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Conservation Program Appeals

Conservation Program Appeals. The USDA Informal and Formal Administrative Appeals Process June 2004. Appeals Training . Section 1 – Determinations Preliminary Final Expedited Finality Section 2 – Appealability Section 3 – Informal Review FSA – COC State Conservationist

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Conservation Program Appeals

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  1. Conservation Program Appeals The USDA Informal and Formal Administrative Appeals Process June 2004

  2. Appeals Training • Section 1 – Determinations • Preliminary • Final • Expedited Finality • Section 2 – Appealability • Section 3 – Informal Review • FSA – COC • State Conservationist • Section 4 – Formal Review • Section 5 – Exercises

  3. Appeals Background Information

  4. Agency Appeals Procedure (Pre 1996 Appeals) • Only certain decisions could be appealed within the agency (SCS then NRCS) primarily those relating to HELC/WC provisions and conservation program contracts • Four “levels” for appeal: FO; AO; SO; NHQ

  5. Agency Appeals Procedure (Pre 1996 Appeals) • Perceived as being biased toward the Agency by farmers and ranchers • Often took up to 2 years to arrive at a decision

  6. USDA Appeals Procedure (January 5, 1996) • Replaced the previous Agency appeals procedures as of January 16, 1996 • Appeal “levels” done away with • Two paths for appeal based on program authority

  7. USDA Appeals Procedure (January 5, 1996) • Appeals procedure for all NRCS programs, not just HELC/WC • Formal appeals agency of USDA, the National Appeals Division (NAD)

  8. Legal Authority

  9. Statutory Authority The Federal Crop Insurance and Department of Agriculture Reorganization Act of 1994, Public Law 103-354, 108 Stat. 3228, Title II, Sections 226 and 275, Pub. L. 103-354 (7 U.S.C. 6932 and 6995); 7 U.S.C. 6991 et seq. ; 5 U.S.C. 301, 16 U.S.C. 3843(a); and Pub. L. 107-171.

  10. Published Rules • NRCS Appeals Rule – 7 CFR 614, Dec. 29, 1995 Interim-Final Rule; Final Rule currently being promulgated. • FSA Appeals Rule – 7 CFR 780, Dec. 29, 1995, Interim-Final Rule; Final Rule currently being promulgated.

  11. Published Rules • NAD Appeals Rules of Procedure, 7 CFR 11, June 23, 1999, Final Rule • Equal Access to Justice, 7 CFR 1, Subpart J, October 11, 2002 , Final Rule

  12. Agency Appeals Policy and Other Information

  13. NRCS General Appeal Procedures • NRCS -- Conservation Programs Manual Part 510 – Appeals & Mediation http://policy.nrcs.usda.gov/scripts/lpsiis.dll/M/M_440_510.htm • FSA – Handbook 1-APP, Program Appeals, Mediation, and Litigation http://dmis.fsa.usda.gov/rware/home.html#83799 • NAD – NAD Hearing Officer’s Guide http://www.nad.usda.gov/nadguide.pdf

  14. Appeals and Mediation Websites NRCS – Appeals http://www.nrcs.usda.gov/programs/appeals/ NRCS – Mediation http://www.nrcs.usda.gov/programs/mediation/

  15. Appeals and Mediation Websites FSA – Appeals http://www.fsa.usda.gov/nd/ndprogramappeals.html FSA – Mediation http://www.fsa.usda.gov/outreach/mediation.htm NAD -- http://www.nad.usda.gov

  16. Appeal Definitions

  17. Appeal • Means a written request by a participant asking for review by the National Appeals Division (NAD). (7 CFR 11.1)

  18. Agency Representative • Means any person, whether or not an attorney, who is authorized to represent the agency in an administrative appeal under this part. (7 CFR 11.1)

  19. Adverse 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. (7 CFR 614.2)

  20. Adverse Decision - NAD • means an administrative decision made by an officer, employee, or committee of an agency that is adverse to the participant (7 CFR 11.1)

  21. Agency Record • Means all the materials maintained by an agency related to an adverse decision which are submitted to the Division (NAD) by an agency for consideration in connection with an appeal…including all materials prepared or reviewed by the agency during its consideration and decisionmaking 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 NAD shall be deemed admitted as evidence for purposes of a hearing or a record review. (7 CFR 11.1)

  22. 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. (7 CFR 614.2)

  23. Preliminary technicaldetermination • 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 Sec. 614.101 to stay the preliminary technical determination from becoming final. (7 CFR 614.2)

  24. 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. (7 CFR 614.2)

  25. Final Decision • means the program decision rendered by the county or State Committee (or in the case of NRCS, the decision that becomes final as set forth in 7 CFR 614.103 or 7 CFR 614.201), 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…. (7 CFR 780.1)

  26. Reconsideration • means the subsequent consideration of a prior decision or determination by the same reviewing authority. (7 CFR 780.1)

  27. Reviewing Authority • means a person or committee assigned the responsibility of making a decision on the appeal filed by the participant in accordance with [the applicable regulation]. (7 CFR 780.1)

  28. Section 1 - Determinations

  29. Notice of Determination or Decision Requires that NRCS to provide the following information to the person: • Written notice of the decision no later than 10 working days after the decision is made • Applicable appeal rights.

  30. Requirements All decisions or technical determinations must: • Specify the applicable regulations (rules) • Specify the generally applicable interpretations of regulations (Agency policy) • Give notice of the rights and options that a participant may have in the NRCS informal appeals process or through appeal to NAD.

  31. Preliminary Technical Determinations 7 CFR 614.101Title XII Conservation Programs ONLY The preliminary technical determination will become final 30 calendar days from the notification date if the landowner or program participant does not request any of the following:

  32. Preliminary Technical Determinations (continued) • A field visit for reconsideration • Mediation • Expedited finality

  33. Final Determinations • 7 CFR 614.103 – Title XII Preliminary technical determinations shall become final: • 30 days after receipt of the notification • After a field visit • After mediation • After a request for expedited finality

  34. Final Decisions • 7 CFR 614.201 All decisions related to programs (non-title XII) made by a designated conservationist shall be in writing and shall inform the …program participant of their right to request any or all of the following: • Informal hearing before NRCS STC • Mediation • NAD hearing

  35. Added Definition of Final Determination Where eligibility for participation in a conservation program (e.g. Conservation Reserve Program; Environmental Quality Incentives Program) relies upon a technical determination by NRCS that otherwise would not present an adverse technical determination or decision as set forth in Sec. 614.1(a) until use by the agency personnel or county or area FSA committee or personnel for the purposes of determining program eligibility shall be final when NRCS provides the technical determination or decision to the conservation program officials that requested the technical determination or decision. This authority does not apply to technical determinations made strictly for adherence to the provisions of Part 12 of this Title.

  36. Expedited Finality • A program participant may request, in writing, that a preliminary technical determination become final prior to the expiration of the 30-day period and without a field review for reconsideration.

  37. Section 2 - Appealability Notice of Decision, requires that NRCS to provide the following information to the person: • Written notice of the decision no later than 10 working days after the decision is made • Applicable appeal rights.

  38. Conservation Program Appeals -Appealability National Appeals Division Rules of Procedure, 7 CFR Part 11, §11.6(a)(2): “[If a decision] is adverse to the individual appellant, and thus appealable, or is a matter of general applicability, and thus not subject to appeal....”

  39. Conservation Program Appeals -Appealability National Appeals Division Rules of Procedure, 7 CFR Part 11, §11.6(a)(2): “[If a decision] is adverse to the individual appellant, and thus appealable, or is a matter of general applicability, and thus not subject to appeal....”

  40. Appealable Issues Denial of participation in a program. Compliance with program requirements. The payment or amount of payments or other program benefits to a program participant. Technical determinations or technical decisions that affect the status of land even though eligibility for USDA benefits may not be affected. Non-Appealable Issues General program requirements applicable to all. Science-based and technical formulas and criteria Federal laws or regulations. State Technical Committee membership decisions made by the State Conservationist Procedural or technical decisions relating to program administration Denials of assistance due to the lack of funds or authority

  41. 7 CFR 614.3 Applicability • All technical determinations or technical decisions that could be considered to be adverse to the program participant. (NAD is the final arbiter of what is adverse individually.) • The failure of an official of NRCS to issue a technical determination or decision. • Land Treatment Contract violations of the contract provisions. • Incorrect usage of ranking criteria, formulas, eligibility criteria, etc.

  42. Decisions not Applicable • Discrimination in Program Delivery complaints • Appeals on contractual issues that are subject to the jurisdiction of the Agriculture Board of Contract Appeals.

  43. 7 CFR 614.5 Decisions not subject to appeal The following are examples of decisions which are not appealable: • General program requirements that apply to all participants • Science-based formulas and criteria • Procedural decisions relating to administration of the programs • Denials of assistance due to lack of funds or authority.

  44. Appealability Reviews • A participant may request that the NAD Director review the NRCS decision that an issue is not appealable. A request must be filed not later than 30 calendar days after notification that an issue is not appealable. CPM, Paragraph 510.02(c)

  45. Section 3 – Informal Reviews – FSA COC or NRCS STC Notice of Decision, requires that NRCS to provide the following information to the person: • Written notice of the decision no later than 10 working days after the decision is made • Applicable appeal rights.

  46. FSA – COC Hearings A field visit must be conducted prior to ALL appeal hearings before the FSA COC • If the COC finds merit in the participant’s appeal, a review by the STC must be requested. • The COC may not change the technical determination, only render their decision based on the findings • Must use the STC determination, if requested, in making their final decision on the informal appeal.

  47. Title XII Programs • Conservation Reserve Program • Conservation Security Program • Environmental Quality Incentives Program • Farm and Ranchland Protection Program • Grassland Reserve Program • Highly Erodible Land Conservation • Wetland Conservation • Wetlands Reserve Program • Wildlife Habitat Incentives Program

  48. Title XII Program Flowchart NRCS issues a final determination that is appealable. Has there been a decision by FSA/COC employee, officer, member? No Yes NOTE: Mediation is only offered at this stage if it has not been utilized previously Offer the following rights: Appeal to the FSA COC (optional); Mediation; or Appeal to NAD Offer the following rights: Appeal to the FSA COC (mandatory); or Mediation NOTE: FurtherAppeal rights, including rights to appeal to NAD will be provided by FSA.

  49. Agriculture Management Assistance Program Colorado River Basin Salinity Control Program Emergency Watershed Projects (including Floodplain Easements) Forestry Incentive Program Great Plains Conservation Program Flood Prevention and Watershed Protection Programs (PL-566 and PL-534 Land Treatment Contracts) Rural Abandoned Mine Program Rural Clean Water Program Soil and Water Conservation Program Water Bank Program Non-Title XII Programs

  50. Non-Title XII Program Flowchart NRCS issues a final determination or decision that is appealable. Is this a non-title XII program? No Yes Go back to the Title XII Process Slide • Offer the following rights: • Appeal to the STC; • Mediation; or • Appeal to NAD NOTE: Mediation is only offered at this stage if it has not been utilized previously

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