Conservation program appeals
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Conservation Program Appeals. May 26, 2005 NRCS Appeals & Equitable Relief Champaign, IL. Better Decision Making. IRAC Analysis. IRAC Triad emphasizes Analysis by using Facts, Issue, and Rule as the building blocks of the Analysis.

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Conservation program appeals

Conservation Program Appeals

May 26, 2005

NRCS Appeals & Equitable Relief

Champaign, IL


Better decision making

Better Decision Making


Irac analysis

IRAC Analysis

  • IRAC Triad emphasizes Analysis by using Facts, Issue, and Rule as the building blocks of the Analysis.

  • Analysis is the end product and primary goal of the IRAC Triad.

  • Analysis of the Facts, Issue and Rule provide the conclusion (the determination or decision)


Conservation program appeals

Decision Pyramid

Conclusion

Issues

Rules

Analysis

Conclusion

Broad to Narrow

Analyze the Facts

Refinement

Apply the Rules and Policy

Develop the Issues & Gather Evidence


Conservation program appeals

IRAC Triad

IRAC Triad

ANALYSIS

CONCLUSION

CONCLUSION


The role of the triad

The Role of the Triad

  • Facts suggest the issue – the issue would not exist unless some event occurred.

  • The Issue is governed by a Rule – the issue mechanically determines the rule to be applied.

  • Compare the Facts to the Rule to form the Analysis.


Irac triad continued

IRAC Triad, continued

  • Do the Facts satisfy the requirements of the Rule?

  • What Conclusion has been developed through the Analysis of the Facts in relation to the Issue and the Rule?


Determination or decision conclusions

Determination or Decision Conclusions

Determination and Decision Conclusions must:

  • Consider all the possibilities.

  • Provide the correct answer to the identified issue.

  • Be fully supported by the evidence.

  • Be in accordance with the rules and agency policy.


All determination or decision notices must provide

All Determination or Decision Notices must provide:

  • Provide the person with written notice of the decision no later than 10 working days after the decision is made

  • The statutory or regulatory basis for the technical determination or decision;

  • Specify the factual basis for the technical determination or decision.

  • Provide appeals and mediation rights.


Appeals procedures

Appeals Procedures

Overview


Step 1 preliminary technical determinations all programs

Step 1 -- Preliminary Technical Determinations (All Programs)

30 calendar days

+ NTE 7 CD for mail

Participant requests field review, reconsideration, mediation, or expedited finality?

  • NRCS issues a preliminary technical determination

  • Letter transmitting the determination offers the following:

  • Field Review

  • Reconsideration to DC and/or STC

  • Mediation

  • Expedited Finality

Yes

No

Conduct the field review, reconsideration, and/or mediation, then issue the final NRCS technical determination.

CD=calendar days

NTE=not to exceed

Determination becomes a final NRCS technical determination 30 CD from the date of the notification

If Expedited Finality is requested, issue the Final NRCS technical determination immediately.

30 calendar days

+ NTE 7 CD for mail


Preliminary technical determinations

Preliminary Technical Determinations…

  • Become final 30 calendar days (plus NTE 7 calendar days for transmittal in the mail) from the date the participant receives the notice unless any of the following are requested:

    • A field visit

    • Reconsideration by DC and/or STC

    • Mediation

    • Expedited finality


Explanation of the preliminary technical determination phase

Explanation of the Preliminary Technical Determination Phase

  • For technical determinations not program administration decisions.

  • Gives decision maker and program participant an additional period for resolution of the situation, as needed.

  • Provides for additional review of the determination for reconsideration by either the local decision maker or by the STC or designee.


Preliminary phase continued

Preliminary Phase, continued

  • Provides for mediation, early intervention ADR use to resolve or provide clarity of the factors under consideration

  • The reconsideration period by either or both the DC or the STC-level can provide for consideration of new facts and possible resolution.

  • Provides for the possibility of a revised determination.


Step 2 determining appealability

Step 2 – Determining Appealability

NRCS issues a final technical determination or program decision

Is this determination or decision appealable?

Offer right to request an appealability review from NAD.

Yes

No

Offer appeal rights to the appropriate authority


Appealability issues

Appealability Issues

National Appeals Division Rules of Procedure, 7 CFR Part 11, Section 11.6(a)(2):

A decision is considered to be appealable if the decision is individually adverse as opposed to being applicable to all program participants in the same situation.


What constitutes individually adverse

What constitutes individually adverse?

  • The decision or determination has relied on information specific to a particular individual, operation, or action.

  • The decision is not the result of specific technical determination; i.e., the decision was based on those elements applicable to all persons in the same situation.


General non appealable issues

General Non-Appealable Issues

  • Any general program provision or program policy or any statutory or regulatory requirement that is applicable to all similarly situated participants, such as:

    • Program application ranking criteria; or

    • Program application screening criteria.

  • Procedural decisions relating to the general administration of the programs.


General non appealable issues1

General Non-Appealable Issues

  • Mathematical or scientific formulas established under a statute or program regulation and a program decision or technical determination based solely on the application of those formulas.

  • Decisions made pursuant to statutory provisions or implementing regulations that expressly make agency program decisions or technical determinations final.


Non appealable issues

Non-Appealable Issues

  • Science-based formulas and criteria.

  • Decisions on equitable relief made by a State Conservationist or the Chief pursuant to Section 1613 of the Farm Security and rural Investment Act of 2002, Pub. L. 107-171.

  • Decisions of other Federal or State agencies that NRCS relies upon in issuing a determination or decision.


Non appealable issues1

Non-Appealable Issues

  • Requirements and conditions designated by law to be developed by agencies other than NRCS.

  • Disapproval or denials of assistance due to lack of funding or lack of authority.


Decisions not subject to the administrative appeals procedures

Decisions not Subject to the Administrative Appeals Procedures

  • Program Delivery Discrimination Complaints

  • Appeals on contractual issues that are subject to the jurisdiction of the Agriculture Board of Contract Appeals.


Appealable issues

Appealable Issues

  • Generally, denial of participation in a program when the decision is not based on matters of general program applicability.

  • Compliance with program requirements.

  • Issuance of payments or other program benefits to a participant in a program.

  • Technical determinations made under Title XII of the Food Security Act of 1985, as amended.


Appealable issues1

Appealable Issues

  • Technical determinations or program decisions that affect the landowner's or program participant's eligibility for USDA program benefits.

  • The failure of an official of NRCS to issue a technical determination or program decision subject to this part.


Appealability reviews

Appealability Reviews

  • A participant has the right to request that the NAD Director review the NRCS decision that an issue is not appealable.

  • When NRCS declares that an issue is not appealable, NRCS must provide rights to an appealability review.

  • A request must be filed not later than 30 calendar days after notification that an issue is not appealable.

    CPM, Paragraph 510.02(c)


Appeal or appealability review rights

Appeal or Appealability Review Rights????

The program applicant and/or participant has rights to an appeal under 7 CFR 614 and CPM Part 510, Subpart B if:

  • The decision being issued is adverse individually

    The following matrix is provided to aid in making a decision of appeal or appealability review.


Appeal v appealability

Appeal v Appealability


Final technical determinations and program decisions

Final Technical Determinations and Program Decisions

Is this a a Title XII conservation program?

NRCS issues a final technical determination or program decision that is appealable.

No

Yes

  • Offer the following rights:

  • Informal Appeal to either the FSA-COC Or the NRCS STC;

  • Mediation; or

  • Appeal to NAD

  • Offer the following rights:

  • Appeal to the NRCS STC;

  • Mediation; or

  • Appeal to NAD


Final determinations or program decisions

Final Determinations or Program Decisions

  • Title XII programs DO NOT have to be appealed to the FSA COC first, as previously thought.

    This is the result of a new legal opinion of the statutory requirement, as well as the fact that FSA no longer has a stake in most of the Title XII conservation program decisions.


Final determinations or program decisions1

Final Determinations or Program Decisions

  • Title XII programs participants may choose to appeal the determination or decision at the informal level to either the:

    • FSA COC, or

    • NRCS STC

  • Non-title XII programs have informal appeals before the NRCS STC, if the participant so elects


Final technical determinations or program decisions

Final Technical Determinations or Program Decisions

  • Appeal rights for ALL Final determinations or final decisions (program decisions are always issued as a final decision) are as follows:

    • Informal appeal hearing before either the FSA COC or NRCS STC (for Title XII programs)

    • Informal appeal hearing before the NRCS STC

    • Mediation

    • Appeal to the National Appeals Division


What does this mean in appeals for helc wc

What does this mean in appeals for HELC/WC?:

  • If the participant elects to appeal informally to the FSA COC, then FSA will assume “control” of the appeal .

  • The action FSA would take on the technical determination regarding denial of benefits would not take place until after the final USDA decision is issued.

  • NRCS must participate in all stages of the appeal and/or mediation.


What does this mean in appeals for helc wc1

What does this mean in appeals for HELC/WC?:

  • If the participant elects to appeal informally to the NRCS STC or go directly to NAD:

    • NRCS will maintain control of the technical determination until a final USDA decision is issued.

    • Following issuance of the final USDA decision on the technical determination, NRCS will send the final decision to FSA for any further action with regard to denial of benefits, or action for request of Good Faith.


Conservation program appeals

3.a. NRCS issues a final technical determination; or

2. Offer the following:

-Reconsideration to DC or STC

-Mediation

-Field Review

-Expedited Finality

1. NRCS issues a preliminary technical determination

3.b. NRCS issues a final program decision.

6. Is the determination or decision being issued for Title XII Program?

4. Is the determination or decision Appealable?

a. Yes

a. Yes

b. No

a. No

7. Offer the following rights:

--Appeal to the FSA

COCor the NRCS STC;

--Mediation; or

--Appeal to NAD

5. Offer right to request an appealability review from NAD.

7. Offer the following rights:

--Appeal to the NRCS STC;

--Mediation; or

--Appeal to NAD


Administrative record

Administrative Record

  • The NRCS administrative records MUST contain all materials used to make the technical determination or technical decision, including all supporting materials.

    CPM Section 510.04


Burden of proof in an appeal

Burden of Proof in an Appeal…

  • The appellant has the burden of proving that the NRCS technical determination or technical decision was erroneous by a preponderance of the evidence.

  • This means that the appellant must show that it is more likely than not that the agency's technical determination or technical decision is wrong.

    CPM 510.51


Implementing nad decisions

Implementing NAD Decisions…

  • The agency is required to implement all final NAD decisions not later than 30 calendar days after the notice of the final determination.

  • Timely implementation occurs when the first of the steps required to implement a final decision is initiated.


Judicial review

Judicial Review

  • An appellant may not seek judicial relief in any court until the issue on appeal has been through the entire USDA Administrative Appeals process and NAD has issued a final decision in the appeal.


Conclusion

Conclusion

For questions, assistance, training, etc. regarding Appeals, Appealability Reviews, or other matters, please call:

Beth A. Schuler

(615) 646-9741; Cell: (615) 415-9819;

FAX: (615) 673-6705;

Email: [email protected]


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