Public Law 103-354
Subtitle H—National Appeals Division

SEC. 271. DEFINITION

For purposes of this subtitle:

(1) ADVERSE DECISION. — The term "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. The term does not include a decision over which the Board of Contract Appeals has jurisdiction.

(2) AGENCY. — The term "agency" means any agency of the Department designated by the Secretary or a successor agency of the Department, except that the term shall include the following (and any successor to the following):

1. The Consolidated Farm Service Agency (or other office, agency, or administrative unit of the Department assigned the functions authorized for the Consolidated Farm Service Agency under section 226).
2. The Commodity Credit Corporation, with respect to domestic programs.
3. The Farmers Home Administration.
4. The Federal Crop Insurance Corporation.
5. The Rural Development Administration.
6. The Natural Resources Conservation Service (or other office, agency, or administrative unit of the Department assigned the functions authorized for the Natural Resources Conservation Service under section 246(b)).
7. 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)).

(3) APPELLANT. — The term "appellant" means a participant who appeals an adverse decision in accordance with this subtitle.

(4) CASE RECORD. — The term "case record" means all the materials maintained by the Secretary related to an adverse decision.

(5) DIRECTOR. — The term "Director" means the Director of the Division.

(6) DIVISION. — The term "Division" means the National Appeals Division established by this title.

(7) HEARING OFFICER. — The term "hearing officer" means an individual employed by the Division who hears and determines appeals of adverse decisions by any agency.

(8) IMPLEMENT. — The term "implement" refers to those actions necessary to effectuate fully and promptly a final determination of the Division not later than 30 calendar days after the effective date of the final determination.

(9) PARTICIPANT. — The term "participant" shall have the meaning given that term by the Secretary by regulation.

SEC. 272. NATIONAL APPEALS DIVISION AND DIRECTOR.

(a) ESTABLISHMENT OF DIVISION. — The Secretary shall establish and maintain an independent National Appeals Division within the Department to carry out this subtitle.

(b) DIRECTOR. —

1. APPOINTMENT. — The Division shall be headed by a Director, appointed by the Secretary from among persons who have substantial experience in practicing administrative law. In considering applicants for the position of Director, the Secretary shall consider persons currently employed outside Government as well as Government employees.

2. TERM AND REMOVAL. — The Director shall serve for a 6-year term of office, and shall be eligible for reappointment. The Director shall not be subject to removal during the term of office, except for cause established in accordance with law.

3. POSITION CLASSIFICATION. — The position of the Director may not be a position in the excepted service or filled by a noncareer appointee.

(c) DIRECTION, CONTROL, AND SUPPORT. — The Director shall be free from the direction and control of any person other than the Secretary. The Division shall not receive administrative support (except on a reimbursable basis) from any agency other than the Office of the Secretary. The Secretary may not delegate to any other officer or employee of the Department, other than the Director, the authority of the Secretary with respect to the Division.

(d) DETERMINATION OF APPEALABILITY OF AGENCY DECISIONS. — If an officer, employee, or committee of an agency determines that a decision is not appealable and a participant appeals the decision to the Director, 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. The determination of the Director as to whether a decision is appealable shall be administratively final.

(e) DIVISION PERSONNEL. — The Director shall appoint such hearing officers and other employees as are necessary for the administration of the Division. A hearing officer or other employee of the Division shall have no duties other than those that are necessary to carry out this subtitle.

SEC. 273. TRANSFER OF FUNCTIONS.

There are transferred to the Division all functions exercised and all administrative appeals pending before the effective date of this subtitle (including all related functions of any officer or employee) of or relating to—

1. the National Appeals Division established by section 426(c) of the Agricultural Act of 1949 (7 U.S.C. 1433e(c)) (as in effect on the day before the date of the enactment of this Act);

2. the National Appeals Division established by subsections (d) through (g) of section 333B of the Consolidated Farm and Rural Development Act (7 U.S.C. 1983b) (as in effect on the day before the date of the enactment of this Act);

3. appeals of decisions made by the Federal Crop Insurance Corporation; and

4. appeals of decisions made by the Soil Conservation Service (as in effect on the day before the date of the enactment of this Act).

SEC. 274. NOTICE AND OPPORTUNITY FOR HEARING.

Not later than 10 working days after an adverse decision is made that affects the participant, the Secretary shall provide the participant with written notice of such adverse decision and the rights available to the participant under this subtitle or other law for the review of such adverse decision.

SEC. 275. INFORMAL HEARINGS.

If an officer, employee, or committee of an agency makes an adverse decision, the agency shall hold, at the request of the participant, an informal hearing on the decision. With respect to programs carried out through the Consolidated Farm Service Agency (or other office, agency or administrative unit of the Department assigned to carry out the programs authorized for the Consolidated Farm Service Agency under section 226), the Secretary shall maintain the informal appeals process applicable to such programs, as in effect on the date of the enactment of the subtitle. If a mediation program is available under title V of the Agricultural Credit Act of 1987 (7 U.S.C. 5101 et seq.) as a part of the informal hearing process, the participant shall be offered the right to choose such mediation.

SEC. 276. RIGHT OF PARTICIPANTS TO DIVISION HEARING.

(a) APPEAL TO DIVISION FOR HEARING. — Subject to subsection (b), a participant shall have the right to appeal an adverse decision to the Division for an evidentiary hearing by a hearing officer consistent with section 277.

(b) TIME FOR APPEAL. — To be entitled to a hearing under section 277, a participant shall request the hearing not later than 30 days after the date on which the participant first received notice of the adverse decision.

SEC. 277. DIVISION HEARINGS.

(a) GENERAL POWERS OF DIRECTOR AND HEARING OFFICERS. —

1. ACCESS TO CASE RECORD. — The Director and hearing officer shall have access to the case record of any adverse decision appealed to the Division for a hearing.

2. ADMINISTRATIVE PROCEDURES. — The Director and hearing officer shall have the authority to require the attendance of witnesses, and the production of evidence, by subpoena and to administer oaths and affirmations. Except to the extent required for the disposition of ex parte matters as authorized by law—
   1. an interested person outside the Division shall not make or knowingly cause to be made to the Director or a hearing officer who is or may reasonably be expected to be involved in the evidentiary hearing or review of an adverse decision, an ex parte communication (as defined in section 551(14) of title 5, United States Code) relevant to the merits of the proceeding;
   2. the Director and such hearing officer shall not make or knowingly cause to be made to any interested person outside the Division an ex parte communication relevant to the merits of the proceeding.

(b) TIME FOR HEARING. — Upon a timely request for a hearing under section 276(b), an appellant shall have the right to have a hearing by the Division on the adverse decision within 45 days after the date of the receipt of the request for the hearing.

(c) LOCATION AND ELEMENTS OF HEARING. —

1. LOCATION. — A hearing on an adverse decision shall be held in the State of residence of the appellant or at a location that is otherwise convenient to the appellant and the Division.

2. EVIDENTIARY HEARING. — The evidentiary hearing before a hearing officer shall be in person, unless the appellant agrees to a hearing by telephone or by a review of the case record. The hearing officer shall not be bound by previous findings of fact by the agency in making a determination.

3. INFORMATION AT HEARING. — The hearing officer shall consider information presented at the hearing 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. The hearing officer shall leave the record open after the hearing for a reasonable period of time to allow the submission of information by the appellant or the agency after the hearing to the extent necessary to respond to new facts, information, arguments, or evidence presented or raised by the agency or appellant.

4. BURDEN OF PROOF. — The appellant shall bear the burden of proving that the adverse decision of the agency was erroneous.

(d) DETERMINATION NOTICE. — The hearing officer shall issue a notice of the determination on the appeal not later than 30 days after a hearing or after receipt of the request of the appellant to waive a hearing, except that the Director may establish an earlier or later deadline. If the determination is not appealed to the Director for review under section 278, the notice provided by the hearing officer shall be considered to be a notice of an administratively final determination.

(e) EFFECTIVE DATE. — The final determination shall 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.

SEC. 278. DIRECTOR REVIEW OF DETERMINATIONS OF HEARING OFFICERS.

(a) REQUESTS FOR DIRECTOR REVIEW. —

1. TIME FOR REQUEST BY APPELLANT. — Not later than 30 days after the date on which an appellant receives the determination of a hearing officer under section 277, the appellant shall submit a written request to the Director for review of the determination in order to be entitled to a review by the Director of the determination.
2. TIME FOR REQUEST BY AGENCY. — Not later than 15 business days after the date on which an agency receives the determination of a hearing officer under section 277, the head of the agency may make a written request that the Director review the determination.

(b) DETERMINATION OF DIRECTOR. — The Director shall conduct a review of the determination of the hearing officer using the case record, the record from the evidentiary hearing under section 277, the request for review, and such other arguments or information as may be accepted by the Director. Based on such review, the Director shall issue a final determination notice that upholds, reverses, or modifies the determination of the hearing officer. However, if the Director determines that the hearing record is inadequate, the Director may remand all or a portion of the determination for further proceedings to complete the hearing record or, at the option of the Director, to hold a new hearing. The Director shall complete the review and either issue a final determination or remand the determination not later than—

1. 10 business days after receipt of the request for review, in the case of a request by the head of an agency for review; or
2. 30 business days after receipt of the request for review, in the case of a request by an appellant for review.

(c) BASIS FOR DETERMINATION. — The determination of the hearing officer and the Director shall 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 adverse decision occurred, whichever date is appropriate.

(d) EQUITABLE RELIEF. — Subject to regulations issued by the Secretary the Director shall have the authority to grant equitable relief under this section in the same manner and to the same extent as such authority is provided to the Secretary under section 326 of the Food and Agriculture Act of 1962 (7 U.S.C. 1339a) and other laws. Notwithstanding the administrative finality of a final determination of an appeal by the Division, the Secretary shall have the authority to grant equitable or other types of relief to the appellant after an administratively final determination is issued by the Division.

(e) EFFECTIVE DATE. — A final determination issued by the Director shall 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.

SEC. 279. JUDICIAL REVIEW.

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.

SEC. 280. IMPLEMENTATION OF FINAL DETERMINATIONS OF DIVISION.

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.

SEC. 281. CONFORMING AMENDMENTS RELATING TO NATIONAL APPEALS DIVISION.

(a) DECISIONS OF STATE, COUNTY, AND AREA COMMITTEES. —

1. APPLICATION OF SUBSECTION. — This subsection shall apply only with respect to functions of the Consolidated Farm Service Agency or the Commodity Credit Corporation that are under the jurisdiction of 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)) or an employee of such a committee.

2. FINALITY. — Each decision of a State, county or area committee (or an employee of such a committee) covered by paragraph (1) that is made in good faith in the absence of misrepresentation, false statement, fraud, or willful misconduct shall be final not later than 90 days after the date of filing of the application for benefits, unless the decision is—
   1. appealed under this subtitle; or
   2. modified by the Administrator of the Consolidated Farm Service Agency or the Executive Vice President of the Commodity Credit Corporation.

3. RECOVERY OF AMOUNTS. — If the decision of the State, county, or area committee has become final under paragraph (2), no action may be taken by the Consolidated Farm Service Agency, the Commodity Credit Corporation, or a State, county, or area committee to recover amounts found to have been disbursed as a result of a decision in error unless the participant had reason to believe that the decision was erroneous.

4. SAVINGS PROVISION. — For purposes of this subsection, a reference to the "Consolidated Farm Service Agency" includes any other office, agency, or administrative unit of the Department assigned the functions authorized for the Consolidated Farm Service Agency under section 226.

(b) AGRICULTURAL STABILIZATION AND CONSERVATION SERVICE. — Section 426 of the Agricultural Act of 1949 (7 U.S.C. 1433e) is repealed.

(c) FARMERS HOME ADMINISTRATION. — Section 333B of the Consolidated Farm and Rural Development Act (7 U.S.C. 1983b) is repealed.

SEC. 282. EXPANSION OF ISSUES COVERED BY STATE MEDIATION PROGRAMS.

(a) EXPANSION OF MEDIATION PROGRAMS.— Section 501 of the Agricultural Credit Act of 1987 (7 U.S.C. 5101) is amended—

1. in subsection (a), by striking "an agricultural loan mediation program" and inserting "a mediation program",

2. in subsection (b), by striking "agricultural loan"; and

3. by striking subsection (c) and inserting the following new subsection:

   "(c) REQUIREMENTS OF STATE MEDIATION PROGRAMS.—

   1. ISSUES COVERED. — To be certified as a qualifying State, the mediation program of the State must provide mediation services for the persons described in paragraph (2) who are involved in agricultural loans or agricultural loans and one or more of the following issues under the jurisdiction of the Department of Agriculture:

      "(A) Wetlands determinations.
      "(B) Compliance with farm programs, including conservation programs.
      "(C) Agricultural credit.
      "(D) Rural water loan programs.
      "(E) Grazing on National Forest System lands.
      "(F) Pesticides.
      "(G) Such other issues as the Secretary considers appropriate.

      "(2) PERSONS ELIGIBLE FOR MEDIATION.— The persons referred to in paragraph (1) are producers, their creditors (if applicable), and other persons directly affected by actions of the Department of Agriculture.

      "(3) CERTIFICATION CONDITIONS.— The Secretary shall certify a State as a qualifying State with respect to the issues proposed to be covered by the mediation program of the State if the mediation program—

      "(A) provides for mediation services that, if decisions are reached, result in mediated, mutually agreeable decisions between the parties to the mediation;

      "(B) is authorized or administered by an agency of the State government or by the Governor of the State;

      "(C) provides for the training of mediators;

      "(D) provides that the mediation sessions shall be confidential;

      "(E) ensures, in the case of agricultural loans, that all lenders and borrowers of agriculture loans receive adequate notification of the mediation program; and

      "(F) ensures, in the case of other issues covered by the mediation program, that persons directly affected by actions of the Department of Agriculture receive adequate notification of the mediation program.".

(b) PARTICIPATION OF DEPARTMENT. — Section 503 of such Act (7 U.S.C. 5103) is amended—

1. by striking "agricultural loan" each place it appears;

2. in the matter preceding subparagraph (A) of subsection (a)(l)—
   1. by inserting "or agency" after "program"; and
   2. by striking "that makes, guarantees, or insures agricultural loans";

3. in subsection (a)(1)(A)—
   1. by inserting "or agency" after "such program"; and
   2. by inserting "certified under section 501" after "mediation program";

4. in subsection (a)(1)(B)—
   1. by striking ", effective beginning on the date of the enactment of this Act,"
   2. by inserting "certified under section 501" after "mediation programs"; and

5. in subsection (a) (1) (C)—
   1. in clause (i), by striking "described in" and inserting "certified under"; and
   2. in clause (ii), by inserting "if applicable," before "present".

(c) REGULATIONS. — Section 504 of such Act (7 U.S.C. 5104) is amended—

1. by striking "Within 150 days after the date of the enactment of this Act, the" and inserting "The"; and

2. by adding at the end the following new sentence: "The regulations prescribed by the Secretary shall require qualify States to adequately train mediators to address all of the issues covered by the mediation program of the State."

(d) REPORT. — Section 505 of such Act (7 U.S.C. 5105) is amended by striking "1990" and inserting "1998".

(e) AUTHORIZATION OF APPROPRIATIONS. — Section 506 of such Act (7 U.S.C. 5106) is amended by striking "1995" and inserting "2000".

(f) CONFORMING AMENDMENTS.—

1. REFERENCES TO AGRICULTURAL LOANS. — Subtitle A of title V of such Act is amended—
   1. in sections 502 and 505(l) (7 U.S.C. 5102, 5105(l)), by striking "agricultural loan" each place it appears; and
   2. in section 505(3) (7 U.S.C. 5105(3)), by striking "an agricultural loan mediation" and inserting "a mediation".

2. WAIVER OF FARM CREDIT SYSTEM MEDIATION RIGHTS BY BORROWERS. — Section 4.14E of the Farm Credit Act of 1971 (12 U.S.C. 2202e) is amended by striking "agricultural loan'".

3. WAIVER OF FMHA MEDIATION RIGHTS BY BORROWERS. — Section 358 of the Consolidated Farm and Rural Development Act (7 U.S.C. 2006) is amended by striking "agricultural loan".

SEC. 283. AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated such sums as may be necessary to carry out the activities of the Division.