[Federal Register Volume 74, Number 37 (Thursday, February 26, 2009)]
[Rules and Regulations]
[Pages 8703-8704]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-4114]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 74, No. 37 / Thursday, February 26, 2009 / 
Rules and Regulations

[[Page 8703]]



DEPARTMENT OF AGRICULTURE

Federal Crop Insurance Corporation

7 CFR Part 400

RIN 0563-AC18


General Administrative Regulations; Appeal Procedure

AGENCY: Federal Crop Insurance Corporation, USDA.

ACTION: Final rule.

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SUMMARY: The Federal Crop Insurance Corporation (FCIC) is amending the 
General Administrative Regulation, Appeal Procedure. This final rule 
incorporates a requirement mandated by the Food, Conservation, and 
Energy Act of 2008 (2008 Farm Bill) that allows producers to use both 
mediation and the informal administrative appeal process in their 
appeals of decisions by FCIC and making minor non-substantive changes 
for clarity.

DATES: Effective Date: This rule is effective February 26, 2009.

FOR FURTHER INFORMATION CONTACT: Cynthia Simpson, Director, Risk 
Management Agency Appeals, Litigation, and Legal Liaison Staff, 1400 
Independence Avenue, SW., Stop 0806, Washington, DC 20250, telephone 
(202) 720-0642.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
rule is non-significant for the purpose of Executive Order 12866 and, 
therefore, it has not been reviewed by OMB.

Paperwork Reduction Act of 1995

    This rule does not constitute a collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35).

E-Government Act Compliance

    FCIC is committed to complying with the E-Government Act of 2002, 
to promote the use of the Internet and other information technologies 
to provide increased opportunities for citizen access to Government 
information and services, and for other purposes.

Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) 
establishes requirements for Federal agencies to assess the effects of 
their regulatory actions on State, local, and tribal governments and 
the private sector. This rule contains no Federal mandates (under the 
regulatory provisions of title II of the UMRA) for State, local, and 
tribal governments or the private sector. Therefore, this rule is not 
subject to the requirements of section 202 and 205 of the UMRA.

Executive Order 13132

    It has been determined under section 1(a) of Executive Order 13132, 
Federalism, that this rule does not have sufficient implications to 
warrant consultation with the States. The provisions contained in this 
rule will not have substantial direct effect on States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.

Regulatory Flexibility Act

    FCIC certifies that this regulation will not have a significant 
economic impact on a substantial number of small entities. All 
producers will have access to the same appeals process regardless of 
the size of their farming operation. A Regulatory Flexibility Analysis 
has not been prepared since this regulation does not have a significant 
impact on a substantial number of small entities, and, therefore, this 
regulation is exempt from the provisions of the Regulatory Flexibility 
Act (5 U.S.C. 605).

Federal Assistance Program

    This program is listed in the Catalog of Federal Domestic 
Assistance under No. 10.450.

Executive Order 12372

    This program is not subject to the provisions of Executive Order 
12372, which require intergovernmental consultation with State and 
local officials. See the Notice related to 7 CFR part 3015, subpart V, 
published at 48 FR 29115, June 24, 1983.

Executive Order 12988

    This provision has been reviewed in accordance with Executive Order 
12988 on civil justice reform. The provisions of this rule will not 
have a retroactive effect. The provisions of this rule will preempt 
State and local to the extent such State and local laws are 
inconsistent herewith. With respect to any direct action taken by FCIC 
or to require the insurance provider to take specific action under the 
terms of the crop insurance policy, the administrative appeal 
provisions published at 7 CFR part 11 must be exhausted before any 
action against FCIC for judicial review may be brought.

Environmental Evaluation

    This action is not expected to have a significant economic impact 
on the quality of the human environment, health, and safety. Therefore, 
neither an Environmental Assessment nor an Environmental Impact 
Statement is needed.

Background

    Pursuant to 7 CFR part 400, subpart J, any producer (individual or 
entity) who has applied for, or whose rights to participate in or 
receive a payment or benefit under the Federal crop insurance program, 
may contest an adverse decision rendered by the Risk Management Agency 
on behalf of FCIC. Prior to the enactment of the 2008 Farm Bill, a 
producer who disagreed with an adverse decision by RMA had three 
avenues in which to contest RMA's adverse decision--administrative 
review, mediation or appeal directly to the National Appeals Division 
(NAD). The participant could seek an administrative review or 
mediation, but not both. If the participant disagreed with an 
administrative review or mediation determination, the participant could 
appeal that determination to NAD.
    Section 12032 of the 2008 Farm Bill allows a participant to choose 
both administrative review and mediation. However, a participant is not 
required to use both administrative review and mediation. Section 12032 
merely provides the participant with an

[[Page 8704]]

additional opportunity at the administrative level to resolve adverse 
decisions. If the participant disagrees with an administrative review 
and/or mediation determination, the participant can appeal that 
determination to NAD. The provisions have been modified to allow these 
changes to the appeal procedure.
    The rule is also being revised to add the provisions regarding 
matters of general applicability and their appealability to NAD that 
were erroneously removed from this subpart when it was last revised. 
Congress, in 7 U.S.C. 6992(d) expressly states that decisions must be 
adverse to the individual to be appealable to NAD and that matters of 
general applicability are not subject to appeal.
    Good cause is shown to make this rule effective upon publication at 
the Office of the Federal Register. Good cause exists when notice and 
comment and 30 day delay in the effective date is impracticable, 
unnecessary, or contrary to the public interest.
    FCIC is merely making ministerial changes to the policy that are 
mandated by the 2008 Farm Bill. There is no discretion given to FCIC in 
the terms contained in this rule or their implementation.
    For the reasons stated above, good cause exists to make these 
policy changes effective upon publication at the Office of the Federal 
Register.

List of Subject in 7 CFR Part 400

    General Administrative Regulations.

Final Rule

0
Accordingly, as set forth in the preamble, the Federal Crop Insurance 
Corporation amends 7 CFR part 400 subpart J as follows:

PART 400--GENERAL ADMINISTRATIVE REGULATIONS

0
1. The authority citation for 7 CFR part 400 is revised to read as 
follows:

    Authority: 7 U.S.C. 1506(l), 1506(o).


0
2. Amend Sec.  400.90 as follows:
0
A. Amend the definition of ``Agency'' by removing ``RSO'' and adding in 
its place ``RO'' and by removing ``FOSD'' and adding in its place 
``FAOB'';
0
B. In the definition of ``Appellant'' revise the first sentence;
0
C. Remove the definition of ``FOSD'';
0
D. Add a definition of the term ``FAOB'';
0
E. Remove the definition of ``RSO''; and
0
F. Add a definition of ``RO''.
    The additions and revisions read as follows:


Sec.  400.90  Definitions.

* * * * *
    Appellant. Any participant who requests an administrative review or 
mediation, or both, of an adverse decision of the Agency in accordance 
with this subpart. * * *
* * * * *
    FAOB. Financial and Accounting Operations Branch.
* * * * *
    RO. The Regional Office established by the agency for the purpose 
of providing program and underwriting services for private insurance 
companies reinsured by FCIC under the Act and for FCIC insurance 
contracts delivered through FSA offices.
* * * * *

0
3. Amend Sec.  400.91 as follows:
0
A. Amend paragraph (c) introductory text by adding the phrase ``or 
both,'' after ``mediation,'';
0
B. Amend paragraph (d) by removing the word ``or'' and adding in its 
place the word ``and''; and
0
C. Add new paragraph (e) to read as follows:


Sec.  400.91  Applicability.

* * * * *
    (e) Notwithstanding any other provision, this subpart does not 
apply to any decision made by the Agency that is generally applicable 
to all similarly situated program participants. Such decisions are also 
not appealable to NAD. If the Agency determines that a decision is not 
appealable because it is a matter of general applicability, the 
participant must obtain a review by the Director of NAD in accordance 
with 7 CFR 11.6(a) of the Agency's determination that the decision is 
not appealable before the participant may file suit against the Agency.


Sec.  400.93  [Amended]

0
4. Amend paragraph (a) in Sec.  400.93 by removing the phrase ``, but 
not both''.


Sec.  400.94  [Amended]

0
5. Amend paragraph (a) of Sec.  400.94 by removing the phrase ``instead 
of'' and adding in its place the phrase ``in addition to''.

    Signed in Washington, DC on February 19, 2009.
William J. Murphy,
Acting Manager, Federal Crop Insurance Corporation.
[FR Doc. E9-4114 Filed 2-25-09; 8:45 am]
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