This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

27044

Vol. 60, No. 98

Monday, May 22, 1995

DEPARTMENT OF AGRICULTURE

Office of the Secretary

7 CFR Part 11

National Appeals Division Rules of

Procedure

AGENCY: Office of the Secretary,

National Appeals Division, USDA.

ACTION: Proposed rule.

SUMMARY: The National Appeals

Division (NAD) in the Office of the

Secretary proposes to add a new rule to

implement Title II, Subtitle H, of the

Federal Crop Insurance Reform and

Department of Agriculture

Reorganization Act of 1994 by setting

forth procedures for program participant

appeals of adverse decisions by United

States Department of Agriculture

(USDA) agency officials to the National

Appeals Division (NAD). This action

also defines those appeals over which

NAD has jurisdiction.

DATES: Written comments via letter,

facsimile, or Internet are invited from

interested individuals and organizations

and must be received on or before June

21, 1995.

ADDRESSES: Comments should be sent to

L. Benjamin Young, Jr., Office of the

General Counsel, Research and

Operations Division, AgBox 1415,

United States Department of

Agriculture, Washington, D.C. 20250–

1415; fax number: 202/720–5837;

Internet: hqdomain.lawpo.young@

sies.wsc.ag.gov.

FOR FURTHER INFORMATION CONTACT:

L. Benjamin Young, Jr. at the above

address or 202/690–1979.

SUPPLEMENTARY INFORMATION:

Classification

This proposed rule has been reviewed

under E.O. 12866, and it has been

determined that it is not a ‘‘significant

regulatory action’’ rule because it will

not have an annual effect on the

economy of $100 million or more or

adversely and materially affect a sector

of the economy, productivity,

competition, jobs, the environment,

public health or safety, or State, local,

or tribal governments or communities.

This rule will not create any serious

inconsistencies or otherwise interfere

with actions taken or planned by

another agency. It will not materially

alter the budgetary impact of

entitlements, grants, user fees, or loan

programs, or the rights and obligations

of recipients thereof, and does not raise

novel legal or policy issues arising out

of legal mandates, the President’s

priorities, or principles set forth in E.O.

12866.

Regulatory Flexibility Act

The Department certifies that this

proposed rule will not have a significant

impact on a substantial number of small

entities as defined in the Regulatory

Flexibility Act, Pub. L. 96–534, as

amended (5 U.S.C. 601, et seq.).

Background and Purpose

On December 27, 1994 (see 59 FR

66,517), the Secretary of Agriculture

noticed that the NAD was established

pursuant to Title II, Subtitle H of Pub.

L. 103–354, the Federal Crop Insurance

Reform and Department of Agriculture

Reorganization Act of 1994. NAD was

assigned responsibility for all

administrative appeals formerly

performed by the National Appeals

Division of the former Agricultural

Stabilization and Conservation Service

and by the National Appeals Staff of the

former Farmers Home Administration,

appeals arising from decisions of the

Federal Crop Insurance Corporation and

the former Soil Conservation Service,

appeals arising from decisions of the

successor agencies to the foregoing

agencies established by the Secretary,

and such other administrative appeals

arising from decisions of agencies and

offices of USDA as may in the future be

assigned by the Secretary. Conforming

changes to the regulations of the

affected agencies will be published with

the final rule.

This proposed part sets forth the

jurisdiction of the NAD and the

procedures appellants and agencies

must follow upon appeal of adverse

decisions by covered USDA program

‘‘participants’’ as defined in detail in the

proposed part.

The proposed part defines ‘‘adverse

decisions’’ to include denial of equitable

relief to a program participant by an

officer, employee, or committee of an

agency or the failure of an officer,

employee, or committee of an agency to

issue a decision or otherwise act on the

request or right of the participant, but to

exclude decisions over which the

Agriculture Board of Contract Appeals

would have jurisdiction. ‘‘Agency’’

includes the Consolidated Farm Service

Agency, the Commodity Credit

Corporation, the Farmers Home

Administration, the Federal Crop

Insurance Corporation, the Rural

Business and Cooperative Development

Service, the Rural Development

Administration, the Rural Housing and

Community Development Service, the

Natural Resources and Conservation

Service, a State, county, or area

committee established under section

8(b)(5) of the Soil Conservation and

Domestic Allotment Act (16 U.S.C.

590h(b)(5)), any successor agency to the

above-named agencies, and any other

agency or office of the Department that

the Secretary may designate.

Designation of other agencies or offices

by the Secretary shall be accomplished

by virtue of a delegation of authority to

NAD by the Secretary, or by future

amendment of these rules by the

Secretary.

These rules would apply to any

adverse decision issued by any agency

on or after October 20, 1994, and to any

appeals or requests pending before an

agency, including any predecessor

agency, prior to October 20, 1994.

The proposed part would be

applicable to adverse decisions with

respect to: (1) Denial of participation in

any program of an agency; (2)

compliance with program requirements;

and (3) the making or amount of

payments or other program benefits to a

participant in any program of an agency.

The proposed part preserves

participants’ rights to avail themselves

of certain informal agency review

processes prior to instituting an appeal

under the proposed part.

The proposed part states that the

Administrative Procedure Act, the Equal

Access to Justice Act, and the Federal

Rules of Evidence do not apply to

proceedings under the proposed part.

The proposed part provides filing

requirements and deadlines, evidentiary

hearing procedures for appeals of

adverse decisions (including rules

applicable to the issuance of

subpoenas), procedures for NAD
Federal Register / Vol. 60, No. 98 / Monday, May 22, 1995 / Proposed Rules 27045

Director review of an agency

determination that a decision is not

appealable, and procedures for NAD

Director review of hearing officer

determinations.

The proposed part provides for

judicial review of final determinations

of NAD.

List of Subjects in 7 CFR Part 11

Administrative practice and

procedure, Agriculture, Agricultural

commodities, Crop insurance, Ex parte

communications, Farmers, Federal aid

programs, Loan programs, Price support

programs, Soil conservation.

For the reasons set out in the

preamble, Title 7, Subtitle A, of the

Code of Federal Regulations is amended

by adding Part 11 to read as follows:

PART 11—NATIONAL APPEALS

DIVISION RULES OF PROCEDURE

Sec.

11.1 Definitions.

11.2 General statement.

11.3 Applicability.

11.4 Inapplicability of other laws and

regulations.

11.5 Informal agency hearings and

exhaustion.

11.6 Right of participants to Division

hearing or Director review of agency

determination of appealability.

11.7 Division hearings.

11.8 Director review of determinations of

Hearing Officers.

11.9 Bases for determinations.

11.10 Effective date and implementation of

final determinations of the Division.

11.11 Judicial review.

11.12 Filing of appeals and computation of

time.

Authority: 5 U.S.C. 301; Title II, Subtitle H,

Pub. L. 103–354, 108 Stat. 3228 (7 U.S.C.

6991); Reorganization Plan No. 2 of 1953 (5

U.S.C. App.).

§ 11.1 Definitions.

For purposes of this part:

Adverse decision means an

administrative decision made by an

officer, employee, or committee of an

agency that is adverse to a participant.

The term includes a denial of equitable

relief by an agency or the failure of an

agency to issue a decision or otherwise

act on the request or right of the

participant within timeframes specified

by agency program regulations. The

term does not include a decision over

which the Board of Contract Appeals

has jurisdiction.

Agency means:

(1) The Consolidated Farm Service

Agency;

(2) The Commodity Credit Corporation;

(3) The Farmers Home Administration;

(4) The Federal Crop Insurance

Corporation;

(5) The Rural Business and Cooperative

Development Service;

(6) The Rural Development

Administration;

(7) The Rural Housing and Community

Development Service;

(8) The Natural Resources Conservation

Service;

(9) A State, county, or area committee

established under section 8(b)(5) of

the Soil Conservation and Domestic

Allotment Act (16 U.S.C. 590h(b)(5));

and

(10) Any successor agency to the abovenamed agencies, and any other agency

or office of the Department which the

Secretary may designate.

Agency record means all the materials

maintained by an agency related to an

adverse decision which are submitted to

the Division by an agency for

consideration in connection with an

appeal under this part , but shall not

include records or information not

directly related to the adverse decision

at issue. All materials contained in the

agency record submitted to the Division

shall be deemed admitted as evidence

for purposes of a hearing or a record

review under § 11.7.

Agency representative means any

person, whether or not an attorney, who

is authorized to represent the agency in

an administrative appeal under this

part.

Appeal means a written request by a

participant asking for review by the

National Appeals Division of an adverse

decision under this part.

Appellant means any participant who

appeals an adverse decision in

accordance with this part. Unless

separately set forth in this part, the term

‘‘appellant’’ includes an authorized

representative.

Authorized representative means any

person, whether or not an attorney, who

is authorized in writing by a participant,

consistent with § 11.6(a), to act for the

participant in an administrative appeal

under this part. The authorized

representative may act on behalf of the

participant except when the provisions

of this part require action by the

participant or appellant personally.

Case record means all the materials

maintained by the Secretary related to

an adverse decision. The case record

includes both the agency record and the

hearing record.

Days means calendar days unless

otherwise specified.

Department means the United States

Department of Agriculture.

Director means the Director of the

Division or a designee of the Director.

Division means the National Appeals

Division established by this part.

Equitable relief means relief which is

authorized under section 326 of the

Food and Agriculture Act of 1962 (7

U.S.C. 1339a) and other laws

administered by the agency.

Ex parte communication means an

oral or written communication not

contained in the hearing record with

respect to which reasonable prior notice

to all parties is not given, but it shall not

include requests for status reports on

any matter or proceeding connected

with the appeal involved.

Hearing except with respect to § 11.5,

means a proceeding before the Division

to afford a participant the opportunity to

present testimony or documentary

evidence or both in order to have a

previous determination reversed and to

show why an adverse determination

was not proper.

Hearing Officer means an individual

employed by the Division who conducts

the hearing and determines appeals of

adverse decisions by any agency.

Hearing record means all documents,

evidence, and other materials generated

in relation to a hearing under § 11.7.

Implement means the taking of action

by an agency of the Department in order

fully and promptly to effectuate a final

determination of the Division.

Participant means any individual or

entity whose right to participate in or

receive a payment, loan, loan guarantee,

or other benefit in accordance with any

program of an agency to which these

regulations apply is affected by a

decision of such agency, including a

decision by a reinsured company which

is authorized by the Federal Crop

Insurance Corporation to issue

insurance policies. The term does not

include:

(1) Participants in programs subject to

adjudicatory proceedings under the

Rules of Practice Governing Formal

Adjudicatory Proceedings Instituted by

the Secretary under Various Statues, 7

CFR Part 1, Subpart H;

(2) Participants in programs governed

by Federal contracting laws and

regulations (appealable under other

rules and to other forums, including to

the Department’s Board of Contract

Appeals under 7 CFR part 24);

(3) Appellants from decisions to deny

the release of information sought by

members of the public under the

Freedom of Information Act (appealable

under 7 CFR Part 1, Subpart A);

(4) Participants in suspension and

debarment disputes, including, but not

limited to, those falling within the scope

of 7 CFR Parts 1407 and 3017;

(5) Participants in export programs

administered by the Commodity Credit

Corporation;
27046 Federal Register / Vol. 60, No. 98 / Monday, May 22, 1995 / Proposed Rules

(6) Reinsured companies engaged in

disputes with the Federal Crop

Insurance Corporation;

(7) Tenants prosecuting grievances or

appeals pursuant to the provisions of 7

CFR Part 1944, Subpart L, under the

multi-family housing program carried

out by the Rural Housing and

Community Development Service;

(8) Persons having personnel, equal

employment opportunity, and other

similar disputes with any agency or

office of the Department which arise out

of the employment relationship;

(9) Persons pursuing claims against

the United States arising under the

Federal Tort Claims Act, 28 U.S.C. 2671

et seq., or the Military Personnel and

Civilian Employees Claims Act of 1964,

31 U.S.C. 3721; or

(10) Program participants pursuing

claims under the nondiscrimination

regulations at 7 CFR parts 15, 15a, 15b,

and 15e.

Record review means an appeal

considered by the Hearing Officer in

which the Hearing Officer’s

determination is based on the agency

record and other information submitted

by the appellant and the agency,

including information submitted by

affidavit or declaration.

Secretary means the Secretary of

Agriculture.

§ 11.2 General statement.

This part sets forth procedures for

proceedings before the National Appeals

Division within the Department. The

Division is an organization within the

Department which is independent from

all other agencies and offices of the

Department, including Department

officials at the state and local level. The

Director of the Division reports directly

to the Secretary of Agriculture. The

authority of the Hearing Officers and the

Director of the Division, and the

administrative appeal procedures which

must be followed by program

participants who desire to appeal an

adverse decision and by the agency

which issued the adverse decision, are

included in this part.

§ 11.3 Applicability.

(a) Subject matter. The regulations

contained in this part are applicable to

adverse decisions made by an agency,

including, for example, those with

respect to:

(1) Denial of participation in, or

receipt of benefits under, any program

of an agency;

(2) Compliance with program

requirements; and

(3) The making or amount of

payments of other program benefits to a

participant in any program of an agency.

(b) Effective date. This part is

applicable to:

(1) Any adverse decision issued by

any agency on or after October 20, 1994;

and

(2) All appeals or requests for

reconsideration which were pending

before any agency, including any

predecessor agency abolished by the

Secretary pursuant to the Federal Crop

Insurance Reform and Department of

Agriculture Reorganization Act of 1994,

Pub. L. 103–354, 108 Stat. 3178, prior to

October 20, 1994.

§ 11.4 Inapplicability of other laws and

regulations.

The provisions of the Administrative

Procedure Act, as amended, 5 U.S.C.

551, et seq., are not applicable to

proceedings under this part. The Equal

Access to Justice Act, as amended, 5

U.S.C. 504, does not apply to these

proceedings. The Federal Rules of

Evidence, 28 U.S.C. App., shall not

apply to these proceedings.

§ 11.5 Informal agency hearings and

exhaustion.

(a) Required exhaustion of informal

hearing options. No administrative

decision issued at the field service office

level by an officer or employee of the

Consolidated Farm Service Agency, or

by any employee of a county or area

committee established under section

8(b)(5) of the Soil Conservation and

Domestic Allotment Act, 16 U.S.C.

590h(b)(5), shall be considered to be an

adverse decision for purposes of the

provisions of this part until a program

participant has perfected an informal

appeal to and received a decision

thereon from the county or area

committee with responsibility for the

administrative decision at issue, and

any program participant shall be

required to exhaust his or her right to

informal review by such county or area

committee prior to seeking review by

the Division under the provisions of this

part.

(b) Optional informal hearings. If an

officer or employee of an agency of the

Department makes an adverse decision,

at the request of the participant the

agency shall hold an informal hearing

on or conduct an informal review of the

decision. A participant is encouraged to

utilize an agency’s informal review

process initially, and may do so without

prejudice to the participant’s right

subsequently to appeal the agency’s

decision to the Division. A participant

shall also have the right to utilize any

available alternative dispute resolution

or mediation program, including any

mediation program available under title

V of the Agriculture Credit Act of 1987,

7 U.S.C. 5101 et seq., in order to seek

an informal review of any adverse

decision prior to any appeal of such

decision to the Division in accordance

with this part.

§ 11.6 Right of participants to division

hearing or Director review of agency

determination of appealability.

(a) Right of participants. A participant

has the right to appeal an adverse

decision to the Division for an

evidentiary hearing by a Hearing Officer

consistent with § 11.7. If an officer,

employee, or committee of an agency

determines that an agency decision is

not applicable, the participant may

request a review of that determination

by the Director pursuant to paragraph

(b) of this section. If a participant is

represented by an unauthorized

representative, the authorized

representative must file a declaration

with NAD, executed in accordance with

28 U.S.C. 1746, stating that the

participant has duly authorized the

declarant in writing to represent the

participant for purposes of a specified

adverse decision or decisions, and

attach a copy of the written

authorization to the declaration.

(b) Director review of agency

determination of appealability. (1) Not

later than 30 days after the date on

which a participant receives a

determination from an agency that an

agency decision is not appealable, the

participant must submit a written

request to the Director to review the

determination in order to be entitled to

such review by the Director.

(2) The Director will conduct a review

of a determination that an agency

decision is not appealable using any

information the Director determines is

necessary. Based on such review, the

Director will issue a final determination

notice that upholds or reverses the

determination of the agency. This final

determination is not appealable. If the

Director will notify the participant and

the agency of that decision and inform

the participant of his or her right to

proceed with an appeal.

(3) The Director may delegate his or

her authority to conduct a review under

this subsection to any Deputy or

Associate Directors of the Division. In

any case in which such review is

conducted by a Deputy or Associate

Director under authority delegated by

the Director, the Deputy or Associate

Director’s determination shall be

considered to be the determination of

the Director and shall be final and not

appealable.

(c) Appeals of adverse decisions. (1)

To be entitled to a hearing under § 11.7,

a participant personally must request
Federal Register / Vol. 60, No. 98 / Monday, May 22, 1995 / Proposed Rules 27047

such hearing not later than 30 days after

the date on which the participant first

received notice of the adverse decision.

In the case of the failure of an agency

to act on the request or right of a

recipient, a participant personally must

request such hearing not later than 30

days after the participant knew or

should have known that the agency had

not acted within the timeframes

specified by agency program

regulations, or, where such regulations

specify no timeframes, not later than 30

days after the participant reasonably

should have known of the agency’s

failure to act.

(2) A request for a hearing shall be in

writing and personally signed by the

participant, and shall include a copy of

the adverse decision to be reviewed, if

available, along with a brief statement of

the participant’s reasons for believing

that the decision, or the agency’s failure

to act, was wrong. Instead of a hearing,

the participant may request a record

review.

§ 11.7 Division hearings.

(a) General rules. (1) The Director, the

Hearing Officer, and the appellant shall

have access to the agency record or any

adverse decision appealed to the

Division for a hearing.

(2) The Director and Hearing Officer

shall have the authority to administer

oaths and affirmations, and to require,

by subpoena, the attendance of

witnesses and the production of

evidence.

(i) A subpoena requiring the

production of evidence may be

requested and issued at any time while

the case is pending before the Division.

(ii) An appellant or an agency, acting

through any appropriate official, may

request issuance of a subpoena requiring

the attendance of a witness by

submitting such a request in writing at

least 14 days before the scheduled date

of a hearing.

(iii) A subpoena shall be issued only

if the Director or a Hearing Officer

determines that:

(A) For a subpoena of documents, the

appellant or the agency has established

that production of documentary

evidence is necessary and is reasonably

calculated to lead to information which

would affect the final determination or

is necessary to fully present the case

before the Division; or

(B) For a subpoena of a witness, the

appellant or the agency has established

that either a representative of the

Department or a private individual

possesses information that is pertinent

and necessary for disclosure of all

relevant facts which could impact the

final determination, that the information

cannot be obtained except through

testimony of the person, and that the

testimony cannot be obtained absent

issuance of a subpoena.

(iv) The party requesting issuance of

a subpoena shall arrange for service.

Service of a subpoena upon a person

named therein may be made by

registered or certified mail, or in person.

Personal service shall be made by

personal delivery of a copy of the

subpoena to the person named therein

by any person who is not a party and

who is not less than 18 years of age.

Proof of service shall be made by filing

with the Hearing Officer or Director who

issued the subpoena a statement of the

data and manner of service and of the

names of the persons served, certified

by the person who made the service in

person or by return receipts for certified

or registered mail.

(v) The party at whose instance a

subpoena is issued shall be responsible

for the payment of any travel and

subsistence costs incurred by the

witness in connection with his or her

appearance and any fees of a person

who serves the subpoena in person. The

Department shall pay the costs

associated with the appearance of

Department employees regardless of the

party requesting the subpoena. The

failure to make payment of such charges

on demand may be deemed by the

Hearing Officer or Director as sufficient

ground for striking the testimony of the

witness and the evidence the witness

has produced.

(vi) If a person refuses to obey a

subpoena, the Director, acting through

the Office of General Counsel of the

Department and the Department of the

Justice, may apply to the United States

District Court in the jurisdiction where

that person resides to have the subpoena

enforced as provided in the Federal

Rules of Civil Procedure (28 U.S.C.

App.).

(3) Testimony required by subpoena

pursuant to paragraph (a)(2) of this

section may, at the discretion of the

Director or a Hearing Officer, be

presented at the hearing either in person

or telephonically.

(4) Ex parte communication. (i)(A) At

no time between the filing of an appeal

and the issuance of a final

determination by the Director shall the

Hearing Officer or the Director engage in

ex parte communications regarding the

merits of the appeal with any person

having any interest in the appeal

pending before the Division, including

any person in an advocacy or

investigative capacity. This prohibition

does not apply to:

(1) Discussion of procedural matters

related to an appeal; or

(2) Discussions of the merits of the

appeal with such a person by the

Hearing Officer or the Director where all

parties to the appeal have been given

notice and an opportunity to participate.

(B) In the case of a communication

described in paragraph (a)(4)(i)(A)(2) of

this section, a memorandum of any such

discussion shall be included in the

hearing record.

(ii) No interested person shall make or

knowingly cause to be made to the

Hearing Officer or the Director an ex

parte communications relevant to the

merits of the appeal.

(iii) If the Hearing Officer or Director

receives an ex parte communication in

violation of this section, the one who

receives the communication shall place

in the hearing record:

(A) All such written communications;

(B) Memoranda stating the substance

of all such oral communications; and

(C) All written responses to such

communications, and memoranda

stating the substance of any oral

responses thereto, made by the Hearing

Officer or Director.

(iv) Upon receipt of a communication

knowingly made or knowingly caused to

be made by a party in violation of this

section the Hearing Officer or Director

may, to the extent consistent with the

interests of justice and the policy of the

underlying program, require the party to

show cause why such party’s claim or

interest in the appeal should not be

dismissed, denied, disregarded, or

otherwise adversely affected on account

of such violation.

(b) Hearing procedures applicable to

both record review and hearings. (1)

Upon the filing of an appeal under this

part of an adverse decision by any

agency, the agency promptly shall

provide the Division with a copy of the

agency record. If requested by the

appellant prior to the hearing, a copy of

such agency record shall be provided

promptly to the appellant by the agency.

(2) The Director shall assign the

appeal to a Hearing Officer and shall

notify the appellant and agency of such

assignment. The notice also shall advise

the appellant and the agency of the

documents required to be submitted

under paragraph (c)(2), of this section

and notify the appellant of the option of

having a hearing by telephone.

(3) The Hearing Officer will receive

evidence into the hearing record

without regard to whether the evidence

was known to the agency officer,

employee, or committee making the

adverse decision at the time the adverse

decision was made.

(c) Procedures applicable only to

hearings. (1) Upon a timely request for

a hearing under § 11.61(c), an appellant
27048 Federal Register / Vol. 60, No. 98 / Monday, May 22, 1995 / Proposed Rules

has the right to have a hearing by the

Division on any adverse decision within

45 days after the date of receipt of the

request for the hearing by the Division.

(2) The Hearing Officer shall set a

deadline for submission of the following

documents not less than 28 days prior

to the hearing:

(i) By the appellant:

(A) A short statement of why the

decision is wrong;

(B) A copy of our list of documents

the appellant anticipates introducing at

the hearing; and

(C) A list of anticipated witnesses, or

instead, brief descriptions of the

evidence the appellant’s witnesses will

offer.

(ii) By the agency:

(A) A copy of the adverse decision

challenged by the appellant;

(B) A written explanation of the

agency’s position, including the

regulatory or statutory basis therefor;

(C) A copy of or list of documents the

agency anticipates introducing at the

hearing; and

(D) A list of anticipated witnesses, or

instead, brief descriptions of the

evidence the appellant’s witnesses will

offer.

(3) Not less than 21 days prior to the

hearing, the Division must provide the

appellant, the authorized representative,

and the agency a notice of hearing

identifying the time, date, and place of

the hearing. The hearing will be held in

the State of residence of the appellant,

as determined by the Hearing Officer, or

at a location that is otherwise

convenient to the appellant and the

Division. The notice also shall notify the

appellant of the right to obtain a

transcript of the hearing and the

procedures for obtaining such

transcript.

(4) Conduct of the hearing. (i) A

hearing before a Hearing Officer will be

in person unless the appellant agrees to

a hearing by telephone.

(ii) The hearing will be conducted by

the Hearing Officer in the manner

determined by the Division most likely

to obtain the facts relevant to the matter

or matters at issue. The Hearing Officer

will allow the presentation of evidence

at the hearing without regard to whether

the evidence was known to the agency

officer, employee, or committee making

the adverse decision at the time the

adverse decision was made. The

Hearing Officer may confine the

presentation of facts and evidence to

pertinent matters and exclude

irrelevant, immaterial, or unduly

repetitious evidence, information, or

questions. The Hearing Officer may

request or permit individuals other than

those appearing on behalf of the

appellant to present information or

evidence at such hearing. The appellant

shall have the opportunity to present

oral and documentary evidence, oral

testimony of witnesses, and arguments

in support of the appellant’s appeal;

controvert evidence relied on by the

agency; and question all witnesses.

When appropriate, agency witnesses

requested by the appellant will be made

available at the hearing. Any evidence

may be received by the Hearing Officer

without regard to whether that evidence

could be admitted in judicial

proceedings.

(iii)(A) Official recording of the

hearing in the form of a verbatim

transcript may be made if:

(1) The appellant or the agency

requests the Hearing Officer to arrange

for such a transcript at least 14 days

prior to the hearing and agrees to pay

the expenses of the transcription

service; or

(2) The Director determines that such

a transcript is appropriate.

(B) In cases in which the appellant

requests the transcript, the Hearing

Officer will provide the appellant and

the authorized representative with the

name of the transcription service and an

estimate of the cost of such service.

After receiving an estimate of such cost,

the appellant may withdraw the request

for transcription services prior to the

hearing, but, in such cases, the

appellant will be responsible for all

costs to the Division associated with the

cancellation of such service. Unofficial

recording of a hearing by a voice

recorder or the use of an unauthorized

transcription service may be permitted

but such recording shall not be an

official recording of the hearing and will

not be made part of either the hearing

record or the case record.

(5) Absence of parties. (i) If at the time

scheduled for the hearing either the

appellant or the agency representative is

absent, and no appearance is made on

behalf of such absent party, or no

arrangements have been made for

rescheduling the hearing, the Hearing

Officer has the option to cancel the

hearing, in which case the Hearing

Officer will:

(A) Treat the appeal as a record

review and issue a determination based

on the agency record as submitted by

the agency and the hearing record

developed prior to the hearing date;

(B) Accept evidence into the hearing

record submitted by other persons

present at the hearing, and then issue a

determination; or

(C) Dismiss the appeal.

(ii) In appropriate cases, the Hearing

Officer will add any additional evidence

to the hearing record, provide a copy of

such evidence to the absent party or

parties, and allow the absent party or

parties 10 days to provide a response to

such additional evidence for inclusion

in the hearing record.

(6) Post-hearing procedure. The

Hearing Officer will leave the hearing

record open after the hearing for 10

days, or for such other period of time as

the Hearing Officer shall establish, to

allow the submission of information by

the appellant or the agency, to the

extent necessary to respond to new

facts, information, arguments, or

evidence presented or raised at the

hearing. Any such new information will

be added by the Hearing Officer to the

hearing record and sent to the other

party or parties by the submitter of the

information. The Hearing Officer, in his

or her discretion, may permit the other

party or parties to respond to this posthearing submission.

(d) Interlocutory review. Interlocutory

review by the Director of rulings of a

Hearing Officer are not permitted under

the procedures of this part.

(e) Burden of proof. The appellant has

the burden of proving that the adverse

decision of the agency was erroneous by

a preponderance of the evidence.

(f) Timing of issuance of

determination. The Hearing Officer will

issue a notice of the determination on

the appeal to the appellant, personally,

the authorized representative, and the

agency not later than 30 days after a

hearing or the closing date of the

hearing record in cases in which the

Hearing Officer receives additional

evidence from the agency or appellant

after a hearing. In the case of a record

review, the Hearing Officer will issue a

notice of determination within 45 days

of receipt of the appellant’s request for

a record review. Upon the Hearing

Officer’s request, the Director may

establish an earlier or later deadline. If

the determination is not appealed to the

Director for review under § 11.8, the

notice provided by the Hearing Officer

shall be considered to be an notice of a

final determination under this part.

§ 11.8 Director review of determinations of

Hearing Officers.

(a) Requests for Director review. (1)

Not later than 30 days after the date on

which an appellant receives the

determination of a Hearing Officer

under § 11.7, the appellant must submit

a written request, signed personally by

the appellant, to the Director to review

the determination in order to be entitled

to such review by the Director.

(2) Not later than 15 business days

after the date on which an agency

receives the determination of a Hearing

Officer under § 11.7, the head of the
Federal Register / Vol. 60, No. 98 / Monday, May 22, 1995 / Proposed Rules 27049

agency may make a written request that

the Director review the determination.

Any such request may be made by the

head of an agency only, or by a person

acting in such capacity, but not by any

subordinate officer of such agency.

(b) Notification of parties. The

Director promptly shall notify all parties

of receipt of a request for review.

(c) Determination of Director. (1) The

Director will conduct a review of the

determination of the Hearing Officer

using the agency record, the hearing

record, the request for review, and such

other arguments or information as may

be accepted by the Director. Based on

such review, the Director will issue a

final determination notice that upholds,

reverses, or modifies the determination

of the Hearing Officer. The Director’s

determination upon review of a Hearing

Officer’s decision shall be considered to

be the final determination under this

part and shall not be appealable.

However, if the Director determines that

the hearing record is inadequate, the

Director may remind all or a portion of

the determination to the Hearing Officer

for further proceedings to complete the

hearing record or, at the option of the

Director, to hold a new hearing.

(2) The Director will complete the

review and either issue a final

determination or remand the

determination not later than—

(i) 10 business days after receipt of the

request for review, in the case of a

request by the head of an agency; or

(ii) 30 business days after receipt of

the request for review, in the case of a

request by an appellant.

(3) In any case or any category of

cases, the Director may delegate his or

her authority to conduct a review under

this section to any Deputy or Associate

Directors of the Division. In any case in

which such review is conducted by a

Deputy or Associate Director under

authority delegated by the Director, the

Deputy or Associate Director’s

determination shall be considered to be

the determination of the Director under

this part and shall be final and not

appealable.

(d) Equitable relief. In reaching a

decision on an appeal, the Director shall

have the authority to grant equitable

relief under this part in the same

manner and to the same extent as such

authority is provided an agency under

applicable laws and regulations.

§ 11.9 Bases for determinations.

(a) The Hearing Officers and the

Director are not bound by previous

findings of facts by the agency in

making a determination.

(b) In making a determination on the

appeal, Hearing Officers and the

Director shall ensure that the decision is

consistent with the laws and regulations

of the agency, and with the generally

applicable interpretations of such laws

and regulations.

(c) All determinations of the Hearing

Officers and the Director must be based

on information from the case record,

laws applicable to the matter at issue,

and applicable regulations published in

the Federal Register and in effect on the

date of the adverse decision or the date

on which the acts that gave rise to the

adverse decision occurred, whichever

date is appropriate under the applicable

agency program laws and regulations.

§ 11.10 Effective date and implementation

of final determinations of the Division.

(a) On the return of a case to an

agency pursuant to the final

determination of the Division, the head

of the agency shall implement the final

determination not later than 30 days

after the effective date of the notice of

the final determination.

(b) A final determination will be

effective as of the date of filing of an

application, the date of the transaction

or event in question, or the date of the

original adverse decision, whichever is

applicable under the applicable agency

program statutes or regulations.

§ 11.11 Judicial review.

(a) A final determination of the

Division shall be reviewable and

enforceable by any United States

District Court of competent jurisdiction

in accordance with chapter 7 of title 5,

United States Code.

(b) An appellant may not seek judicial

review of any agency adverse decision

appealable under this part without

receiving a final determination from the

Division pursuant to the procedures of

this part.

§ 11.12 Filing of appeals and computation

of time.

(a) An appeal, a request for Director

review, or any other document will be

considered ‘‘filed’’ when delivered in

writing to the Division, when

postmarked, or when a complete

facsimile copy is received by the

Division.

(b) Whenever the final date for any

requirement of this part falls on a

Saturday, Sunday, Federal holiday, or

other day on which the Division is not

open for the transaction of business

during normal working hours, the time

for filing will be extended to the close

of business on the next working day.

(c) The time for filing an appeal, a

request for Director review, or any other

document, with the Division expires at

5:00 p.m. Eastern Standard Time or

Eastern Daylight Savings time as

applicable on the last day on which

such filing may be made.

Done at Washington, D.C., this 12 day of

May, 1995.

Dan Glickman,

Secretary of Agriculture.

[FR Doc. 95–12261 Filed 5–19–95; 8:45 am]

BILLING CODE 3410–01–M

Animal and Plant Health Inspection

Service

9 CFR Part 3

[Docket No. 93–076–3]

Marine Mammal Negotiated

Rulemaking Advisory Committee;

Establishment

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Notice of intent to establish a

committee.

SUMMARY: The Department of

Agriculture announces its intent to

establish an advisory committee to

develop a recommended rulemaking

proposal to revise the regulations

governing the handling, care, treatment,

and transportation of marine mammals

in captivity. This committee, called the

Marine Mammal Negotiated Rulemaking

Advisory Committee, will be comprised

of representatives with a definable stake

in the outcome of the proposed rule.

DATES: Consideration will be given only

to comments received on or before June

21, 1995.

ADDRESSES: Please send an original and

three copies of your comments to

Docket No. 93–076–3, Animal and Plant

Health Inspection Service, Policy and

Programs Development, Regulatory

Analysis and Development, 4700 River

Road Unit 118, Riverdale, MD 20737–

1228. Please state that your comments

refer to Docket No. 93–076–3.

Comments received may be inspected at

USDA, room 1141, South Building, 14th

Street and Independence Avenue, SW.,

Washington, DC, between 8 a.m. and

4:30 p.m., Monday through Friday,

except holidays. Persons wishing to

inspect comments are requested to call

ahead on (202) 690–2817 to facilitate

entry into the comment reading room.

FOR FURTHER INFORMATION CONTACT:

Dr. Barbara Kohn, Senior Staff

Veterinarian, Animal and Plant Health

Inspection Service, Regulatory

Enforcement and Animal Care, Animal

Care, 4700 River Road Unit 84,

Riverdale, MD 20737–1228, (301) 734–

8699.