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Conservation Program Appeals and Equitable Relief

Conservation Program Appeals and Equitable Relief. Conservation Security Program October 7, 2004 Teleconference. Appeals Statutory Authority. The Federal Crop Insurance and Department of Agriculture Reorganization Act of 1994 , Public Law 103-354, Title II, Sections 226 and 275,

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Conservation Program Appeals and Equitable Relief

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  1. Conservation Program Appealsand Equitable Relief Conservation Security Program October 7, 2004 Teleconference

  2. Appeals Statutory Authority The Federal Crop Insurance and Department of Agriculture Reorganization Act of 1994, Public Law 103-354,Title II, Sections 226 and 275, 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) Pub. L. 107-171.

  3. Published Rules - Appeals • NRCS Appeals Rule – 7 CFR 614, Dec. 29, 1995 • FSA Appeals Rule – 7 CFR 780, Dec. 29, 1995 • NAD Appeals Rules of Procedure, 7 CFR 11, June 23, 1999

  4. 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

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

  6. Notice of Determination or Decision… • Specify the factual basis for the technical determination or decision; and • Give notice of the rights and options that a program participant may have in the NRCS informal appeals process: • Appeal Rights, or • Rights to an Appealability Review • Mediation

  7. Preliminary Technical Determinations… Preliminary technical determinations become final 30 calendar days from the date the participant receives the notice unless any of the following are requested: • A field visit for reconsideration • Mediation • Expedited finality

  8. Preliminary Process Program Participant requests field review or mediation? • NRCS issues a preliminary determination • Letter transmitting the determination offers the following: • Field Review • Mediation No Yes Determination becomes a final NRCS determination 30 days from the date of the notification Field review and/or mediation conducted. Final NRCS determination issued.

  9. Final Technical 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

  10. Appeals, General • The appeal procedures cannot be used by a participant to question the statutes or regulations issued under Federal law or review of NRCS’ generally applicable interpretations of such laws and regulations.

  11. 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 [is] thus appealable, or is a matter of general applicability, and [is] thus not subject to appeal....”

  12. Appealable Issues • Denial of participation in a program… • Compliance with program requirements… • Payments or amounts of payments… • Other program benefits… • Technical determinations… If the decision is individually applicable to the participant.

  13. Decisions not Subject to the Administrative Appeals Procedures • Discrimination in Program Delivery complaints • Appeals on contractual issues that are subject to the jurisdiction of the Agriculture Board of Contract Appeals.

  14. Non Appealable Issues • General program requirements applicable to all. • Science-based and technical formulas and criteria • Federal laws or regulations.

  15. Non Appealable Issues • 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

  16. 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 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)

  17. How the Appeals Process WorksStep 1 NRCS issues a final determination or decision Is this determination or decision appealable? No Yes Offer right to request an appealability review from NAD. Offer appeal rights to the appropriate authority

  18. 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.

  19. What Appeal Rights to Provide:

  20. 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.

  21. NAD Appeals… • The NAD Director's office is located in Alexandria, Virginia, but NAD also has regional offices (see Subpart G, Section 510.76, Exhibit 16 for the NAD regional office addresses and the States served by the specific regional office.) • Eastern Regional Office - Indianapolis, Indiana. • Southern Regional Office - Cordova, Tennessee. • Western Regional Office - Lakewood, Colorado.

  22. NAD Functions • Participants in USDA programs are afforded an opportunity for a hearing before a neutral hearing officer who is not bound by any prior agency findings of fact. • The hearing officer may make independent findings of fact but must apply the law and regulations of the agency to the facts as found. • NAD will decide whether the agency followed its procedures according to the published regulations.

  23. Administrative Record • The administrative records shall contain all materials used to make the technical determination or technical decision, including all supporting materials. CPM Section 510.04

  24. Burden of Proof in a NAD 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

  25. NAD Director Reviews … • Both parties to the appeal may request a NAD Director review of a hearing officer determination. The timeframes are as follows: • NRCS Chief - Not later than 15 business days after the date on which the agency receives the NAD hearing officer's decision. • Appellant - Not later than 30 calendar days after the date the appellant receives the hearing officer's decision.

  26. 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.

  27. 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.

  28. Conservation Program Equitable Relief Provisions, 2002 Farm Bill • Section 1613 of the 2002 Farm Bill provides that an STC may grant relief where a contract violation or non-compliance determination has been issued. Participant must have either: • Acted in Good Faith is incorrectly applying the required conservation system, practice, or operation and maintenance component as directed by an NRCS employee. • Made a Good Faith Effort is a participant’s efforts at applying the required conservation system, practice, or operation and maintenance component without an intent to defraud NRCS.

  29. Limitations to Providing Equitable Relief • The total amount of equitable relief to an NRCS conservation program participant shall not exceed $20,000. • A program participant who has already received $5,000 or more in relief is not eligible for any further relief. • When more than one participant is affected by the same type of advice, the total amount relief provided to the similarly situated participants shall not exceed $1 million.

  30. Exclusions Equitable relief may not be provided for either of the following: • Payment Limitations • The Highly Erodible Land and Wetland Conservation Provisions

  31. Forms of Equitable Relief • Retention payments or other benefits. • Continued participation in the conservation program, either in whole or in part. • Re-enrollment of all or part of the land in a conservation program. • Any other form of relief that the Chief has determined to be appropriate.

  32. Remedial Actions May Be Required • Repair or replacement of the damaged conservation practice, conservation system, or operation and maintenance requirements. • Purchase of additional equipment, materials, or other items that will enable the covered conservation program participant to fully comply with the program provisions. • Revision of the conservation plan or conservation system to be implemented. • Revision of the operation and maintenance plan. • Remediation shall be commensurate with the overall conservation program provisions, purposes, and functions.

  33. Approval, Consultation, and Review • The State Conservationist must consult with and receive approval from the appropriate Office of the General Counsel (OGC). • A State Conservationist’s final decision for equitable relief is subject to review and reversal only by the Secretary, USDA, who may not delegate that authority. • This provision does not limit the State Conservationist’s authority to grant waivers to specific conservation programs as provided by that program. • The State Conservationist’s final decision is not subject to Judicial Review under Chapter 7 of Title 5 of the United States Code.

  34. Policy and Regulation Agency Policy is CPM Part 509 Regulation – 7 CFR 635, Equitable Relief in NRCS Conservation Programs FSA policy is Handbook 7-CP.

  35. Conclusion For questions, assistance, training, etc. regarding Appeals, Appealability Reviews, Equitable Relief, or other matters, please call: Beth Schuler (615) 646-9741; Cell: (615) 415-9819; FAX: (615) 673-6705; Email: beth.schuler@usda.gov

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