67298 Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations

§ 2422.33 Relief obtainable under Part

2423.

Remedial relief that was or could have

been obtained as a result of a motion,

objection, or challenge filed or raised

under this subpart, may not be the basis

for similar relief if filed or raised as an

unfair labor practice under Part 2423 of

this Chapter: Provided, however, that

related matters may be consolidated for

hearing as noted in § 2422.27(d) of this

subpart.

§ 2422.34 Rights and obligations during

the pendency of representation

proceedings.

(a) Existing recognitions, agreements,

and obligations under the Statute.

During the pendency of any

representation proceeding, parties are

obligated to maintain existing

recognitions, adhere to the terms and

conditions of existing collective

bargaining agreements, and fulfill all

other representational and bargaining

responsibilities under the Statute.

(b) Unit status of individual

employees. Notwithstanding paragraph

(a) of this section and except as

otherwise prohibited by law, a party

may take action based on its position

regarding the bargaining unit status of

individual employees, pursuant to 5

U.S.C. 7103(a)(2), 7112 (b) and (c):

Provided, however, that its actions may

be challenged, reviewed, and remedied

where appropriate.

PART 2429—MISCELLANEOUS AND

GENERAL REQUIREMENTS

5. The authority citation for Part 2429

continues to read as follows:

Authority: 5 U.S.C. 7134; § 2429.18 also

issued under 28 U.S.C. 2112(a).

6. Section 2429.21 is amended by

revising paragraphs (a) and (b) to read

as follows:

§ 2429.21 Computation of time for filing

papers.

(a) In computing any period of time

prescribed by or allowed by this

subchapter, except in agreement bar

situations described in § 2422.12 (c), (d),

(e), and (f) of this subchapter, and

except as to the filing of exceptions to

an arbitrator’s award under § 2425.1 of

this subchapter, the day of the act,

event, or default from or after which the

designated period of time begins to run

shall not be included. The last day of

the period so computed is to be

included unless it is a Saturday,

Sunday, or a Federal legal holiday in

which event the period shall run until

the end of the next day which is neither

a Saturday, Sunday, or a Federal legal

holiday. Provided, however, in

agreement bar situations described in

§ 2422.12 (c), (d), (e), and (f), if the 60th

day prior to the expiration date of an

agreement falls on Saturday, Sunday, or

a Federal legal holiday, a petition, to be

timely, must be filed by the close of

business on the last official workday

preceding the 60th day. When the

period of time prescribed or allowed is

7 days or less, intermediate Saturdays,

Sundays, and Federal legal holidays

shall be excluded from the

computations.

(b) Except when filing an unfair labor

practice charge pursuant to § 2423.6 of

this subchapter, a representation

petition pursuant to Part 2422 of this

subchapter, and a request for an

extension of time pursuant to

§ 2429.23(a) of this part, when this

subchapter requires the filing of any

paper with the Authority, the General

Counsel, a Regional Director, or an

Administrative Law Judge, the date of

filing shall be determined by the date of

mailing indicated by the postmark date.

If no postmark date is evident on the

mailing, it shall be presumed to have

been mailed 5 days prior to receipt. If

the filing is by personal delivery, it shall

be considered filed on the date it is

received by the Authority or the officer

or agent designated to receive such

matter.

7. Section 2429.22 is revised to read

as follows:

§ 2429.22 Additional time after service by

mail.

Except as to the filing of an

application for review to a Regional

Director’s Decision and Order under

§ 2422.31 of this subchapter, whenever

a party has the right or is required to do

some act pursuant to this subchapter

within a prescribed period after service

of a notice or other paper upon such

party, and the notice or paper is served

on such party by mail, five (5) days shall

be added to the prescribed period:

Provided, however, That five (5) days

shall not be added in any instance

where an extension of time has been

granted.

Dated: December 22, 1995.

Solly Thomas,

Executive Director, Federal Labor Relations

Authority.

[FR Doc. 95–31413 Filed 12–28–95; 8:45 am]

BILLING CODE 6727–01–P

DEPARTMENT OF AGRICULTURE

Office of the Secretary

Farm Service Agency

Natural Resources Conservation

Service

Rural Business-Cooperative Service

Rural Housing Service

Rural Utilities Service

7 CFR Parts 1, 11, 12, 400, 614, 620,

623, 631, 632, 634, 663, 701, 702, 752,

780, 781, and 1900

National Appeals Division Rules of

Procedure

AGENCY: Office of the Secretary,

National Appeals Division, USDA.

ACTION: Interim final rule.

SUMMARY: On May 22, 1995 (60 FR

27044), the National Appeals Division

(NAD) in the Office of the Secretary

published a proposed rule to implement

Title II, Subtitle H, of the Federal Crop

Insurance Reform and Department of

Agriculture Reorganization Act of 1994,

Pub. L. 103–354, 7 U.S.C. 6991 et seq.,

by setting forth procedures for program

participant appeals of adverse decisions

by United States Department of

Agriculture (USDA) agency officials to

NAD. The deadline for receipt of

comments was June 21, 1995. On June

28, 1995 (60 FR 32922) the Office of the

Secretary published an extension of the

deadline for receipt of comments until

July 6, 1995. From the period May 22 to

July 6, 1995, forty-six timely public

comments were received in response to

the proposed rulemaking. Based on

these comments, including concerns

regarding the need for an additional

comment period on the proposed rules

and the need for a comment period on

USDA agency conforming rules, but

mindful of the immediate need for

published rules, the Secretary now

issues these rules on an interim final

basis. These rules also include

conforming changes to the former

appeal rules of USDA agencies whose

adverse decisions are now subject to

NAD review.

DATES: Part 11 of this interim rule is

effective January 16, 1996. With the

exception of § 11.9, part 11 of this rule

is applicable as to agency adverse

decisions and NAD appeals for which

hearings have not been held. Section

11.9 of this interim rule is applicable

immediately as to all pending requests

for Director review and is applicable

retroactively to all requests for Director
Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations 67299

review made on or after October 20,

1994.

Amendments made by this interim

rule to all other parts of title 7 of the

Code of Federal Regulations are

effective January 16, 1996 and are

applicable on January 16, 1996 as to any

adverse technical determinations or

decisions made by an applicable agency.

Written comments via letter,

facsimile, or Internet are invited from

interested individuals and

organizations, and must be received on

or before March 28, 1996.

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, DC 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 202/720–4076.

SUPPLEMENTARY INFORMATION:

Classification

This 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

USDA certifies that this 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.).

Paperwork Reduction Act

USDA has determined that the

provisions of the Paperwork Reduction

Act, as amended, 44 U.S.C., chapter 35,

do not apply to any collections of

information contained in this rule

because any such collections of

information are made during the

conduct of administrative action taken

by an agency against specific

individuals or entities. 5 CFR

1320.4(a)(2).

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 the

Federal Crop Insurance Reform and

Department of Agriculture

Reorganization Act of 1994, Public Law

No. 103–354, 7 U.S.C. 6991 et seq. (‘‘the

Act’’). NAD was assigned responsibility

for all administrative appeals formerly

handled by the National Appeals

Division of the former Agricultural

Stabilization and Conservation Service

(ASCS) and by the National Appeals

Staff of the former Farmers Home

Administration (FmHA), appeals arising

from decisions of the former Rural

Development Administration (RDA) and

the former Soil Conservation Service

(SCS), appeals arising from decisions of

the successor agencies to the foregoing

agencies established by the Secretary,

appeals arising from decisions of the

Commodity Credit Corporation (CCC)

and the Federal Crop Insurance

Corporation (FCIC), and such other

administrative appeals arising from

decisions of agencies and offices of

USDA as may in the future be assigned

by the Secretary.

This rule 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 new 7 CFR part 11. In

addition, since the Act changes existing

formal administrative appeals

procedures for some agencies while

allowing participants a choice of

pursuing informal appeals with an

agency first or appealing directly to

NAD, this rule also makes conforming

amendments to the existing appeal

procedures of the USDA agencies whose

adverse decisions will be appealable to

NAD under the new 7 CFR part 11.

For the purposes of convenience, this

preamble and the changes to USDA

regulations are divided as follows:

Item Subject Contact

I ........... Authentication of Records ................................................................................................................. B. Young 202/720–4076.

II .......... NAD Rules of Procedure ................................................................................................................... B. Young 202/720–4076.

III ......... Natural Resources Conservation Service (NRCS) Appeal Rules ..................................................... S. Penn 202/720–6521.

IV ......... Commodity Credit Corporation (CCC), Federal Crop Insurance Corporation (FCIC), and Farm

Service Agency (FSA) Appeal Rules.

A. Grundeman 202/720–4591.

V .......... Rural Business-Cooperative Service (RBS), Rural Housing Service (RHS), and Rural Utilities

Service (RUS) Appeal Rules.

A. Grundeman 202/720–4591.

I. Authentication of Records

This rule amends the provisions of

USDA regulations regarding

authentication of official records to

provide that the Director of NAD may

authenticate documents in NAD records

for USDA.

II. NAD Rules of Procedure

Forty-six timely comments were

received by July 6, 1995 in response to

the requests for comment on the

proposed NAD rule. In response to these

comments, a number of changes have

been made to the rules; however, USDA

has opted not to publish the revised

rules for an additional comment period.

USDA does recognize the need for

further public comment on these rules.

USDA therefore is issuing this rule on

an interim final basis for three specific

reasons.

First, a tension exists between the

desire of Congress and the USDA to

make this a farmer-friendly appeals

process and the necessity of establishing

an appeals procedure that comports

with due process and results in

determinations that will withstand

scrutiny in the Federal courts. At the

same time, it is important that the

appeals procedure allow for ease of

administration by NAD in a time of

scarce and decreasing Federal resources.

These problems are reflected in

disagreements among the commenters

as to how some of the most detailed

procedures should be implemented.

These tensions should not be resolved

presumptively in a final rule. Therefore,

promulgation of an interim rule will

allow USDA to receive more feedback
67300 Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations

and make adjustments with the aid of

experience.

Second, several commenters

expressed concern over the fact that

conforming amendments to individual

agency appeal rules were not published

with the proposed rule. Additionally,

these conforming amendments will

result in more substantive changes to

agency rules than originally were

anticipated by USDA at the time the

proposed rules were published. For

example, FSA now has decided to

combine appeal procedures for the

former ASCS, the former FmHA, and

FCIC programs that it now administers

under the Act. These new agency appeal

procedures will set forth how

participants may use the ‘‘informal

hearings’’ option provided in section

275 of the Act.

Third, legislative changes may occur

during consideration of the Farm Bill in

1996 that will necessitate changes to the

NAD rules of procedure. By publishing

this as an interim rule, the USDA

establishes a process for current

operations while leaving the rulemaking

door open for timely adoption of rules

necessary to implement possible

legislative changes.

The following explanation is given for

those sections of the proposed rule that

were heavily commented on or

appeared to be misunderstood:

§ 11.1 Definitions.

Adverse decision. Two commenters

noted problems with the proposed

definition of ‘‘adverse decision’’ with

respect to such decisions resulting from

a failure of the agency to act. The

proposed rule had by definition

provided that an adverse decision

results when an agency failed to act or

make a decision within timeframes

prescribed by agency program

regulations. The two commenters noted

that in some cases statutes prescribed

timeframes and that in others the

regulations prescribed no timeframes. In

the latter case, one of the commenters

suggested that USDA use a ‘‘reasonable’’

time in the absence of a prescribed

timeframe. The amended definition

provides that an adverse decision

results when an agency fails to act

within prescribed statutory or regulatory

timeframes, or, in the case where there

are no such timeframes specified,

within a reasonable time.

Agency. All former and current

agencies of the USDA whose adverse

decisions are covered by this part have

been added in response to a comment

noting the lack of parallel treatment

between inclusion of old and new

agency names and the need to assist

individuals unfamiliar with the new

names.

USDA also has added language to

cover certain programs administered by

RUS because, as one commenter

correctly noted, they are former

programs of RDA that by definition in

the Act are covered by NAD. This is

accomplished by excluding from NAD

purview all RUS programs authorized

under the Rural Electrification Act and

the Rural Telephone Bank Act.

Agency record, case record, and

hearing record. Seven commenters had

questions regarding the definitions of

‘‘agency record,’’ ‘‘case record,’’ and

‘‘hearing record.’’ These definitions

were carefully nested within one

another in order to construe the

language of the Act in a logical manner.

Section 278(c) of the Act requires that

NAD determinations be made ‘‘based on

information from the case record, laws

applicable to the matter at issue, and

applicable regulations published in the

Federal Register.’’ Section 277(a) of the

Act, however, also makes reference to

the fact that the Director and the

Hearing Officer are to have access to the

‘‘case record’’ of an adverse decision

upon initial filing of an appeal. Section

278(b) also makes reference to the ‘‘case

record’’ that the Director must review as

well as the record from the hearing.

Clearly, the ‘‘case record’’ in the latter

two provisions cannot be the same ‘‘case

record’’ referred to in section 278(c), or

else NAD determinations would have to

be made without reference to the record

developed in the hearing itself.

USDA faced the task of construing

these seemingly contradictory statutory

provisions in a complementary manner.

This was done by creating a definitional

framework based upon section 271(4) of

the Act that defines ‘‘case record’’ to

include ‘‘all the materials maintained by

the Secretary related to an adverse

decision.’’ As in most cases where the

Secretary is named in a statute,

‘‘Secretary’’ here is interpreted to mean

not the person of the Secretary but

rather the Secretary and all subordinate

officials of USDA to whom the Secretary

has delegated statutory authority.

Construed in this manner, ‘‘case record’’

includes any and all materials held by

USDA that relate to an adverse decision

at any given moment during the

administrative appeal process. What the

term ‘‘case record’’ includes when used

in the statute thus changes based upon

the level of the appeal process in which

it is used.

For purposes of clarity in the rule, a

new term needed to be created to

distinguish the ‘‘case record’’ presented

by the agency to the Hearing Officer, the

record developed by the Hearing Officer

in the hearing (sec. 278(b)) and

eventually forwarded to the Director,

and the ‘‘case record’’ upon which the

determination is based. This is

accomplished in the rule by defining

documents furnished by the agency to

the Hearing Officer upon the initial

filing of the appeal as the ‘‘agency

record’’ that by rule is deemed admitted

as evidence in the hearing, by defining

evidence presented at the hearing, the

transcript of the hearing itself, and posthearing submissions as the ‘‘hearing

record,’’ and finally by explicitly

incorporating both the ‘‘agency record’’

and the ‘‘hearing record’’ into the

definition of ‘‘case record’’ upon which

NAD determinations are made. ‘‘Case

record’’ construed in this fashion also

includes ‘‘the request for review, and

such other arguments or information as

may be accepted by the Director’’ (sec.

278(b)) in the Director review phase of

NAD appeals because they would be

included as materials maintained by the

Secretary.

Director. Three commenters objected

to the proposed rule definition and

other provisions that would allow the

Director to delegate the authority of the

Director to subordinate individuals

within NAD. The primary rationale for

the objections was that this would mean

that someone without the credentials

and qualifications required by the

statute for the Director would be

exercising the statutory authority of the

Director.

USDA rejected changing this

provision for two reasons. First, even

though the authority for certain actions

may be delegated, such actions are still

taken in the name of the Director. The

Director, in other words, still exercises

the final authority. Second, given the

anticipated volume of appeals to be

filed with NAD, it is not practical or

efficient to require that the Director

personally perform all actions specified

for the Director by name in the Act.

Division. One commenter suggested

that the proposed rule was in error in

specifying that the Division was

established by this part instead of the

Act itself. Section 272(a) of the Act

provides that ‘‘[t]he Secretary shall

establish’’ NAD, not that the NAD ‘‘is

established.’’ Therefore, action by the

Secretary was required to establish

NAD.

Equitable relief. Two commenters

suggested that the proposed rule

definition of equitable relief needed to

be better defined. USDA chose not to

define equitable relief further because

the meaning of such relief varies from

program to program covered under these

rules, depending on the language of the

program statutes. The guiding intent
Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations 67301

behind the drafting of these rules was to

ensure that they were written as broadly

and flexibly as possible so that they do

not need to be amended each time an

agency amends its substantive program

regulations.

Ex parte communication. One

commenter suggested this definition

needed to include post-hearing requests

for Director review and requests

regarding the appealability of adverse

decisions. The definition here was

changed to include an oral or written

communication ‘‘to any officer or

employee of the Division.’’ As explained

below, further changes were made

regarding ex parte communications to

ensure that the prohibition on such

communications covered all NAD

proceedings and employees.

Implement. Three comments were

received suggesting changes to this

definition. In combination with § 11.11

of the rule, USDA feels that this

language reflects the statutory definition

and need not be changed.

Participant. One commenter

suggested that, rather than defining

‘‘participant’’ by listing programs and

statutes under which an individual may

not bring an appeal before NAD, a

separate list of non-appealable decisions

should be added to the regulation. This

approach was considered, as was listing

the programs from which adverse

decisions could be appealed to NAD,

but the statutory language did not

support these approaches. ‘‘Adverse

decision’’ is defined too broadly in the

statute to limit by regulation. Further,

nonappealability of decisions is limited

only to matters of general applicability

under section 272(d) of the Act.

Conversely, Congress explicitly gave the

Secretary authority to define

‘‘participant’’ (sec. 271(9)) and therefore

the approach reflected in the rule was

chosen.

Seven substantive comments were

made regarding the definition of

‘‘participant’’ in the proposed rule. Two

commenters suggested that the

definition should be expanded to

include the requirement that, for certain

guaranteed loan programs of the former

Farmers Home Administration (FmHA),

both the applicant/borrower and the

lender should be required to appeal

jointly. Since any decision to deny a

guaranteed loan would affect both the

applicant/borrower and the lender,

USDA agrees that both parties must

appeal any such adverse decision and

the rule has been revised to reflect this

requirement. However, only the lender

will be able to appeal the denial or

reduction of a final loss payment to that

lender.

One commenter expressed concern

that the language ‘‘right to participate

in’’ did not clearly include an applicant.

Therefore, USDA has added ‘‘who has

applied for’’ to the definition.

One commenter suggested that the

wording of the definition technically

could exclude someone from appealing

to NAD if, for example, they had filed

a tort claim against USDA. As a

‘‘participant’’ in a tort claim, they would

not be included as a ‘‘participant’’ for

purposes of a NAD appeal. To clarify

that this is not the case, USDA has

amended the introductory phrase before

the list of programs to read: ‘‘The term

does not include persons whose claim(s)

arise under:’’.

Finally, three comments were

received from representatives of

reinsured companies, that is, crop

insurance companies whose insurance

contracts with producers are reinsured

by the FCIC. The reinsured companies

objected to the language including

participants affected by decisions of

reinsured companies in the definition of

‘‘participants.’’ As originally proposed,

the language would have allowed

participants to appeal reinsured

company decisions to NAD.

The reinsured companies objected to

this language on several grounds. First,

they noted that while FCIC was

included in the definition of ‘‘agency’’

in section 271(1) of the Act, reinsured

companies were not. Thus, the proposed

rule attempted to include private

companies as government agencies

contrary to the language of the Act.

Second, the reinsured companies argued

that promulgation of this language by

USDA in the final rule would breach the

terms of the Standard Reinsurance

Agreements between USDA and the

reinsured companies, as well as alter the

legal terms of reinsured company

policies with thousands of insureds.

Third, the number of policy decisions

made by reinsured companies that

would be open to appeal to NAD under

the proposed language would

overwhelm NAD with thousands of

appeals. Finally, the reinsured

companies argued that the intent of the

Act in including FCIC in the definition

of ‘‘agency’’ was to provide appeal

rights for participants in crop insurance

programs for a narrow range of

decisions still committed to FCIC after

crop insurance reform, i.e., decisions

regarding yield and coverage that are

based on FCIC actuarial data or

decisions where an individual is found

ineligible to participate in the Federal

crop insurance program.

In response to these comments, USDA

has dropped decisions of reinsured

companies as decisions that participants

may appeal under this part. The

exclusion of disputes between reinsured

companies and FCIC from the definition

of participant in the final rule also

means that all disputes between

reinsured companies and FCIC likewise

are excluded from the jurisdiction of

NAD. Contract disputes between

reinsured companies and FCIC will be

appealable to the USDA Board of

Contract Appeals as provided in its

rules. Non-contract related decisions of

FCIC that are adverse to reinsured

companies may be settled with the

agency or by resort to legal action in a

court of competent jurisdiction.

Additional definitions. Two

commenters suggested that a definition

for ‘‘mediation’’ be added. The use of

mediation or other forms of alternative

dispute resolution (ADR) by program

participants is a matter of choice for the

participants themselves. Since the type

of mediation or ADR used by a

participant and the agency is not a

jurisdictional issue for purposes of

determining whether an appeal is

properly before NAD, NAD has no

control over whatever means the

participant and agency employ.

Accordingly, USDA has declined to

attempt to define mediation or ADR for

purposes of this part.

§ 11.2 General statement.

No comments were received in

response to this section. USDA has

made two changes to this section upon

further review. First, language has been

added to reflect the statutory provision

that NAD, although independent, is

subject to the general supervision and

policy direction of the Secretary.

Second, a statement has been added to

make clear that exhaustion of the

procedures for Hearing Officer review of

an adverse decision under this part is

required before a program participant

may seek judicial review of an adverse

decision. This additional language does

not deprive participants of their right to

seek review under any judicial

exceptions to required exhaustion of

administrative procedures.

§ 11.3 Applicability.

Six commenters generally contended

that the NAD appeal procedures should

apply to appeals arising after October

13, 1994, and not October 20, 1994 as

specified in the proposed rule. The

commenters’ rationale for the October

13 date is that the Act was effective as

of that date. One commenter also

discussed the legal ability of the

Department to make the rule effective

retroactively.

USDA has decided to delete the

effective date subsection from this
67302 Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations

section because it inaccurately indicated

an intent to make this entire rule

retroactive. Instead, the effective date of

this rule is appropriately set forth in the

EFFECTIVE DATE section of this Federal

Register document.

Two additional changes have been

made to this section. First, wetland or

highly erodible land determinations

have been added to the list of examples

of agency adverse decisions to clarify

that these decisions are included.

Second, a new subsection has been

added to address confusion, reflected in

some comments, that exists over the

jurisdiction of NAD over agency

programs. NAD Hearing Officers are not

administrative law judges. NAD has no

jurisdiction over questions of law or the

appropriateness of agency regulations. It

simply decides the factual matter of

whether an agency complied with such

laws and regulations in rendering an

adverse decision. The limitation added

here makes clear that NAD may not be

used by program participants for the

purpose of challenging the validity of

USDA regulations issued pursuant to

statutory authority.

§ 11.4 Inapplicability of other laws and

regulations.

Section 277 of the Act provides an

elaborate appeals scheme for particular

programs of USDA, including

provisions for hearings, the issuance of

subpoenas, and even ex parte

communications. Section 277(a)(2)(A) of

the Act in fact explicitly incorporates

the definition of an ex parte

communication from the Administrative

Procedure Act (APA) (5 U.S.C. 551(14))

as if the APA stands outside of, and is

not applicable to, NAD proceedings. In

view of this statutory language, and in

the absence of Congressional intent

otherwise, USDA has concluded that the

provisions of the APA generally

applicable to agency adjudications (5

U.S.C. 554, 555, 556, 557, & 3105) do

not apply to NAD proceedings.

Furthermore, because NAD proceedings

are not required to be conducted under

5 U.S.C. 554, USDA also concludes the

Equal Access to Justice Act, 5 U.S.C.

504, does not apply to NAD

proceedings. Ardestani v. I.N.S., 112

S.Ct. 515, 519 (1991).

Another issue is the applicability of

the Federal Rules of Evidence to NAD

proceedings. Congress intended that

these proceedings be farmer-friendly so

that farmers would not be required to

hire attorneys to use the NAD appeal

process. Therefore, USDA concluded

that the Federal Rules of Evidence

should not apply to NAD proceedings.

One commenter suggested USDA also

should eliminate any ambiguity with

respect to the applicability of the

Federal Rules of Civil Procedure, which

was referred to in one respect in what

was § 11.7(a)(2)(vi) of the proposed rule.

The situation with respect to the Rules

of Evidence, however, is unique in that

attempts have been made in NAD

hearings to apply the Federal Rules of

Evidence as generally accepted rules of

evidence, necessitating an explicit

statement of policy in the rules. The

same problems have not arisen with

respect to the Federal Rules of Civil

Procedure; therefore, USDA does not

feel that it is necessary to state explicitly

that those rules do not apply.

§ 11.5 Informal agency hearings and

exhaustion.

This section of the proposed rule

drew 29 comments, more than any

other. Some comments suggested that

the exhaustion requirement for FSA

county committees was contrary to

statute, while others were concerned

because the section did not provide for

exhaustion to the FSA state committee.

A number of commenters were confused

by the sequence of events for informal

hearings, mediation, and NAD appeals

outlined in this section. Providers of

mediation services particularly were

concerned that all appellants be notified

of mediation rights, and that mediation

occur at the lowest level of the appeal

process. A number of commenters

expressed concern about the

inconsistent use of the terms ‘‘informal

hearings,’’ ‘‘informal appeal,’’ and

‘‘informal review.’’

With respect to the comments

regarding agency notice of adverse

decisions and appeal rights, USDA has

determined to handle such notice

outside the parameters of this rule. As

a matter of Department policy, agencies

will be expected to notify participants of

their appeal rights and their right to

choose mediation or ADR, where

available, when they issue an adverse

decision.

In light of the other comments, this

section has been revised significantly.

Only the term ‘‘informal review’’ will be

used throughout the section. Given this

consistent use, USDA finds it

unnecessary to define this term.

Before appealing to NAD, participants

may elect to request an informal review

of an adverse decision by the agency.

However, in the case of adverse

decisions made by officials under the

authority of FSA county and area

committees, participants will be

required to undergo informal review

before the county or area committee

before appealing the adverse decision to

NAD. After receiving the mandatory

informal review by the county or area

committee, the participant then may

seek informal review of that decision by

the State committee or appeal directly to

NAD. For purposes of this section,

USDA interprets a decision at each level

of agency informal review as a new

adverse decision for purposes of

calculating the timeliness of a

participant’s appeal to NAD under

§ 11.6 of the rules.

When a participant requests such

mediation, the 30-day period within

which the participant may request a

hearing under § 11.6(b)(1) will stop

running until such time as the

mediation or ADR is concluded. Unlike

with informal review, however, the

conclusion of mediation is not viewed

as a new agency adverse decision. At

that point, the participant will have the

balance of the 30-day period to appeal

to NAD, or to seek informal review as

outlined above. The 30-day period will

function in effect as a statute of

limitations; it will be up to the agency,

not NAD, to raise the jurisdictional

issue before NAD as to the fact that a

participant’s appeal is untimely.

Treatment of mediation or ADR in

this manner means that the conclusion

of mediation or ADR will not be treated

as an adverse decision. Conversely, as

indicated above, a decision at each level

of the informal review process will be

treated as an adverse decision for

determining when the 30-day period for

an appeal to NAD begins to run.

Example

A FSA program participant receives an

adverse decision from a county executive

director. He cannot appeal to NAD. He must

first pursue an informal review with the

county committee. The county committee

upholds the original adverse decision.

Program participant now has three choices:

(1) Within 30 days, choose mediation or

ADR; (2) Within 30 days, appeal to NAD; or

(3) Within the lesser of 30 days, or the time

period specified in FSA informal review

regulations, request an informal review by

the State Committee. Participant chooses

mediation after 10 days. Mediation fails.

Participant has the balance of 20 days (i.e.,

30 days minus 10 days) to appeal to NAD

after the conclusion of mediation or he may

request review by the State Committee in

accordance with FSA regulations. If he

appeals to NAD, the agency bears the burden

of proving untimeliness of the appeal to

NAD, i.e., if the participant took 25 days, 5

days in excess of his remaining 20, to appeal

to NAD, the agency must demonstrate this to

NAD. If he requests an informal review by

the State Committee, the participant will

have 30 days to appeal any adverse decision

made by the State Committee to NAD.
Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations 67303

§ 11.6 Director review of agency

determination of appealability and right of

participants to Division hearing.

USDA has revised the format of this

section so that it follows the logical

progression from a Director

determination of appealability, where

made necessary because of an agency

determination that an adverse decision

is not appealable, to the appeal itself.

Section 11.6(a) (§ 11.6(b) in the

proposed rule) provides the rules for

requesting Director review of the

determination of appealability. Two

commenters suggested that the proposed

language that the Director use ‘‘any

information he determines necessary’’

in making a determination was too

broad. These commenters felt the

information to be considered should be

defined, and that the allowance of any

information the Director deemed

necessary made the process appear

secretive if the ex parte prohibition did

not apply to this stage of the appeal

process.

USDA has revised this subsection to

reflect the language of the statute and

not specify anything regarding what

information the Director may or may not

use.

Two commenters desired changes in

the references to Deputy and Associate

Directors to reflect titles currently used

in the NAD internal structure. USDA

has substituted ‘‘subordinate official

other than a Hearing Officer’’ in the

place of Deputy and Associate Directors

to preserve the flexibility of the Director

to organize NAD internally without

reference to regulatorily defined titles.

This change also responds to a comment

that requests that the Director be

allowed to delegate this responsibility

as far down as possible to accomplish

such a mission efficiently. Hearing

Officers were excluded from such

delegation because the delegation of

such authority down to Hearing Officers

facially contradicted the statute and

could represent a potential conflict of

interest for Hearing Officers who must

justify resource requirements based on

the burden of their caseload.

USDA rejected comments suggesting

that this delegation is improper under

the statute, or that participants should

be given the right to challenge the

credentials of the subordinate reviewing

official. Nothing in the statute requires

that the Director personally must review

every request for a determination of

appealability that may be filed. The

Director, as in the case of any agency

official, remains ultimately responsible

for any decision undertaken by a

subordinate. Therefore, USDA sees no

reason why this statute should be read

any differently than any other statute

where, absent a specific statutory

prohibition, USDA and other executive

branch agencies have allowed for

delegation of decision-making authority

by officials whose qualifications have

been set by statute.

With respect to this subsection as

proposed, two commenters also

expressed concern that it did not specify

the timing for filing an appeal once the

Director reversed an agency

determination that an adverse decision

was not appealable. USDA added

language in what is now subsection (b)

to specify that the 30 days for appeal of

adverse decisions shall run from the

date the participant receives notice of

the adverse decision or receives notice

of the Director’s determination that an

adverse decision is appealable.

Subsection (b) (§ 11.6(c) in the

proposed rule) provides rules for

appealing adverse decisions to NAD. In

addition to the change noted above, two

additional changes were made to this

section. First, seven commenters

suggested that it is inappropriate in any

circumstances to apply a ‘‘should have

known’’ standard as a deadline for

appeals in cases of agency inaction.

They argued that this shifted the burden

from the agency to the participant for

policing the agency’s failure to follow

its own regulations; one commenter

argued that the agency remained in

continuing violation for failure to act

within its own deadlines.

USDA disagrees with these

commenters. A failure to act by the

agency at some point becomes ripe for

appeal and the statute clearly also

provides that at a point past 30 days

from an adverse decision an appellant

loses the right of appeal. USDA finds no

intention on the part of Congress to

extend a participant’s right of appeal

indefinitely, particularly when agency

regulations define a specified period in

which a decision is to be made.

However, to add flexibility to the

‘‘should have known’’ standard in the

latter situation, USDA has changed the

regulation to require that a participant

must request a hearing within 30 days

after the participant ‘‘reasonably’’

should have known that the agency had

not acted within the timeframes

specified by program regulations.

The second change made to the

proposed rule regarding the request for

a hearing is to require a participant to

send a copy of the request for a hearing

to the agency, and allow a participant

the option to send a copy of the adverse

decision being appealed to the agency as

well. In either case, failure of the

participant to send such copies to the

agency is not jurisdictional and

therefore will not be grounds for

dismissal of an appeal.

Agency officials often make many

decisions a year with respect to some

individual participants. In such cases, it

is not always immediately apparent

which decision a participant has

appealed at a given time. USDA adds

this provision to promote efficiency in

the appeals process by encouraging full

airings of appeals before the Hearing

Officer. Sending the agency a copy of

the decision will discourage agency

requests for Director review because the

agency did not have adequate notice of

the appeal or the decision that was

being appealed.

With respect to the language in the

proposed § 11.9(c), several other

comments were rejected. Two

commenters suggested that, since the

‘‘should have known’’ standard is being

used, participants should not be

required to exhaust administrative

remedies prior to judicial review when

appeals are taken from cases where

agencies have failed to act. The

statement added to § 11.2 and discussed

above makes clear that USDA considers

exhaustion of an appeal to the Hearing

Officer mandatory prior to seeking

judicial review, regardless of the basis

for the appeal.

One commenter suggested that the

regulation should state clearly that a

decision becomes final after the 30-day

time period for requesting a hearing is

missed and that this timeframe may not

be waived. USDA believes such a

provision unnecessary; if a participant

does not request the hearing within 30

days, the participant will not be allowed

to have a hearing. USDA considers the

30-day requirement for filing an appeal

to be jurisdictional in nature; thus, NAD

has no authority under the Act to hear

an appeal unless filed within the 30-day

time period as required.

On the other hand, USDA does not

view the requirements of section 274 of

the Act to be jurisdictional for NAD.

That section requires an agency to

provide participants with written notice

of the adverse decision and appeal

rights within 10 working days of the

adverse decision. One commenter

suggested that the proposed rule be

revised to state that the 30-day

timeframe for requesting a hearing does

not begin to run until the participant

receives complete appeal rights,

presumably as provided for in section

274. While section 274 of the Act places

a requirement on agencies, it has no

bearing on the authority of NAD to hear

an appeal by a participant. To read

section 274 literally as suggested also

would mean conversely that a

participant achieves no standing to
67304 Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations

appeal an adverse decision to NAD until

the participant receives a notice of

appeal rights. USDA therefore rejects

this comment and instead determines

that the time period for requesting an

appeal begins to run on ‘‘the date on

which the participant first received

notice of the adverse decision’’ as

provided in section 276(b) of the Act.

New subsection (c) retains language

from the proposed subsection (a)

regarding the requirement for

participants to authorize representation

by others in writing to USDA. Eight

commenters addressed both this specific

requirement and the requirement in

other parts of this subsection that a

participant must ‘‘personally’’ request a

Director determination of appealability

and an appeal to a Hearing Officer.

The intention behind this requirement

is to ensure that participants are fully

aware of the implications of actions

being taken on their behalf in the

appeals process. By requiring that they

personally sign requests for Director

review of appealability, requests for

hearing, and requests for Director

review of Hearing Officer

determinations (§ 11.9(a)), participants

will be taking personal responsibility for

such actions when represented by

another. Authorized representatives also

will be required to keep participants

informed in order to get their signature

authorizing proceeding to each new

phase of a NAD appeal. USDA’s concern

is to ensure that participants are giving

informed consent to the decisions

undertaken in their behalf by their

representatives, and, by requiring

execution of a declaration of

representation, that NAD is assured that

purported representatives are who they

actually claim to be. While USDA could

curb potential abuses by licensed

attorneys by complaints to state bars,

USDA has no check on the actions of

representatives who are not attorneys

other than through provisions such as

those promulgated here. The burdens

imposed on participants and

representatives are light—the language

for the declaration can be obtained from

NAD and signed documents can be

submitted by mail or by facsimile

transmission.

Finally, four commenters felt that it

was inappropriate for an appellant to

state why the adverse decision is wrong

because it was too early in the process

to state a position or it may lead some

participants to think that they need an

attorney to bring an appeal. USDA

disagrees. The word ‘‘wrong’’ was used

here precisely to avoid any requirement

that a participant state why a decision

was ‘‘erroneous’’ or ‘‘did not conform to

published law or regulation’’ or similar

language. Those latter variations could

be interpreted as legalistic, but USDA

believes that at this initial stage the

participant at least can tell NAD what is

wrong with the decision that causes one

to appeal it. This initial position is not

binding, but rather provides NAD with

a little bit more information that will

allow for efficient administration of

appeals. For example, if a participant

feels discriminated against in the

administration of a program, a statement

to this effect at this stage may allow

NAD to direct that person to the

appropriate forum of USDA for

consideration of civil rights complaints.

§ 11.7 Ex parte communications.

The proposed rule included a

paragraph on ex parte communications

in § 11.7(a) under the section regarding

Division hearings. Two commenters

expressed concerns in response to this

proposed paragraph, the proposed

definition of ex parte communication,

and the proposed subsection on Director

review of agency determinations of

nonappealability, suggesting that the ex

parte prohibition should apply to more

than just the hearing phase of the NAD

appeal process. One of these

commenters also noted that the ex parte

prohibition also should apply to all

employees of the Division.

Initially, USDA drafted the proposed

regulation in parallel to the statute that

stated the ex parte prohibition in the

section of the Act on hearings. After

reviewing the comments and the

statutory language, and in order to foster

a perception of fairness and equal

treatment in the NAD appeals process,

USDA has determined to apply the ex

parte prohibition from the point at

which the appeal is filed under section

§ 11.6(b) through the issuance of a final

determination by the Director under

§ 11.9.

To do this, a new § 11.7 was created

to make clear that the ex parte

prohibition applies to more than just the

hearing phase of the NAD process, and

that it applies to any officer or employee

of the Division. However, USDA

rejected the comment that suggested

that the ex parte prohibition apply to

requests for Director review of

appealability. The Director should be

entitled to greater flexibility in

contacting the agency and the USDA

Office of the General Counsel to obtain

information useful in making

determinations as to whether particular

adverse decisions are matters of general

applicability. Additionally, the ex parte

prohibition does not apply to Director

reconsideration under § 11.11 unless the

Director decides to grant the request for

reconsideration.

§ 11.8 Division hearings.

Proposed § 11.7 has been renumbered

§ 11.8. The majority of comments on

this section involved the perceived

onerous burden on appellants of

virtually requiring verbatim transcripts

of hearings, the allegedly unreasonable

time deadlines that could be set more

flexibly by the Hearing Officer, the

requirements for sending various

notices to the appellant, the need for

allowing good cause exceptions for

absences, the need for actual documents

to be submitted to Hearing Officers to

make the hearing more efficient, the

need to stress telephone hearings, the

wisdom of continuing current NAD

practice of telephonic pre-hearing

conferences, the need to give additional

parties the right to participate in the

appeal, the need to reduce or waive the

perceived unreasonable requirement

that the requesting party pay for costs of

witness travel and subsistence fees, and

the ambiguity of the use of the word

‘‘personally.’’

A number of changes have been made

in response to comments and upon

further reflection by USDA. The

changes, or rejection of comments, are

described below:

—Proposed § 11.7(a)(1) (now

§ 11.8(a)(1)) is revised to require the

agency to provide the appellant a

copy of the agency record upon

request of the appellant; this

requirement is a restatement of that

requirement already included in the

proposed rule at § 11.7(b)(1) that also

has been amended as § 11.8(b)(1) in

the final rule to require that such

record be furnished to the appellant

within 10 days of agency receipt of

request for the record rather than

‘‘promptly’’ as proposed;

—A Hearing Officer will be required to

obtain the concurrence of the Director

prior to issuing a subpoena;

—Comments suggesting that an

appellant have access to his or her

entire file under this part were

rejected, but the definition of ‘‘agency

record’’ was expanded above;

—The requirement that a request for

subpoena be submitted 14 days ahead

of the hearing was retained but a

requirement that such a subpoena

must be issued 7 days prior to the

hearing was added;

—Parties requesting a subpoena will

have to pay only the ‘‘reasonable’’

travel and subsistence costs of a

witness; USDA rejected all comments

suggesting that the requirement that a

party pay for all witnesses

subpoenaed be deleted or that USDA

should pay for such witnesses where

the appellant was unable to pay;
Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations 67305

USDA also limited its payment for the

costs associated with the appearance

of a USDA employee to such

situations where an employee’s role

as a witness arises out of his or her

performance of official duties;

—The requirement for submission of

certain documents to the Hearing

Officer 28 days prior to the hearing is

deleted; instead, the Hearing Officer

may set a ‘‘reasonable’’ deadline for

submission of such documents;

—The required pre-hearing submission

of documents is limited to those

documents not contained in the

agency record that the appellant plans

on introducing at the hearing;

—The amount of time for the Hearing

Officer’s notice of the date, time, and

place of the hearing is reduced from

21 days to 14 days prior to the

hearing, and the Hearing Officer also

may take into account the

convenience of the agency in picking

a hearing site;

—A pre-hearing conference will be

required and will be conducted by

telephone unless otherwise agreed to

by all parties and the Hearing Officer;

—The notice of the right to obtain the

official record shall go to all parties,

and all parties shall have the same

participation rights in the actual

hearing;

—The text of the proposed paragraph

§ 11.7(c)(4)(iii) is deleted and replaced

with new text in § 11.8(c)(5)(iii) that

makes a tape recording by the

Division the official record of the

proceeding unless a party requests a

verbatim transcript, in which case

that party must furnish a certified

copy of the transcript to the Hearing

Officer for the purpose of constituting

the official record and must allow

other parties to purchase that

transcript from the transcription

service;

—The authority of the Hearing Officer to

cancel a hearing in the absence of a

party is limited to such cases where

the absent party fails to appear

without good cause;

—The ability of the Hearing Officer to

add additional evidence to the record

in the absence of a party at a hearing

is clarified;

—The section clarifies that a notice of

determination must be sent by the

Hearing Officer to the individual

participant appealing the adverse

decision, i.e. the ‘‘named’’ appellant,

as well as the authorized

representative of that person; and

—The Hearing Officer shall send, with

the notice of determination, a copy of

the procedures for a request for filing

for Director review under § 11.9.

§ 11.9 Director review of determinations of

Hearing Officers.

Fifteen commenters submitted

comments on this section, which

appeared as § 11.8 in the proposed rule.

Some of these comments, such as those

objecting to the use of the word

‘‘personally,’’ the request for the

procedures of this section to be sent to

the appellant with the Hearing Officer

notice of determination, and the

extension of the ex parte prohibition to

Director review, have been handled as

described above.

One comment suggesting that the

agency head be allowed to delegate his

or her authority to request Director

review was rejected. On this point,

USDA’s position is that an agency

request for Director review should only

be exercised where the Hearing Officer

has issued a determination that clearly

is not supported by a preponderance of

the evidence or is contrary to law. To

avoid flooding NAD with agency

requests for review, retaining the agency

head, or the person acting in such

capacity, as the only person allowed to

request review assures that only the

most meritorious and serious NAD

decisions will be forwarded by an

agency for Director review.

A number of comments concerned the

perceptions that all parties are not able

to respond to requests for Director

review, that the Director is not

addressing all arguments in the rush to

meet the statutory deadlines for issuing

determinations, and that no provision is

made for how new evidence introduced

at this stage is to be handled. In

response to these concerns, a number of

changes were made.

First, a request for Director review

shall include specific reasons why the

appellant believes the Hearing Officer’s

determination is wrong. Given the

limited time period for agency response

and the limited time period for Director

review, the appellant should be required

to do something more than simply

submit a copy of the Hearing Officer’s

determination with a note saying that

they appeal. As explained above, the

term ‘‘wrong’’ is used specifically to

avoid legalistic connotations. USDA

simply asks that appellants express in

their own terms what they find wrong

with determinations. However, agencies

here are held to a higher standard in

order to assure efficient use of NAD

resources. Agencies in their requests

must state specific reasons why the

determination of the Hearing Officer is

erroneous, including citation of statutes

or regulations that the agency believes

the determination violates.

Second, USDA has added language

requiring that a party seeking Director

review of the Hearing Officer’s

determination submit a copy of the

request for review simultaneously to all

other parties to the appeal. A new

subsection also provides those nonsubmitting parties 5 days from receipt of

the request for Director review to submit

written responses to the request. Added

language makes clear that the Director

may consider such responses in

reaching a determination. However, if

new evidence is submitted in such a

request, new language authorizes the

Director to remand all or a portion of the

determination to the Hearing Officer for

consideration of that new evidence.

USDA rejected the comment that such a

remanded determination should go back

to a new Hearing Officer. The Hearing

Officer making the original

determination has the best knowledge of

the case to make an efficient

consideration of new evidence in the

absence of some credible evidence of

personal bias.

Third, the deadlines set by the Act for

the Director to issue a final

determination or to remand to the

Hearing Officer may be unrealistic at

any given time because of caseload or

the complexities of a particular appeal.

Although USDA believes the failure to

meet these deadlines does not deprive

the Director of jurisdiction to reach a

determination or issue a remand order,

it fully intends to follow such deadlines

to the extent possible in order to deliver

fairly considered determinations of the

Director that will withstand judicial

review. Hastily rendered determinations

that fail to develop an adequate decision

for judicial review do not benefit either

USDA or appellants. Therefore, while

USDA has added no provision

affirmatively authorizing the Director to

extend the period for issuance of

determinations, USDA recognizes that it

may be necessary for the Director to do

so in individual cases in order to

facilitate a fair and equitable resolution

of the appeal. Equitable, in this sense,

refers to equal participation in and

consideration of parties’ submissions in

the Director review process.

Finally, the Director will review the

determination of the Hearing Officer to

determine whether the Hearing Officer’s

determination is supported by

substantial evidence. If any additional

information submitted in the Director

review process is used as a basis for the

Director’s final determination, the

Director shall note the reasons for use of

such new information in the final

determination.

With respect to this section, one

commenter also suggested that if a

Hearing Officer does not have the power

to reverse a denial of equitable relief (in
67306 Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations

effect, to award equitable relief) then

this part should provide a shortcut past

the Hearing Officer to the Director. The

position of USDA is that the statute

provides the Director with authority in

appropriate cases to award equitable

relief, and that no different procedural

steps are required to implement that

authority. However, a record developed

by a Hearing Officer is necessary for the

Director to determine whether such

relief is appropriate.

§ 11.10 Basis for determinations.

One commenter cited this section

(proposed § 11.9) as the appropriate

place for stating that NAD is bound by

prior findings of fact by an agency or

NAD with respect to a particular

appellant in another matter. While it is

not the intention of USDA to implement

NAD as part of a formal legal system

based on large bodies of caselaw, USDA

agrees that a Hearing Officer should not

issue a contrary factual determination

regarding the same appellant in a

different matter where that factual

determination was directly addressed in

the other matter.

Two commenters suggested in essence

that the basis of determinations should

be limited to issues raised by the

decision of the agency and that the

Hearing Officer or Director may not

decide adversely to the appellant on

issues not decided adversely to the

appellant by the agency. USDA finds

nothing in the statute to support

anything other than a de novo review of

agency decisions by NAD. The parties or

NAD may raise any new issue as long

as it conforms to the facts and law and

regulations.

Four commenters expressed concern

that the language ‘‘generally applicable

interpretations’’ in what is now

§ 11.10(b) of the rule would make

agency handbooks, manuals, and

directives binding in a way that permits

wholesale violations of the Act. These

commenters point to section 278(c) of

the Act that the commenters assert was

enacted specifically to prevent agencies

from using such materials by reference

only to statutes and ‘‘regulations

published in the Federal Register’’ as

the basis for NAD determinations.

USDA uses this language here to make

clear again that NAD is not a forum for

appellants to challenge agency statutes,

regulations, or the generally applicable

interpretations of those statutes and

regulations. Some generally applicable

interpretations actually may have been

published once as a notice in the

Federal Register, others may be based

on caselaw interpreting a particular

program provision in a particular

Federal court jurisdiction or state court

jurisdiction for programs in which state

law is the applicable law. Still other

generally applicable statements may be

based on the previous advice of the

Office of the General Counsel regarding

a statute or regulation that constitutes

the official legal position of USDA. In

any of these described cases, for

example, NAD could not ignore the

generally applicable statements and

base its determinations on legal

interpretations that it is not authorized

by the Act to make.

§ 11.11 Reconsideration of Hearing Officer

or Director determinations.

Upon further review, USDA has

determined that the Director has limited

inherent authority to reconsider final

determinations of the Director even

though provisions for such authority

have not been specifically stated in the

Act. Therefore, this new section sets

forth standards for reconsideration of a

Director’s final determination.

§ 11.12 Effective date and implementation

of final determinations of the Division.

Several commenters suggested that

this section needed more clarification as

to the applicable dates, or, alternatively,

that the Hearing Officer or Director

should state what those dates are in the

final determination. USDA finds further

amendment of this section unnecessary

at this time, given the variety of

programs appealable to NAD and the

responsibility of agencies for

implementation of NAD and program

decisions.

It is the position of USDA with

respect to implementation, however,

that: (1) Implementation of a NAD

decision only requires an agency to

move to the next step of agency

consideration of a benefit or application;

(2) in keeping with the language of the

Act, the applicable date of the decision

is the date of the decision of the body

from which the NAD appeal is brought;

and (3) agencies, in accord with their

regulations, may consider changes in

the condition of the participant in the

implementation of any NAD final

determination.

§ 11.13 Judicial review.

Two commenters suggested that

appeals arising from an agency’s failure

to act should be excluded from this

exhaustion requirement. USDA finds no

support in the Act for such an

exception. One commenter also

suggested an amendment to include

judicially recognized exceptions to the

administrative exhaustion requirement.

Since those exceptions are part of

common law, and are thus changeable

and subject to conflicting judicial

interpretation, USDA finds

inappropriate the addition of such

exceptions to the regulation.

§ 11.14 Filing of appeals and computation

of time.

Two commenters expressed concerns

that individuals residing in different

time zones would have less time to

appeal if Eastern time was used as a

defining time for submission of filings

required by this rule. In response, USDA

has changed the deadline to 5:00 p.m.

local time at the office of the Division

to which the filing is submitted.

Common practice now is for NAD or the

agency, in its notice of appeal rights, to

specify regional NAD offices where

documents are to be submitted. USDA’s

change in this provision is

acknowledgement of that practice and

permits flexibility. However, USDA

does not think that this permits

participants on the East Coast to evade

the purposes of this rule by filing

documents with West Coast NAD offices

in order to meet the 5:00 p.m. deadline.

III. Natural Resources Conservation

Service (NRCS) Appeal Rules

This portion of the interim-final rule

sets forth the regulations for the

handling of program participant

requests for mediation or informal

hearings of adverse technical

determinations and decisions made by

NRCS officials. Specifically, this rule

amends part 614 to implement section

275 of the Act which requires NRCS to

afford participants the opportunity for

an informal hearing or mediation (where

available), when requested, before they

file an appeal of adverse decisions with

NAD.

These procedures are applicable to

requests for mediation or informal

hearings within the following program

areas:

(1) Highly erodible land conservation.

(2) Wetland Conservation.

(3) Wetland Technical

determinations, including wetland

technical determinations made by NRCS

officials not related to a request for

USDA program benefits.

(4) Conservation Reserve Program.

(5) Wetlands Reserve Program.

(6) Great Plains Conservation

Program.

(7) Rural Abandoned Mine Program.

(8) Colorado River Basin Salinity

Control Program.

(9) Resource Conservation and

Development Program.

(10) Emergency Wetland Reserve

Program.

(11) Agricultural Water Quality

Incentives Program.

(12) Environmental Easement

Program.
Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations 67307

(13) Forestry Incentives Program.

(14) Water Bank Program.

(15) Long term cost-sharing

agreements under Public Law 83–566

and Public Law 78–534 watershed

projects.

(16) Any other program which

subsequently incorporates these

procedures through reference to this

part within its program regulations.

Part 614 as revised establishes two

major categories of decisions made by

NRCS officials for which landowners

and participants may seek

reconsideration or appeal: 1) those

technical determinations of NRCS

officials that may be appealed to NAD

after appeal to the FSA county or area

committees established under section

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

Domestic Allotment Act (16 U.S.C

590h(b)(5)); and 2) other decisions made

by NRCS.

The current regulations in 7 CFR part

614 were published as a final rule on

July 24, 1986, pursuant to Title XII of

the Food Security Act of 1985, P.L. 99–

198, 16 U.S.C. 3801 et seq. (Title XII).

Those regulations set forth the

procedures under which an owner or

operator could seek reconsideration of,

or appeal from, certain decisions made

by NRCS officials regarding eligibility

for participation in the Conservation

Reserve Program, as authorized by

Subtitle D of Title XII, or regarding the

applicability of the compliance

requirements of the highly erodible land

and wetland conservation provisions of

subtitles B and C of title XII,

respectively.

The Reorganization Act specified that,

until such time as an adverse decision

is referred to the NAD for consideration,

FSA county or area committees

established under section 8(b)(5) of the

Soil Conservation and Domestic

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

would have jurisdiction over any appeal

resulting from adverse technical

determinations made under Title XII,

including an adverse decision involving

technical determinations made by

NRCS. Thus the subject matter of the

current part 614 has been incorporated

into subpart B of the revised part 614

which sets forth the informal appeal

process for appeals of title XII technical

determinations made by NRCS to FSA

county committees as required by the

Reorganization Act.

Subpart C of the revised part 614

consolidates appeal procedures for all

other existing NRCS programs in part

614. Appeals for the following

additional programs are now also

covered by part 614: 7 CFR Part 623,

Emergency Wetland Reserve Program; 7

CFR Part 631, Great Plains Conservation

Program; 7 CFR Part 632, Rural

Abandoned Mine Program; 7 CFR Part

634, Rural Clean Water Program; 7 CFR

Part 663, Wellton-Mohawk Irrigation

Improvement Program, and 7 CFR Part

702, Colorado River Basin Salinity

Control Program; 7 CFR Part 701

subpart-Forestry Incentives Program;

and 7 CFR Part 752, Water Bank

program.

Subpart A of part 614 includes

general provisions applicable to

informal appeals under both subparts B

and C.

Appeal provisions for 7 CFR parts 12,

620, 623, 631, 632, 634, 663, 701, 702,

and 752 are revised to make reference to

part 614 for NRCS appeal procedures.

IV. Commodity Credit Corporation

(CCC), Federal Crop Insurance

Corporation (FCIC), and Farm Service

Agency (FSA) Appeal Rules

The interim final rule makes

amendments to 7 CFR parts 400 and 780

to maintain and revise the informal

appeals process for adverse decisions of

the FSA regarding Federal crop

insurance, CCC, and FSA programs. The

procedures for appeals under both parts

will be consolidated in part 780. The

revised part 780 sets forth regulations

for requesting informal hearings or

mediation in accordance with section

275 of the Act.

Part 780 includes procedures for the

handling of appeals of NRCS technical

determinations to FSA county and area

committees.

Part 780 also includes procedures for

the mandatory appeal of certain FSA

adverse decisions to such committees as

required by 7 CFR 11.5(a) of the NAD

rules of procedure.

This rule also amends part 781 to

conform the hearing procedures to that

of part 780.

V. Rural Housing Service (RHS), Rural

Business-Cooperative Service (RBS),

and Rural Utilities Service (RUS)

Appeal Rules

7 CFR part 1900, subpart B currently

contains rules for appeals of decisions

of the former Farmers Home

Administration (FmHA). Either by the

Act or by delegation of the Secretary,

the FmHA programs covered by part

1900, subpart B were divided among

RHS, RBS, and RUS. This rule amends

part 1900, subpart B to set forth rules for

requesting informal appeals or

mediation of adverse decisions

concerning direct loans, loan

guarantees, and grants under the

following programs: RUS Water and

Waste Disposal Facility Loans and

Grants Program, RHS Housing and

Community Facilities Loan Programs,

and RBS Loan, Grant, and Guarantee

Programs and the Intermediary

Relending Program.

List of Subjects

7 CFR Part 1

Administrative practice and

procedure, Agriculture, Reporting and

recordkeeping requirements.

7 CFR Part 11

Administrative practice and

procedure, Agriculture, Agricultural

commodities, Crop insurance, Ex parte

communications, Farmers, Federal aid

programs, Guaranteed loans, Insured

loans, Loan programs, Price support

programs, Soil conservation.

7 CFR Part 12

Administrative practice and

procedure, Agriculture, Soil

conservation, Wetlands.

7 CFR Part 400

Administrative practice and

procedure, Agriculture, Agricultural

commodities, Crop insurance.

7 CFR Part 614

Administrative practice and

procedure, Agriculture, Soil

conservation, Wetlands.

7 CFR Part 620

Administrative practice and

procedure, Agriculture, Soil

conservation, Wetlands.

7 CFR Part 623

Administrative practice and

procedure, Agriculture, Soil

conservation, Wetlands.

7 CFR Part 631

Administrative practice and

procedure, Agriculture, Soil

conservation.

7 CFR Part 632

Administrative practice and

procedure, Mines, Rural areas, Soil

conservation.

7 CFR Part 634

Administrative practice and

procedure, Agriculture, Soil

conservation, Water resources, Water

pollution control.

7 CFR Part 663

Administrative practice and

procedure, Irrigation, Soil conservation,

Water resources.

7 CFR Part 701

Administrative practice and

procedure, Agriculture, Environmental

protection, Forests and forest products,

Soil conservation, Wetlands.
67308 Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations

7 CFR Part 702

Administrative practice and

procedure, Agriculture, Soil

conservation, Water resources.

7 CFR Part 752

Administrative practice and

procedure, Agriculture, Soil

Conservation, Water bank program,

Water resources.

7 CFR Part 780

Administrative practice and

procedure, Agriculture, Agricultural

commodities, Crop insurance, Ex parte

communications, Farmers, Federal aid

programs, Loan programs, Price support

programs, Soil conservation, Wetlands.

7 CFR Part 781

Administrative practice and

procedure, Agriculture, Farmers.

7 CFR Part 1900

Administrative practice and

procedure, Agriculture, Business,

Community development, Farmers,

Federal aid programs, Guaranteed loans,

Housing, Insured loans, Loan programs,

Rural areas, Utilities.

For the reasons set out in the

preamble, Title 7 of the Code of Federal

Regulations is amended as set forth

below:

PART 1—ADMINISTRATIVE

REGULATIONS

1. The authority citation for part 1

continues to read as follows:

Authority: 5 U.S.C. 301 and 552. Appendix

A also issued under 7 U.S.C. 2244; 31 U.S.C.

9701, and 7 CFR 2.75(a)(6)(xiii).

2. Section 1.20 is revised to read as

follows:

§ 1.20 Authentication.

When a request is received for an

authenticated copy of a document

which the agency determines to make

available to the requesting party, the

agency shall cause a correct copy to be

prepared and sent to the Office of the

General Counsel which shall certify the

same and cause the seal of the

Department to be affixed, except that the

Hearing Clerk in the Office of

Administrative Law Judges may

authenticate copies of documents in the

records of the Hearing Clerk and that the

Director of the National Appeals

Division may authenticate copies of

documents in the records of the

National Appeals Division.

PART 11—NATIONAL APPEALS

DIVISION RULES OF PROCEDURE

Part 11 is added 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 review of adverse decisions.

11.6 Director review of agency

determination of appealability and right

of participants to Division hearing.

11.7 Ex parte communications.

11.8 Division hearings.

11.9 Director review of determinations of

Hearing Officers.

11.10 Basis for determinations.

11.11 Reconsideration of Director

determinations.

11.12 Effective date and implementation of

final determinations of the Division.

11.13 Judicial review.

11.14 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 et seq.); 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 statutes or

regulations or within a reasonable time

if timeframes are not specified in such

statutes or regulations. The term does

not include a decision over which the

Board of Contract Appeals has

jurisdiction.

Agency means:

(1) The Agricultural Stabilization and

Conservation Service (ASCS);

(2) The Commodity Credit

Corporation (CCC);

(3) The Farm Service Agency (FSA);

(4) The Farmers Home Administration

(FmHA);

(5) The Federal Crop Insurance

Corporation (FCIC);

(6) The Natural Resources

Conservation Service (NRCS);

(7) The Rural Business-Cooperative

Service (RBS);

(8) The Rural Development

Administration (RDA);

(9) The Rural Housing Service (RHS);

(10) The Rural Utilities Service (RUS)

(but not for programs authorized by the

Rural Electrification Act of 1936 and the

Rural Telephone Bank Act, 7 U.S.C. 901

et seq.);

(11) The Soil Conservation Service

(SCS);

(12) 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

(13) Any successor agency to the

above-named 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, including all

materials prepared or reviewed by the

agency during its consideration and

decision-making process, but shall not

include records or information not

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 § 11.8.

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(c), 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 (USDA).

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.
Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations 67309

Ex parte communication means an

oral or written communication to any

officer or employee of the Division with

respect to which reasonable prior notice

to all parties is not given, but it shall not

include requests for status reports, or

inquiries on Division procedure, in

reference to 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 in error.

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 § 11.8.

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 who has applied for, or 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 the regulations in

this part apply is affected by a decision

of such agency. With respect to

guaranteed loans made by FSA, both the

borrower and the lender jointly must

appeal an adverse decision except that

the denial or reduction of a final loss

payment to a lender shall be appealed

by the lender only. The term does not

include persons whose claim(s) arise

under:

(1) Programs subject to various

proceedings provided for in 7 CFR part

1;

(2) 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) The Freedom of Information Act

(appealable under 7 CFR part 1, subpart

A);

(4) Suspension and debarment

disputes, including, but not limited to,

those falling within the scope of 7 CFR

parts 1407 and 3017;

(5) Export programs administered by

the Commodity Credit Corporation;

(6) Disputes between reinsured

companies and the Federal Crop

Insurance Corporation;

(7) Tenant grievances or appeals

prosecutable under the provisions of 7

CFR part 1944, subpart L, under the

multi-family housing program carried

out by RHS;

(8) Personnel, equal employment

opportunity, and other similar disputes

with any agency or office of the

Department which arise out of the

employment relationship;

(9) 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) Discrimination complaints

prosecutable 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.

(a) This part sets forth procedures for

proceedings before the National Appeals

Division within the Department. The

Division is an organization within the

Department, subject to the general

supervision of and policy direction by

the Secretary, 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.

(b) Pursuant to section 212(e) of the

Federal Crop Insurance Reform and

Department of Agriculture

Reorganization Act of 1994, Public Law

103–354 (the Act), 7 U.S.C. 6912(e),

program participants shall seek review

of an adverse decision before a Hearing

Officer of the Division, and may seek

further review by the Director, under the

provisions of this part prior to seeking

judicial review.

§ 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;

(3) The making or amount of

payments or other program benefits to a

participant in any program of an agency;

and

(4) A determination that a parcel of

land is a wetland or highly erodible

land.

(b) Limitation. The procedures

contained in this part may not be used

to seek review of statutes or USDA

regulations issued under Federal law.

§ 11.4 Inapplicability of other laws and

regulations.

The provisions of the Administrative

Procedure Act generally applicable to

agency adjudications (5 U.S.C. 554, 555,

556, 557, & 3105) 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 review of adverse

decisions.

(a) Required informal review of FSA

adverse decisions. A participant must

seek an informal review of an adverse

decision issued at the field service office

level by an officer or employee of FSA,

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), before NAD will accept an

appeal of an FSA adverse decision.

Such informal review shall be done by

the county or area committee with

responsibility for the adverse decision at

issue. The procedures for requesting

such an informal review before FSA are

found in 7 CFR part 780. After receiving

a decision upon review by a county or

area committee, a participant may seek

further informal review by the State

FSA committee or may appeal directly

to NAD under § 11.6(b).

(b) Optional informal review. With

respect to adverse decisions issued at

the State office level of FSA and adverse

decisions of all other agencies, a

participant may request an agency

informal review of an adverse decision

of that agency prior to appealing to

NAD. Procedures for requesting such an

informal review are found at 7 CFR part

780 (FSA), 7 CFR part 614 (NRCS), 7

CFR part 1900, subpart B (RUS), 7 CFR

part 1900, subpart B (RBS), and 7 CFR

part 1900, subpart B (RHS).

(c) Mediation. A participant also shall

have the right to utilize any available

alternative dispute resolution (ADR) or

mediation program, including any

mediation program available under title
67310 Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations

V of the Agriculture Credit Act of 1987,

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

to seek resolution of an adverse decision

of an agency prior to a NAD hearing. If

a participant:

(1) Requests mediation or ADR prior

to filing an appeal with NAD, the

participant stops the running of the 30-

day period during which a participant

may appeal to NAD under § 11.6(b)(1),

and will have the balance of days

remaining in that period to appeal to

NAD once mediation or ADR has

concluded.

(2) Requests mediation or ADR after

having filed an appeal to NAD under

§ 11.6(b), but before the hearing, the

participant will be deemed to have

waived his right to have a hearing

within 45 days under § 11.8(c)(1) but

shall have the right to have a hearing

within 45 days after conclusion of

mediation or ADR.

§ 11.6 Director review of agency

determination of appealability and right of

participants to Division hearing.

(a) 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 obtain such

review by the Director.

(2) The Director shall determine

whether the decision is adverse to the

individual participant and thus

appealable or is a matter of general

applicability and thus not subject to

appeal, and will issue a final

determination notice that upholds or

reverses the determination of the

agency. This final determination is not

appealable. If the Director reverses the

determination of the agency, 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 subordinate

official of the Division other than a

Hearing Officer. In any case in which

such review is conducted by such a

subordinate official, the subordinate

official’s determination shall be

considered to be the determination of

the Director and shall be final and not

appealable.

(b) Appeals of adverse decisions. (1)

To obtain a hearing under § 11.8, a

participant personally must request

such hearing not later than 30 days after

the date on which the participant first

received notice of the adverse decision

or after the date on which the

participant receives notice of the

Director’s determination that a decision

is appealable. 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 reasonably 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. The participant also

shall send a copy of the request for a

hearing to the agency, and may send a

copy of the adverse decision to be

reviewed to the agency, but failure to do

either will not constitute grounds for

dismissal of the appeal. Instead of a

hearing, the participant may request a

record review.

(c) If a participant is represented by

an authorized 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.

§ 11.7 Ex parte communications.

(a)(1) At no time between the filing of

an appeal and the issuance of a final

determination under this part shall any

officer or employee of the Division

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:

(i) Discussions of procedural matters

related to an appeal; or

(ii) Discussions of the merits of the

appeal where all parties to the appeal

have been given notice and an

opportunity to participate.

(2) In the case of a communication

described in paragraph (a)(1)(ii) of this

section, a memorandum of any such

discussion shall be included in the

hearing record.

(b) No interested person shall make or

knowingly cause to be made to any

officer or employee of the Division an ex

parte communication relevant to the

merits of the appeal.

(c) If any officer or employee of the

Division receives an ex parte

communication in violation of this

section, the one who receives the

communication shall place in the

hearing record:

(1) All such written communications;

(2) Memoranda stating the substance

of all such oral communications; and

(3) All written responses to such

communications, and memoranda

stating the substance of any oral

responses thereto.

(d) 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.

§ 11.8 Division hearings.

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

Hearing Officer, and the appellant shall

have access to the agency record of any

adverse decision appealed to the

Division for a hearing. Upon request by

the appellant, the agency shall provide

the appellant a copy of the agency

record.

(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. A Hearing Officer shall obtain

the concurrence of the Director prior to

issuing a subpoena.

(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 the 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. The Director or Hearing

Officer shall issue a subpoena at least 7

days prior to 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
Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations 67311

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

date 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) A party who requests that a

subpoena be issued shall be responsible

for the payment of any reasonable 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 a

Department employee whose role as a

witness arises out of his or her

performance of official duties,

regardless of which party requested 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 the General Counsel of the

Department and the Department of

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.

(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 to

the appellant by the agency within 10

days of receipt of the request 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 § 11.6(b), an appellant

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

reasonable deadline for submission of

the following documents:

(i) By the appellant:

(A) A short statement of why the

decision is wrong;

(B) A copy of any document not in the

agency record that the appellant

anticipates introducing at the hearing;

and

(C) A list of anticipated witnesses and

brief descriptions of the evidence such

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 any document not in the

agency record that the agency

anticipates introducing at the hearing;

and

(D) A list of anticipated witnesses and

brief descriptions of the evidence such

witnesses will offer.

(3) Not less than 14 days prior to the

hearing, the Division must provide the

appellant, the authorized representative,

and the agency a notice of hearing

specifying the date, time, 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, the agency,

and the Division. The notice also shall

notify all parties of the right to obtain

an official record of the hearing.

(4) Pre-hearing conference. Whenever

appropriate, the Hearing Officer shall

hold a pre-hearing conference in order

to attempt to resolve the dispute or to

narrow the issues involved. Such prehearing conference shall be held by

telephone unless the Hearing Officer

and all parties agree to hold such

conference in person.

(5) 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 by any party without

regard to whether the evidence was

known to the officer, employee, or

committee of the agency 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. Any party

shall have the opportunity to present

oral and documentary evidence, oral

testimony of witnesses, and arguments

in support of the party’s position;

controvert evidence relied on by any

other party; 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) An official record shall be made

of the proceedings of every hearing.

This record will be made by an official

tape recording by the Division. In

addition, either party may request that

a verbatim transcript be made of the

hearing proceedings and that such

transcript shall be made the official

record of the hearing. The party

requesting a verbatim transcript shall

pay for the transcription service, shall

provide a certified copy of the transcript

to the Hearing Officer free of charge, and

shall allow any other party desiring to

purchase a copy of the transcript to

order it from the transcription service.

(6) 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
67312 Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations

Officer has the option to cancel the

hearing unless the absent party has good

cause for the failure to appear. If the

Hearing Officer elects to cancel the

hearing, the Hearing Officer may:

(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 any party present at

the hearing, and then issue a

determination; or

(C) Dismiss the appeal.

(ii) When a hearing is cancelled due

to the absence of a party, the Hearing

Officer will add to the hearing record

any additional evidence submitted by

any party present, 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.

(iii) Where an absent party has

demonstrated good cause for the failure

to appear, the Hearing Officer shall

reschedule the hearing unless all parties

agree to proceed without a hearing.

(7) 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 named appellant, 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. A

notice of determination shall be

accompanied by a copy of the

procedures for filing a request for

Director review under § 11.9. If the

determination is not appealed to the

Director for review under § 11.9, the

notice provided by the Hearing Officer

shall be considered to be a notice of a

final determination under this part.

§ 11.9 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 § 11.8, the appellant must submit

a written request, signed personally by

the named appellant, to the Director to

review the determination in order to be

entitled to such review by the Director.

Such request shall include specific

reasons why the appellant believes the

determination is wrong.

(2) Not later than 15 business days

after the date on which an agency

receives the determination of a Hearing

Officer under § 11.8, the head of the

agency may make a written request that

the Director review the determination.

Such request shall include specific

reasons why the agency believes the

determination is wrong, including

citations of statutes or regulations that

the agency believes the determination

violates. 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.

(3) A copy of a request for Director

review submitted under this paragraph

(a) shall be provided simultaneously by

the submitter to each party to the

appeal.

(b) Notification of parties. The

Director promptly shall notify all parties

of receipt of a request for review.

(c) Responses to request for Director

review. Other parties to an appeal may

submit written responses to a request for

Director review within 5 business days

from the date of receipt of a copy of the

request for review.

(d) 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, any

responses submitted under paragraph

(c) of this section, and such other

arguments or information as may be

accepted by the Director, in order to

determine whether the decision of the

Hearing Officer is supported by

substantial evidence. 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 or that

new evidence has been submitted, the

Director may remand 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.

(e) 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.

§ 11.10 Basis for determinations.

(a) In making a determination, the

Hearing Officers and the Director are not

bound by previous findings of facts on

which the agency’s adverse decision

was based.

(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
Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations 67313

adverse decision occurred, whichever

date is appropriate under the applicable

agency program laws and regulations.

§ 11.11 Reconsideration of Director

determinations.

(a) Reconsideration of a determination

of the Director may be requested by the

appellant or the agency within 10 days

of receipt of the determination. The

Director will not consider any request

for reconsideration that does not contain

a detailed statement of a material error

of fact made in the determination, or a

detailed explanation of how the

determination is contrary to statute or

regulation, which would justify reversal

or modification of the determination.

(b) The Director shall issue a notice to

all parties as to whether a request for

reconsideration meets the criteria in

paragraph (a) of this section. If the

request for reconsideration meets such

criteria, the Director shall include a

copy of the request for reconsideration

in the notice to the non-requesting

parties to the appeal. The nonrequesting parties shall have 5 days

from receipt of such notice from the

Director to file a response to the request

for reconsideration with the Director.

(c) The Director shall issue a decision

on the request for reconsideration

within 5 days of receipt of responses

from the non-requesting parties. If the

Director’s decision upon

reconsideration reverses or modifies the

final determination of the Director

rendered under § 11.9(d), the Director’s

decision on reconsideration will become

the final determination of the Director

under § 11.9(d) for purposes of this part.

§ 11.12 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.

§ 11.13 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.

§ 11.14 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 expires at 5:00 p.m. local

time at the office of the Division to

which the filing is submitted on the last

day on which such filing may be made.

PART 12—HIGHLY ERODIBLE LAND

AND WETLAND CONSERVATION

1. The authority citation for part 12

continues to read as follows:

Authority: 16 U.S.C. 3801 et seq.

2. Section 12.12 is revised to read as

follows:

§ 12.12 Appeals.

Any person who has been or who

would be denied program benefits in

accordance with § 12.4 as the result of

any determination made in accordance

with the provisions of this part may

obtain a review of such determination in

accordance with the administrative

appeals procedures of the agency which

rendered such determination. Agency

appeal procedures are contained in the

Code of Federal Regulations as follows:

FSA, 7 CFR part 780; NRCS, 7 CFR part

614; RHS, RBS, and RUS, 7 CFR part

1900, subpart B.

PART 400—GENERAL

ADMINISTRATIVE REGULATIONS

1–2. Subpart J is revised to read as

follows:

Subpart J—Appeal Procedure—Regulations

Authority: 7 U.S.C. 1506(p).

§ 400.90 Applicability.

Persons who are insured or believe

they are insured under contracts of

insurance issued under the Federal Crop

Insurance Act must obtain appeal and

reconsideration of decisions made

under the provisions of this chapter in

accordance with part 780 of this title.

PART 614—APPEAL PROCEDURES

1. Part 614 is revised to read as

follows:

PART 614—APPEAL PROCEDURES

Subpart A—General Provisions

Sec.

614.1 Purpose and scope.

614.2 Definitions.

614.3 Applicability.

614.4 Reservation of authority.

614.5 Decisions not subject to appeal.

Subpart B—Appeals of Technical

Determinations Related to the Conservation

Title (Title XII) of the Food Security Act of

1985, as Amended

614.100 Applicability.

614.101 Notice of preliminary technical

determinations.

614.102 Mediation of preliminary technical

determinations.

614.103 Final determinations.

614.104 Appeals of technical

determinations.

Subpart C—Appeals of Decision Related to

Conservation Programs (non-Title XII)

614.200 Applicability.

614.201 Notice of final decisions.

614.202 Time frames for filing requests for

informal hearings.

614.203 Mediation of adverse final

decisions.

614.204 Appeals of adverse final decisions.

Authority: 5 U.S.C. 301, sections 226 and

275 of Pub. L. 103–354 (7 U.S.C. 6932 and

6995); 16 U.S.C. 3843(a).

Subpart A—General Provisions

§ 614.1 Purpose and scope.

This part sets forth the informal

procedures under which a landowner or

program participant may appeal adverse

technical determinations or decisions

made by officials of the Natural

Resources Conservation Service (NRCS)

or its successor agency.

§ 614.2 Definitions.

Adverse technical determination or

decision includes, in addition to the

definition of adverse decision in 7 CFR

part 11, an NRCS technical

determination or decision that affects

the legal substantive status of the land,

though it may not necessarily be

adverse.

Chief means the Chief of NRCS. For

the purposes of this part, the term

‘‘Chief’’ includes an official of NRCS

national headquarters designated by the

Chief to act for the Chief in making

decisions under this part.

Conservation district means any

district or unit of State or local

government formed under State law or

territorial law for the express purpose of

developing and carrying out a local soil

and water conservation program. Such
67314 Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations

district or unit of government may be

referred to as a conservation district,

soil conservation district, soil and water

conservation district, natural resource

district, land conservation committee, or

a similar name.

County committee means a Farm

Service Agency (FSA) county or area

committee established in accordance

with section 8(b) of the Soil

Conservation and Domestic Allotment

Act (16 U.S.C. 590h(b)).

Decision means a conclusion reached

by an NRCS official based on applicable

regulations and program instructions

which relates to eligibility for program

benefits, including a technical

determination used as a basis for the

decision.

Designated conservationist means the

NRCS official, usually the district

conservationist, whom the State

Conservationist designates to be

responsible for the program or

compliance requirement to which this

part is applicable.

Mediation means a process in which

a neutral third party, the mediator,

meets with the disputing parties (e.g.,

the landowner or program participant

and the agency), facilitates discussions,

and works with the parties to resolve

their disputes, narrow areas of

disagreement, and improve

communications and relationships. A

mediator has no authority to render a

decision or determination.

Preliminary technical determination

means the initial written technical

determination provided to a client

which will become final after 30 days

unless the client takes action in

accordance with § 614.101 to stay the

preliminary technical determination

from becoming final.

State Conservationist means the

NRCS official in charge of NRCS

operations within a State, as set forth in

part 600 of this chapter.

Technical determination means a

conclusion concerning the status and

condition of the natural resources and

cultural practices based on science and

best professional judgment of natural

resource professionals concerning the

soils, water, air, plants, and animals.

Refer to 7 CFR 11.1 for other

definitions applicable to appeals of

adverse technical determinations and

decisions covered by this part.

§ 614.3 Applicability.

(a) Appeals of adverse technical

determinations and adverse decisions

covered by this part are also governed

by National Appeals Division (NAD)

regulations at 7 CFR part 11.

(b) Decisions which are subject to this

part include any decision under one or

more NRCS programs; and technical

determinations or decisions that affect

the status of the land even though they

may not affect the landowner’s or

program participant’s eligibility for

USDA program benefits.

(c) The failure of an official of NRCS

to issue a technical determination or

decision is subject to this part.

(d) Complaints involving

discrimination in program delivery will

be handled under the existing USDA

civil rights rules and regulations.

(e) Appeals on contractual issues that

are subject to the jurisdiction of the

Agriculture Board of Contract Appeals

are not appealable under the procedures

within this part.

§ 614.4 Reservation of authority.

Nothing contained in the regulations

of this part shall preclude the Secretary

of Agriculture or the Chief from

determining at any time any question

arising under the programs to which the

regulations of this part apply, or from

reversing or modifying in writing, with

sufficient reason given therefore, any

technical determination or decision

made by an NRCS official.

§ 614.5 Decisions not subject to appeal.

The following are examples of

decisions which are not appealable:

(a) General program requirements that

apply to all participants;

(b) Science-based formulas and

criteria;

(c) Procedural decisions relating to

administration of the programs; and

(d) Denials of assistance due to lack

of funds or authority.

Subpart B—Appeals of Technical

Determinations Related to the

Conservation Title (Title XII) of the

Food Security Act of 1985, as

Amended

§ 614.100 Applicability.

The provisions of this subpart set

forth the procedures under which a

landowner or program participant may

seek mediation of a preliminary

technical determination or appeal from

technical determinations made by NRCS

officials on or after January 16, 1996

regarding technical determinations

within the following programs:

(1) Highly Erodible Land

Conservation;

(2) Wetland Conservation, including

wetland technical determinations made

by NRCS officials not related to a

request for USDA program benefits;

(3) Conservation Reserve Program;

(4) Wetlands Reserve Program;

(5) Agricultural Water Quality

Incentives Program; and

(6) Environmental Easement Program.

§ 614.101 Notice of preliminary technical

determinations.

(a) All preliminary technical

determinations related to programs

provided for in § 614.100 shall be in

writing and shall inform the landowner

or program participant of the following:

(1) The preliminary technical

determination will become final after 30

days if the landowner or program

participant does not arrange with the

designated conservationist for either or

both of the following options:

(i) A field visit to the site to gather

additional information and to discuss

the facts concerning the preliminary

technical determination, together with,

at the option of the conservation

district, a district representative; and

(ii) Mediation.

(2) Once the technical determination

is final, the landowner or program

participant may appeal the technical

determination to the FSA county or area

committee pursuant to 7 CFR part 780.

Landowners or program participants

wishing to appeal must exhaust any

available appeal procedures through the

FSA county committee prior to

appealing to NAD. Judicial review is

available only as specified in 7 CFR part

11.

(b) The document containing the

preliminary technical determination

shall be mailed or hand delivered to the

landowner or program participant.

§ 614.102 Mediation of preliminary

technical determinations.

(a)(1) Any dispute with respect to a

preliminary technical determination

related to the programs provided in

§ 614.100 shall, at the request of the

landowner or program participant, be

mediated:

(i) Through certified individuals in

those States where a State mediation

program certified by the United States

Department of Agriculture (USDA) has

been established. Conservation district

officials in certified State Mediation

Program States may become certified by

the State and utilized for mediation, if

they choose to participate.

(ii) In States with no certified

mediation program in effect, through

mediation by a qualified representative

of a local conservation district, if a local

conservation district chooses to

participate. Upon mutual agreement of

the parties, other individuals may serve

as mediators.

(2) Upon receiving a request for

mediation, NRCS shall notify other

USDA and Federal agencies, as

appropriate.

(b) The parties shall have not more

than 30 days to reach an agreement

following a mediation session. The
Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations 67315

mediator shall notify the designated

conservationist in writing at the end of

this period whether the parties reached

an agreement. Any agreement reached

during, or as a result of, the mediation

process shall conform to the statutory,

regulatory, and manual provisions

governing the program.

§ 614.103 Final determinations.

(a) Preliminary technical

determinations shall become final:

(1) 30 days after receipt by the

landowner or program participant of the

notice of a preliminary technical

determination issued pursuant to

§ 614.101, unless a field visit or

mediation is requested;

(2) After the earlier of 30 days after

the field visit provided for under

§ 614.101(a) or receipt by the landowner

or program participant of a final

determination from the designated

conservationist; or

(3) 30 days after a mediation session

if a mutual agreement has not been

reached by the parties.

(b) The final technical determination

shall set forth the decision, the basis for

the decision, including all factors,

technical criteria, and facts relied upon

in making the decision, and shall inform

the landowner or program participant of

the procedure for requesting and

pursuing further review.

§ 614.104 Appeals of technical

determinations.

(a) Technical determinations related

to the programs in § 614.100 may only

be appealed, pursuant to the provisions

of 7 CFR part 780, to the FSA county

committee with jurisdiction.

(b) In cases where a field visit has not

already been completed in accordance

with § 614.101(a), a field visit shall be

completed by the designated

conservationist before the FSA county

committee considers the appeal.

(c) If the FSA county committee

hearing the appeal requests review of

the technical determination by the

applicable State Conservationist prior to

issuing their decision, the State

Conservationist may:

(1) Designate an appropriate NRCS

official to gather any additional

information necessary for review of the

technical determination;

(2) Obtain additional oral and

documentary evidence from any party

with personal or expert knowledge

about the facts under review; and

(3) Conduct a field visit to review and

obtain additional information and to

discuss the facts concerning the

technical determination. The State

Conservationist shall provide the

applicable FSA county committee with

a written technical determination,

including all factors, technical criteria,

and facts relied upon in making the

technical determination.

(d) Any landowner or program

participant who is adversely affected by

a decision of the FSA county committee

may appeal to NAD in accordance with

7 CFR part 11.

Subpart C—Appeals of Decisions

Related to Conservation Programs

(non-Title XII)

§ 614.200 Applicability.

The provisions of this subpart set

forth the procedures under which a

landowner or program participant may

seek an informal hearing on adverse

decisions made by NRCS officials

(exclusive of those decisions that are

appealable to the USDA Board of

Contract Appeals) after January 16, 1996

in the following program areas:

(1) Great Plains Conservation

Program;

(2) Rural Abandoned Mine Program;

(3) Emergency Watershed Projects;

(4) Rural Clean Water Program;

(5) Colorado River Basin Salinity

Control Program;

(6) Forestry Incentive Program;

(7) Water Bank Program;

(8) Flood Prevention and Watershed

Protection Programs;

(9) Any other program which

subsequently incorporates these

procedures through reference to this

subpart within the program regulations.

§ 614.201 Notice of final decisions.

(a) All final decisions related to

programs provided for in § 614.200 that

are made by the designated

conservationist shall be in writing and

shall inform the landowner or program

participant of their right to request any

or all of the following:

(1) An informal hearing before NRCS;

(2) Mediation; or

(3) A hearing before NAD in

accordance with 7 CFR part 11.

(b) The document containing the

decision shall be mailed or hand

delivered to the landowner or program

participant.

§ 614.202 Time frames for filing requests

for informal hearings.

(a) A request for an informal hearing

before NRCS shall be filed within 30

days after written notice of the final

decision, which is the subject of the

request, is mailed or otherwise made

available to the landowner or program

participant. A request for an informal

hearing shall be considered ‘‘filed’’

when personally delivered in writing to

the appropriate reviewing authority or

when the properly addressed request,

postage paid, is postmarked.

(b) A request for appeal may be

accepted and acted upon even though it

is not filed within the time prescribed

in paragraph (a) of this section if, in the

judgment of the reviewing authority

with whom such request is filed, the

circumstances warrant such action.

§ 614.203 Mediation of adverse final

decisions.

(a) Any dispute with respect to an

adverse final decision related to the

programs provided in § 614.200 shall, at

the request of the landowner or

program, be mediated:

(1) Through certified individual in

those States where a State Mediation

Program has been established.

Conservation district officials in

certified State Mediation Program States

may become certified by the State and

utilized for mediation, if they choose to

participate.

(2) In States where no certified

mediation program is in effect, through

mediation by a qualified representative

of a local conservation district, if a local

conservation district chooses to

participate. Upon mutual agreement of

the parties, other individuals may serve

as mediators.

(b)(1) The parties shall have not more

than 30 days to reach an agreement

following a mediation session. The

mediator shall notify the designated

conservationist in writing at the end of

this period whether the parties reached

an agreement.

(2) Any agreement reached during, or

as a result of, the mediation process

shall conform to the statutory,

regulatory, and manual provisions

governing the program.

(3) If the parties fail to reach an

agreement within the specified period,

the designated conservationist shall

have up to 30 days after the conclusion

of mediation to issue a final decision.

§ 614.204 Appeals of adverse final

decisions.

(a) Any landowner or program

participant, who is adversely affected by

a decision made by a designated

conservationist related to the programs

in § 614.200, may appeal the decision to

the State Conservationist in the

applicable State for an informal hearing

or to NAD in accordance with 7 CFR

part 11.

(b) The State Conservationist may

designate a NRCS official to gather

information and conduct the informal

hearing before making a decision.

(c) Any landowner or program

participant who is adversely affected by

a decision of the State Conservationist

may appeal to NAD in accordance with

7 CFR part 11.
67316 Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations

PART 620—WETLANDS RESERVE

PROGRAM

1. The authority citation for part 620

continues to read as follows:

Authority: 16 U.S.C. 590a et seq., 3837 et

seq.

2. Section 620.17(a) is revised to read

as follows:

§ 620.17 Appeals.

(a) A person participating in the WRP

may obtain review of any administrative

determination concerning eligibility for

participation utilizing the

administrative appeal procedures in 7

CFR part 614, 7 CFR part 780, and 7

CFR part 11, as appropriate.

* * * * *

PART 623—EMERGENCY WETLANDS

RESERVE PROGRAM

1. The authority citation for part 623

continues to read as follows:

Authority: 16 U.S.C. 3837–3837f; Pub. L.

103–75, Chapter 1, 107 Stat. 739, 742.

2. Section 623.20 is revised to read as

follows;

§ 623.20 Appeals.

A participant in the EWRP may obtain

a review of any administrative

determination concerning land

eligibility, development of a WRPO, or

any adverse determination under this

part in accordance with the

administrative appeal regulations

provided in part 614 of this title.

PART 631—GREAT PLAINS

CONSERVATION PROGRAM

1. The authority citation for part 631

continues to read as follows:

Authority: 16 U.S.C. 590p(b).

2. Section 631.13 is revised to read as

follows:

§ 631.13 Disputes and appeals for matters

other than contract violations.

Applicants or participants may appeal

decisions regarding matters other than

contract disputes under this part in

accordance with part 614 of this title.

PART 632—RURAL ABANDONED

MINE PROGRAM

1. The authority citation for part 632

continues to read as follows:

Authority: Sec. 406, Pub. L. 95–87; 91 Stat.

460 (30 U.S.C. 1236).

2. Section 632.40 is revised to read as

follows:

§ 632.40 Appeals.

Land users may appeal decisions

under this part in accordance with part

614 of this title.

PART 634—RURAL CLEAN WATER

PROGRAM

1. The authority citation for part 634

continues to read as follows:

Authority: Sec. 35, Pub. L. 95–217, 91 Stat.

1579 (33 U.S.C. 1288).

2. Section 634.30 is revised to read as

follows:

§ 634.30 Appeals in USDA administered

projects.

The participant in a USDAadministered RCWP project may appeal

decisions of the administering agency in

accordance with part 614 of this title.

PART 663—WELLTON-MOHAWK

IRRIGATION IMPROVEMENT

PROGRAM

1. The authority citation for part 663

continues to read as follows:

Authority: Pub. L. 93–320, 88 Stat. 266 (43

U.S.C. 1571 et seq.); sec. 601, Pub. L. 72–212,

47 Stat. 417 (31 U.S.C. 686).

2. Section 663.17 is revised to read as

follows:

§ 663.17 Appeals.

A decision under this part may be

appealed by a cooperator in accordance

part 614 of this title.

PART 701—CONSERVATION AND

ENVIRONMENTAL PROGRAMS

1. The authority citation for part 701

continues to read as follows:

Authority: 16 U.S.C. 590d, 590g-590o,

590p(a), 590q, 1501–1510, 1606, 2101–2111,

2201–2205; 48 U.S.C. 1469d(c).

2. Section 701.76 is revised to read as

follows:

§ 701.76 Appeals.

Any person may obtain review of

determinations affecting participation

in:

(a) The Forestry Incentive Program, in

accordance with part 614 of this title;

and

(b) All other programs within this

part, in accordance with part 780 of this

title.

PART 702—COLORADO RIVER BASIN

SALINITY (CRSC) CONTROL

PROGRAM

1. The authority citation for part 702

continues to read as follows:

Authority: Sec. 201, Pub. L. 93–320, 88

Stat. 271; Sec. 2, Pub. L. 98–569, 98 Stat.

2933 (43 U.S.C. 1592(c)).

2. Section 702.20 is revised to read as

follows:

§ 702.20 Appeals.

The participant may obtain a review,

in accordance with the provisions of 7

CFR part 614 and 7 CFR part 11, of any

administrative decision made under the

provisions of this part.

PART 752—WATER BANK PROGRAM

1. The authority citation for part 752

continues to read as follows:

Authority: Secs. 2–12, 84 Stat. 1468–1471,

as amended (16 U.S.C. 1301–1311).

2. Section 752.28 is revised to read as

follows:

§ 752.28 Appeals.

Any person may obtain review of

determinations affecting participation in

this program in accordance with part

614 of this title.

PART 780—APPEAL REGULATIONS

1. Part 780 is revised to read as

follows:

PART 780—APPEAL REGULATIONS

Sec.

780.1 Definitions.

780.2 Applicability.

780.3–5 Reserved.

780.6 Mediation.

780.7 Reconsideration and appeals with the

county and State committees and

reconsideration with the regional service

offices.

780.8 Time limitations for filing requests

for reconsideration or appeal.

780.9 Appeals of NRCS technical

determinations.

780.10 Other finality provisions.

780.11 Reservation of authority.

Authority: 5 U.S.C. 301; 15 U.S.C. 714b

and 714c; 16 U.S.C. 590h.

§ 780.1 Definitions.

For purposes of this part:

1994 Act means the Federal Crop

Insurance Reform and Department of

Agriculture Reorganization Act of 1994

(Public Law 103–354).

Agency means FSA and its county

and State committees and their

personnel, CCC, NRCS, FCIC, and any

other agency or office of the Department

which the Secretary may designate, or

any successor agency.

Appeal means a written request by a

participant asking the next level

reviewing authority to review a

decision.

CCC means the Commodity Credit

Corporation, a wholly owned

Government corporation within the U.S.

Department of Agriculture.

County committee means an FSA

county or area committee established in

accordance with section 8(b) of the Soil

Conservation and Domestic Allotment

Act (16 U.S.C. 590h(b)).
Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations 67317

FCIC means the Federal Crop

Insurance Corporation, a wholly owned

Government corporation within the U.S.

Department of Agriculture.

Final decision means the program

decision rendered by the county or State

committee or the FCIC Regional Service

Office upon written request of the

participant. A decision that is otherwise

final shall remain final unless the

decision is timely appealed to the State

committee or NAD. A decision of FSA

or FCIC made by personnel subordinate

to the county committee is considered

‘‘final’’ for the purpose of appeal to

NAD only after that decision has been

appealed to the county committee under

the provisions of this part.

FSA means the Farm Service Agency.

NAD means the National Appeals

Division, established pursuant to the

1994 Act.

NAD regulations means the National

Appeals Division (NAD) rules of

procedure published by the Secretary at

7 CFR part 11 implementing title II,

subtitle H of the 1994 Act.

NRCS means the Natural Resource

Conservation Service of the United

States Department of Agriculture,

formerly the Soil Conservation Service.

Reconsideration is a subsequent

consideration of a prior decision by the

same reviewing authority.

Regional Service Office means the

regional offices established by FSA and

FCIC for the purpose of making

determinations for private insurance

companies reinsured by FCIC under the

Federal Crop Insurance Act and for FSA

for insurance contracts delivered

through county FSA offices (including

underwriting decisions), the

applicability of provisions under

chapter IV of 7 CFR, and decisions as to

insurability and rating of acreage.

Reviewing authority means a person

or committee assigned the responsibility

of making a decision on the appeal filed

by the participant in accordance with

this part.

State committee means an FSA State

committee established in accordance

with section 8(b) of the Soil

Conservation and Domestic Allotment

Act (16 U.S.C. 590h(b)) including,

where appropriate, the Director of the

Caribbean Area FSA office for Puerto

Rico and the Virgin Islands.

Technical determination of NRCS

means a decision by NRCS concerning

the status and condition of the natural

resources based on science and on the

best professional judgment of natural

resource professionals within NRCS.

§ 780.2 Applicability.

(a)(1) Except as provided in other

regulations, this part applies to

decisions made under programs and by

agencies, as set forth herein:

(i) Decisions in those domestic

programs administered by the Farm

Service Agency (FSA), and programs

administered by FSA on behalf of the

Commodity Credit Corporation (CCC)

through State and county committees,

which are generally set forth in chapters

VII and XIV of this title;

(ii) Technical decisions made by the

Natural Resources Conservation Service

(NRCS) under title XII of the Food

Security Act of 1985, as amended;

(iii) Decisions made by personnel of

the Federal Crop Insurance Corporation

(‘‘FCIC’’) or FSA with respect to

contracts of insurance insured by FCIC

and the noninsured crop disaster

assistance program;

(iv) Decisions made by personnel of

FCIC or FSA with respect to contracts of

insurance provided by private insurance

carriers and reinsured by FCIC under

the provisions of the Federal Crop

Insurance Act; and

(v) Other programs to which this part

is made applicable by individual

program regulations.

(2) For covered programs, this part is

applicable to any decision made by FSA

and its State and county committees,

CCC, FCIC, the personnel and agents of

FSA, FCIC, or CCC, and by the officials

of NRCS (to the extent provided in

§ 780.9), except as otherwise may be

provided in individual program

requirements or by the Secretary.

(3) This part is not applicable to any

decision:

(i) Made by FSA or FCIC with respect

to any matter arising under the terms of

the Standard Reinsurance Agreement

between FCIC and any private insurance

company reinsured by FCIC under the

provisions of the Federal Crop

Insurance Act, as amended; or

(ii) Made by any private insurance

company with respect to any contract of

insurance issued to any producer by the

private insurance company and

reinsured by FCIC under the provisions

of the Federal Crop Insurance Act, as

amended. Those insurance contracts are

subject to dispute resolution through

arbitration or mediation in accordance

with the contract terms.

(b) With respect to matters identified

in paragraph (a) of this section,

participants may request

reconsideration or appeal, under the

provisions of this part, of decisions by

an agency made with respect to:

(1) Denial of participation in a

program;

(2) Compliance with program

requirements;

(3) Issuance of payments or other

program benefits to a participant in a

program;

(4) Making payments or other benefits

to an individual or entity who is not a

participant in a program; or

(5) Technical determinations by

NRCS.

(c) No reconsideration or appeal may

be sought under this part of any general

program provision or program policy, or

any statutory or regulatory requirement

that is applicable to all similarly

situated participants.

(d) Mathematical formulas established

under a statute or program regulations,

and decisions based solely on the

application of those formulas, are not

appealable under this part.

(e) Only a participant may seek

reconsideration or appeal under this

part.

§ § 780.3–780.5 [Reserved]

§ 780.6 Mediation.

Participants have the right to seek

mediation involving any decision

appealed under this part in accordance

with the provisions of section 282 of the

1994 Act, if the mediation program of

the State where the participant’s

farming operation giving rise to the

decision is located has been certified by

the Secretary for the program involved

in the agency decision. Any time

limitation for review contained in this

part will be stayed pending timely

pursuit and completion of the mediation

process.

§ 780.7 Reconsideration and appeals with

the county and State committees and

reconsideration with the regional service

offices.

(a) A participant may appeal a

decision of personnel subordinate to the

county committee by filing with the

county committee a written request for

appeal that states the basis upon which

the participant relies to show that:

(1) The decision was not proper and

not made in accordance with applicable

program policies; or

(2) All material facts were not

properly considered in such decision.

(b) A participant may seek

reconsideration of a final decision by a

county committee or the Regional

Service Office by filing a written request

for reconsideration with the county

committee or the Regional Service

Office that states the basis upon which

the participant relies to show that:

(1) The decision was not proper and

not made in accordance with applicable

program regulations; or

(2) All material facts were not

properly considered in such decision.
67318 Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations

(c) A participant may appeal a final

decision by a county committee or the

Regional Service Office to the State

committee and request an informal

hearing in connection therewith, by

filing a written appeal with the State

committee.

(d) A participant may seek

reconsideration of a decision by a State

committee, and request an informal

hearing in connection therewith, by

filing a written request for

reconsideration with the State

committee that states the basis upon

which the participant relies to show

that:

(1) The decision was not proper and

not made in accordance with applicable

program regulations; or

(2) All material facts were not

properly considered in such decision.

(e) Nothing in this part prohibits a

participant from filing an appeal of a

final decision of the county committee

or the Regional Service Office with NAD

in accordance with the NAD

regulations.

(f) This section does not apply to a

technical determination by NRCS.

Procedures regarding the appeal of a

technical determination by NRCS are

contained in § 780.9.

§ 780.8 Time limitations for filing requests

for reconsideration or appeal.

(a) A request for reconsideration or an

appeal of a decision shall be filed

within 30 days after written notice of

the decision which is the subject of the

request is mailed or otherwise made

available to the participant. A request

for reconsideration or appeal shall be

considered to have been ‘‘filed’’ when

personally delivered in writing to the

appropriate reviewing authority or

when the properly addressed request,

postage paid, is postmarked. A decision

shall become final and non-reviewable

unless reconsideration is timely sought

or the decision is timely appealed.

(b) A request for reconsideration or

appeal may be accepted and acted upon

even though it is not filed within the

time prescribed in paragraph (a) of this

section if, in the judgment of the

reviewing authority with whom such

request is filed, the circumstances

warrant such action.

§ 780.9 Appeals of NRCS technical

determinations.

(a) Notwithstanding any other

provision of this part, a technical

determination of NRCS issued to a

participant pursuant to Title XII of the

Food Security Act of 1985, as amended,

including wetland determinations, may

be appealed to a county committee in

accordance with the procedures in this

part.

(b) If the county committee hears the

appeal and agrees with the participant’s

appeal, the county committee shall refer

the case with its findings to the NRCS

State Conservationist to review the

matter and review the technical

determination. The County or State

committee decision shall incorporate,

and be based upon, the NRCS State

Conservationist’s technical

determination.

§ 780.10 Other finality provisions.

The finality provisions contained in

section 281 of the 1994 Act shall be

applied to appeals under this part to the

extent provided for in that section of the

1994 Act.

§ 780.11 Reservations of authority.

(a) Representatives of FSA, FCIC, and

CCC may correct all errors in entering

data on program contracts, loan

agreements, and other program

documents and the results of the

computations or calculations made

pursuant to the contract or agreement.

(b) Nothing contained in this part

shall preclude the Secretary, or the

Administrator of FSA, Executive Vice

President of CCC, the Manager of FCIC,

the Chief of NRCS, if applicable, or a

designee, from determining at any time

any question arising under the programs

within their respective authority or from

reversing or modifying any decision

made by FSA or its county and State

committees, FCIC, or CCC.

PART 781—DISCLOSURE OF

FOREIGN INVESTMENT IN

AGRICULTURAL LAND

1. The authority citation for part 781

continues to read as follows:

Authority: Sec. 1–10, 92 Stat. 1266 (7

U.S.C. 3501 et seq.).

2. In § 781.5 paragraphs (c), (d) and (e)

are removed, paragraphs (f) through (h)

are redesignated as paragraphs (d)

through (f) respectively, and paragraph

(b)(3) is revised and a new paragraph (c)

is added to read as follows:

§ 781.5 Penalty review procedure.

* * * * *

(b) * * *

(3) A request for a hearing on the

proposed penalty may be filed in

accordance with part 780 of this title.

(c) After a final decision is issued

pursuant to an appeal under part 780 of

this title, the Administrator or

Administrator’s designee shall mail the

foreign person a notice of the

determination on appeal, stating

whether a report must be filed or

amended in compliance with § 781.3,

the amount of the penalty (if any), and

the date by which it must be paid. The

foreign person shall file or amend the

report as required by the Administrator.

The penalty in the amount stated shall

be paid by check or money order drawn

to the Treasurer of the United States and

shall be mailed to the United States

Department of Agriculture, P.O. Box

2415, Washington, DC 20013. The

Department is not responsible for the

loss of currency sent through the mails.

* * * * *

PART 1900—GENERAL

1. The authority for part 1900 is

revised to read as follows:

Authority: 5 U.S.C. 301; 7 U.S.C. 1989; 7

U.S.C. 6991, et. seq.; 42 U.S.C. 1480;

Reorganization Plan No. 2 of 1953 (5 U.S.C.

App.).

2–3. Subpart B is revised to read as

follows:

Subpart B—Adverse Decisions and

Administrative Appeals

1900.51 Definitions.

1900.52 General.

1900.53 Applicability.

1900.54 Effect on assistance pending

appeal.

1900.55 Adverse action procedures.

1900.56 Non-appealable decisions.

1900.57 [Reserved].

* * * * *

§ 1900.51 Definitions.

Act means the Federal Crop Insurance

Reform and Department of Agriculture

Reorganization Act of 1994, Public Law

No. 103–354 (7 U.S.C. 6991 et seq.).

Agency means the Rural Utilities

Service (RUS), the Rural Housing

Service (RHS), and the Rural BusinessCooperative Development Service

(RBS), or their successor agencies.

Refer to 7 CFR 11.1 for other

definitions applicable to appeals of

adverse decisions covered by this

subpart.

§ 1900.52 General.

This subpart specifies procedures for

use by USDA personnel and program

participants to ensure that full and

complete consideration is given to

program participants who are affected

by an agency adverse decision.

§ 1900.53 Applicability.

(a) Appeals of adverse decisions

covered by this subpart will be governed

by 7 CFR part 11.

(b) The provisions of this subpart

apply to adverse decisions concerning

direct loans, loan guarantees, and grants

under the following programs: RUS

Water and Waste Disposal Facility

Loans and Grants Program; RHS

Housing and Community Facilities Loan
Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations 67319

Programs; RBS Loan, Grant, and

Guarantee Programs and the

Intermediary Relending Program; and

determinations of the Rural Housing

Trust 1987–1 Master Servicer.

(c) This subpart does not apply to

decisions made by parties outside an

agency even when those decisions are

used as a basis for decisions falling

within paragraph (b) of this section, for

example: decisions by state

governmental construction standardssetting agencies (which may determine

whether RHS will finance certain

houses); Davis-Bacon wage rates; flood

plain determinations; archaeological

and historical areas preservation

requirements; and designations of areas

inhabited by endangered species.

§ 1900.54 Effect on assistance pending

appeal.

(a) Assistance will not be

discontinued pending the outcome of an

appeal of a complete or partial adverse

decision.

(b) Notwithstanding the provisions of

paragraph (a) of this section,

administrative offsets initiated under

subpart C of part 1951 will not be stayed

pending the outcome of an appeal and

any further review of the decision to

initiate the offset.

§ 1900.55 Adverse action procedures.

(a) If an applicant, guaranteed lender,

a holder, borrower or grantee is

adversely affected by a decision covered

by this subpart, the decision maker will

inform the participant of the adverse

decision and whether the adverse

decision is appealable. A participant has

the right to request the Director of NAD

to review the agency’s finding of

nonappealability in accordance with 7

CFR 11.6(a). In cases where the adverse

decision is based on both appealable

and nonappealable actions, the adverse

action is not appealable.

(b) A participant affected by an

adverse decision of an agency is entitled

under section 275 of the Act to an

opportunity for a separate informal

meeting with the agency before

commencing an appeal to NAD under 7

CFR part 11.

(c) Participants also have the right

under section 275 of the Act to seek

mediation involving any adverse

decision appealable under this subpart

if the mediation program of the State in

which the participant’s farming

operation giving rise to the decision is

located has been certified by the

Secretary for the program involved in

the decision. An agency shall cooperate

in such mediation. Any time limitation

for appeal will be stayed pending

completion of the mediation process (7

CFR 11.5(c)).

§ 1900.56 Non-appealable decisions.

The following are examples of

decisions which are not appealable:

(a) Decisions which do not fall within

the scope of this subpart as set out in

§ 1900.53.

(b) Decisions that do not meet the

definition of an ‘‘adverse decision’’

under 7 CFR part 11.

(c) Decisions involving parties who do

not meet the definition of ‘‘participant’’

under 7 CFR part 11.

(d) Decisions with subject matters not

covered by 7 CFR part 11.

(e) Interest rates as set forth in agency

procedures, except for appeals alleging

application of an incorrect interest rate.

(f) The State RECD Director’s refusal

to request an administrative waiver

provided for in agency program

regulations.

(g) Denials of assistance due to lack of

funds or authority to guarantee.

§ 1900.57 [Reserved]

Done at Washington, D.C., this 21st day of

December, 1995.

Dan Glickman,

Secretary of Agriculture.

[FR Doc. 95–31397 Filed 12–28–95; 8:45 am]

BILLING CODE 3410–01–P

Agricultural Marketing Service

7 CFR Part 51

[Docket No. FV–95–303C]

Removal of U.S. Grade Standards and

Other Selected Regulations

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Correction to interim final rule.

SUMMARY: This document contains a

correction to the interim final rule

published on December 4, 1995, (60 FR

62172–62181). The document

concerned removal of U.S. grade

standards and other selected regulations

from the Code of Federal Regulations

(CFR).

EFFECTIVE DATE: December 4, 1995.

FOR FURTHER INFORMATION CONTACT:

Eric Forman, Deputy Director, Fruit and

Vegetable Division, USDA, AMS, Room

2085–S, P.O. Box 96456, Washington,

DC 20090–6456, telephone (202) 690–

0262.

SUPPLEMENTARY INFORMATION:

Background

As published, the interim final rule

removed most of the voluntary U.S.

grade standards and other selected

regulations covering a number of

agricultural commodities (dairy

products, tobacco, wool, mohair, fresh

and processed fruits and vegetables,

livestock, meats and meat products,

eggs, and poultry and rabbit products).

This includes all the standards except

those which are currently in the

rulemaking process, incorporated by

reference in marketing orders/

agreements appearing at 7 CFR Parts 900

through 999, or those used to implement

government price support. Those grade

standard regulations will continue to

appear in the CFR. Standards for

Applies (7 CFR 51.300–51.339), Applies

for Processing (7 CFR 51.340–51.354),

and Pears for Canning (7 CFR 51.1345–

51.1374) should not have been removed

because of requirements under the

Export Apple and Pear Act (7 U.S.C.

581, et seq.).

Correction of Publication

1. Accordingly, in the December 4,

1995, publication, on page 62174 of the

SUPPLEMENTARY INFORMATION, in the

table titled ‘‘Administered by the Fresh

Products Branch, Fruit and Vegetable

Division, 51.300–339, Subpart—United

States Standards for Grades of Apples,

51.340–354, Subpart—United States

Standards for Grades of Apples for

Processing, and 51.1354–1374,

Subpart—United States Standards for

Pears for Canning, should not have been

included. These three entities should

have appeared in the table on page

62176 as standards that are being

retained.

PART 51—[CORRECTED]

2. On page 62180, in the first column,

under part 51, the first 5 lines in

amendatory instruction 6 are corrected

to read as follows:

6. In part 51, § 51.100, §§ 51.355

through 51.464, §§ 51.495 through

51.556, §§ 51.810 through 51.869,

§§ 51.925 through 51.986, §§ 51.1030

through 51.1109, §§ 51.1375 through

51.1387, * * *

Dated: December 26, 1995.

Kenneth C. Clayton,

Acting Administrator.

[FR Doc. 95–31515 Filed 12–28–95; 8:45 am]

BILLING CODE 3410–02–M