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NRCS Appeals Process

NRCS Appeals Process. Contracting Training May 2006. Decision Making Handling Appeals Equitable Relief. Decision Making. Contracts for conservation programs, as well as easements, are legally binding documents Both parties have responsibilities

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NRCS Appeals Process

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  1. NRCS Appeals Process Contracting Training May 2006

  2. Decision Making • Handling Appeals • Equitable Relief

  3. Decision Making • Contracts for conservation programs, as well as easements, are legally binding documents • Both parties have responsibilities • Contract holders – perform the terms of the contract and provide NRCS with appropriate documents for payment • NRCS – Provide financial and technical assistance. If violation is found, provide appropriate notification and reasonable period of time to correct

  4. Decision Making • NRCS decisions should be clear and understandable • What is at issue? • What are the requirements? • Why is this a requirement? • What are the FACTS? • What are the consequences? • Conclusion • Appropriate appeal and/or mediation rights

  5. Decision Making • Bad decisions: • Don’t conform to program regulation • Don’t conform to agency policy • Are poorly documented • Are where the issues are difficult to determine

  6. Decision Making • Solution: • Know program regulation • Know program policy • DOCUMENTATION • Identify the each issue • Be consistent when developing decisions

  7. Handling Appeals

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

  9. Appeal Procedures • NRCS -- Conservation Programs Manual Part 510 – Appeals & Mediation • FSA – Handbook 1-APP, Program Appeals, Mediation, and Litigation • NAD – NAD Hearing Officer’s Guide

  10. Types of NRCS Decisions • Technical Determinations – conclusion concerning the status and condition of the natural resources and cultural practices based on science and best professional judgment • Preliminary Technical Determinations • Final Technical Determinations

  11. Types of NRCS Decisions • Program Decisions – conclusion reached based on applicable regulations and program instructions which relates to eligibility for program benefits, program administration and/or implementation • May have a final technical determination as their basis • Always issued as a final decision

  12. Preliminary Technical Determinations… • Preliminary technical determinations become final 30 calendar days from the date the participant receives the notice unless any of the following are requested: • A field visit for reconsideration • Reconsideration by the STC • Mediation • Request for expedited final review

  13. Final Technical Determinations and Program Decisions • Become final 30 calendar days from the date the participant receives the notice unless any of the following are requested: • Informal appeal to either the FSA COC or the NRCS STC, but not both ** • Appeal to the National Appeals Division **the FSA COC is not available for non-title XII conservation programs

  14. Decision and Determination Notices Requires that NRCS to provide the following information to the person: • Written notice of the decision no later than 10 working days after the decision is made • Statutory or regulatory basis for the technical determination or decision; • Factual basis for the technical determination or decision; and • Notice of the rights and options that a participant may have in the NRCS appeals process: • Appeal Rights, or • Rights to an Appealability Review • Mediation

  15. 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 adverse as opposed to being applicable to all program participants in the same situation.

  16. Appealability Reviews • A participant has the right to request that the NAD Director review the NRCS decision that an issue is not appealable • When NRCS declares an issue is not appealable, NRCS must provide rights to an appealability review • A request must be filed not later than 30 calendar days after notification that an issue is not appealable CPM 510.02(c)

  17. 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

  18. 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 administration of the programs • 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 • Program regulations and statutes

  19. Non-Appealable Issues • 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 • 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

  20. Appealable Issues • Denial of participation in a program • 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 • Technical determinations or program decisions that affect the landowner's or program participant's eligibility for USDA program benefits • The failure of an NRCS official to issue a technical determination or program decision subject to this part

  21. Appeal v Appealability

  22. Administrative Record • The NRCS administrative records MUST contain all materials used to make the technical determination or technical decision, including all supporting materials CPM 510.04

  23. 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

  24. 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

  25. 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

  26. Equitable Relief from Program Violations

  27. Statutory Authority, Regulation, and Policy • The Farm Security and Rural Investment Act of 2002, Public Law 107-171, 7 U.S.C. 7996, May 13, 2002 • 7 CFR 635, Published Sept. 21, 2004 • NRCS Policy – CPM Part 509

  28. Equitable Relief Provisions • Section 1613 of the 2002 Farm Bill provides that either the NRCS Chief or the STC may grant relief where either of the following has occurred: • Misaction/Misinformation (Acting in Good Faith) OR • Failure to Fully Comply (Good Faith Effort)

  29. Equitable Relief Provisions • Contract Violation • Non-compliance determination • Only applicable for violations that occur after May 12, 2002

  30. Misaction/Misinformation -Acting in Good Faith: • Applying the required conservation system, practice, or operation and maintenance incorrectly; but consistent with instruction provided by an NRCS employee

  31. Granting Misaction/Misinformation Relief Requests All of the following must apply: • Action was detrimental to the participant • Action resulted in ineligibility for program benefits • Action was based on good faith reliance on action or advice of NRCS employee • Participant did not have sufficient reason to know that the action or information relied upon was improper or erroneous

  32. Granting Misaction/Misinformation Relief Requests The fact that an error in action or information is made by NRCS personnel does not mean that the error automatically qualifies as a basis for relief under the misaction/misinformation provisions

  33. Situations Not Subject toMisaction/Misinformation • Programs not directly administered by NRCS • Where the participant had sufficient reason to know that the action or information on which he or she relied was improper or erroneous • Where the participant acted in reliance on his or her own misunderstanding or misinterpretation of program provisions, notices, or information

  34. Failure to Fully Comply - Good Faith Effort : • A covered program participant’s efforts at applying the required conservation system, practice, or operation and maintenance, albeit incorrectly, but without an intent to defraud NRCS through a scheme or device, or other attempt to perform less than the requirements of the program

  35. Failure to Fully Comply • NRCS did not make an error that caused the failure of the participant to fully comply with the requirements of the applicable program • An error was made by the participant so that they did not meet the requirements of the applicable program, but the participant made a good faith effort to fully comply

  36. Granting Failure to Fully Comply Relief Requests All of the following must apply: • A participant made a good faith effort to fully comply with the terms and conditions of a covered conservation program • The participant rendered substantial performance • The participant will take the necessary remedial action to remedy the failure to fully comply situation if required by the reviewing authority as a condition of receiving relief

  37. Granting Failure to Fully Comply Relief Requests The fact that a participant has previously always been in full compliance is not, in itself, a basis for determining that the participant made a good faith effort to fully comply

  38. Situations Not Subject toGood Faith Effort Relief • Areas where relief provisions are already provided under the specific program regulation or program manual provisions • Conservation program application deadlines

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

  40. Approval, Consultation, and Review • The NRCS Chief or the State Conservationist must consult with and receive approval from the appropriate Office of the General Counsel (OGC) • Neither the Chief’s nor a State Conservationist’s final decision for equitable relief is subject to review; and reversal may be made only by the USDA Secretary, who may not delegate that authority • Decisions regarding Equitable Relief are NOT appealable by law

  41. Approval, Consultation, and Review • This provision does not limit either the Chief or a State Conservationist’s authority to grant waivers to specific conservation programs as provided by that program • The State Conservationist’s final decision is not subject to Judicial Review under Chapter 7 of Title 5 of the United States Code CPM 509.12

  42. Exclusions Equitable relief may not be provided for relief for either of the following: • Payment Limitation Violations • Highly Erodible Land and Wetland Conservation Provisions Violations

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

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

  45. Remedial Actions Required • Revision of the operation and maintenance plan • Remediation shall be commensurate with the overall conservation program provisions, purposes, and functions

  46. Preventing Future Need for Equitable Relief • It is important that the State Conservationist take appropriate corrective actions to minimize these unnecessary costs to the agency

  47. Preventing Future Need for Equitable Relief • Corrective action may include, but is not limited to, any of the following: • Additional training • Revising office procedure • Other action, as needed, and if warranted CPM 509.11

  48. Equal Opportunity The U.S. Department of Agriculture (USDA) prohibits discrimination in all its programs and activities on the basis of race, color, national origin, sex, religion, age, disability, political beliefs, sexual orientation, or marital or family status. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD). To file a complaint of discrimination, write USDA, Director, Office of Civil Rights, Room 326-W, Whitten Building, 1400 Independence Ave. Avenue SW, Washington D.C. 20250-9410 or call (202) 720-5964 (voice and TDD). USDA is an equal opportunity provider and employer.

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