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Part 517 — Violations, Appeals, and Equitable Relief

Part 517 — Violations, Appeals, and Equitable Relief. Whistleblower Complaints. Received either verbally or in writing May come from any source All complainants are to remain anonymous, unless the complainant indicates otherwise. Timing of the Investigation.

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Part 517 — Violations, Appeals, and Equitable Relief

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  1. Part 517 — Violations, Appeals, and Equitable Relief

  2. Whistleblower Complaints • Received either verbally or in writing • May come from any source • All complainants are to remain anonymous, unless the complainant indicates otherwise

  3. Timing of the Investigation • Whistleblower complaints and/or FSA–569 should be completed within the following time frames: • Within 30 days in a field office • Within 45 days in an Area or State office

  4. Timing of the Investigation • Extenuating Circumstances • Weather • Time of year • Inability to assess conservation system used • Inability to validate the vegetation • Inability to measure crop residues correctly • Other

  5. Timing of the Investigation • Notify FSA in writing a potential violation has been reported • All known information regarding the potential violation • Reasons that the NRCS cannot complete investigation immediately

  6. Report of Possible Noncompliance Register • Type of complaint (HEL or Wetlands) • Tract number • Tract owner and/or operator name • Name of complainant • Date received • Date report completed • Details of the potential violation

  7. Report of Possible Noncompliance Register • Confidential and maintained by NRCS employees only • Not available to the public • Exempt from FOIA • Will be reviewed during QA reviews • STC informs NHQ of major concerns • Failure to implement the whistleblower process as outlined will be viewed as fraud

  8. Report of Possible Noncompliance Register • Final Report of Possible Noncompliance • Finding of the investigation and documentation • Placed in the case file that contains the tract(s) investigated • Name of the confidential source must not appear • The final report is available under FOIA

  9. Report of Possible Noncompliance Register • Reports Affecting Other Agencies • Noncompliance report involves items where NRCS does not have program responsibility (i.e. Clean Water Act) • Field Office forward report to STC • STC forwards to the appropriate agency and informs complainant of actions taken

  10. Potential Violations • Producer is not actively applying a conservation plan or conservation system • Producer is not using an approved conservation system

  11. Potential Violations • Producer denies access to the farm or tract to a USDA employee on official business • Producer violates the WC provisions • Converts a wetland after November 28, 1990 • Plants a commodity crop on a wetland converted after December 23, 1985 • Fails to comply with a wetland mitigation agreement or conditions of a minimal effect agreement

  12. Notification of Potential Violations • Random compliance status review • Whistleblower complaint to FSA or NRCS • Discovery by FSA or NRCS staff while providing technical or programmatic assistance

  13. Notification of Potential Violations • Eligibility determination for conservation programs • The producer checks yes to question #9 or #10 on the AD-1026 • Discovery by NRCS via monitoring of mitigation or minimal effect exemption agreement

  14. Administrative Procedure • FSA issues form FSA-569 to NRCS • Method of communicating findings • Inform whistleblower complaint is being investigated • Determine if there is a current AD-1026 on file and if the producer is a USDA program participant for the current year • For HELC, NRCS cannot investigate any alleged violation that took place in a prior year or when a producer is not a current year USDA participant

  15. Administrative Procedure • Contact all persons having a financial interest in the farm or tract to provide notice of the receipt of an FSA-569 • Notify the participant that a potential violation has been reported • Request access to the land in question • Provide an opportunity to those persons having an interest in the tract to participate in the review

  16. Administrative Procedure • Person applying for the benefits must authorize and provide representatives of USDA access • If access is denied or person fails to agree to the site visit: • Immediately notify person in writing that he or she is in violation • Place a check at the top of Part C, sign and date the form, and return the FSA-569 to FSA

  17. Administrative Procedure • HELC compliance — NRCS must conduct the field review within a reasonable period of time, not to exceed 30 days • WC compliance —the site visit will be conducted as soon as possible, but only when site conditions are favorable for the evaluation of soils, hydrology, and vegetation

  18. Administrative Procedure • Information gathered must be entered into the web-based FSA compliance status review application • An onsite visit must be made

  19. Administrative Procedure - HELC • Findings indicate participant is in violation of the HEL provisions • NRCS issues “Preliminary Technical Determination” in accordance with the appeals regulation with appeal rights • FSA-569 is not returned to FSA until the determination becomes a final USDA technical determination on which FSA can make decisions regarding denial of benefits and/or good faith • Send via certified mail, return receipt requested

  20. Administrative Procedure - WC • No violation • Appropriate blocks in Part C of the FSA-569 are checked • NRCS employee signs Part C • Return the form to FSA with a copy to the producer with appropriate documentation of the certified wetland determination included • Violation (CW or CW+year) • Certified wetland determination provided to the participant appeal rights • Send via certified mail, return receipt requested

  21. Administrative Procedure • NRCS signs and complete Part C and returns the FSA-569 to FSA • Determination is final • Appeals process has been exhausted • Only an NRCS employee may provide notification to FSA of a potential violation

  22. Forfeiture of Benefits • HELC • Revoked for the year of the violation • Subsequent years until eligibility is reinstated • WC • Forfeited from the year that a wetland violation occurred until NRCS certifies that a restoration or mitigation plan is fully applied

  23. Administrative Record Requirements • Paper trail • Appropriate documentation of the agency’s decision-making process • Basis for the agency’s decision • In the case of an appeal, reviewed by: • Area and/or State Office • NAD Hearing Officer • District Court judge • Appeals Court judge

  24. Guidelines for compiling the administrative record • Documents and materials available or considered by the decision-making official • Policies, guidelines, directives, manuals, articles, books, factual information or data, communications received from other agencies and from the public, and any responses to those communications

  25. Guidelines for compiling the administrative record • Draft documents circulated for comment outside the author’s immediate office, if changes in these documents reflect significant input into the decision making process • Technical information, sampling results, survey information, and engineering reports or studies • Decision documents, minutes or transcripts of meetings, and telephone conversations unless they are personal notes

  26. Guidelines for compiling the administrative record • Do not include personal notes, unless they are included in an agency file which is under the control, possession and maintenance of the agency • Do not include internal “working” draft documents

  27. Appeals and Equitable Relief • Appeals and Mediation Process • County Committee in the county where the determination was made, or NRCS STC in the State where the determination was made, but not both • Mediation or ADR • Appeal to NAD

  28. Appealable Determinations • Application of the statute, regulation, or agency policy to an individual participant • Miscalculation or error in formulas • Denial of program benefits based on a determination of violation of either the HELC or WC provisions • Denial of participation in Title XII conservation programs where compliance with the HELC/WC provisions is a condition of eligibility and/or participation

  29. Actions Not Appealable • Conservation practice standards • Procedural decisions relating to program administration • Timeframes for action on a specific request • Workload prioritization • Science-based formulas and criteria used • HELC Soils List • Correlated soil surveys • Other matters that are generally applicable to all program participants, such as: • Criteria used for variances • Addition of a tract to the compliance status review tract list • Process used to select compliance status review tracts • Matters of regulation and statute

  30. Preliminary Technical Determinations • HEL determinations • Wetland determinations and/or delineations • Violations of the HELC/WC provisions • Mitigation and/or restoration determinations • Variances NRCS has authority to grant

  31. Required Content • Preliminary technical determinations must include the following items: • Issue or reason for the preliminary technical determination • Statutory and/or regulatory basis for the determination • Factual basis for the determination • Analysis of how the facts result in the preliminary technical determination • Conclusion or actual preliminary technical determination • Appropriate appeals and mediation rights

  32. Appeal and Mediation Rights • Must be offered when NRCS issues a preliminary technical determination • Field visit for re-evaluation of the facts • Reconsideration by the STC or designee • Mediation or Alternative Dispute Resolution • Expedited finality

  33. Completion of the Determination • All preliminary technical determinations must be sent to the USDA participant no later than 10 working days following the date that NRCS completes the preliminary technical determination

  34. Computation of Time for Appeal Actions Regular Mail • No more than 37 calendar days (30 calendar days plus 7 calendar days for regular mail delivery from the date that the determination has been mailed • Certified Mail with return receipt requested • 30 days from the date on which the return receipt was signed • If the person takes no action within the specified time the Preliminary Technical Determination becomes a Final NRCS Technical Determination.

  35. Final Technical Determinations • Same format and content as preliminary technical determination • Final Appeal and Mediation Rights • Informal appeal to either the FSA COC or the NRCS STC • Formal appeal to the National Appeals Division (NAD) • Sent to the USDA participant no later than 10 working days after expiration of preliminary date • Same timeframes for appeal rights

  36. Equitable Relief • A participant may be eligible for Equitable Relief as a result of a participant’s detrimental reliance on the advice or action of an NRCS employee • Only the NRCS Chief may grant • Form FSA-321 and a complete description of the need for the relief • Must be reviewed by the USDA Office of General Counsel prior to the Chief’s approval

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