOINTMENTS.—

17 (A) IN GENERAL.—Except as provided in

18 section 3, the Secretary may appoint and fix

19 the compensation of such officers and employ20 ees (including investigators and attorneys) as

21 may be necessary to carry out the respective

22 functions transferred under this section.

23 (B) CIVIL SERVICE.—Except as otherwise

24 provided by law, the officers and employees

25 shall be appointed in accordance with the civil
44

•S 1425 IS

1 service laws and the compensation of the offi2 cers and employees fixed in accordance with

3 title 5, United States Code.

4 (2) EXPERTS AND CONSULTANTS.—

5 (A) IN GENERAL.—To carry out this sec6 tion, the Secretary may obtain the services of

7 experts and consultants in accordance with sec8 tion 3109 of title 5, United States Code, and

9 compensate the experts and consultants for

10 each day (including travel time) at rates not in

11 excess of the rate of pay for level IV of the Ex12 ecutive Schedule under section 5315 of such

13 title.

14 (B) TRAVEL EXPENSES.—To carry out

15 this section, the Secretary may pay experts and

16 consultants who are serving away from their

17 homes or regular places of business travel ex18 penses and per diem in lieu of subsistence at

19 rates authorized by sections 5702 and 5703 of

20 such title for persons in Government service

21 employed intermittently.

22 (e) DELEGATION AND ASSIGNMENT.—

23 (1) IN GENERAL.—Except if otherwise expressly

24 prohibited by law or otherwise provided by this Act,

25 the Secretary may delegate any of the functions
45

•S 1425 IS

1 transferred by this section and any function trans2 ferred or granted after the effective date of this Act

3 to such officers and employees of the Department as

4 the Secretary may designate, and may authorize suc5 cessive redelegations of the functions as may be nec6 essary or appropriate.

7 (2) CONTINUING RESPONSIBILITY.—No delega8 tion of functions by the Secretary under this section

9 or under any other provision of this section is in10 tended to relieve the Secretary of responsibility for

11 the administration of the functions.

12 (f) RULES.—The Secretary is authorized to prescribe,

13 in accordance with chapters 5 and 6 of title 5, United

14 States Code, such rules and regulations as the Secretary

15 determines necessary or appropriate to administer and

16 manage the functions of the Department.

17 (g) TRANSFER AND ALLOCATIONS OF APPROPRIA18 TIONS AND PERSONNEL.—

19 (1) IN GENERAL.—Except as otherwise pro20 vided in this subsection, employee positions, assets,

21 liabilities, contracts, property, records, unexpended

22 balances of appropriations, authorizations, alloca23 tions, and other funds employed, used, held, arising

24 from, available to, or to be made available in connec25 tion with functions transferred by this section, sub-
46

•S 1425 IS

1 ject to section 1531 of title 31, United States Code,

2 shall be transferred in accordance with this section.

3 (2) USE OF FUNDS.—Unexpended funds trans4 ferred pursuant to this section shall be used only for

5 the purposes for which the funds were originally au6 thorized and appropriated.

7 (h) INCIDENTAL TRANSFERS.—

8 (1) IN GENERAL.—The Secretary, at such time

9 as the Secretary shall provide, is authorized to make

10 such determinations as may be necessary with re11 gard to the functions transferred by this section, and

12 to make such additional incidental dispositions of

13 personnel, assets, liabilities, grants, contracts, prop14 erty, records, and unexpended balances of appropria15 tions, authorizations, allocations, and other funds

16 held, used, arising from, available to, or to be made

17 available in connection with the functions, as may be

18 necessary to carry out this section.

19 (2) TERMINATION OF AFFAIRS.—The Secretary

20 shall provide for the termination of the affairs of all

21 entities terminated by this section and for such fur22 ther measures and dispositions as may be necessary

23 to effectuate the purposes of this section.

24 (i) SAVINGS PROVISIONS.—
47

•S 1425 IS

1 (1) CONTINUING EFFECT OF LEGAL DOCU2 MENTS.—An order, determination, rule, regulation,

3 permit, agreement, grant, contract, certificate, li4 cense, registration, privilege, or other administrative

5 action—

6 (A) that has been issued, made, granted,

7 or allowed to become effective by the President,

8 any Federal agency or official of a Federal

9 agency, or by a court of competent jurisdiction,

10 in the performance of functions that are trans11 ferred under this section; and

12 (B) that is in effect at the time this sec13 tion takes effect, or was final before the effec14 tive date of this section and is to become

15 effective on or after the effective date of this

16 section,

17 shall continue in effect according to the terms of the

18 action until modified, terminated, superseded, set

19 aside, or revoked in accordance with law by the

20 President, the Secretary or other authorized official,

21 a court of competent jurisdiction, or by operation of

22 law.

23 (2) PROCEEDINGS NOT AFFECTED.—Nothing in

24 this subsection is intended to prohibit the dis25 continuance or modification of a proceeding under
48

•S 1425 IS

1 the same terms and conditions and to the same ex2 tent that the proceeding could have been discon3 tinued or modified if this section had not been en4 acted.

5 (3) SUITS NOT AFFECTED.—This section is not

6 intended to affect a suit commenced before the effec7 tive date of this section. In the suit, a proceeding

8 shall be had, an appeal taken, and a judgment ren9 dered in the same manner and with the same effect

10 as if this section had not been enacted.

11 (4) NONABATEMENT OF ACTIONS.—No suit, ac12 tion, or other proceeding commenced by or against

13 a transferred office, or by or against any individual

14 in the official capacity of the individual as an officer

15 of a transferred office, shall abate by reason of the

16 enactment of this section.

17 (j) SEPARABILITY.—If a provision of this section or

18 the application of this section to any person or cir19 cumstance is held invalid, neither the remainder of this

20 section nor the application of the provision to other per21 sons or circumstances shall be affected.

22 (k) TRANSITION.—The Secretary is authorized to uti23 lize—
49

•S 1425 IS

1 (1) the services of the officers, employees, and

2 other personnel of a transferred office with respect

3 to functions transferred by this section; and

4 (2) funds appropriated to the functions for such

5 period of time as may reasonably be needed to facili6 tate the orderly implementation of this section.

7 (l) REFERENCES.—Each reference in any other Fed8 eral law, Executive order, rule, regulation, or delegation

9 of authority, or any document of or relating to—

10 (1) the head of a transferred office with regard

11 to functions transferred under this section shall be

12 deemed to refer to the head of the office to which

13 the functions are transferred; and

14 (2) a transferred office with regard to functions

15 transferred under this section shall be deemed to

16 refer to the office to which the functions are trans17 ferred.

18 (m) ADDITIONAL CONFORMING AMENDMENTS.—Not

19 later than 180 days after the effective date of this section,

20 if the Secretary determines (after consultation with the

21 appropriate committees of Congress and the Director of

22 the Office of Management and Budget) that additional

23 technical and conforming amendments to Federal statutes

24 are necessary to carry out the changes made by this sec-
50

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1 tion, the Secretary shall prepare and submit to Congress

2 recommended legislation containing the amendments.

3 SEC. 16. AUTHORIZATION OF APPROPRIATIONS.

4 There are authorized to be appropriated such sums

5 as are necessary to carry out this Act for fiscal year 1993,

6 and each subsequent fiscal year.

7 SEC. 17. STATE MEDIATION PROGRAMS.

8 (a) QUALIFYING STATES.—Section 501 of the Agri9 cultural Credit Act of 1987 (7 U.S.C. 5101) is amended—

10 (1) by striking ‘‘agricultural loan’’ each place it

11 appears; and

12 (2) in subsection (c)—

13 (A) in paragraph (1)—

14 (i) by striking ‘‘and their creditors,’’

15 and inserting ‘‘their creditors, and (with

16 respect to other than agricultural loan

17 matters) the Department of Agriculture,’’;

18 and

19 (ii) by striking ‘‘an agricultural’’ and

20 inserting ‘‘the agricultural’’; and

21 (B) in paragraph (5), by inserting before

22 ‘‘receive’’ the following: ‘‘, and all persons di23 rectly affected by actions of the Department of

24 Agriculture involving wetlands determinations,

25 farm program compliance, disputes between
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1 farmers and their creditors, rural water loan

2 programs, grazing on national forest lands, and

3 pesticides,’’.

4 (b) PARTICIPATION OF FEDERAL AGENCIES.—Sec5 tion 503 of such Act (7 U.S.C. 5103) is amended—

6 (1) by striking ‘‘agricultural loan’’ each place

7 the term appears; and

8 (2) in subsection (a)(1)—

9 (A) in the matter preceding subparagraph

10 (A), by striking ‘‘that makes, guarantees, or in11 sures agricultural loans’’;

12 (B) in each of subparagraphs (A) and (B),

13 by inserting ‘‘, in any matter involving agricul14 tural loans’’ before the semicolon; and

15 (C) in subparagraph (B), by striking ‘‘, on

16 the date of the enactment of this Act,’’.

17 (c) REPORT.—Subtitle A of title V of such Act (7

18 U.S.C. 5101 et seq.) is amended by adding at the end

19 the following new section:

20 ‘‘SEC. 507. REPORT ON EXPANDED STATE MEDIATION PRO21 GRAMS.

22 ‘‘Not later than 2 years after the date of the enact23 ment of this section, the Secretary of Agriculture shall re24 port to the Congress on the matters described in section
52

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1 505 with respect to all State mediation programs receiving

2 matching grants under this subtitle.’’.

3 (d) CONFORMING AMENDMENTS.—

4 (1) WAIVER OF FARM CREDIT MEDIATION

5 RIGHTS BY BORROWERS.—Section 4.14E of the

6 Farm Credit Act of 1971 (12 U.S.C. 2202e) is

7 amended by striking ‘‘agricultural loan’’.

8 (2) WAIVER OF FMHA MEDIATION RIGHTS BY

9 BORROWERS.—Section 358 of the Consolidated

10 Farm and Rural Development Act (7 U.S.C. 2006)

11 is amended by striking ‘‘agricultural loan’’.

12 SEC. 18. CONFORMING AMENDMENTS.

13 (a) ASCS.—

14 (1) FINALITY OF FARMERS PAYMENTS AND

15 LOANS.—Section 385 of the Agricultural Act of

16 1938 (7 U.S.C. 1385) is amended—

17 (A) by striking the first sentence; and

18 (B) by striking ‘‘such payment’’ the first

19 place it appears and inserting ‘‘payment under

20 the Soil Conservation Act (16 U.S.C. 590a et

21 seq.), payment under the wheat, feed grain, up22 land cotton, extra long staple cotton, and rice

23 programs authorized by the Agricultural Act of

24 1949 (7 U.S.C. 1421 et seq.) and this Act,
53

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1 loan, or price support operation, or the amount

2 thereof,’’.

3 (2) DETERMINATIONS BY SECRETARY.—Section

4 412 of the Agricultural Act of 1949 (7 U.S.C. 1429)

5 is repealed.

6 (3) APPEALS.—Section 426 of the Agricultural

7 Act of 1949 (7 U.S.C. 1433e) is amended to read

8 as follows:

9 ‘‘SEC. 426. APPEALS.

10 ‘‘(a) DEFINITIONS.—As used in this section:

11 ‘‘(1) ASCS.—The term ‘ASCS’ means the Agri12 cultural Stabilization and Conservation Service, or

13 any successor agency in the United States Depart14 ment of Agriculture.

15 ‘‘(2) COUNTY COMMITTEE.—The term ‘county

16 committee’ means a county committee established

17 under section 8(b) of the Soil Conservation and Do18 mestic Allotment Act (16 U.S.C. 590h(b)).

19 ‘‘(3) NATIONAL APPEALS DIVISION.—The term

20 ‘National Appeals Division’ means the National Ap21 peals Division established in accordance with section

22 3 of the USDA National Appeals Division Act of

23 1993.

24 ‘‘(4) STATE COMMITTEE.—The term ‘State

25 committee’ means a State committee established
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1 under section 8(b) of the Soil Conservation and Do2 mestic Allotment Act (16 U.S.C. 590h(b)).

3 ‘‘(b) RIGHT TO APPEAL.—Any participant in any of

4 the programs under this Act or any other Act adminis5 tered by ASCS shall have the right to appeal to the Na6 tional Appeals Division any adverse determination made

7 by any State committee or county committee, by employ8 ees or agents of the committees, by other personnel of the

9 ASCS, or by agents of the Commodity Credit Corporation,

10 under this Act or under any other Act administered by

11 the ASCS.

12 ‘‘(c) APPEAL PROCEDURE.—

13 ‘‘(1) IN GENERAL.—The appeal shall be made

14 in accordance with the USDA National Appeals Di15 vision Act of 1993 (including section 5 of such Act)

16 and this section.

17 ‘‘(2) CONDITIONS OF APPEAL.—Any participant

18 who believes that a proper determination has not

19 been made with respect to the implementation of any

20 program administered by the ASCS concerning the

21 participant may appeal the determination as follows:

22 ‘‘(A) If the determination was rendered by

23 a county committee, the participant may appeal

24 the determination to the applicable State com25 mittee.
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1 ‘‘(B) If the determination was rendered by

2 a State committee, the participant may appeal

3 the determination to the National Appeals Divi4 sion.

5 ‘‘(C) If the determination was rendered by

6 any other employee or agent of the ASCS or

7 the Commodity Credit Corporation, the partici8 pant may appeal the determination to the Na9 tional Appeals Division.

10 ‘‘(D) ASCS may reverse or modify a deci11 sion made by a State committee or county com12 mittee at any time prior to commencement of

13 the appeal of an appellant to the National Ap14 peals Division, except that nothing in this sub15 paragraph is intended to affect a procedure of

16 a State committee or county committee.

17 ‘‘(d) COURT REVIEW.—A final decision of the De18 partment of Agriculture under the process provided for in

19 this section shall be reviewable by a United States district

20 court of competent jurisdiction.

21 ‘‘(e) PARTICIPANT.—For the purposes of this section,

22 the term ‘participant’ means any person whose right to

23 participate in, or receive payments or other benefits in ac24 cordance with, any of the programs under this Act or any

25 other Act administered by the ASCS is adversely affected
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1 by a determination of any State committee or county com2 mittee, by employees or agents of the committees, by other

3 personnel of the ASCS, or by agents of the Commodity

4 Credit Corporation under this Act or under any other Act

5 administered by the ASCS.

6 ‘‘(f) DECISIONS OF STATE AND COUNTY COMMIT7 TEES.—

8 ‘‘(1) FINALITY.—All decisions of a State or

9 county committee, or employee of the committee,

10 made in good faith in the absence of misrepresenta11 tion, false statement, fraud, or willful misconduct

12 shall be final, unless such decisions are (not later

13 than 90 days after the date of issuance of the deci14 sion) appealed under this section or modified under

15 subsection (c)(2)(D).

16 ‘‘(2) RECOVERY OF AMOUNTS.—No action shall

17 be taken to recover amounts found to have been dis18 bursed thereon in error unless the participant had

19 reason to believe that the decision was erroneous.

20 ‘‘(g) REGULATIONS.—The Secretary shall issue such

21 regulations as are determined necessary to implement this

22 section, including regulations governing the conduct of ap23 peals made before State committees and county commit24 tees.’’.

25 (b) FMHA.—
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1 (1) NATIONAL APPEALS DIVISION.—Section

2 333B of the Consolidated Farm and Rural Develop3 ment Act (7 U.S.C. 1983b) is amended by striking

4 subsections (d) through (g).

5 (2) LEASE OR PURCHASE AGREEMENTS.—Sec6 tion 335(e)(9) of such Act (7 U.S.C. 1985(e)(9)) is

7 amended by inserting after ‘‘appealable under’’ the

8 following: ‘‘the USDA National Appeals Division Act

9 of 1993 (including section 5 of such Act) and’’.

10 (3) HOMESTEAD PROPERTY.—The second sen11 tence of section 352(c)(3) of such Act (7 U.S.C.

12 2000(c)(3)) is amended by inserting after ‘‘described

13 in’’ the following: ‘‘the USDA National Appeals Di14 vision Act of 1993 (including section 5 of such Act)

15 or’’.

16 (4) DEBT RESTRUCTURING AND LOAN SERVIC17 ING.—Section 353 of such Act (7 U.S.C. 2001) is

18 amended—

19 (A) in subsection (h), by inserting after

20 ‘‘filed under’’ the following: ‘‘the USDA Na21 tional Appeals Division Act of 1993 and’’; and

22 (B) in the first sentence of subsection (j),

23 by inserting after ‘‘under’’ the following: ‘‘the

24 USDA National Appeals Division Act of 1993

25 and’’.
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1 (c) FCIC.—

2 (1) CLAIMS FOR LOSSES.—The last sentence of

3 section 508(f) of the Federal Crop Insurance Act (7

4 U.S.C. 1508(f)) is amended by inserting before the

5 period at the end the following: ‘‘or within 1 year

6 after the claimant receives a final determination no7 tice from an administrative appeal made in accord8 ance with the USDA National Appeals Division Act

9 of 1993, whichever is later’’.

10 (2) APPEALS.—Section 508 of such Act is

11 amended by adding at the end the following new

12 subsection:

13 ‘‘(n) APPEALS.—Any participant (as defined in sec14 tion 2(16) of the USDA National Appeal Division Act of

15 1993) under this Act shall have the right to appeal to the

16 National Appeals Division established in accordance with

17 section 3 of the USDA National Appeals Division Act of

18 1993 any adverse determination made by the Corporation.

19 The appeal shall be made in accordance with such Act.’’.

20 SEC. 19. EFFECTIVE DATE.

21 (a) IN GENERAL.—Except as provided in subsections

22 (b) and (c), this Act and the amendments made by this

23 Act shall become effective on the earlier of—

24 (1) the date that is 180 days after the date of

25 enactment of this Act; or
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1 (2) the date the Director issues final regula2 tions pursuant to subsection (b).

3 (b) REGULATIONS.—The Director shall—

4 (1) not later than 90 days after the date of en5 actment of this Act, promulgate proposed regula6 tions to implement this Act and the amendments

7 made by this Act, in a manner consistent with provi8 sions of section 553 of title 5, United States Code,

9 permitting public comment;

10 (2) issue final regulations to implement this Act

11 and the amendments made by this Act, not later

12 than October 1, 1993, or 180 days after the date of

13 enactment of this Act, whichever is later; and

14 (3) issue final regulations—

15 (A) providing for the transfer of all pend16 ing appeals within the jurisdiction of agencies

17 referred to in section 2(2) to the Division on

18 the effective date prescribed in subsection (a);

19 (B) providing for the transfer of case

20 records with respect to the appeals; and

21 (C) otherwise providing for the orderly

22 transfer of all pending appeals and reviews

23 from the agencies to the Division.

24 (c) IMPLEMENTATION; PROTECTION OF APPEL25 LANTS’ RIGHTS.—Subsections (c) and (d) of section 10
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1 shall become effective on the date of enactment of this

2 Act.

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