Conservation Program Appeals

March 1, 2005

NRCS Appeals & Equitable Relief

Decatur, IL

General Information

Rules, Policy, Websites

Appeals Statutory Authority & Rules

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.

• NRCS Appeals Rule – 7 CFR 614, Dec. 29, 1995 – Interim Final Rule (Final Rule due to be published in next month; more on this later)

• FSA Appeals Rule – 7 CFR 780, Dec. 29, 1995• NAD Appeals Rules of Procedure, 7 CFR 11,

June 23, 1999

Appeal Procedures

• NRCS -- Conservation Programs Manual Part 510 – Appeals & Mediation (being revised)

• FSA – Handbook 1-APP, Program Appeals, Mediation, and Litigation

• NAD – NAD Hearing Officer’s Guide

Internet Sites of Interest

http://policy.nrcs.usda.gov/scripts/lpsiis.dll/M/M_440_510.htm

http://www.nrcs.usda.gov/programs/appeals/http://www.nrcs.usda.gov/programs/

mediation/http://dmis.fsa.usda.gov/rware/

home.html#83799http://intranet.fsa.usda.gov/fsa/http://www.nad.usda.gov/nadguide.pdf

Better Decision Making

Apply the Apply the RRulesules and Policy and Policy

Develop the Develop the IIssuesssues & & Gather EvidenceGather Evidence

AAnalyzenalyze the Facts the Facts

CConclusiononclusionIssuesIssues

RulesRules

AnalysisAnalysis

ConclusionConclusion

Broad to Narrow

FACTSFACTS

ISSUESISSUESRULESRULES

IRAC Analysis

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

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

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

The Role of the Triad

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

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

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

IRAC Triad, continued

4. Do the Facts satisfy the requirements of the Rule?

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

Determination or Decision Conclusions

Determination and Decision Conclusions must:

Consider all the possibilities. Provide the correct answer to the

identified issue. Be fully supported by the evidence. Be in accordance with the rules and

agency policy.

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

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

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

• Provide appeals and mediation rights.

All Determination or Decision Notices must provide:

Appeals Rule

General Information

NRCS Appeals Rule - Current

Interim-Final Rule was published 12/29/95• Didn’t anticipate NRCS having administrative

responsibility for financial assistance programs• Emphasis on appeals of technical

determinations• Include a provision requiring mandatory appeals

hearing before the FSA COC for Title XII conservation program technical determinations

• Limited guidance with general reliance on FSA and NAD rules

• Will be a final rule for NRCS appeals• Generally comports with both the NAD and FSA

rules• Provides guidance on appealability reviews• More definitions• Applicability reflects NRCS’s major program

administrative role• Adds clarity to decisions not subject to appeal

(ranking criteria/screening criteria)

New Appeals Rule

New Rule, continued

• Provides clarity for Title XII program appeals

• Appeal to FSA COC always optional

• Adds appeal provision to STC for Title XII

• Adds more definition and clarity to use of mediation and includes ADR and early intervention availability

New Rule, continued

• Provides that Preliminary Determinations are for technical determinations, not program decisions.

• Provides for Reconsideration of a Preliminary Determination at both the field level and the STC level (or designee)

• Better defines time requirements and finality

New Rule, continued

• Sets out when/how final decisions and/or determinations must be applied

• Provides when an appellant can file for judicial review (in accordance with NAD rule)

Appeals Procedures

Overview

If Expedited Finality is requested, issue the Final

NRCS technical determination immediately.

Step 1 -- Preliminary Technical Technical DeterminationsDeterminations (All Programs)

NRCS issues a NRCS issues a preliminary technical preliminary technical

determinationdetermination

Letter transmitting the determination offers the following:• Field Review • Reconsideration to DC Reconsideration to DC and/or STC and/or STC• Mediation• Expedited Finality

Participant requests field review,

reconsideration, mediation, or

expedited finality?

Yes

No

Determination becomes a final NRCS technical determination

30 CD from the date of the notification

Conduct the field review, reconsideration, and/or

mediation, then issue the final NRCS technical determination.

30 calendar days + NTE 7 CD for mail

30 calendar days + NTE 7 CD for mail

CD=calendar days

NTE=not to exceed

• Become final 30 calendar days (plus NTE 7 calendar days for transmittal in the mail) from the date the participant receives the notice unless any of the following are requested:– A field visit – Reconsideration by DC and/or STC– Mediation – Expedited finality

Preliminary Technical Determinations…

Explanation of the Preliminary Technical Determination Phase

• For technical determinations not program administration decisions.

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

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

Preliminary Phase, continued

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

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

• Provides for the possibility of a revised determination.

Step 2 – Determining Appealability

NRCS issues a final technical determination or program decision

Offer right to request an

appealability review from

NAD.

Is this determination

or decision appealableappealable?

No

Yes

Offer appeal rights to the appropriate

authority

Appealability Issues

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

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

What constitutes individually adverse?

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

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

General Non-Appealable Issues

• Any general program provision or program policy or any statutory or regulatory requirement that is applicable to all similarly situated participants, such as: – Program application ranking criteria; or– Program application screening criteria.

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

General Non-Appealable Issues

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

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

Non-Appealable Issues

• Science-based formulas and criteria.• Decisions on equitable relief made by a

State Conservationist or the Chief pursuant to Section 1613 of the Farm Security and rural Investment Act of 2002, Pub. L. 107-171.

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

Non-Appealable Issues

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

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

Decisions not Subject to the Administrative Appeals Procedures

• Program Delivery Discrimination Complaints

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

Appealable Issues

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

• Compliance with program requirements.• Issuance of payments or other program

benefits to a participant in a program. • Technical determinations made under Title

XII of the Food Security Act of 1985, as amended.

Appealable Issues

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

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

Appealability Reviews

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

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

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

CPM, Paragraph 510.02(c)

Appeal or Appealability Review Rights????

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

• The decision being issued is adverse individually

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

Appeal v Appealability

IF… THEN…The application is ranked, but not funded due to lack of funds.

The decision is NOT appealable because the lack of program funds is not an appealable issue. Provide rights to an appealability review ONLY.

The application is ranked, but screened to a low priority because of a prior existing condition such as a previous contract cancellation or violation.

The contract holder violates a provision of the program.

Appeal rights will be provided in accordance with 7 CFR 614 and CPM Part 510 .

Final Technical Determinations and Program Decisions

NRCS issues a final technical

determination or program decision

that is appealable.

Is this a a Title XII conservation program?

Offer the following rights:

Appeal to the NRCS STC;

Mediation; or Appeal to NAD

Offer the following rights:• Informal Appeal to

either the FSA-COC Or the NRCS STC;

• Mediation; or • Appeal to NAD

No

Yes

Final Determinations or Program Decisions

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

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

Final Determinations or Program Decisions

• Title XII programs participants may choose to appeal the determination or decision at the informal level to either the:– FSA COC, or– NRCS STC

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

Final Technical Determinations or Program Decisions

• Appeal rights for ALLALL Final determinations or final decisions (program decisions are always issued as a final decision) are as follows:– Informal appeal hearing before either the FSA Informal appeal hearing before either the FSA

COC COC oror NRCS STC (for Title XII programs) NRCS STC (for Title XII programs)– Informal appeal hearing before the NRCS Informal appeal hearing before the NRCS

STCSTC– MediationMediation– Appeal to the National Appeals DivisionAppeal to the National Appeals Division

What does this mean in appeals for HELC/WC?:• If the participant elects to appeal informally to

the FSA COC, then FSA will assume “control” of the appeal .

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

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

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

• If the participant elects to appeal informally to the NRCS STC or go directly to NAD:– NRCS will maintain control of the technical

determination until a final USDA decision is issued.

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

1. NRCS issues a preliminary

technical determination

2. Offer the following:-Reconsideration to DC or

STC-Mediation-Field Review-Expedited Finality

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

3.b. NRCS issues a final program decision.

b. No

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

a. No

a. Yes

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

4. Is the determination or decision Appealable?

a. Yes

7. Offer the following rights:--Appeal to the FSACOC or the NRCS STC;--Mediation; or--Appeal to NAD

7. Offer the following rights:--Appeal to the NRCS STC;--Mediation; or--Appeal to NAD

Administrative Record

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

CPM Section 510.04

Burden of Proof in an Appeal…

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

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

CPM 510.51

Implementing NAD Decisions…

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

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

Judicial Review

• 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.

Conservation District Participation

• Conservation District representatives should be encouraged to participate in field visits.

• District officials may be able to provide additional information and evidence that could lead to resolution of the issue prior to appeal.

Correcting a Determination

• If, on the evidence obtained during the field visit, it is found that the preliminary technical determination was incorrect, it is appropriate to provide a corrected technical determination. – Any corrected technical determinations resulting from

a field review must be issued within 30 calendar days of the visit.

– The corrected determination will be a Final Determination.

Appeal Exercises

Program Scenarios

1 through 3

Situation # 1

A final technical determination was issued based on an EQIP contract review, stating that “the contract holder is in violation of the EQIP provisions, specifically, 7 CFR 1466.21(c) (non-performance). Termination was indicated if contract holder did not apply requisite practices. Appeal rights were provided, but contract holder never appealed and never applied the practices. The contract termination notification under 7 CFR 1466.26(a)(1), was sent to participant.

Should appeal rights be provided?Should appeal rights be provided?

Answer #1

This is not appealable providedprovided:

1. That the previous notice of violation has been provided with actions that contract holder needed to take;

2. That all appeal/mediation rights had been previously supplied in the violation notification letter;

3. Than NRCS, in issuing the violation notification followed the rule provision that stipulated a reasonable time to rectify the violation.

Situation # 2

A person has applied for EQIP. The land is judged to be eligible, however, that person has had a previous EQIP contract that had been cancelled due to non-performance. NRCS is using a screening process due to limited funds being available and to reduce the actual scoring workload.

What is the outcome of the application-What is the outcome of the application-ranking process ranking process andand what type of decision what type of decision should be issued. Is this appealable?should be issued. Is this appealable?

Answer #2

1. Use of screening process (7 CFR 1466.20) is a matter of general applicability which is not appealable.

2. Applicant should be notified:A. Application is deferred or denied based on the

screening process being used.B. Decision is not appealablenot appealable:

i. Lack of funds is not appealable.ii. Use of a generally applicable screening process is not

appealable.iii. Prior contract violation appeals have expired.

Situation # 3

A person applied for a 2004 EQIP contract but did not supply the conservation plan of operations required by regulation and used by NRCS in applying the application ranking and scoring criteria.

What is the decision and is this What is the decision and is this appealable?appealable?

Answer #3

1. EQIP rule at 7 CFR 1466.9 requires applicant provide a conservation plan and 7 CFR 1466.20(b) requires that NRCS use conservation plan for scoring the application.

2. Non-compliance with §1466.9 will result in NRCS inability to score the application.

Answer #3, continued

3. NRCS can defer or deny the applicant provided:

a. Applicant understood that a conservation plan must have been provided for scoring/ranking

b. Applicant was given sufficient time from date of completing application (CCC1200) to supply conservation plan

4. This decision is not appealable based on non-compliance with a regulatory requirement.

Situation # 4

A contract holder has failed to maintain non-cost-shared practices essential to the functioning of the EQIP cost-shared practices in a 2003 contract.

What decision do you make and what What decision do you make and what appeal rights, if any, do you provide?appeal rights, if any, do you provide?

Answer #4

• Non-performance of practice maintenance is required under 7 CFR 1466.22.

• All cost-shared practices as well as those practices not cost-share but considered essential must be maintained

• Technical determination or program decision must be issued, as follows:

Answer #4, continued

1. Reason for contract violation (failure to maintain in accordance with §1466.22.

2. Provide the factual basis of the violation (§1466.22) as well the requirements needed to come into compliance with the terms of the contract (§1466.26(a)(1)).

Answer #4, continued

1. Provide time frames for action required.2. Provide reconsideration, appeal, and

mediation rights.3. Notice can be sent either as a technical

determination or a program decision. Also can be sent as 2 separate notifications:

1. Technical determination of the violation with the previous information, as well as a program decision notifying person of contract termination and appeals information; and

2. Program decision of contract termination due to the contract violation noted in the technical determination notification dated xxxxxxx.

Conclusion

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

Beth A. Schuler(615) 646-9741; Cell: (615) 415-9819; FAX: (615) 673-6705;

Email: beth.schuler@usda.gov