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FEDERAL REGISTER
December 29, 1995
DEPARTMENT OF AGRICULTURE
Office of the Secretary
Farm Service Agency
Natural Resources Conservation Service
Rural Business-Cooperative Service
Rural Housing Service
Rural Utilities Service
7 CFR Parts 1, 11, 12, 400, 614, 620, 623, 631, 632, 634, 663,
701, 702, 752, 780, 781, and 1900
National Appeals Division Rules of Procedure
AGENCY: Office of the Secretary, National Appeals Division,
USDA.
ACTION: Interim final rule.
SUMMARY: On May 22, 1995, (60 FR 27044), the National Appeals
Division (NAD) in the Office of the Secretary published a proposed
rule to implement Title II, Subtitle H, of the Federal Crop Insurance
Reform and Department of Agriculture Reorganization Act of 1994,
Pub. L. 103-354, 7 U.S.C. 6991 et seq., by setting forth procedures
for program participant appeals of adverse decisions by United
States Department of Agriculture (USDA) agency officials to NAD.
The deadline for receipt of comments was June 21, 1995. On June
28, 1995, (60 FR 32922) the Office of the Secretary published
an extension of the deadline for receipt of comments until July
6, 1995. From the period May 22 to July 6, 1995, forty-six timely
public comments were received in response to the proposed rulemaking.
Based on these comments including concerns regarding the need
for an additional comment period on the proposed rules and the
need for a comment period on USDA agency conforming rules, but
mindful of the immediate need for published rules, the Secretary
now issues these rules on an interim final basis. These rules
also include conforming changes to the former appeal rules of
USDA agencies whose adverse decisions are now subject to NAD
review.
DATES: Part 11 of this interim rule is effective January
16, 1996. With the exception of Sec. 11.9, part 11 of this
rule is applicable as to agency adverse decisions and NAD appeals
for which hearings have not been held. Section 11.9 of
this interim rule is applicable immediately as to all pending
requests for Director review and is applicable retroactively
to all requests for Director review made on or after October
20, 1994.
Amendments made by this interim rule to all other parts of title
7 of the Code of Federal Regulations are effective January 16,
1996, and are applicable on January 16, 1996, as to any adverse
technical determinations or decisions made by an applicable agency.
Written comments via letter, facsimile, or Internet are invited
from interested individuals and organizations, and must be received
on or before March 28, 1996.
ADDRESSES: Comments should be sent to L. Benjamin Young, Jr.,
Office of the General Counsel, Research and Operations Division,
AgBox 1415, United States Department of Agriculture, Washington,
DC 20250-1415; fax number: 202/720-5837; Internet: hqdomain.lawpo.young@sies.wsc.ag.gov.
FOR FURTHER INFORMATION CONTACT: L. Benjamin Young, Jr. at the
above address or 202/720-4076.
SUPPLEMENTARY INFORMATION:
Classification
This rule has been reviewed under E.O. 12866, and it has been
determined that it is not a "significant regulatory action" rule
because it will not have an annual effect on the economy of $100
million or more or adversely and materially affect a sector of
the economy, productivity, competition, jobs, the environment,
public health or safety, or State, local, or tribal governments
or communities. This rule will not create any serious inconsistencies
or otherwise interfere with actions taken or planned by another
agency. It will not materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs, or the rights
and obligations of recipients thereof, and does not raise novel
legal or policy issues arising out of legal mandates, the President's
priorities, or principles set forth in E.O. 12866.
Regulatory Flexibility Act
USDA certifies that this rule will not have a significant impact
on a substantial number of small entities as defined in the Regulatory
Flexibility Act, Pub. L. 96-534, as amended (5 U.S.C. 601 et
seq.).
Paperwork Reduction Act
USDA has determined that the provisions of the Paperwork Reduction
Act, as amended, 44 U.S.C., chapter 35, do not apply to any collections
of information contained in this rule because any such collections
of information are made during the conduct of administrative
action taken by an agency against specific individuals or entities.
5 CFR 1320.4(a)(2).
Background and Purpose
On December 27, 1994, (see 59 FR 66,517), the Secretary of Agriculture
noticed that the NAD was established pursuant to Title II, Subtitle
H of the Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994, Public Law No. 103-354, 7 U.S.C.
6991 et seq. ("the Act"). NAD was assigned responsibility
for all administrative appeals formerly handled by the National
Appeals Division of the former Agricultural Stabilization and
Conservation Service (ASCS) and by the National Appeals Staff
of the former Farmers Home Administration (FmHA), appeals arising
from decisions of the former Rural Development Administration
(RDA) and the former Soil Conservation Service (SCS), appeals
arising from decisions of the successor agencies to the foregoing
agencies established by the Secretary, appeals arising from decisions
of the Commodity Credit Corporation (CCC) and the Federal Crop
Insurance Corporation (FCIC), and such other administrative appeals
arising from decisions of agencies and offices of USDA as may
in the future be assigned by the Secretary.
This rule sets forth the jurisdiction of the NAD, and the procedures
appellants and agencies must follow upon appeal of adverse decisions
by covered USDA program "participants" as defined in detail in
the new 7 CFR part 11. In addition, since the Act changes existing
formal administrative appeals procedures for some agencies while
allowing participants a choice of pursuing informal appeals with
an agency first or appealing directly to NAD, this rule also
makes conforming amendments to the existing appeal procedures
of the USDA agencies whose adverse decisions will be appealable
to NAD under the new 7 CFR part 11.
For the purposes of convenience, this preamble and the changes
to USDA regulations are divided as follows:
Item Subject Contact
I Authentication of Records B. Young 202/720-4076
II NAD Rules of Procedure B. Young 202/720-4076
III Natural Resources Conservation Service S. Penn 202/720-6521
(NRCS) Appeal Rules
IV Commodity Credit Corporation (CCC) A. Grundeman 202/720-4591
Federal Crop Insurance Corporation
(FCIC), and Farm Service Agency (FSA)
Appeal Rules
V Rural Business-Cooperative Service A. Grundeman 202/720-4591
(RBS), Rural Housing Service (RHS),
and Rural Utilities Service (RUS)
Appeal Rules
- Authentication of Records
This rule amends the provisions of USDA regulations regarding
authentication of official records to provide that the
Director of NAD may authenticate documents in NAD records
for USDA.
- NAD Rules of Procedure
Forty-six timely comments were received by July 6, 1995, in
response to the requests for comment on the proposed NAD rule.
In response to these comments, a number of changes have been
made to the rules; however, USDA has opted not to publish the
revised rules for an additional comment period. USDA does recognize
the need for further public comment on these rules. USDA therefore
is issuing this rule on an interim final basis for three specific
reasons.
First, a tension exists between the desire of Congress and the
USDA to make this a farmer-friendly appeals process and the necessity
of establishing an appeals procedure that comports with due process
and results in determinations that will withstand scrutiny in
the Federal courts. At the same time, it is important that the
appeals procedure allow for ease of administration by NAD in
a time of scarce and decreasing Federal resources. These problems
are reflected in disagreements among the commenters as to how
some of the most detailed procedures should be implemented. These
tensions should not be resolved preemptively in a final rule.
Therefore, promulgation of an interim rule will allow USDA to
receive more feedback and make adjustments with the aid of experience.
Second, several commenters expressed concern over the fact that
conforming amendments to individual agency appeal rules were
not published with the proposed rule. Additionally, these conforming
amendments will result in more substantive changes to agency
rules than originally were anticipated by USDA at the time the
proposed rules were published. For example, FSA now has decided
to combine appeal procedures for the former ASCS, the former
FmHA, and FCIC programs that it now administers under the Act.
These new agency appeal procedures will set forth how participants
may use the "informal hearings" option provided in section 275
of the Act.
Third, legislative changes may occur during consideration of
the Farm Bill in 1996 that will necessitate changes to the NAD
rules of procedure. By publishing this as an interim rule, the
USDA establishes a process for current operations while leaving
the rulemaking door open for timely adoption of rules necessary
to implement possible legislative changes.
The following explanation is given for those sections of the
proposed rule that were heavily commented on or appeared to be
misunderstood:
Sec. 11.1 Definitions.
Adverse decision. Two commenters noted problems with
the proposed definition of "adverse decision" with respect to
such decisions resulting from a failure of the agency to act.
The proposed rule had by definition provided that an adverse
decision results when an agency failed to act or make a decision
within timeframes prescribed by agency program regulations. The
two commenters noted that in some cases statutes prescribed timeframes
and that in others the regulations prescribed no timeframes.
In the latter case, one of the commenters suggested that USDA
use a "reasonable" time in the absence of a prescribed timeframe.
The amended definition provides that an adverse decision results
when an agency fails to act within prescribed statutory or regulatory
timeframes, or, in the case where there are no such timeframes
specified, within a reasonable time.
Agency. All former and current agencies of the USDA
whose adverse decisions are covered by this part have been added
in response to a comment noting the lack of parallel treatment
between inclusion of old and new agency names and the need to
assist individuals unfamiliar with the new names.
USDA also has added language to cover certain programs administered
by RUS because, as one commenter correctly noted, they are former
programs of RDA that by definition in the Act are covered by
NAD. This is accomplished by excluding from NAD purview all RUS
programs authorized under the Rural Electrification Act and the
Rural Telephone Bank Act.
Agency record, case record, and hearing record. Seven
commenters had questions regarding the definitions of "agency
record," "case record," and "hearing record." These definitions
were carefully nested within one another in order to construe
the language of the Act in a logical manner. Section 278(c) of
the Act requires that NAD determinations be made "based on information
from the case record, laws applicable to the matter at issue,
and applicable regulations published in the Federal Register." Section
277(a) of the Act, however, also makes reference to the fact
that the Director and the Hearing Officer are to have access
to the "case record" of an adverse decision upon initial filing
of an appeal. Section 278(b) also makes reference to the "case
record" that the Director must review as well as the record from
the hearing. Clearly, the "case record" in the latter two provisions
cannot be the same "case record" referred to in section 278(c),
or else NAD determinations would have to be made without reference
to the record developed in the hearing itself.
USDA faced the task of construing these seemingly contradictory
statutory provisions in a complementary manner. This was done
by creating a definitional framework based upon section 271(4)
of the Act that defines "case record" to include "all the materials
maintained by the Secretary related to an adverse decision." As
in most cases where the Secretary is named in a statute, "Secretary" here
is interpreted to mean not the person of the Secretary but rather
the Secretary and all subordinate officials of USDA to whom the
Secretary has delegated statutory authority. Construed in this
manner, "case record" includes any and all materials held by
USDA that relate to an adverse decision at any given moment during
the administrative appeal process. What the term "case record" includes
when used in the statute thus changes based upon the level of
the appeal process in which it is used.
For purposes of clarity in the rule, a new term needed to be
created to distinguish the "case record" presented by the agency
to the Hearing Officer, the record developed by the Hearing Officer
in the hearing (sec. 278(b)) and eventually forwarded to the
Director, and the "case record" upon which the determination
is based. This is accomplished in the rule by defining documents
furnished by the agency to the Hearing Officer upon the initial
filing of the appeal as the "agency record" that by rule is deemed
admitted as evidence in the hearing, by defining evidence presented
at the hearing, the transcript of the hearing itself, and post-hearing
submissions as the "hearing record," and finally by explicitly
incorporating both the "agency record" and the "hearing record" into
the definition of "case record" upon which NAD determinations
are made. "Case record" construed in this fashion also includes "the
request for review, and such other arguments or information as
may be accepted by the Director" (sec. 278(b)) in the Director
review phase of NAD appeals because they would be included as
materials maintained by the Secretary.
Director. Three commenters objected to the proposed
rule definition and other provisions that would allow the Director
to delegate the authority of the Director to subordinate individuals
within NAD. The primary rationale for the objections was that
this would mean that someone without the credentials and qualifications
required by the statute for the Director would be exercising
the statutory authority of the Director.
USDA rejected changing this provision for two reasons. First,
even though the authority for certain actions may be delegated,
such actions are still taken in the name of the Director. The
Director, in other words, still exercises the final authority.
Second, given the anticipated volume of appeals to be filed with
NAD, it is not practical or efficient to require that the Director
personally perform all actions specified for the Director by
name in the Act.
Division. One commenter suggested that the proposed
rule was in error in specifying that the Division was established
by this part instead of the Act itself. Section 272(a) of the
Act provides that "[t]he Secretary shall establish" NAD, not
that the NAD "is established." Therefore, action by the Secretary
was required to establish NAD.
Equitable relief. Two commenters suggested that the
proposed rule definition of equitable relief needed to be better
defined. USDA chose not to define equitable relief further because
the meaning of such relief varies from program to program covered
under these rules, depending on the language of the program statutes.
The guiding intent behind the drafting of these rules was to
ensure that they were written as broadly and flexibly as possible
so that they do not need to be amended each time an agency amends
its substantive program regulations.
Ex parte communication. One commenter suggested this
definition needed to include post-hearing requests for Director
review and requests regarding the appealability of adverse decisions.
The definition here was changed to include an oral or written
communication "to any officer or employee of the Division." As
explained below, further changes were made regarding ex parte communications
to ensure that the prohibition on such communications covered
all NAD proceedings and employees.
Implement. Three comments were received suggesting changes
to this definition. In combination with Sec. 11.11 of the rule,
USDA feels that this language reflects the statutory definition
and need not be changed.
Participant. One commenter suggested that, rather than
defining "participant" by listing programs and statutes under
which an individual may not bring an appeal before NAD, a separate
list of non-appealable decisions should be added to the regulation.
This approach was considered, as was listing the programs from
which adverse decisions could be appealed to NAD, but the statutory
language did not support these approaches. "Adverse decision" is
defined too broadly in the statute to limit by regulation. Further,
nonappealability of decisions is limited only to matters of general
applicability under section 272(d) of the Act. Conversely, Congress
explicitly gave the Secretary authority to define "participant" (sec.
271(9)) and therefore the approach reflected in the rule was
chosen.
Seven substantive comments were made regarding the definition
of "participant" in the proposed rule. Two commenters suggested
that the definition should be expanded to include the requirement
that, for certain guaranteed loan programs of the former Farmers
Home Administration (FmHA), both the applicant/borrower and the
lender, USDA agrees that both parties must appeal any such adverse
decision and the rule has been revised to reflect this requirement.
However, only the lender will be able to appeal the denial or
reduction of a final loss payment to that lender.
One commenter expressed concerned that the language 'right to
participate in" did not clearly include an applicant. Therefore,
USDA has added "who has applied for" to the definition.
One commenter suggested that the wording of the definition technically
could exclude someone from appealing to NAD if, for example,
they had filed a tort claim against USDA. As a "participant" in
a tort claim, they would not be included as a "participant" for
purposes of a NAD appeal. To clarify that this is not the case,
USDA has amended the introductory phrase before the list of programs
to read: "The term does not include persons whose claim(s) arise
under."
Finally, three comments were received from representatives of
reinsured companies, that is, crop insurance companies whose
insurance contracts with producers are reinsured by the FCIC.
The reinsured companies objected to the language including participants
affected by decisions of reinsured companies in the definition
of "participants". As originally proposed, the language would
have allowed participants to appeal reinsured company decisions
to NAD.
The reinsured companies objected to this language on several
grounds. First, they noted that while FCIC was included in the
definition of "agency" in section 271(1) of the Act, reinsured
companies were not. Thus, the proposed rule attempted to include
private companies as government agencies contrary to the language
of the Act. Second, the reinsured companies argued that promulgation
of this language USDA in the final rule would breach the terms
of the Standard Reinsurance Agreements between USDA and the reinsured
companies, as well as alter the legal terms of reinsured company
policies with thousands of insureds. Third, the number of policy
decision made by reinsured companies that would be open to appeal
to NAD under the proposed language would overwhelm NAD with thousands
of appeals. Finally, the reinsured companies argued that the
intent of the Act in including FCIC in the definition of "agency" was
to provide appeal rights for participants in crop insurance programs
for a narrow range of decisions till committed to FCIC after
crop insurance reform, i.e., decisions regarding yield and coverage
that are based on FCIC actuarial data or decisions where an individual
is found ineligible to participate in the Federal crop insurance
program.
In response to these comments, USDA has dropped decisions of
reinsured companies as decisions that participants may appeal
under this part. The exclusion of disputes between reinsured
companies and FCIC from the definition of participant in the
final rule also means that all disputes between reinsured companies
and FCIC likewise are excluded from the jurisdiction of NAD.
Contract disputes between reinsured companies and FCIC will be
appealable to the USDA Board of Contract Appeals as provided
in its rules. Non-contract related decisions of FCIC that are
adverse to reinsured companies may be settled with the agency
or by resort to legal action in a court of competent jurisdiction.
Additional definitions. Two commenters suggested that
a definition for "mediation" be added. The use of mediation or
other forms of alternative dispute resolution (ADR) by program
participants is a matter of choice for the participants themselves.
Since the type of mediation or ADR used by a participant and
the agency is not a jurisdictional issue for purposes of determining
whether an appeal is properly before NAD, NAD has no control
over whatever means the participant and agency employ. Accordingly,
USDA has declined to attempt to define mediation or ADR for purposes
of this part.
Sec. 11.2 General statement.
No comments were received in response to this section. USDA
has made two changes to this section upon further review. First,
language has been added to reflect the statutory provision that
NAD, although independent, is subject to the general supervision
and policy direction of the Secretary. Second, a statement has
been added to make clear that exhaustion of the procedures for
Hearing Officer review of an adverse decision under this part
is required before a program participant may seek judicial review
of an adverse decision. This additional language does not deprive
participants of their right to seek review under any judicial
exceptions to required exhaustion of administrative procedures.
Sec. 11.3 Applicability.
Six commenters generally contended that the NAD appeal procedures
should apply to appeals arising after October 13, 1994, and not
October 20, 1994, as specified in the proposed rule. The commenters'
rationale for the October 13 date is that the Act was effective
as of that date. One commenter also discussed the legal ability
of the Department to make the rule effective retroactively. USDA
has decided to delete the effective date subsection from this
section because it inaccurately indicated an intent to make this
entire rule retroactive. Instead, the effective date of this
rule is appropriately set forth in the EFFECTIVE DATE section
of this Federal Register document.
Two additional changes have been made to this section. First,
wetland or highly erodible land determinations have been added
to the list of examples of agency adverse decisions to clarify
that these decisions are included. Second, a new subsection has
been added to address confusion, reflected in some comments,
that exists over the jurisdiction of NAD over agency programs.
NAD Hearing Officers are not administrative law judges. NAD has
no jurisdiction over questions of law or the appropriateness
of agency regulations. It simply decides the factual matter of
whether an agency complied with such laws and regulations in
rendering an adverse decision. The limitation added here makes
clear that NAD may not be used by program participants for the
purpose of challenging the validity of USDA regulations issued
pursuant to statutory authority.
Sec. 11.4 Inapplicability of other laws and regulations.
Section 277 of the Act provides an elaborate appeals scheme
for particular programs of USDA, including provisions for hearings,
the issuance of subpoenas, and even ex parte communications.
Section 277(a)(2)(A) of the Act in fact explicitly incorporates
the definition of an ex parte communication from the Administrative
Procedure Act (APA) (5 U.S.C. 551(14)) as if the APA stands outside
of, and is not applicable to, NAD proceedings. In view of this
statutory language, and in the absence of Congressional intent
otherwise, USDA has concluded that the provisions of the APA
generally applicable to agency adjudications (5 U.S.C. 554, 555,
556, 557, & 3105) do not apply to NAD proceedings. Furthermore,
because NAD proceedings are not required to be conducted under
5 U.S.C. 554, USDA also concludes the Equal Access to Justice
Act, 5 U.S.C. 504, does not apply to NAD proceedings. Ardestani
v. I.N.S., 112 S.Ct. 515, 519 (1991).
Another issue is the applicability of the Federal Rules of Evidence
to NAD proceedings. Congress intended that these proceedings
be farmer-friendly so that farmers would not be required to hire
attorneys to use the NAD appeal process. Therefore, USDA concluded
that the Federal Rules of Evidence should not apply to NAD proceedings.
One commenter suggested USDA also should eliminate any ambiguity
with respect to the applicability of the Federal Rules of Civil
Procedure, which was referred to in one respect in what was Sec.
11.7(a)(2)(vi) of the proposed rule. The situation with respect
to the Rules of Evidence, however, is unique in that attempts
have been made in NAD hearings to apply the Federal Rules of
Evidence as generally accepted rules of evidence, necessitating
an explicit statement of policy in the rules. The same problems
have not arisen with respect to the Federal Rules of Civil Procedure;
therefore, USDA does not feel that it is necessary to state explicitly
that those rules do not apply.
Sec. 11.5 Informal agency hearings and exhaustion.
This section of the proposed rule drew 29 comments, more than
any other. Some comments suggested that the exhaustion requirement
for FSA county committees was contrary to statute, while others
were concerned because the section did not provide for exhaustion
to the FSA state committee. A number of commenters were confused
by the sequence of events for informal hearings, mediation, and
NAD appeals outlined in this section. Providers of mediation
services particularly were concerned that all appellants be notified
of mediation rights, and that mediation occur at the lowest level
of the appeal process. A number of commenters expressed concern
about the inconsistent use of the terms "informal hearings," "informal
appeal," and "informal review." With respect to the comments
regarding agency notice of adverse decisions and appeal rights,
USDA has determined to handle such notice outside the parameters
of this rule. As a matter of Department policy, agencies will
be expected to notify participants of their appeal rights and
their right to choose mediation or ADR, where available, when
they issue an adverse decision. In light of the other comments,
this section has been revised significantly. Only the term "informal
review" will be used throughout the section. Given this consistent
use, USDA finds it unnecessary to define this term. Before appealing
to NAD, participants may elect to request an informal review
of an adverse decision by the agency. However, in the case of
adverse decisions made by officials under the authority of FSA
county and area committees, participants will be required to
undergo informal review before the county or area committee before
appealing the adverse decision to NAD. After receiving the mandatory
informal review by the county or area committee, the participant
then may seek informal review of that decision by the State committee
or appeal directly to NAD. For purposes of this section, USDA
interprets a decision at each level of agency informal review
as a new adverse decision for purposes of calculating the timeliness
of a participant's appeal to NAD under Sec. 11.6 of the rules.
When a participant requests such mediation, the 30-day period
within which the participant may request a hearing under Sec.
11.6(b)(1) will stop running until such time as the mediation
or ADR is concluded. Unlike with informal review, however, the
conclusion of mediation is not viewed as a new agency adverse
decision. At that point, the participant will have the balance
of the 30-day period to appeal to NAD, or to seek informal review
as outlined above. The 30-day period will function in effect
as a statute of limitations; it will be up to the agency, not
NAD, to raise the jurisdictional issue before NAD as to the fact
that a participant's appeal is untimely.
Treatment of mediation or ADR in this manner means that the
conclusion of mediation or ADR will not be treated as an adverse
decision. Conversely, as indicated above, a decision at each
level of the informal review process will be treated as an adverse
decision for determining when the 30-day period for an appeal
to NAD begins to run.
Example
A FSA program participant receives an adverse decision from
a county executive director. He cannot appeal to NAD. He must
first pursue an informal review with the county committee. The
county committee upholds the original adverse decision. Program
participant now has three choices: (1) Within 30 days, choose
mediation or ADR; (2) Within 30 days, appeal to NAD; or (3) Within
the lesser of 30 days, or the time period specified in FSA informal
review regulations, request an informal review by the State Committee.
Participant chooses mediation after 10 days. Mediation fails.
Participant has the balance of 20 days (i.e., 30 days minus 10
days) to appeal to NAD after the conclusion of mediation or he
may request review by the State Committee in accordance with
FSA regulations. If he appeals to NAD, the agency bears the burden
of proving untimeliness of the appeal to NAD, i.e., if the participant
took 25 days, 5 days in excess of his remaining 20, to appeal
to NAD, the agency must demonstrate this to NAD. If he requests
an informal review by the State Committee, the participant will
have 30 days to appeal any adverse decision made by the State
Committee to NAD.
Sec. 11.6 Director review of agency determination of appealability
and right of participants to Division hearing.
USDA has revised the format of this section so that it follows
the logical progression from a Director determination of appealability,
where made necessary because of an agency determination that
an adverse decision is not appealable, to the appeal itself.
Section 11.6(a) (Sec. 11.6(b) in the proposed rule) provides
the rules for requesting Director review of the determination
of appealability. Two commenters suggested that the proposed
language that the Director use "any information he determines
necessary" in making a determination was too broad. These commenters
felt the information to be considered should be defined, and
that the allowance of any information the Director deemed necessary
made the process appear secretive if the ex parte prohibition
did not apply to this stage of the appeal process.
USDA has revised this subsection to reflect the language
of the statute and not specify anything regarding what information
the Director may or may not use.
Two commenters desired changes in the references to Deputy and
Associate Directors to reflect titles currently used in the NAD
internal structure. USDA has substituted "subordinate official
other than a Hearing Officer" in the place of Deputy and Associate
Directors to preserve the flexibility of the Director to organize
NAD internally without reference to regulatory defined titles.
This change also responds to a comment that requests that the
Director be allowed to delegate this responsibility as far down
as possible to accomplish such a mission efficiently. Hearing
Officers were excluded from such delegation because the delegation
of such authority down to Hearing Officers facially contradicted
the statute and could represent a potential conflict of interest
for Hearing Officers who must justify resource requirements based
on the burden of their caseload.
USDA rejected comments suggesting that this delegation is improper
under the statute, or that participants should be given the right
to challenge the credentials of the subordinate reviewing official.
Nothing in the statute requires that the Director personally
must review every request for a determination of appealability
that may be filed. The Director, as in the case of any agency
official, remains ultimately responsible for any decision undertaken
by a subordinate. Therefore, USDA sees no reason why this statute
should be read any differently than any other statute where,
absent a specific statutory prohibition, USDA and other executive
branch agencies have allowed for delegation of decision-making
authority by officials whose qualifications have been set by
statute.
With respect to this subsection as proposed, two commenters
also expressed concern that it did not specify the timing for
filing an appeal once the Director reversed an agency determination
that an adverse decision was not appealable. USDA added language
in what is now subsection (b) to specify that the 30 days for
appeal of adverse decisions shall run from the date the participant
receives notice of the adverse decision or receives notice of
the Director’s determination that an adverse decision is
appealable.
Subsection (b) (Sec. 11.6(c) in the proposed rule) provides
rules for appealing adverse decisions to NAD. In addition to
the change noted above, two additional changes were made to this
section. First, seven commenters suggested that it is inappropriate
in any circumstances to apply a "should have known" standard
as a deadline for appeals in cases of agency inaction. They argued
that this shifted the burden from the agency to the participant
for policing the agency’s failure to follow its own regulations;
one commenter argued that the agency remained in continuing violation
for failure to act within its own deadlines.
USDA disagrees with these commenters. A failure to act by the
agency at some point becomes ripe for appeal and the statute
clearly also provides that at a point past 30 days from an adverse
decision an appellant loses the right of appeal. USDA finds no
intention on the part of Congress to extend a participant’s
right of appeal indefinitely, particularly when agency regulations
define a specified period in which a decision is to be made.
However, to add flexibility to the "should have known" standard
in the latter situation, USDA has changed the regulation to require
that a participant must request a hearing within 30 days after
the participant "reasonably" should have known that the agency
had not acted within the timeframes specified by program regulations.
The second change made to the proposed rule regarding the request
for a hearing is to require a participant to send a copy of the
request for a hearing to the agency, and allow a participant
the option to send a copy of the adverse decision being appealed
to the agency as well. In either case, failure of the participant
to send such copies to the agency is not jurisdictional and therefore
will not be grounds for dismissal of an appeal.
Agency officials often make many decisions a year with respect
to some individual participants. In such cases, it is not always
immediately apparent which decision a participant has appealed
at a given time. USDA adds this provision to promote efficiency
in the appeals process by encouraging full airings of appeals
before the Hearing Officer. Sending the agency a copy of the
decision will discourage agency requests for Director review
because the agency did not have adequate notice of the appeal
or the decision that was being appealed.
With respect to the language in the proposed Sec. 11.9(c), several
other comments were rejected. Two commenters suggested that,
since the "should have known" standard is being used, participants
should not be required to exhaust administrative remedies prior
to judicial review when appeals are taken from cases where agencies
have failed to act. The statement added to Sec. 11.2 and discussed
above makes clear that USDA considers exhaustion of an appeal
to the Hearing Officer mandatory prior to seeking judicial review,
regardless of the basis for the appeal.
One commenter suggested that the regulation should state clearly
that a decision becomes final after the 30-day time period for
requesting a hearing is missed and that this timeframe may not
be waived. USDA believes such a provision unnecessary; if a participant
does not request the hearing within 30 days, the participant
will not be allowed to have a hearing. USDA considers the 30-day
requirement for filing an appeal to be jurisdictional in nature;
thus, NAD has no authority under the Act to hear an appeal unless
filed within the 30-day time period as required.
On the other hand, USDA does not view the requirements of section
274 of the Act to be jurisdictional for NAD. That section requires
an agency to provide participants with written notice of the
adverse decision and appeal rights within 10 working days of
the adverse decision. One commenter suggested that the proposed
rule be revised to state that the 30-day timeframe for requesting
a hearing does not begin to run until the participant receives
complete appeal rights, presumably as provided for in section
274. While section 274 of the Act places a requirement on agencies,
it has no bearing on the authority of NAD to hear an appeal by
a participant. To read section 274 literally as suggested also
would mean conversely that a participant achieves no standing
to appeal an adverse decision to NAD until the participant receives
a notice of appeal rights. USDA therefore rejects this comment
and instead determines that the time period for requesting an
appeal begins to run on "the date on which the participant first
received notice of the adverse decision" as provided in section
276(b) of the Act.
New subsection (c) retains language from the proposed subsection
(a) regarding the requirement for participants to authorize representation
by others in writing to USDA. Eight commenters addressed both
this specific requirement and the requirement in other parts
of this subsection that a participant must "personally" request
a Director determination of appealability and an appeal to a
Hearing Officer.
The intention behind this requirement is to ensure that participants
are fully aware of the implications of actions being taken on
their behalf in the appeals process. By requiring that they personally
sign requests for Director review of appealability, requests
for hearing, and requests for Director review of Hearing Officer
determinations (Sec. 11.9(a)), participants will be taking personal
responsibility for such actions when represented by another.
Authorized representatives also will be required to keep participants
informed in order to get their signature authorizing proceeding
to each new phase of a NAD appeal. USDA's concern is to ensure
that participants are giving informed consent to the decisions
undertaken in their behalf by their representatives, and, by
requiring execution of a declaration of representation, that
NAD is assured that purported representatives are who they actually
claim to be. While USDA could curb potential abuses by licensed
attorneys by complaints to state bars, USDA has no check on the
actions of representatives who are not attorneys other than through
provisions such as those promulgated here. The burdens imposed
on participants and representatives are light -- the language
for the declaration can be obtained from NAD and signed documents
can be submitted by mail or by facsimile transmission.
Finally, four commenters felt that it was inappropriate for
an appellant to state why the adverse decision is wrong because
it was too early in the process to state a position or it may
lead some participants to think that they need an attorney to
bring an appeal. USDA disagrees. The word "wrong" was used here
precisely to avoid any requirement that a participant state why
a decision was "erroneous" or "did not conform to published law
or regulation" or similar language. Those latter variations could
be interpreted as legalistic, but USDA believes that at this
initial stage the participant at least can tell NAD what is wrong
with the decision that causes one to appeal it. This initial
position is not binding, but rather provides NAD with a little
bit more information that will allow for efficient administration
of appeals. For example, if a participant feels discriminated
against in the administration of a program, a statement to this
effect at this stage may allow NAD to direct that person to the
appropriate forum of USDA for consideration of civil rights complaints.
Sec. 11.7 Ex parte communications.
The proposed rule included a paragraph on ex parte communications
in Sec. 11.7(a) under the section regarding Division hearings.
Two commenters expressed concerns in response to this proposed
paragraph, the proposed definition of ex parte communication,
and the proposed subsection on Director review of agency determinations
of nonappealability, suggesting that the ex parte prohibition
should apply to more than just the hearing phase of the NAD appeal
process. One of these commenters also noted that the ex parte
prohibition also should apply to all employees of the Division.
Initially, USDA drafted the proposed regulation in parallel
to the statute that stated the ex parte prohibition in the section
of the Act on hearings. After reviewing the comments and the
statutory language, and in order to foster a perception of fairness
and equal treatment in the NAD appeals process, USDA has determined
to apply the ex parte prohibition from the point at which the
appeal is filed under section Sec. 11.6(b) through the issuance
of a final determination by the Director under Sec. 11.9.
To do this, a new Sec. 11.7 was created to make clear that the
ex parte prohibition applies to more than just the hearing phase
of the NAD process, and that it applies to any officer or employee
of the Division. However, USDA rejected the comment that suggested
that the ex parte prohibition apply to requests for Director
review of appealability. The Director should be entitled to greater
flexibility in contacting the agency and the USDA Office of the
General Counsel to obtain information useful in making determinations
as to whether particular adverse decisions are matters of general
applicability. Additionally, the ex parte prohibition does not
apply to Director reconsideration under Sec. 11.11 unless the
Director decides to grant the request for reconsideration.
Sec. 11.8 Division hearings.
Proposed Sec. 11.7 has been renumbered Sec. 11.8. The majority
of comments on this section involved the perceived onerous burden
on appellants of virtually requiring verbatim transcripts of
hearings, the allegedly unreasonable time deadlines that could
be set more flexibly by the Hearing Officer, the requirements
for sending various notices to the appellant, the need for allowing
good cause exceptions for absences, the need for actual documents
to be submitted to Hearing Officers to make the hearing more
efficient, the need to stress telephone hearings, the wisdom
of continuing current NAD practice of telephonic pre-hearing
conferences, the need to give additional parties the right to
participate in the appeal, the need to reduce or waive the perceived
unreasonable requirement that the requesting party pay for costs
of witness travel and subsistence fees, and the ambiguity of
the use of the word "personally." A number of changes have been
made in response to comments and upon further reflection by USDA.
The changes, or rejection of comments, are described below:
- Proposed Sec. 11.7(a)(1) (now Sec. 11.8(a)(1)) is revised
to require the agency to provide the appellant a copy of the
agency record upon request of the appellant; this requirement
is a restatement of that requirement already included in the
proposed rule at Sec. 11.7(b)(1) that also has been amended
as Sec. 11.8(b)(1) in the final rule to require that such record
be furnished to the appellant within 10 days of agency receipt
of request for the record rather than "promptly" as proposed;
- A Hearing Officer will be required to obtain the concurrence
of the Director prior to issuing a subpoena;
- Comments suggesting that an appellant have access to his
or her entire file under this part were rejected, but the definition
of "agency record" was expanded above;
- The requirement that a request for subpoena be submitted
14 days ahead of the hearing was retained but a requirement
that such a subpoena must be issued 7 days prior to the hearing
was added;
- Parties requesting a subpoena will have to pay only the "reasonable" travel
and subsistence costs of a witness; USDA rejected all comments
suggesting that the requirement that a party pay for all witnesses
subpoenaed be deleted or that USDA should pay for such witnesses
where the appellant was unable to pay;
USDA also limited its payment for the costs associated with
the appearance of a USDA employee to such situations where an
employee’s role as a witness arises out of his or her performance
of official duties;
- The requirement for submission of certain documents to the
Hearing Officer 28 days prior to the hearing is deleted; instead,
the Hearing Officer may set a "reasonable" deadline for submission
of such documents;
- The required pre-hearing submission of documents is limited
to those documents not contained in the agency record that
the appellant plans on introducing at the hearing;
- The amount of time for the Hearing Officer’s notice
of the date, time, and place of the hearing is reduced from
21 days to 14 days prior to the hearing, and the Hearing Officer
also may take into account the convenience of the agency in
picking a hearing site;
- A pre-hearing conference will be required and will be conducted
by telephone unless otherwise agreed to by all parties and
the Hearing Officer;
- The notice of the right to obtain the official record shall
go to all parties, and all parties shall have the same participation
rights in the actual hearing;
- The text of the proposed paragraph Sec. 11.7c(4)(iii) is
deleted and replaced with new text in Sec. 11.8c(5)(iii) that
makes a tape recording by the Division the official record
of the proceeding unless a party requests a verbatim transcript,
in which case that party must furnish a certified copy of the
transcript to the Hearing Officer for the purpose of constituting
the official record and must allow other parties to purchase
that transcript from the transcription service;
- The authority of the Hearing Officer to cancel a hearing
in the absence of a party is limited to such cases where the
absent party fails to appear without good cause;
- The ability of the Hearing Officer to add additional evidence
to the record in the absence of a party at a hearing is clarified;
- The section clarifies that a notice of determination must
be sent by the Hearing Officer to the individual participant
appealing the adverse decision, i.e. the "named" appellant,
as well as the authorized representative of that person; and
- The Hearing Officer shall send, with the notice of determination,
a copy of the procedures for a request for filing for Director
review under Sec. 11.9.
Sec. 11.9 Director review of determinations of Hearing Officers.
Fifteen commenters submitted comments on this section, which
appeared as Sec. 11.8 in the proposed rule. Some of these comments,
such as those objecting to the use of the word "personally," the
request for the procedures of this section to be sent to the
appellant with the Hearing Officer notice of determination, and
the extension of the ex parte prohibition to Director review,
have been handled as described above.
One comment suggesting that the agency head be allowed to delegate
his or her authority to request Director review was rejected.
On this point, USDA’s position is that an agency request
for Director review should only be exercised where the Hearing
Officer has issued a determination that clearly is not supported
by a preponderance of the evidence or is contrary to law. To
avoid flooding NAD with agency requests for review, retaining
the agency head, or the person acting in such capacity, as the
only person allowed to request review assures that only the most
meritorious and serious NAD decisions will be forwarded by an
agency for Director review.
A number of comments concerned the perceptions that all parties
are not able to respond to requests for Director review, that
the Director is not addressing all arguments in the rush to meet
the statutory deadlines for issuing determinations, and that
no provision is made for how new evidence introduced at this
stage is to be handled. In response to these concerns, a number
of changes were made.
First, a request for Director review shall include specific
reasons why the appellant believes the Hearing Officer’s
determination is wrong. Given the limited time period for agency
response and the limited time period for Director review, the
appellant should be required to do something more than simply
submit a copy of the Hearing Officer’s determination with
a note saying that they appeal. As explained above, the term "wrong" is
used specifically to avoid legalistic connotations. USDA simply
asks that appellants express in their own terms what they find
wrong with determinations. However, agencies here are held to
a higher standard in order to assure efficient use of NAD resources.
Agencies in their requests must state specific reasons why the
determination of the Hearing Officer is erroneous, including
citation of statutes or regulations that the agency believes
the determination violates.
Second, USDA has added language requiring that a party seeking
Director review of the Hearing Officer’s determination
submit a copy of the request for review simultaneously to all
other parties to the appeal. A new subsection also provides those
non-submitting parties 5 days from receipt of the request for
Director review to submit written responses to the request. Added
language makes clear that the Director may consider such responses
in reaching a determination. However, if new evidence is submitted
in such a request, new language authorizes the Director to remand
all or a portion of the determination to the Hearing Officer
for consideration of that new evidence. USDA rejected the comment
that such a remanded determination should go back to a new Hearing
Officer. The Hearing Officer making the original determination
has the best knowledge of the case to make an efficient consideration
of new evidence in the absence of some credible evidence of personal
bias.
Third, the deadlines set by the Act for the Director to issue
a final determination or to remand to the Hearing Officer may
be unrealistic at any given time because of caseload or the complexities
of a particular appeal. Although USDA believes the failure to
meet these deadlines does not deprive the Director of jurisdiction
to reach a determination or issue a remand order, it fully intends
to follow such deadlines to the extent possible in order to deliver
fairly considered determinations of the Director that will withstand
judicial review. Hastily rendered determinations that fail to
develop an adequate decision for judicial review do not benefit
either USDA or appellants. Therefore, while USDA has added no
provision affirmatively authorizing the Director to extend the
period for issuance of determinations, USDA recognizes that it
may be necessary for the Director to do so in individual cases
in order to facilitate a fair and equitable resolution of the
appeal. Equitable, in this sense, refers to equal participation
in and consideration of parties' submissions in the Director
review process.
Finally, the Director will review the determination of the Hearing
Officer to determine whether the Hearing Officer’s determination
is supported by substantial evidence. If any additional information
submitted in the Director review process is used as a basis for
the Director’s final determination, the Director shall
note the reasons for use of such new information in the final
determination.
With respect to this section, one commenter also suggested that
if a Hearing Officer does not have the power to reverse a denial
of equitable relief (in effect, to award equitable relief) then
this part should provide a shortcut past the Hearing Officer
to the Director. The position of USDA is that the statute provides
the Director with authority in appropriate cases to award equitable
relief, and that no different procedural steps are required to
implement that authority. However, a record developed by a Hearing
Officer is necessary for the Director to determine whether such
relief is appropriate.
Sec. 11.10 Basis for determinations.
One commenter cited this section (proposed Sec. 11.9) as the
appropriate place for stating that NAD is bound by prior findings
of fact by an agency or NAD with respect to a particular appellant
in another matter. While it is not the intention of USDA to implement
NAD as part of a formal legal system based on large bodies of
caselaw, USDA agrees that a Hearing Officer should not issue
a contrary factual determination regarding the same appellant
in a different matter where that factual determination was directly
addressed in the other matter.
Two commenters suggested in essence that the basis of determinations
should be limited to issues raised by the decision of the agency
and that the Hearing Officer or Director may not decide adversely
to the appellant on issues not decided adversely to the appellant
by the agency. USDA finds nothing in the statute to support anything
other than a de novo review of agency decisions by NAD. The parties
or NAD may raise any new issue as long as it conforms to the
facts and law and regulations.
Four commenters expressed concern that the language "generally
applicable interpretations" in what is now Sec. 11.10(b) of the
rule would make agency handbooks, manuals, and directives binding
in a way that permits wholesale violations of the Act. These
commenters point to section 278 of the Act that the commenters
assert was enacted specifically to prevent agencies from using
such materials by reference only to statutes and " regulations
published in the Federal Register" as the basis for NAD determinations.
USDA uses this language here to make clear again that NAD is
not a forum for appellants to challenge agency statutes, regulations,
or the generally applicable interpretations of those statutes
and regulations.
Some generally applicable interpretations actually may have
been published once as a notice in the Federal Register, others
may be based on caselaw interpreting a particular program provision
in a particular Federal court jurisdiction or state court jurisdiction
for programs in which state law is the applicable law. Still
other generally applicable statements may be based on the previous
advice of the Office of the General Counsel regarding a statute
or regulation that constitutes the official legal position of
USDA. In any of these described cases, for example, NAD could
not ignore the generally applicable statements and base its determinations
on legal interpretations that it is not authorized by the Act
to make.
Sec. 11.11 Reconsideration of Hearing Officer or Director determinations.
Upon further review, USDA has determined that the Director has
limited inherent authority to reconsider final determinations
of the Director even though provisions for such authority have
not been specifically stated in the Act. Therefore, this new
section sets forth standards for reconsideration of a Director’s
final determination.
Sec. 11.12 Effective date and implementation of final determinations
of the Division.
Several commenters suggested that this section needed more clarification
as to the applicable dates, or, alternatively, that the Hearing
Officer or Director should state what those dates are in the
final determination. USDA finds further amendment of this section
unnecessary at this time, given the variety of programs appealable
to NAD and the responsibility of agencies for implementation
of NAD and program decisions.
It is the position of USDA with respect to implementation, however,
that: (1) Implementation of a NAD decision only requires an agency
to move to the next step of agency consideration of a benefit
or application; (2) in keeping with the language of the Act,
the applicable date of the decision is the date of the decision
of the body from which the NAD appeal is brought; and (3) agencies,
in accord with their regulations, may consider changes in the
condition of the participant in the implementation of any NAD
final determination.
Sec. 11.13 Judicial review.
Two commenters suggested that appeals arising from an agency's
failure to act should be excluded from this exhaustion requirement.
USDA finds no support in the Act for such an exception. One commenter
also suggested an amendment to include judicially recognized
exceptions to the administrative exhaustion requirement. Since
those exceptions are part of common law, and are thus changeable
and subject to conflicting judicial interpretation, USDA finds
inappropriate the addition of such exceptions to the regulation.
Sec. 11.14 Filing of appeals and computation of time.
Two commenters expressed concerns that individuals residing
in different time zones would have less time to appeal if Eastern
time was used as a defining time for submission of filings required
by this rule. In response, USDA has changed the deadline to 5:00
p.m. local time at the office of the Division to which the filing
is submitted. Common practice now is for NAD or the agency, in
its notice of appeal rights, to specify regional NAD offices
where documents are to be submitted. USDA’s change in this
provision is acknowledgment of that practice and permits flexibility.
However, USDA does not think that this permits participants on
the East Coast to evade the purposes of this rule by filing documents
with West Coast NAD offices in order to meet the 5:00 p.m. deadline.
III. Natural Resources Conservation Service (NRCS) Appeal Rules
This portion of the interim-final rule sets forth the regulations
for the handling of program participant requests for mediation
or informal hearings of adverse technical determinations and
decisions made by NRCS officials. Specifically, this rule amends
part 614 to implement section 275 of the Act which requires NRCS
to afford participants the opportunity for an informal hearing
or mediation (where available), when requested, before they file
an appeal of adverse decisions with NAD.
These procedures are applicable to requests for mediation or
informal hearings within the following program areas:
(1) Highly erodible land conservation.
(2) Wetland Conservation.
(3) Wetland Technical determinations, including wetland technical
determinations made by NRCS officials not related to a request
for USDA program benefits.
(4) Conservation Reserve Program.
(5) Wetlands Reserve Program.
(6) Great Plains Conservation Program.
(7) Rural Abandoned Mine Program.
(8) Colorado River Basin Salinity Control Program.
(9) Resource Conservation and Development Program.
(10) Emergency Wetland Reserve Program.
(11) Agricultural Water Quality Incentives Program.
(12) Environmental Easement Program.
(13) Forestry Incentives Program.
(14) Water Bank Program.
(15) Long term cost-sharing agreements under Public Law 83-566
and Public Law 78-534 watershed projects.
(16) Any other program which subsequently incorporates these
procedures through reference to this part within its program
regulations.
Part 614 as revised establishes two major categories of decisions
made by NRCS officials for which landowners and participants
may seek reconsideration or appeal: 1) those technical determinations
of NRCS officials that may be appealed to NAD after appeal to
the FSA county or area committees established under section 8(b)(5)
of the Soil Conservation and Domestic Allotment Act (16 U.S.C
590h(b)(5)); and 2) other decisions made by NRCS.
The current regulations in 7 CFR part 614 were published as
a final rule on July 24, 1986, pursuant to Title XII of the Food
Security Act of 1985, P. L. 99-198, 16 U.S.C. 3801 et seq. (Title
XII). Those regulations set forth the procedures under which
an owner or operator could seek reconsideration of, or appeal
from, certain decisions made by NRCS officials regarding eligibility
for participation in the Conservation Reserve Program, as authorized
by Subtitle D of Title XII, or regarding the applicability of
the compliance requirements of the highly erodible land and wetland
conservation provisions of subtitles B and C of title XII, respectively.
The Reorganization Act specified that, until such time as an
adverse decision is referred to the NAD for consideration, FSA
county or area committees established under section 8(b)(5) of
the Soil Conservation and Domestic Allotment Act (16 U.S.C 590h(b)(5))
would have jurisdiction over any appeal resulting from adverse
technical determinations made under Title XII, including an adverse
decision involving technical determinations made by NRCS. Thus
the subject matter of the current part 614 has been incorporated
into subpart B of the revised part 614 which sets forth the informal
appeal process for appeals of title XII technical determinations
made by NRCS to FSA county committees as required by the Reorganization
Act.
Subpart C of the revised part 614 consolidates appeal procedures
for all other existing NRCS programs in part 614. Appeals for
the following additional programs are now also covered by part
614: 7 CFR Part 623, Emergency Wetland Reserve Program; 7 CFR
Part 631, Great Plains Conservation Program; 7 CFR Part 632,
Rural Abandoned Mine Program; 7 CFR Part 634, Rural Clean Water
Program; 7 CFR Part 663, Wellton-Mohawk Irrigation Improvement
Program, and 7 CFR Part 702, Colorado River Basin Salinity Control
Program; 7 CFR Part 701 subpart-Forestry Incentives Program;
and 7 CFR Part 752, Water Bank program.
Subpart A of part 614 includes general provisions applicable
to informal appeals under both subparts B and C.
Appeal provisions for 7 CFR parts 12, 620, 623, 631, 632, 634,
663, 701, 702, and 752 are revised to make reference to part
614 for NRCS appeal procedures.
IV. Commodity Credit Corporation (CCC), Federal Crop Insurance
Corporation (FCIC), and Farm Service Agency (FSA) Appeal Rules
The interim final rule makes amendments to 7 CFR parts 400 and
780 to maintain and revise the informal appeals process for adverse
decisions of the FSA regarding Federal crop insurance, CCC, and
FSA programs. The procedures for appeals under both parts will
be consolidated in part 780. The revised part 780 sets forth
regulations for requesting informal hearings or mediation in
accordance with section 275 of the Act.
Part 780 includes procedures for the handling of appeals of
NRCS technical determinations to FSA county and area committees.
Part 780 also includes procedures for the mandatory appeal of
certain FSA adverse decisions to such committees as required
by 7 CFR 11.5(a) of the NAD rules of procedure.
This rule also amends part 781 to conform the hearing procedures
to that of part 780.
V. Rural Housing Service (RHS), Rural Business-Cooperative Service
(RBS), and Rural Utilities Service (RUS) Appeal Rules
7 CFR part 1900, subpart B currently contains rules for appeals
of decisions of the former Farmers Home Administration (FmHA).
Either by the Act or by delegation of the Secretary, the FmHA
programs covered by part 1900, subpart B were divided among RHS,
RBS, and RUS. This rule amends part 1900, subpart B to set forth
rules for requesting informal appeals or mediation of adverse
decisions concerning direct loans, loan guarantees, and grants
under the following programs: RUS Water and Waste Disposal Facility
Loans and Grants Program, RHS Housing and Community Facilities
Loan Programs, and RBS Loan, Grant, and Guarantee Programs and
the Intermediary Relending Program.
List of Subjects
7 CFR Part 1
Administrative practice and procedure, Agriculture, Reporting
and record keeping requirements.
7 CFR Part 11
Administrative practice and procedure, Agriculture, Agricultural
commodities, Crop insurance, Ex parte communications, Farmers,
Federal aid programs, Guaranteed loans, Insured loans, Loan programs,
Price support programs, Soil conservation.
7 CFR Part 12
Administrative practice and procedure, Agriculture, Soil conservation,
Wetlands.
7 CFR Part 400
Administrative practice and procedure, Agriculture, Agricultural
commodities, Crop insurance.
7 CFR Part 614
Administrative practice and procedure, Agriculture, Soil conservation,
Wetlands.
7 CFR Part 620
Administrative practice and procedure, Agriculture, Soil conservation,
Wetlands.
7 CFR Part 623
Administrative practice and procedure, Agriculture, Soil conservation,
Wetlands.
7 CFR Part 631
Administrative practice and procedure, Agriculture, Soil conservation.
7 CFR Part 632
Administrative practice and procedure, Mines, Rural areas, Soil
conservation.
7 CFR Part 634
Administrative practice and procedure, Agriculture, Soil conservation,
Water resources, Water pollution control.
7 CFR Part 663
Administrative practice and procedure, Irrigation, Soil conservation,
Water resources.
7 CFR Part 701
Administrative practice and procedure, Agriculture, Environmental
protection, Forests and forest products, Soil conservation, Wetlands.
7 CFR Part 702
Administrative practice and procedure, Agriculture, Soil conservation,
Water resources.
7 CFR Part 752
Administrative practice and procedure, Agriculture, Soil Conservation,
Water bank program, Water resources.
7 CFR Part 780
Administrative practice and procedure, Agriculture, Agricultural
commodities, Crop insurance, Ex parte communications, Farmers,
Federal aid programs, Loan programs, Price support programs,
Soil conservation, Wetlands.
7 CFR Part 781
Administrative practice and procedure, Agriculture, Farmers.
7 CFR Part 1900
Administrative practice and procedure, Agriculture, Business,
Community development, Farmers, Federal aid programs, Guaranteed
loans, Housing, Insured loans, Loan programs, Rural areas, Utilities.
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