I
103D CONGRESS
1ST SESSION
H. R. 2950
To establish a National Appeals Division of the Department of Agriculture
to hear appeals of adverse decisions made by certain agencies of the
Department, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
AUGUST 6, 1993
Mr. JOHNSON of South Dakota (for himself, Mr. GLICKMAN, Mr. PETERSON
of Minnesota, Mr. MINGE, Mr. SARPALIUS, and Mr. PENNY) introduced
the following bill; which was referred to the Committee on Agriculture
A BILL
To establish a National Appeals Division of the Department
of Agriculture to hear appeals of adverse decisions made
by certain agencies of the Department, and for other
purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE.—This Act may be cited as the
‘‘USDA National Appeals Division Act of 1993’’.
(b) TABLE OF CONTENTS.—The table of contents of
this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
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Sec. 3. National Appeals Division.
Sec. 4. Notice and opportunity for hearing.
Sec. 5. Informal hearings and meetings; appealable decisions.
Sec. 6. Access to materials.
Sec. 7. Hearings.
Sec. 8. Administrative appeal review.
Sec. 9. Judicial review.
Sec. 10. Implementation of final determinations of Division.
Sec. 11. Evaluation of employees.
Sec. 12. Prohibition on adverse action while appeal pending.
Sec. 13. Registry of advocates.
Sec. 14. Relationship to other laws.
Sec. 15. Transfer of functions.
Sec. 16. Authorization of appropriations.
Sec. 17. State mediation programs.
Sec. 18. Conforming amendments.
Sec. 19. Effective date.
SEC. 2. DEFINITIONS.
As used in this Act (unless the context clearly re-
quires otherwise):
(1) ADVERSE DECISION.—
(A) IN GENERAL.—The term ‘‘adverse de-
cision’’ means an administrative decision made
by a decisionmaker that is adverse to an appel-
lant, including a denial of equitable relief, ex-
cept that the term shall not include a decision
made by the Board of Contract Appeals with
respect to a contract appeal.
(B) FAILURE
TO
ISSUE
DECISION.—The
failure of an agency to issue a decision on the
request or right of an appellant to participate
in, or receive payments, loans, or other benefits
in accordance with, any of the programs admin-
istered by an agency—
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(i) shall be considered an adverse de-
cision if the decision is not issued within a
period prescribed by statute or regulation;
or
(ii) may be considered an adverse de-
cision if—
(I) a period is not prescribed by
statute or regulation; or
(II) the decision is not issued
within a reasonable period of time.
(2) AGENCY.—The term ‘‘agency’’ means—
(A) the Agricultural Stabilization and Con-
servation Service;
(B) the Commodity Credit Corporation;
(C) the Farmers Home Administration;
(D) the Federal Crop Insurance Corpora-
tion;
(E) the Rural Development Administra-
tion;
(F) the Soil Conservation Service;
(G) a State or county committee estab-
lished under section 8(b) of the Soil Conserva-
tion and Domestic Allotment Act (16 U.S.C.
590h(b)); or
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(H) a successor to an agency referred to in
subparagraphs (A) through (G).
(3) APPELLANT.—The term ‘‘appellant’’ means
any person or entity—
(A) whose request or right to participate
in, or receive payments, loans, or other benefits
in accordance with, any of the programs admin-
istered by an agency is affected by an adverse
decision made by a decisionmaker; and
(B) who appeals the adverse decision in ac-
cordance with this Act.
(4) CASE
RECORD.—The term ‘‘case record’’
means all the materials maintained by the Secretary
that concern the appellant, including materials so
maintained that are used to make the adverse deci-
sion.
(5) 
DECISIONMAKER.—The 
term
‘‘decisionmaker’’ means—
(A) an officer or employee of an agency; or
(B) in the case of a State or county com-
mittee referred to in paragraph (2)(G), the
State or county committee,
who makes an adverse decision that is appealed by
an appellant.
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(6) DEPARTMENT.—The term ‘‘Department’’
means the United States Department of Agriculture.
(7) DIRECTOR.—The term ‘‘Director’’ means
the Director of the Division.
(8) DIVISION.—The term ‘‘Division’’ means the
National Appeals Division established by this Act.
(9) EMPLOYEE.—The term ‘‘employee’’ means
an individual employed by an agency, including an
individual who enters into a contract with an agency
to perform services for the agency.
(10) EX
PARTE
COMMUNICATION.—The term
‘‘ex parte communication’’ means an oral or written
communication not on the public record with respect
to which reasonable prior notice to all parties is not
given, except that the term shall not include a re-
quest for a status report on any matter or proceed-
ing.
(11) FINAL DETERMINATION.—The term ‘‘final
determination’’ means a determination of an appeal
by the Division that is administratively final, conclu-
sive, and binding.
(12) FINAL
DETERMINATION
NOTICE.—The
term ‘‘final determination notice’’ means a written
determination on an appeal sent to an appellant
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under paragraph (8) of section 7(b) or subsection
(d) or (e)(4) of section 8.
(13) FUNCTION.—The term ‘‘function’’ means
any duty, obligation, power, authority, responsibility,
right, privilege, activity, or program.
(14) HEARING OFFICER.—The term ‘‘hearing
officer’’ means an individual employed by the Divi-
sion who hears and determines appeals.
(15) HEARING
RECORD.—The term ‘‘hearing
record’’ means the transcript of a hearing, any audio
tape or similar recording of a hearing, any informa-
tion from the case record that a hearing officer con-
siders relevant or that is raised by the appellant or
agency, and all documents and other evidence pre-
sented to a hearing officer.
(16) IMPLEMENT.—The term ‘‘implement’’
means to effectuate fully and promptly a final deter-
mination of the Division not later than 30 calendar
days after the effective date of the final determina-
tion specified in section 7(h)(2).
(17) PARTICIPANT.—The term ‘‘participant’’
means any person whose application for or right to
participate in, or receive payments, loans, or other
benefits in accordance with, any of the programs ad-
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ministered by an agency is affected by an adverse
decision made by a decisionmaker.
(18) 
SECRETARY.—The 
term 
‘‘Secretary’’
means the Secretary of Agriculture.
(19) STATE DIRECTOR.—The term ‘‘State di-
rector’’ means the individual who is primarily re-
sponsible for carrying out the program of an agency
within a State.
SEC. 3. NATIONAL APPEALS DIVISION.
(a) ESTABLISHMENT.—The Secretary shall establish
and maintain a National Appeals Division, within the Of-
fice of the Secretary, to carry out this Act.
(b) DIRECTOR.—
(1) IN GENERAL.—
(A) APPOINTMENT.—The Division shall be
headed by a Director, appointed by the Sec-
retary from among individuals (including indi-
viduals who are attorneys and individuals who
are not attorneys) with substantial experience
in practicing administrative law. The position of
the Director shall be a Senior Executive Service
position (as defined in section 3132(a)(2) of
title 5, United States Code) that shall be filled
by a career appointee (as defined in section
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3132(a)(4) of such title) or noncareer appointee
(as defined in section 3132(a)(7) of such title).
(B) REMOVAL.—The Secretary may only
remove the Director for maladministration, mal-
feasance, neglect of duty, or otherwise in ac-
cordance with statutes and regulations govern-
ing Federal employee personnel.
(2) POWERS.—
(A) IN GENERAL.—To carry out this Act,
the Secretary shall promulgate procedural regu-
lations and policies governing the conduct of
the business of the Division consistent with this
Act and chapters 5 and 6 of title 5, United
States Code, including—
(i) the conduct of appeals;
(ii) the standard of review;
(iii) guidelines for the type of evidence
that is necessary to justify an adverse deci-
sion by an agency;
(iv) the conduct of reviews of appeals;
(v) the appeals process; and
(vi) other actions affecting the proce-
dural rights of appellants.
(B) REGULATIONS.—In promulgating reg-
ulations under subparagraph (A), the Secretary
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shall ensure and enhance the independence, in-
tegrity, and efficiency of the Division, the Di-
rector, hearing officers, and other employees of
the Division.
(C) DELEGATION.—The Secretary may
delegate the authority of the Secretary to pro-
mulgate the regulations to the Director.
(D) 
APPEALABLE
DECISIONS.—If 
a
decisionmaker determines that an adverse deci-
sion is not appealable and the participant ap-
peals the determination to the Director, the Di-
rector shall determine whether the decision is
appealable.
(3) DIRECTION, CONTROL, AND SUPPORT.—The
Director shall be free from the direction and control
of any person other than the Secretary, and shall
not receive administrative support (except on a reim-
bursable basis) from any person other than the Of-
fice of the Secretary.
(4) LEVEL V OF EXECUTIVE SCHEDULE.—Sec-
tion 5316 of title 5, United States Code, is amended
by adding at the end the following:
‘‘Director, National Appeals Division, Depart-
ment of Agriculture.’’.
(c) LEGAL COUNSEL.—
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(1) IN GENERAL.—The Director shall employ
legal counsel to advise the Director and hearing offi-
cers of the Division with respect to such legal ques-
tions as the Director considers appropriate for the
Division. A legal counsel shall not serve as a counsel
to any other division or agency of the Department.
(2) CONSTRUCTION.—Paragraph (1) is not in-
tended to affect the role of the Office of General
Counsel in representing the Department in civil or
criminal actions or as a liaison between the Depart-
ment and the Department of Justice.
(d) DIRECTOR, HEARING OFFICERS, AND OTHER
EMPLOYEES.—
(1) IN GENERAL.—The Director shall appoint
such hearing officers and other employees as are
necessary for the administration of the Division.
(2) POWERS OF THE DIRECTOR AND HEARING
OFFICERS.—To carry out this Act, the Director and
hearing officers—
(A) shall have access to all records, re-
ports, audits, reviews, documents, papers, rec-
ommendations, or other material available that
relate to programs and operations with respect
to which an appeal has been taken;
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(B) may request such information or as-
sistance as may be necessary for carrying out
the duties and responsibilities established under
this Act from any Federal, State, or local gov-
ernmental agency or unit of the agency;
(C) may, or shall at the request of an ap-
pellant with good cause shown, require the at-
tendance of witnesses, the production of all in-
formation, 
documents, 
reports, 
answers,
records, accounts, papers, and other data and
documentary evidence necessary to the proper
resolution of appeals;
(D) may permit testimony to be taken by
deposition, if it is inconvenient for a witness to
attend a hearing;
(E) may, if appropriate, require the at-
tendance of witnesses and production of docu-
mentary evidence by subpoena, which subpoena,
in the case of contumacy or refusal to obey,
shall be enforceable by order of any appropriate
United States district court;
(F) may administer oaths and affirma-
tions, whenever necessary in the process of
hearing appeals; and
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(G) in the case of the Director, may enter
into contracts and other arrangements for re-
porting and other services and make such pay-
ments as may be necessary to carry out this
Act.
(3) EXCLUSIVE EMPLOYMENT.—An employee of
the Division shall have no duties other than those
that are necessary to carry out this Act.
(4) DIRECTION AND CONTROL.—
(A) HEARING
OFFICERS.—Hearing offi-
cers—
(i) shall be generally supervised by the
Director; and
(ii) shall not receive administrative
support (except on a reimbursable basis)
from offices other than the Division.
(B) OTHER
EMPLOYEES.—All other em-
ployees of the Division—
(i) shall report to the Director; and
(ii) shall not be under the direction or
control of, or receive administrative sup-
port (except on a reimbursable basis) from,
offices other than the Division.
(5) EX PARTE COMMUNICATIONS.—
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(A) IN GENERAL.—While a proceeding is
in adjudicative status within the Division, ex-
cept to the extent required for the disposition of
ex parte matters as authorized by law—
(i) no person not employed by the Di-
vision, and no employee or agent of the Di-
vision who performs investigative or pros-
ecuting functions in adjudicative proceed-
ings shall make or knowingly cause to be
made to any member of the Division or to
any other employee who is or who reason-
ably may be expected to be involved in the
decisional process in the proceeding, an ex
parte communication relevant to the merits
of the proceeding or a factually related
proceeding; and
(ii) no member of the Division or any
other employee who is or who reasonably
may be expected to be involved in the
decisional process in the proceeding shall
make or knowingly cause to be made to
any person not employed by the Division,
or to any employee or agent of the Division
who performs investigative or prosecuting
functions in adjudicative proceedings, an
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ex parte communication relevant to the
merits of the proceeding or a factually re-
lated proceeding.
(B) PROCEDURES.—
(i) IN
GENERAL.—The Director or
any other employee who is or who may rea-
sonably be expected to be involved in the
decisional process who receives or who
makes or knowingly causes to be made, a
communication prohibited by subparagraph
(A) shall promptly provide to the Direc-
tor—
(I) all such written communica-
tions;
(II) memoranda stating the sub-
stance of and circumstances of all
such oral communications; and
(III) all written responses, and
memoranda stating the substance of
all oral responses, to the materials de-
scribed in subclauses (I) and (II).
(ii) HEARING RECORD.—The Director
shall make relevant portions of any such
materials part of the hearing record, ex-
cept that the materials shall not be consid-
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ered by the Division as part of the hearing
record for purposes of decision unless in-
troduced into evidence in the proceeding.
(iii) PARTIES.—The Director shall
also send copies of the materials to or oth-
erwise notify all parties to the proceeding.
(C) DIVISION
EMPLOYEES.—The prohibi-
tions of subparagraph (A) shall not apply to a
communication between—
(i) any member of the Division or any
other employee who is or who reasonably
may be expected to be involved in the
decisional process; and
(ii) any employee who has been di-
rected by the Division or requested by the
Division to assist in the decision of the ad-
judicative proceeding, other than an em-
ployee who performs an investigative or
prosecuting function in the proceeding or a
factually related proceeding.
(e) RESOURCES AND PERSONNEL.—The Secretary
shall ensure that—
(1) the Division has resources and personnel
that are adequate to hear and determine all initial
appeals in the State of residence of an appellant on
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a timely basis and to otherwise carry out this Act;
and
(2) hearing officers, and employees who assist
the Director in reviewing appeals and determina-
tions, receive training and retraining adequate for
the duties on initial employment and at regular in-
tervals after initial employment.
(f) DELEGATION AND REVIEW.—The Secretary may
not delegate to any other person (other than the Director)
the authority of the Secretary with respect to the Division.
(g) REPORTS AND STUDIES.—
(1) IN
GENERAL.—The Director shall issue
such reports, and conduct and provide such studies,
to the Secretary and the head of an agency as the
Director determines are necessary to identify and re-
solve problems of the agency with respect to imple-
mentation of—
(A) statutes, policies, procedures, and reg-
ulations of the agency, based on final deter-
minations of the Division; and
(B) final determinations of the Division.
(2) SUBMISSION OF REPORTS TO CONGRESS.—
Not later than 30 days after receipt of the reports,
the Secretary shall transmit the reports unaltered to
the Committee on Agriculture of the House of Rep-
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resentatives and the Committee on Agriculture, Nu-
trition, and Forestry of the Senate, together with
any report by the Secretary or the relevant agency
head containing any comments the Secretary or rel-
evant agency head considers appropriate.
(3) AVAILABILITY
TO
PUBLIC.—The reports
and studies referred to in paragraph (1) shall be
made available to the public.
(h) INDEX OF DETERMINATIONS.—
(1) IN GENERAL.—The Director shall develop a
subject-matter index of all significant final deter-
minations of the Division that are considered by the
Director to—
(A) be precedential; or
(B) otherwise establish a principle that—
(i) governs recurring cases with simi-
lar facts;
(ii) develops Division policy and ex-
ceptions to the policy in areas in which the
law is unsettled;
(iii) deals with important emerging
trends; or
(iv) provides examples of the appro-
priate resolution of major types of cases
not otherwise indexed.
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(2) AVAILABILITY
TO
PUBLIC.—The Director
shall publicize the index and make the index and the
final determinations so indexed available to the pub-
lic.
(3) PUBLIC INFORMATION.—A final determina-
tion of the Division shall be subject to the require-
ments of section 552 of title 5, United States Code.
SEC. 4. NOTICE AND OPPORTUNITY FOR HEARING.
(a) IN GENERAL.—Not later than 10 working days
after an adverse decision affecting a participant, the Sec-
retary shall provide the participant with written notice
of—
(1) the decision, including all of the reasons,
facts, and conclusions underlying the adverse deci-
sion;
(2) the right of the participant to have an infor-
mal hearing or meeting with the decisionmaker on
the adverse decision;
(3) the availability of any State mediation pro-
gram under section 501 of the Agricultural Credit
Act of 1987 (7 U.S.C. 5101) to assist the partici-
pant in resolving a dispute with the agency that is-
sued the adverse decision;
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(b) RECORDS.—The Secretary shall maintain all of
the materials on which an adverse decision is based with
respect to a participant at least until the expiration of the
period during which the participant may seek administra-
tive or judicial review of the decision.
(c) JOINDER.—
(1) IN GENERAL.—A borrower or applicant who
applies for a loan on which a guarantee is requested,
or who has received a guaranteed loan, under the
Consolidated Farm and Rural Development Act (7
U.S.C. 1921 et seq.) and who is directly and ad-
versely affected by a decision of the Secretary, may
appeal the decision under this Act without the lender
joining in the appeal.
(2) RENTAL
HOUSING.—A tenant in rental
housing of an agency who is individually, directly
and adversely affected by a decision of the Sec-
retary, may appeal the decision under this Act with-
out the landlord joining in the appeal.
(3) THIRD PARTIES.—
(A) IN GENERAL.—If appropriate to pro-
tect the rights of a participant (other than the
appellant) that may be directly, substantially,
and adversely affected by a decision of the Divi-
sion, a hearing officer may invite the partici-
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pant to participate in a hearing if the final de-
termination resulting from the hearing would,
as a practical matter, foreclose the participant
from protecting the rights of the participant
that may be adversely affected by the final de-
termination.
(B) PROCEDURAL
RIGHTS
FOR
PARTICI-
PANTS.—If the participant elects to participate
in the hearing, the participant shall have the
same procedural rights as the appellant with re-
gard to the hearing and other procedures de-
scribed in this Act.
(C) 
NO
APPEAL
RIGHTS
FOR
NONPARTICIPANTS.—If the participant is in-
vited to participate in a hearing by the hearing
officer and the participant elects not to partici-
pate in the hearing, the participant may not in-
stitute an appeal with respect to the implemen-
tation of any final determination resulting from
the hearing.
(D) BASIS FOR INVITING PARTICIPANTS.—
The decision to invite a participant under sub-
paragraph (A) shall be made at the discretion
of the hearing officer taking into account—
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(i) any request to participate made by
the participant;
(ii) any request by the appellant to in-
clude or exclude the participant;
(iii) any request by the decisionmaker
to include or exclude the participant;
(iv) the opportunity the participant
would have to appeal the decision in a sep-
arate proceeding and whether the appeal
would be adequate to protect the rights of
the participant; and
(v) such other factors as may be spec-
ified in regulations issued by the Director.
(d) BASIS FOR DECISIONS.—A decisionmaker—
(1) shall base an adverse decision on the infor-
mation that is available to the decisionmaker at the
time the initial adverse decision is made; and
(2) may not base any subsequent adverse deci-
sion on information that was previously available to
the decisionmaker if that information could have
been used to support the initial adverse decision.
SEC. 5. INFORMAL HEARINGS AND MEETINGS; APPEAL-
ABLE DECISIONS.
(a) INFORMAL HEARINGS.—If an officer or employee
of the Agricultural Stabilization and Conservation Service,
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Commodity Credit Corporation, or Soil Conservation Serv-
ice makes an adverse decision, the appropriate State or
county committee established under section 8(b) of the
Soil Conservation and Domestic Allotment Act (16 U.S.C.
590h(b)), or (if applicable) an officer or employee of the
Agricultural Stabilization and Conservation Service or the
Soil Conservation Service, may, at the request of the par-
ticipant, hold an informal hearing on the decision.
(b) INFORMAL MEETINGS.—If the Farmers Home
Administration or the Rural Development Administration
makes an adverse decision, the decisionmaker may, at the
request of the appellant, hold an informal meeting with
the appellant after the appellant has requested a hearing,
and before any hearing on the decision of the
decisionmaker by the Division. At a reasonable time prior
to the informal meeting, the decisionmaker shall provide
to the appellant, and any representative of the appellant,
access to materials in accordance with section 6(a).
(c) APPEALABLE DECISIONS.—In a case described in
paragraph (5) or (6) of section 4(a), the determination
of the Director as to whether an adverse decision is ap-
pealable shall be administratively final, conclusive, and
binding.
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SEC. 6. ACCESS TO MATERIALS.
(a) IN GENERAL.—An appellant shall have the right
to have—
(1) access to all of the materials in the case
record, including a reasonable opportunity to inspect
and reproduce the record at an office of the agency
located in the area of the appellant;
(2) representation by an attorney or a person
who is not an attorney during the inspection and re-
production of records under paragraph (1) and at
any informal meeting or hearing or Division hearing;
and
(3) witnesses present at the hearing.
(b) CHARGES.—The Secretary may charge an appel-
lant for any reasonable costs incurred in the reproduction
of records under subsection (a)(1).
SEC. 7. HEARINGS.
(a) CONDUCT OF HEARING.—At a minimum, at a
hearing conducted under this Act, the appellant shall be
given a full opportunity to present argument, oral and
written evidence, facts, and information relevant to the
matter at issue.
(b) HEARINGS.—
(1) TIMING.—An appellant shall have the right
to have a hearing by the Division on an adverse de-
cision not later than 45 calendar days after receipt
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of the request of the participant for a hearing, ex-
cept that the Director may establish an earlier dead-
line for a hearing on an appeal relating to a time
sensitive decision, such as a decision relating to a re-
lease of normal income security or an operating
loan.
(2) DE NOVO HEARING.—A hearing before a
hearing officer shall be de novo. An appellant shall
have a full opportunity to present information rel-
evant to the appeal.
(3) HEARING
OFFICERS.—A hearing officer
within the Division in a State shall hear and deter-
mine a formal appeal of an adverse decision, that is
subject to this Act and is made by a county super-
visor, county committee, State committee, district di-
rector, State director, or other officer or employee of
an agency, in a fair and impartial manner and free
of undue influence. The determination shall be based
on information from the hearing record and the ap-
plicable statutes and regulations described in sub-
section (g).
(4) LOCATION OF HEARINGS.—A hearing shall
be held in the State of residence of the appellant or
at a location that is otherwise convenient to the ap-
pellant and the Division.
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(A) REFERRAL.—A determination of a
hearing officer shall, on request and election of
the appellant, be referred to the Director for re-
view.
(B) ACTIONS.—Not later than 30 calendar
days after the referral to the Director, the Di-
rector shall—
(i) review the hearing record and the
determination;
(ii) uphold the determination, issue a
new determination, require that a new
hearing be held on one or more of the is-
sues considered at the original hearing, or
take any combination of the actions de-
scribed in this clause; and
(iii) issue a determination notice.
(c) PRODUCTION OF RECORD.—
(1) VERBATIM RECORDING.—Each hearing be-
fore a hearing officer in the Division shall be re-
corded verbatim by voice recorder, stenographer, or
other method.
(2) PERSONAL RECORD.—An appellant or agen-
cy representative may record a hearing with a voice
recorder or stenographer for personal use. A record
made under this paragraph shall be excluded from
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consideration during any review of the determination
of the hearing officer.
(3) AVAILABILITY
TO
APPELLANT.—A tran-
script of the hearing, together with a copy of any
audio recording of the hearing under paragraph (1)
and copies of all documents and evidence submitted,
shall be made available to the appellant, on request,
if the decision of the hearing officer is appealed.
(d) USE OF RECORD.—If the decision of a hearing
officer is appealed, the hearing officer shall certify the
hearing record and otherwise provide the certified hearing
record to the Director. The hearing record, and any addi-
tional information from any further appeal proceedings,
shall be retained by the Division at least until the expira-
tion of the period during which the appellant may seek
judicial review of the adverse decision or final determina-
tion notice.
(e) NEW INFORMATION.—
(1) HEARING.—A hearing officer shall consider
information presented at the hearing without regard
to whether the evidence was known to the
decisionmaker at the time the adverse decision was
made. The hearing officer shall leave the record
open for a reasonable period of time and allow the
submission of information after the hearing to the
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extent necessary to prevent the appellant or the
decisionmaker from being prejudiced by new facts,
information, arguments, or evidence presented or
raised by the decisionmaker or appellant.
(2) REVIEW.—The Director may, under ex-
traordinary circumstances, consider new information
in reviewing a determination under this section or
section 8. An appellant and the decisionmaker shall
receive and have the opportunity to comment on the
new information. If a determination of a hearing of-
ficer is reviewed by the Director, and new informa-
tion is considered, the hearing officer shall have the
opportunity to comment on the new information.
(f) FINDINGS OF FACT.—The Director shall not re-
verse the determination of a hearing officer or the Direc-
tor under this section or section 8 as to a finding of fact
that is based on oral testimony or inspection of evidence
unless—
(1) the finding of fact is clearly erroneous; or
(2) the Director is considering new information
under subsection (e)(2) with respect to the finding
of fact.
(g) CONSIDERATION
OF STATUTES
AND REGULA-
TIONS.—In considering the merits of an appeal, a hearing
officer and the Director shall base a determination on and
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consider applicable statutes, and regulations published in
the Code of Federal Regulations, in effect and available
to the public on the date the decision appealed from was
made. The Director shall have the same authority as the
Secretary to grant equitable relief.
(h) FINALITY.—
(1) IN GENERAL.—Except as provided in sub-
section (b) of section 7 and in section 8, the deter-
mination of a hearing officer or the Director shall be
administratively final, conclusive, and binding on the
relevant agency.
(2) EFFECTIVE DATE OF FINAL DETERMINA-
TIONS.—A final determination made by the Division
under this Act shall be effective as of—
(A) in the case of the Agricultural Sta-
bilization Service, the Commodity Credit Cor-
poration, the Federal Crop Insurance Corpora-
tion, or the Soil Conservation Service, the date
of filing an application or the date of the trans-
action or event in question, whichever is appli-
cable; and
(B) in the case of the Farmers Home Ad-
ministration, and the Rural Development Ad-
ministration the date of the original adverse de-
cision.
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SEC. 8. ADMINISTRATIVE APPEAL REVIEW.
(a) REVIEW OF DECISION OF HEARING OFFICER OR
DIRECTOR.—In extraordinary circumstances, if an agency
head believes that the decision of a hearing officer or the
Director is contrary to a statute or regulation of the agen-
cy, the agency head may request (in writing) that the Di-
rector review the decision of the hearing officer or the Di-
rector.
(b) REQUESTS FOR REVIEW.—
(1) TIMING.—A request for review under sub-
section (a) shall be made within 10 working days
after receipt by the decisionmaker of the decision of
the hearing officer or Director. If the relevant agen-
cy head fails to make a request for review in accord-
ance with this section, the decision of the hearing of-
ficer or the Director shall be administratively final
and shall be promptly implemented.
(2) CONTENTS.—A request for review shall in-
clude a full description of—
(A) the extraordinary circumstances justi-
fying the request for review; and
(B) the reasons that the relevant agency
head claims the decision is contrary to applica-
ble statutes or regulations of the relevant agen-
cy and the citations for the statutes or regula-
tions.
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(3) COPY TO APPELLANT AND HEARING OFFI-
CER.—A copy of the request shall be provided to the
appellant and the hearing officer at the same time
the request is provided to the Director. The hearing
officer shall immediately forward the case record to
the Director on receipt of a copy of the request.
(c) TIMING OF DETERMINATIONS BY DIRECTOR.—
On receiving a request for review and the case record, the
Director shall determine within 5 working days after re-
ceipt whether the request has merit.
(d) REQUESTS WITHOUT MERIT.—If the Director
determines that the request does not have merit, the Di-
rector shall notify the relevant agency head, the appellant,
and the hearing officer, in writing, that the determination
of the hearing officer or Director is a final determination.
(e) REQUESTS WITH MERIT.—
(1) IN GENERAL.—If the Director determines
that a request by the relevant agency head has
merit, within 10 working days after the receipt of
the request for review and receipt of the case record
(subject to paragraph (4)), the Director shall—
(A)(i) conduct a review of the decision
(based on the hearing record), the assertions
raised by the relevant agency head in the letter
of the relevant agency head requesting an ad-
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ministrative appeal review, any additional argu-
ment submitted by the appellant or the hearing
officer pursuant to paragraph (2), and (in ex-
traordinary circumstances) any new information
submitted by the relevant agency head or the
appellant; and
(ii) issue a final decision on the appeal; or
(B) if the Director determines the hearing
record is inadequate, remand the decision for
further proceedings to complete the hearing
record or, at the option of the Director, to hold
a new hearing.
(2) OPPORTUNITY FOR COMMENT.—In a review
conducted under paragraph (1)(A), an appellant and
the hearing officer (if the decision being reviewed
was made by a hearing officer) shall have the oppor-
tunity to—
(A) provide written rebuttal to a claim of
the relevant agency head, and in extraordinary
circumstances provide new information with re-
gard to the review of the Director; and
(B) comment in writing with regard to the
review.
(3) NEW HEARING.—If the Director remands a
decision to a hearing officer and directs the hearing
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officer to conduct a new hearing on the decision
under paragraph (1)(B), the hearing officer shall
make a new determination with respect to the deci-
sion based on the case record and the hearing record
(as modified on remand).
(4) NOTICE OF FINAL DETERMINATION.—The
Director shall notify the hearing officer, any relevant
agency head, and the appellant, in writing, of the
final determination or other disposition of the re-
quest for review.
(5) EXTENSION OF DEADLINE.—The period of
time for a review may be extended by the Director
to the extent that an appellant or hearing officer has
requested and received additional time during which
to submit arguments, rebuttal, or new information.
(6) FINALITY.—Subject to section 9, the deter-
mination of the Director shall be administratively
final and shall be promptly implemented. The rel-
evant agency may not request a second review as to
the determination of the hearing officer or the Di-
rector on the same issues.
(f) RECOMMENDATIONS.—The Director or a hearing
officer may include recommendations in a final determina-
tion notice.
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SEC. 9. JUDICIAL REVIEW.
A final determination of the Division under the proc-
ess provided for in this Act shall be reviewable and en-
forceable by a United States district court of competent
jurisdiction in accordance with chapter 7 of title 5, United
States Code.
SEC. 10. IMPLEMENTATION OF FINAL DETERMINATIONS OF
DIVISION.
(a) IN GENERAL.—Except as provided in sections
7(c) and 8, on the return of a case to a State pursuant
to the final determination of a hearing officer or the Direc-
tor, the State committee, county committee, or employee
of the relevant agency shall implement the final deter-
mination.
(b) ACTIONS BY RELEVANT AGENCY HEAD.—The
relevant agency head shall correct implementation prob-
lems, and shall make available to the public a report on
the status of implementation of final determinations of the
relevant agency head that reversed or modified an adverse
decision of the agency.
(c) IMPLEMENTATION.—
(1) STATE DIRECTOR.—A State director shall
be—
(A) responsible for reviewing all appeal re-
quests of adverse decisions of the State director
or subordinates, prior to hearings, to determine
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whether the adverse decisions should be modi-
fied or withdrawn by the decisionmaker, rather
than proceed with the appeals;
(B) required to implement final determina-
tions of a hearing officer or the Director that
affect appellants in the State; and
(C) responsible for monitoring and ensur-
ing the implementation of final determinations
that reverse and modify adverse decisions.
(2) AGENCY
HEADS.—Relevant agency heads
shall be responsible for—
(A) the performance of State directors
under paragraph (1); and
(B) the implementation of all final deter-
minations of the Division that reverse or modify
adverse decisions of the agency.
(d) PROTECTION OF APPELLANTS’ RIGHTS.—
(1) IN GENERAL.—No officer or employee of
the Federal Government shall make or engage in
threats or intimidation, or solicit action, to prevent
any potential appellant from exercising the rights of
the appellant under this Act or make, solicit, or en-
gage in retaliation or retribution for the exercise of
a right of an appellant under this Act.
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(2) CORRECTIVE ACTION.—If an officer or em-
ployee of the Federal Government violates paragraph
(1), the Secretary shall take corrective action (in-
cluding the imposition of sanctions, when necessary).
(e) IMPLEMENTATION PROBLEMS.—
(1) IN GENERAL.—The Secretary shall assign
employees within the Office of the Secretary whom
appellants may contact concerning problems with the
implementation of final determinations of the Divi-
sion. The employees shall investigate and, to the ex-
tent practicable, resolve the implementation prob-
lems.
(2) IDENTITY OF EMPLOYEES.—The Secretary
shall notify the Director of the name, business ad-
dress, and telephone numbers of employees assigned
under paragraph (1). The Director shall include this
information in the final determination notice of the
Director to an appellant.
(3) LETTER TO APPELLANT.—Not later than
30 calendar days following the issuance of a final
determination, the appropriate assigned employee
shall mail a letter to the appellant soliciting con-
firmation from the appellant that the final deter-
mination has been implemented or, if the appellant
believes that the decision has not been implemented,
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a description of the failure to implement the deci-
sion.
(4) DECISION NOT IMPLEMENTED.—If the ap-
pellant indicates that the decision has not been im-
plemented, the assigned employee shall immediately
undertake to ensure that the final determination is
implemented in accordance with this Act.
(5) DESCRIPTION OF IMPLEMENTING STEPS.—
On determining that the final determination has
been implemented, the relevant agency head shall
provide the appellant and the assigned employee
with a description of the steps taken by the relevant
agency to implement the final determination.
SEC. 11. EVALUATION OF EMPLOYEES.
(a) IN GENERAL.—The Secretary shall promulgate
regulations that include in an annual review the evaluation
of the performance of employees and officials of each
agency in accordance with subsection (b).
(b) PERFORMANCE.—As part of the review and eval-
uation, a decisionmaker, a State director, or the relevant
agency head shall be considered to have performed poorly
if the decisionmaker, State director, or relevant agency
head—
(1) takes action that leads to numerous appeals
that result in—
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(2) the date the Director issues final regula-
tions pursuant to subsection (b).
(b) REGULATIONS.—The Director shall—
(1) not later than 90 days after the date of en-
actment of this Act, promulgate proposed regula-
tions to implement this Act and the amendments
made by this Act, in a manner consistent with provi-
sions of section 553 of title 5, United States Code,
permitting public comment;
(2) issue final regulations to implement this Act
and the amendments made by this Act, not later
than October 1, 1993, or 180 days after the date of
enactment of this Act, whichever is later; and
(3) issue final regulations—
(A) providing for the transfer of all pend-
ing appeals within the jurisdiction of agencies
referred to in section 2(2) to the Division on
the effective date prescribed in subsection (a);
(B) providing for the transfer of case
records with respect to the appeals; and
(C) otherwise providing for the orderly
transfer of all pending appeals and reviews
from the agencies to the Division.
(c) IMPLEMENTATION; PROTECTION
OF
APPEL-
LANTS’ RIGHTS.—Subsections (c) and (d) of section 10