Beth Schuler, National Appeals Specialist

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Conservation Program Appeals
United States Department of Agriculture Natural
Resources Conservation Service

• Beth Schuler, National Appeals Specialist

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• Statutory Authorization for Appeals
• Public Law 103-354, the Federal Crop Insurance
  Reform and Department of Agriculture
  Reorganization Act of 1994, Title II, Sections
  226, 246, 271-280.
• Title 7, United States Code (U.S.C.) Sections
  6932, 6962, 6991-7000.

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Published Rules

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

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USDA Appeals Procedure (as of January 16, 1996)

• Replaced the previous Agency appeals procedures
  as of January 16, 1996
• Appeal levels done away with
• Two paths for appeal based on program authority
• Appeals procedure for all NRCS programs, not just
  HELC/WC
• Formal appeals agency of USDA, the National
  Appeals Division (NAD)

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NRCS Policy and Procedure

• Conservation Programs Manual Part 510 Appeals
  Mediation (440-V-CPM)
• This policy covers all types of conservation
  program appeals that are covered by the USDA
  administrative appeals policy.
• http//policy.nrcs.usda.gov/scripts/lpsiis.dll/M/M
  _440_510.htm
• Farm Service Agency Appeals Policy
• Handbook 1-APP

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Definitions

• Adverse Decision Means any administrative
  decision made by an agency that is (or can be
  considered to be) adverse to the participant.
• Decision means a conclusion reached by an NRCS
  official based on the applicable regulation and
  program policy relating to eligibility for
  program benefits.

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• Appellant means a participant who appeals an
  adverse decision.
• Case Record includes all materials used by the
  agency to arrive at the decision or
  determination. Also referred to as the
  Administrative Record.
• Preliminary Technical Determination is the
  initial written determination provided to a
  participant that will become final after 30 days
  unless certain actions are taken that will stay
  finality for a designated time period.

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• Technical Determination an NRCS technical
  determination or decision that affects the legal
  substantive status of the land but may not
  necessarily be adverse that is based on science
  and professional judgment concerning soils,
  water, plants, air, and animals.

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Decision or Determination Definitions

• Include the following
• Denial of Equitable Relief
• Failure to Issue a Decision or Act on a Request
  or Right of a Participant

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Decision or Determination Definitions

• Do Not Include
• Civil Rights Decisions
• Decisions for the Contract Board of Appeals
• Personnel Issues

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Who Can Appeal?

• USDA program participants adversely affected by
  an NRCS technical determination or technical
  decision can request an appeal.
• A participant can request the following
• A field visit and reconsideration of the
  preliminary technical determination or the
  technical decision.
• Mediation or other forms of alternative dispute
  resolution of technical determinations or
  technical decisions.
• Appeal of an agency technical determination or
  technical decision.

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Administrative Record

• The administrative records shall contain all
  materials used to make the technical
  determination or technical decision, including
  all supporting materials.
• Assembly of the administrative record begins when
  the participant takes any of the following
  actions
• Requests a field visit and/or reconsideration
• Requests mediation
• Requests other methods of alternative dispute
  resolution
• Files an appeal
• CPM Section 510.04

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When the Appeals Process is Completed

• Appeal rights are exhausted and the appeal
  process is final when one of the following
  occurs
• The client has not requested an appeal within 30
  calendar days of the final technical
  determination or technical decision, unless a
  field visit or mediation has been requested.
• Within 30 calendar days of an FSA county/area
  committee final decision if no additional appeal
  is requested.

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• After a final technical determination or
  technical decision has been agreed upon through
  mediation.
• After NAD issues a final decision and neither the
  agency nor the appellant requests a Director
  review.
• After a decision is rendered on a request for a
  NAD Director review.
• After a decision is rendered by the NAD Director
  on reconsideration of a previous Director
  decision.
• CPM Section 510.05

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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.

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Preliminary Process
Program Participant requests field review or
mediation?

• NRCS issues a preliminary determination
• Letter transmitting the determination offers the
  following
• Field Review
• Mediation

No
Yes
Field review and/or mediation conducted. Final
NRCS determination issued.
Determination becomes a final NRCS determination
30 days from the date of the notification
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Appealability

• The NAD Director is the final authority on issues
  of when a decision and what type of decision is
  or is not appealable.
• Generally, if the decision applies to all persons
  equally, and it meets the criteria set forth in 7
  CFR 614.5, then the issue is not appealable.
• A participant may request that the NAD Director
  review the NRCS decision that an issue is not
  appealable. A request must be filed not later
  than 30 calendar days after notification that an
  issue is not appealable.
• CPM, Paragraph 510.02(c)

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Appealable Issues

• Program participants may request a field visit
  and reconsideration or appeal of technical
  determinations or technical decisions concerning
  any of the following issues
• Denial of participation in a program.
• Compliance with program requirements.
• The payment or amount of payments or other
  program benefits to a program participant.
• Technical determinations or technical decisions
  that affect the status of land even though
  eligibility for USDA benefits may not be
  affected.
• CPM Paragraph 510.02(a)

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Non-Appealable Issues

• The following issues are not appealable
• General program requirements applicable to all
  participants
• Science-based formulas and criteria
• The fairness or constitutionality of Federal laws
  
• Technical standards or criteria that apply to all
  persons
• State Technical Committee membership decisions
  made by the State Conservationist
• Procedural technical decisions relating to
  program administration
• Denials of assistance due to the lack of funds or
  authority
• CPM Paragraph 510.02(b)

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How the Appeals Process Works
NRCS issues a final determination or decision
Is this determination or decision appealable?
No
Yes
Offer right to request an appealability review
from NAD.
Offer appeal rights to the appropriate authority
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What can make something that is generally
applicable appealable?

• Incorrect application
• Inconsistent application
• Incorrect factor values are used or the factor
  values are used incorrectly
• Then the decision rendered when using the
  scientific formula for program eligibility can be
  determined to be appealable by NAD.

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Title XII Program Appeals

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

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

• Agriculture Management Assistance Program
• Colorado River Basin Salinity Control Program
• Emergency Watershed Projects (including
  Floodplain Easements)
• Forestry Incentive Program
• Great Plains Conservation Program

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• Flood Prevention and Watershed Protection
  Programs (PL-566 and PL-534 Land Treatment
  Contracts)
• Rural Abandoned Mine Program
• Rural Clean Water Program
• Soil and Water Conservation Program
• Water Bank Program

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Non-Title XII Program Flowchart
NRCS issues a final determination or decision
that is appealable.
Is this a non-title XII program?
No
Yes
Go back to the Title XII Process Slide

• Offer the following rights
• Appeal to the STC
• Mediation or
• Appeal to NAD

NOTE Mediation is only offered at this stage if
it has not been utilized previously
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Recap of the Appeals Process
a. No
4. Title XII Program?
1. NRCS issues a final determination or decision
6. Offer the following rights Appeal to the
STC Mediation or Appeal to NAD
a. Yes
2. Appeal- able?
b. Yes
a. No
7. Offer the following rights Appeal to the
FSA COC optional) Mediation or Appeal to NAD
5. Input from FSA/COC employee, officer, member?
b. No
8. Offer the following rights Appeal to the
FSA COC mandatory) or Mediation
3. Offer right to request an appealability
review from NAD.
b. Yes
NOTE Appeal rights to NAD will be provided by
FSA.
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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.

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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.

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NAD Hearings

• NAD is an organization within the USDA,
  independent from all other agencies and offices
  of the Department.
• The NAD Director's office is located in
  Alexandria, Virginia, but NAD also has regional
  offices (see Subpart G, Section 510.76, Exhibit
  16 for the NAD regional office addresses and the
  States served by the specific regional office.)
• Eastern Regional Office - Indianapolis, Indiana.
• Southern Regional Office - Cordova, Tennessee.
• Western Regional Office - Lakewood, Colorado.

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NAD Functions

• Participants in USDA programs are afforded an
  opportunity for a hearing before a neutral
  hearing officer who is not bound by any prior
  agency findings of fact.
• The hearing officer may make independent findings
  of fact but must apply the law and regulations of
  the agency to the facts as found.

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Burden of Proof

• 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

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Types of Hearings

• Telephone hearings held by teleconference if the
  appellant agrees. In this type of hearing, the
  process is essentially the same as if it were in
  person.
• A Record Review based on the agency record and
  other information submitted by the appellant and
  the agency. If the appellant requests a record
  review
• Both parties have the opportunity to submit
  information in documentary form to the hearing
  officer.
• The hearing officer will notify the agency and
  the appellant of the right to submit additional
  evidence, the established deadlines, and other
  requirements as applicable.
• A Hearing in Person.

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NRCS Actions Prior to NAD Hearing

• A copy of the technical determination or decision
  the appellant is challenging.
• A written explanation of the agency's position,
  including the regulatory or statutory basis,
  detailing the anticipate Exhibits to be submitted
  to the hearing officer and their significance in
  support of the technical determination or
  decision under review.
• A copy of any document not in the agency record
  that the agency plans to introduce at the
  hearing.
• A list of anticipated witnesses.
• A brief description of the evidence each witness
  will offer.

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Normal Order of the Hearing

• Hearing Officer's opening statement.
• Appellant's opening statement.
• Agency's opening statement.

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Normal Order of the Hearing

• Appellant case presentation including
• Evidence presentation.
• Witness testimony.
• The agency may cross-examine witnesses.
• Objections may be noted and ruled on.

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Normal Order of the Hearing

• Agency case presentation including
• Evidence presentation (see Subpart G, Section
  510.75, Exhibit 15.)
• Witness testimony.
• The appellant may cross-examine witnesses.
• Objections may be noted and ruled on.

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Normal Order of the Hearing

• Appellant's rebuttal period.
• Agency's rebuttal period.
• Appellant's closing argument.

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Normal Order of the Hearing

• Agency's closing argument.
• Hearing officer's instructions regarding
  post-hearing proceedings, submission of
  documents, etc.
• CPM Section 510.53

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Witness Testimony

• Testimony is evidence given verbally under oath
  by the parties or by witnesses.
• Witnesses should limit testimony to factual
  information within the scope of their experience
  and should focus on the factual evidence.
• Testimony should not include arguments.

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Closing Statement

• The NRCS representative should ensure that the
  agency's closing statement sufficiently
  summarizes the evidence in the hearing record
  that supports the agency's technical
  determination or decision and refutes the
  appellant's position.

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NAD Director Reviews

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

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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.

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Conclusion

• For questions, assistance, training, etc.
  regarding Appeals, Appealability Reviews, or
  other matters, please call
• Beth Schuler
• [phone] FAX [phone]
• Email beth.schuler_at_usda.gov