[Federal Register Volume 60, Number 98 (Monday, May 22, 1995)]
[Proposed Rules]
[Pages 27044-27049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12261]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 60, No. 98 / Monday, May 22, 1995 / Proposed
Rules
[[Page 27044]]
DEPARTMENT OF AGRICULTURE
Office of the Secretary
7 CFR Part 11
National Appeals Division Rules of Procedure
AGENCY: Office of the Secretary, National Appeals Division, USDA.
ACTION: Proposed rule.
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SUMMARY: The National Appeals Division (NAD) in the Office of the
Secretary proposes to add a new rule to implement Title II, Subtitle H,
of the Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994 by setting forth procedures for program
participant appeals of adverse decisions by United States Department of
Agriculture (USDA) agency officials to the National Appeals Division
(NAD). This action also defines those appeals over which NAD has
jurisdiction.
DATES: Written comments via letter, facsimile, or Internet are invited
from interested individuals and organizations and must be received on
or before June 21, 1995.
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, D.C. 20250-1415;
fax number: 202/720-5837; Internet: hqdomain.lawpo.young@.
FOR FURTHER INFORMATION CONTACT:
L. Benjamin Young, Jr. at the above address or 202/690-1979.
SUPPLEMENTARY INFORMATION:
Classification
This proposed 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
The Department certifies that this proposed 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.).
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 Pub. L. 103-354, the Federal Crop Insurance Reform and
Department of Agriculture Reorganization Act of 1994. NAD was assigned
responsibility for all administrative appeals formerly performed by the
National Appeals Division of the former Agricultural Stabilization and
Conservation Service and by the National Appeals Staff of the former
Farmers Home Administration, appeals arising from decisions of the
Federal Crop Insurance Corporation and the former Soil Conservation
Service, appeals arising from decisions of the successor agencies to
the foregoing agencies established by the Secretary, and such other
administrative appeals arising from decisions of agencies and offices
of USDA as may in the future be assigned by the Secretary. Conforming
changes to the regulations of the affected agencies will be published
with the final rule.
This proposed part 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 proposed part.
The proposed part defines ``adverse decisions'' to include denial
of equitable relief to a program participant by an officer, employee,
or committee of an agency or the failure of an officer, employee, or
committee of an agency to issue a decision or otherwise act on the
request or right of the participant, but to exclude decisions over
which the Agriculture Board of Contract Appeals would have
jurisdiction. ``Agency'' includes the Consolidated Farm Service Agency,
the Commodity Credit Corporation, the Farmers Home Administration, the
Federal Crop Insurance Corporation, the Rural Business and Cooperative
Development Service, the Rural Development Administration, the Rural
Housing and Community Development Service, the Natural Resources and
Conservation Service, a State, county, or area committee established
under section 8(b)(5) of the Soil Conservation and Domestic Allotment
Act (16 U.S.C. 590h(b)(5)), any successor agency to the above-named
agencies, and any other agency or office of the Department that the
Secretary may designate. Designation of other agencies or offices by
the Secretary shall be accomplished by virtue of a delegation of
authority to NAD by the Secretary, or by future amendment of these
rules by the Secretary.
These rules would apply to any adverse decision issued by any
agency on or after October 20, 1994, and to any appeals or requests
pending before an agency, including any predecessor agency, prior to
October 20, 1994.
The proposed part would be applicable to adverse decisions with
respect to: (1) Denial of participation in any program of an agency;
(2) compliance with program requirements; and (3) the making or amount
of payments or other program benefits to a participant in any program
of an agency.
The proposed part preserves participants' rights to avail
themselves of certain informal agency review processes prior to
instituting an appeal under the proposed part.
The proposed part states that the Administrative Procedure Act, the
Equal Access to Justice Act, and the Federal Rules of Evidence do not
apply to proceedings under the proposed part.
The proposed part provides filing requirements and deadlines,
evidentiary hearing procedures for appeals of adverse decisions
(including rules applicable to the issuance of subpoenas), procedures
for NAD [[Page 27045]] Director review of an agency determination that
a decision is not appealable, and procedures for NAD Director review of
hearing officer determinations.
The proposed part provides for judicial review of final
determinations of NAD.
List of Subjects in 7 CFR Part 11
Administrative practice and procedure, Agriculture, Agricultural
commodities, Crop insurance, Ex parte communications, Farmers, Federal
aid programs, Loan programs, Price support programs, Soil conservation.
For the reasons set out in the preamble, Title 7, Subtitle A, of
the Code of Federal Regulations is amended by adding Part 11 to read as
follows:
PART 11--NATIONAL APPEALS DIVISION RULES OF PROCEDURE
Sec.
11.1 Definitions.
11.2 General statement.
11.3 Applicability.
11.4 Inapplicability of other laws and regulations.
11.5 Informal agency hearings and exhaustion.
11.6 Right of participants to Division hearing or Director review
of agency determination of appealability.
11.7 Division hearings.
11.8 Director review of determinations of Hearing Officers.
11.9 Bases for determinations.
11.10 Effective date and implementation of final determinations of
the Division.
11.11 Judicial review.
11.12 Filing of appeals and computation of time.
Authority: 5 U.S.C. 301; Title II, Subtitle H, Pub. L. 103-354,
108 Stat. 3228 (7 U.S.C. 6991); Reorganization Plan No. 2 of 1953 (5
U.S.C. App.).
Sec. 11.1 Definitions.
For purposes of this part:
Adverse decision means an administrative decision made by an
officer, employee, or committee of an agency that is adverse to a
participant. The term includes a denial of equitable relief by an
agency or the failure of an agency to issue a decision or otherwise act
on the request or right of the participant within timeframes specified
by agency program regulations. The term does not include a decision
over which the Board of Contract Appeals has jurisdiction.
Agency means:
(1) The Consolidated Farm Service Agency;
(2) The Commodity Credit Corporation;
(3) The Farmers Home Administration;
(4) The Federal Crop Insurance Corporation;
(5) The Rural Business and Cooperative Development Service;
(6) The Rural Development Administration;
(7) The Rural Housing and Community Development Service;
(8) The Natural Resources Conservation Service;
(9) A State, county, or area committee established under section
8(b)(5) of the Soil Conservation and Domestic Allotment Act (16 U.S.C.
590h(b)(5)); and
(10) Any successor agency to the above-named agencies, and any other
agency or office of the Department which the Secretary may designate.
Agency record means all the materials maintained by an agency
related to an adverse decision which are submitted to the Division by
an agency for consideration in connection with an appeal under this
part , but shall not include records or information not directly
related to the adverse decision at issue. All materials contained in
the agency record submitted to the Division shall be deemed admitted as
evidence for purposes of a hearing or a record review under Sec. 11.7.
Agency representative means any person, whether or not an attorney,
who is authorized to represent the agency in an administrative appeal
under this part.
Appeal means a written request by a participant asking for review
by the National Appeals Division of an adverse decision under this
part.
Appellant means any participant who appeals an adverse decision in
accordance with this part. Unless separately set forth in this part,
the term ``appellant'' includes an authorized representative.
Authorized representative means any person, whether or not an
attorney, who is authorized in writing by a participant, consistent
with Sec. 11.6(a), to act for the participant in an administrative
appeal under this part. The authorized representative may act on behalf
of the participant except when the provisions of this part require
action by the participant or appellant personally.
Case record means all the materials maintained by the Secretary
related to an adverse decision. The case record includes both the
agency record and the hearing record.
Days means calendar days unless otherwise specified.
Department means the United States Department of Agriculture.
Director means the Director of the Division or a designee of the
Director.
Division means the National Appeals Division established by this
part.
Equitable relief means relief which is authorized under section 326
of the Food and Agriculture Act of 1962 (7 U.S.C. 1339a) and other laws
administered by the agency.
Ex parte communication means an oral or written communication not
contained in the hearing record with respect to which reasonable prior
notice to all parties is not given, but it shall not include requests
for status reports on any matter or proceeding connected with the
appeal involved.
Hearing except with respect to Sec. 11.5, means a proceeding before
the Division to afford a participant the opportunity to present
testimony or documentary evidence or both in order to have a previous
determination reversed and to show why an adverse determination was not
proper.
Hearing Officer means an individual employed by the Division who
conducts the hearing and determines appeals of adverse decisions by any
agency.
Hearing record means all documents, evidence, and other materials
generated in relation to a hearing under Sec. 11.7.
Implement means the taking of action by an agency of the Department
in order fully and promptly to effectuate a final determination of the
Division.
Participant means any individual or entity whose right to
participate in or receive a payment, loan, loan guarantee, or other
benefit in accordance with any program of an agency to which these
regulations apply is affected by a decision of such agency, including a
decision by a reinsured company which is authorized by the Federal Crop
Insurance Corporation to issue insurance policies. The term does not
include:
(1) Participants in programs subject to adjudicatory proceedings
under the Rules of Practice Governing Formal Adjudicatory Proceedings
Instituted by the Secretary under Various Statues, 7 CFR Part 1,
Subpart H;
(2) Participants in programs governed by Federal contracting laws
and regulations (appealable under other rules and to other forums,
including to the Department's Board of Contract Appeals under 7 CFR
part 24);
(3) Appellants from decisions to deny the release of information
sought by members of the public under the Freedom of Information Act
(appealable under 7 CFR Part 1, Subpart A);
(4) Participants in suspension and debarment disputes, including,
but not limited to, those falling within the scope of 7 CFR Parts 1407
and 3017;
(5) Participants in export programs administered by the Commodity
Credit Corporation; [[Page 27046]]
(6) Reinsured companies engaged in disputes with the Federal Crop
Insurance Corporation;
(7) Tenants prosecuting grievances or appeals pursuant to the
provisions of 7 CFR Part 1944, Subpart L, under the multi-family
housing program carried out by the Rural Housing and Community
Development Service;
(8) Persons having personnel, equal employment opportunity, and
other similar disputes with any agency or office of the Department
which arise out of the employment relationship;
(9) Persons pursuing claims against the United States arising under
the Federal Tort Claims Act, 28 U.S.C. 2671 et seq., or the Military
Personnel and Civilian Employees Claims Act of 1964, 31 U.S.C. 3721; or
(10) Program participants pursuing claims under the
nondiscrimination regulations at 7 CFR parts 15, 15a, 15b, and 15e.
Record review means an appeal considered by the Hearing Officer in
which the Hearing Officer's determination is based on the agency record
and other information submitted by the appellant and the agency,
including information submitted by affidavit or declaration.
Secretary means the Secretary of Agriculture.
Sec. 11.2 General statement.
This part sets forth procedures for proceedings before the National
Appeals Division within the Department. The Division is an organization
within the Department which is independent from all other agencies and
offices of the Department, including Department officials at the state
and local level. The Director of the Division reports directly to the
Secretary of Agriculture. The authority of the Hearing Officers and the
Director of the Division, and the administrative appeal procedures
which must be followed by program participants who desire to appeal an
adverse decision and by the agency which issued the adverse decision,
are included in this part.
Sec. 11.3 Applicability.
(a) Subject matter. The regulations contained in this part are
applicable to adverse decisions made by an agency, including, for
example, those with respect to:
(1) Denial of participation in, or receipt of benefits under, any
program of an agency;
(2) Compliance with program requirements; and
(3) The making or amount of payments of other program benefits to a
participant in any program of an agency.
(b) Effective date. This part is applicable to:
(1) Any adverse decision issued by any agency on or after October
20, 1994; and
(2) All appeals or requests for reconsideration which were pending
before any agency, including any predecessor agency abolished by the
Secretary pursuant to the Federal Crop Insurance Reform and Department
of Agriculture Reorganization Act of 1994, Pub. L. 103-354, 108 Stat.
3178, prior to October 20, 1994.
Sec. 11.4 Inapplicability of other laws and regulations.
The provisions of the Administrative Procedure Act, as amended, 5
U.S.C. 551, et seq., are not applicable to proceedings under this part.
The Equal Access to Justice Act, as amended, 5 U.S.C. 504, does not
apply to these proceedings. The Federal Rules of Evidence, 28 U.S.C.
App., shall not apply to these proceedings.
Sec. 11.5 Informal agency hearings and exhaustion.
(a) Required exhaustion of informal hearing options. No
administrative decision issued at the field service office level by an
officer or employee of the Consolidated Farm Service Agency, or by any
employee of a county or area committee established under section
8(b)(5) of the Soil Conservation and Domestic Allotment Act, 16 U.S.C.
590h(b)(5), shall be considered to be an adverse decision for purposes
of the provisions of this part until a program participant has
perfected an informal appeal to and received a decision thereon from
the county or area committee with responsibility for the administrative
decision at issue, and any program participant shall be required to
exhaust his or her right to informal review by such county or area
committee prior to seeking review by the Division under the provisions
of this part.
(b) Optional informal hearings. If an officer or employee of an
agency of the Department makes an adverse decision, at the request of
the participant the agency shall hold an informal hearing on or conduct
an informal review of the decision. A participant is encouraged to
utilize an agency's informal review process initially, and may do so
without prejudice to the participant's right subsequently to appeal the
agency's decision to the Division. A participant shall also have the
right to utilize any available alternative dispute resolution or
mediation program, including any mediation program available under
title V of the Agriculture Credit Act of 1987, 7 U.S.C. 5101 et seq.,
in order to seek an informal review of any adverse decision prior to
any appeal of such decision to the Division in accordance with this
part.
Sec. 11.6 Right of participants to division hearing or Director review
of agency determination of appealability.
(a) Right of participants. A participant has the right to appeal an
adverse decision to the Division for an evidentiary hearing by a
Hearing Officer consistent with Sec. 11.7. If an officer, employee, or
committee of an agency determines that an agency decision is not
applicable, the participant may request a review of that determination
by the Director pursuant to paragraph (b) of this section. If a
participant is represented by an unauthorized representative, the
authorized representative must file a declaration with NAD, executed in
accordance with 28 U.S.C. 1746, stating that the participant has duly
authorized the declarant in writing to represent the participant for
purposes of a specified adverse decision or decisions, and attach a
copy of the written authorization to the declaration.
(b) Director review of agency determination of appealability. (1)
Not later than 30 days after the date on which a participant receives a
determination from an agency that an agency decision is not appealable,
the participant must submit a written request to the Director to review
the determination in order to be entitled to such review by the
Director.
(2) The Director will conduct a review of a determination that an
agency decision is not appealable using any information the Director
determines is necessary. Based on such review, the Director will issue
a final determination notice that upholds or reverses the determination
of the agency. This final determination is not appealable. If the
Director will notify the participant and the agency of that decision
and inform the participant of his or her right to proceed with an
appeal.
(3) The Director may delegate his or her authority to conduct a
review under this subsection to any Deputy or Associate Directors of
the Division. In any case in which such review is conducted by a Deputy
or Associate Director under authority delegated by the Director, the
Deputy or Associate Director's determination shall be considered to be
the determination of the Director and shall be final and not
appealable.
(c) Appeals of adverse decisions. (1) To be entitled to a hearing
under Sec. 11.7, a participant personally must request
[[Page 27047]] such hearing not later than 30 days after the date on
which the participant first received notice of the adverse decision. In
the case of the failure of an agency to act on the request or right of
a recipient, a participant personally must request such hearing not
later than 30 days after the participant knew or should have known that
the agency had not acted within the timeframes specified by agency
program regulations, or, where such regulations specify no timeframes,
not later than 30 days after the participant reasonably should have
known of the agency's failure to act.
(2) A request for a hearing shall be in writing and personally
signed by the participant, and shall include a copy of the adverse
decision to be reviewed, if available, along with a brief statement of
the participant's reasons for believing that the decision, or the
agency's failure to act, was wrong. Instead of a hearing, the
participant may request a record review.
Sec. 11.7 Division hearings.
(a) General rules. (1) The Director, the Hearing Officer, and the
appellant shall have access to the agency record or any adverse
decision appealed to the Division for a hearing.
(2) The Director and Hearing Officer shall have the authority to
administer oaths and affirmations, and to require, by subpoena, the
attendance of witnesses and the production of evidence.
(i) A subpoena requiring the production of evidence may be
requested and issued at any time while the case is pending before the
Division.
(ii) An appellant or an agency, acting through any appropriate
official, may request issuance of a subpoena requiring the attendance
of a witness by submitting such a request in writing at least 14 days
before the scheduled date of a hearing.
(iii) A subpoena shall be issued only if the Director or a Hearing
Officer determines that:
(A) For a subpoena of documents, the appellant or the agency has
established that production of documentary evidence is necessary and is
reasonably calculated to lead to information which would affect the
final determination or is necessary to fully present the case before
the Division; or
(B) For a subpoena of a witness, the appellant or the agency has
established that either a representative of the Department or a private
individual possesses information that is pertinent and necessary for
disclosure of all relevant facts which could impact the final
determination, that the information cannot be obtained except through
testimony of the person, and that the testimony cannot be obtained
absent issuance of a subpoena.
(iv) The party requesting issuance of a subpoena shall arrange for
service. Service of a subpoena upon a person named therein may be made
by registered or certified mail, or in person. Personal service shall
be made by personal delivery of a copy of the subpoena to the person
named therein by any person who is not a party and who is not less than
18 years of age. Proof of service shall be made by filing with the
Hearing Officer or Director who issued the subpoena a statement of the
data and manner of service and of the names of the persons served,
certified by the person who made the service in person or by return
receipts for certified or registered mail.
(v) The party at whose instance a subpoena is issued shall be
responsible for the payment of any travel and subsistence costs
incurred by the witness in connection with his or her appearance and
any fees of a person who serves the subpoena in person. The Department
shall pay the costs associated with the appearance of Department
employees regardless of the party requesting the subpoena. The failure
to make payment of such charges on demand may be deemed by the Hearing
Officer or Director as sufficient ground for striking the testimony of
the witness and the evidence the witness has produced.
(vi) If a person refuses to obey a subpoena, the Director, acting
through the Office of General Counsel of the Department and the
Department of the Justice, may apply to the United States District
Court in the jurisdiction where that person resides to have the
subpoena enforced as provided in the Federal Rules of Civil Procedure
(28 U.S.C. App.).
(3) Testimony required by subpoena pursuant to paragraph (a)(2) of
this section may, at the discretion of the Director or a Hearing
Officer, be presented at the hearing either in person or
telephonically.
(4) Ex parte communication. (i)(A) At no time between the filing of
an appeal and the issuance of a final determination by the Director
shall the Hearing Officer or the Director engage in ex parte
communications regarding the merits of the appeal with any person
having any interest in the appeal pending before the Division,
including any person in an advocacy or investigative capacity. This
prohibition does not apply to:
(1) Discussion of procedural matters related to an appeal; or
(2) Discussions of the merits of the appeal with such a person by
the Hearing Officer or the Director where all parties to the appeal
have been given notice and an opportunity to participate.
(B) In the case of a communication described in paragraph
(a)(4)(i)(A)(2) of this section, a memorandum of any such discussion
shall be included in the hearing record.
(ii) No interested person shall make or knowingly cause to be made
to the Hearing Officer or the Director an ex parte communications
relevant to the merits of the appeal.
(iii) If the Hearing Officer or Director receives an ex parte
communication in violation of this section, the one who receives the
communication shall place in the hearing record:
(A) All such written communications;
(B) Memoranda stating the substance of all such oral
communications; and
(C) All written responses to such communications, and memoranda
stating the substance of any oral responses thereto, made by the
Hearing Officer or Director.
(iv) Upon receipt of a communication knowingly made or knowingly
caused to be made by a party in violation of this section the Hearing
Officer or Director may, to the extent consistent with the interests of
justice and the policy of the underlying program, require the party to
show cause why such party's claim or interest in the appeal should not
be dismissed, denied, disregarded, or otherwise adversely affected on
account of such violation.
(b) Hearing procedures applicable to both record review and
hearings. (1) Upon the filing of an appeal under this part of an
adverse decision by any agency, the agency promptly shall provide the
Division with a copy of the agency record. If requested by the
appellant prior to the hearing, a copy of such agency record shall be
provided promptly to the appellant by the agency.
(2) The Director shall assign the appeal to a Hearing Officer and
shall notify the appellant and agency of such assignment. The notice
also shall advise the appellant and the agency of the documents
required to be submitted under paragraph (c)(2), of this section and
notify the appellant of the option of having a hearing by telephone.
(3) The Hearing Officer will receive evidence into the hearing
record without regard to whether the evidence was known to the agency
officer, employee, or committee making the adverse decision at the time
the adverse decision was made.
(c) Procedures applicable only to hearings. (1) Upon a timely
request for a hearing under Sec. 11.61(c), an appellant
[[Page 27048]] has the right to have a hearing by the Division on any
adverse decision within 45 days after the date of receipt of the
request for the hearing by the Division.
(2) The Hearing Officer shall set a deadline for submission of the
following documents not less than 28 days prior to the hearing:
(i) By the appellant:
(A) A short statement of why the decision is wrong;
(B) A copy of our list of documents the appellant anticipates
introducing at the hearing; and
(C) A list of anticipated witnesses, or instead, brief descriptions
of the evidence the appellant's witnesses will offer.
(ii) By the agency:
(A) A copy of the adverse decision challenged by the appellant;
(B) A written explanation of the agency's position, including the
regulatory or statutory basis therefor;
(C) A copy of or list of documents the agency anticipates
introducing at the hearing; and
(D) A list of anticipated witnesses, or instead, brief descriptions
of the evidence the appellant's witnesses will offer.
(3) Not less than 21 days prior to the hearing, the Division must
provide the appellant, the authorized representative, and the agency a
notice of hearing identifying the time, date, and place of the hearing.
The hearing will be held in the State of residence of the appellant, as
determined by the Hearing Officer, or at a location that is otherwise
convenient to the appellant and the Division. The notice also shall
notify the appellant of the right to obtain a transcript of the hearing
and the procedures for obtaining such transcript.
(4) Conduct of the hearing. (i) A hearing before a Hearing Officer
will be in person unless the appellant agrees to a hearing by
telephone.
(ii) The hearing will be conducted by the Hearing Officer in the
manner determined by the Division most likely to obtain the facts
relevant to the matter or matters at issue. The Hearing Officer will
allow the presentation of evidence at the hearing without regard to
whether the evidence was known to the agency officer, employee, or
committee making the adverse decision at the time the adverse decision
was made. The Hearing Officer may confine the presentation of facts and
evidence to pertinent matters and exclude irrelevant, immaterial, or
unduly repetitious evidence, information, or questions. The Hearing
Officer may request or permit individuals other than those appearing on
behalf of the appellant to present information or evidence at such
hearing. The appellant shall have the opportunity to present oral and
documentary evidence, oral testimony of witnesses, and arguments in
support of the appellant's appeal; controvert evidence relied on by the
agency; and question all witnesses. When appropriate, agency witnesses
requested by the appellant will be made available at the hearing. Any
evidence may be received by the Hearing Officer without regard to
whether that evidence could be admitted in judicial proceedings.
(iii)(A) Official recording of the hearing in the form of a
verbatim transcript may be made if:
(1) The appellant or the agency requests the Hearing Officer to
arrange for such a transcript at least 14 days prior to the hearing and
agrees to pay the expenses of the transcription service; or
(2) The Director determines that such a transcript is appropriate.
(B) In cases in which the appellant requests the transcript, the
Hearing Officer will provide the appellant and the authorized
representative with the name of the transcription service and an
estimate of the cost of such service. After receiving an estimate of
such cost, the appellant may withdraw the request for transcription
services prior to the hearing, but, in such cases, the appellant will
be responsible for all costs to the Division associated with the
cancellation of such service. Unofficial recording of a hearing by a
voice recorder or the use of an unauthorized transcription service may
be permitted but such recording shall not be an official recording of
the hearing and will not be made part of either the hearing record or
the case record.
(5) Absence of parties. (i) If at the time scheduled for the
hearing either the appellant or the agency representative is absent,
and no appearance is made on behalf of such absent party, or no
arrangements have been made for rescheduling the hearing, the Hearing
Officer has the option to cancel the hearing, in which case the Hearing
Officer will:
(A) Treat the appeal as a record review and issue a determination
based on the agency record as submitted by the agency and the hearing
record developed prior to the hearing date;
(B) Accept evidence into the hearing record submitted by other
persons present at the hearing, and then issue a determination; or
(C) Dismiss the appeal.
(ii) In appropriate cases, the Hearing Officer will add any
additional evidence to the hearing record, provide a copy of such
evidence to the absent party or parties, and allow the absent party or
parties 10 days to provide a response to such additional evidence for
inclusion in the hearing record.
(6) Post-hearing procedure. The Hearing Officer will leave the
hearing record open after the hearing for 10 days, or for such other
period of time as the Hearing Officer shall establish, to allow the
submission of information by the appellant or the agency, to the extent
necessary to respond to new facts, information, arguments, or evidence
presented or raised at the hearing. Any such new information will be
added by the Hearing Officer to the hearing record and sent to the
other party or parties by the submitter of the information. The Hearing
Officer, in his or her discretion, may permit the other party or
parties to respond to this post-hearing submission.
(d) Interlocutory review. Interlocutory review by the Director of
rulings of a Hearing Officer are not permitted under the procedures of
this part.
(e) Burden of proof. The appellant has the burden of proving that
the adverse decision of the agency was erroneous by a preponderance of
the evidence.
(f) Timing of issuance of determination. The Hearing Officer will
issue a notice of the determination on the appeal to the appellant,
personally, the authorized representative, and the agency not later
than 30 days after a hearing or the closing date of the hearing record
in cases in which the Hearing Officer receives additional evidence from
the agency or appellant after a hearing. In the case of a record
review, the Hearing Officer will issue a notice of determination within
45 days of receipt of the appellant's request for a record review. Upon
the Hearing Officer's request, the Director may establish an earlier or
later deadline. If the determination is not appealed to the Director
for review under Sec. 11.8, the notice provided by the Hearing Officer
shall be considered to be an notice of a final determination under this
part.
Sec. 11.8 Director review of determinations of Hearing Officers.
(a) Requests for Director review. (1) Not later than 30 days after
the date on which an appellant receives the determination of a Hearing
Officer under Sec. 11.7, the appellant must submit a written request,
signed personally by the appellant, to the Director to review the
determination in order to be entitled to such review by the Director.
(2) Not later than 15 business days after the date on which an
agency receives the determination of a Hearing Officer under Sec. 11.7,
the head of the [[Page 27049]] agency may make a written request that
the Director review the determination. Any such request may be made by
the head of an agency only, or by a person acting in such capacity, but
not by any subordinate officer of such agency.
(b) Notification of parties. The Director promptly shall notify all
parties of receipt of a request for review.
(c) Determination of Director. (1) The Director will conduct a
review of the determination of the Hearing Officer using the agency
record, the hearing record, the request for review, and such other
arguments or information as may be accepted by the Director. Based on
such review, the Director will issue a final determination notice that
upholds, reverses, or modifies the determination of the Hearing
Officer. The Director's determination upon review of a Hearing
Officer's decision shall be considered to be the final determination
under this part and shall not be appealable. However, if the Director
determines that the hearing record is inadequate, the Director may
remind all or a portion of the determination to the Hearing Officer for
further proceedings to complete the hearing record or, at the option of
the Director, to hold a new hearing.
(2) The Director will complete the review and either issue a final
determination or remand the determination not later than--
(i) 10 business days after receipt of the request for review, in
the case of a request by the head of an agency; or
(ii) 30 business days after receipt of the request for review, in
the case of a request by an appellant.
(3) In any case or any category of cases, the Director may delegate
his or her authority to conduct a review under this section to any
Deputy or Associate Directors of the Division. In any case in which
such review is conducted by a Deputy or Associate Director under
authority delegated by the Director, the Deputy or Associate Director's
determination shall be considered to be the determination of the
Director under this part and shall be final and not appealable.
(d) Equitable relief. In reaching a decision on an appeal, the
Director shall have the authority to grant equitable relief under this
part in the same manner and to the same extent as such authority is
provided an agency under applicable laws and regulations.
Sec. 11.9 Bases for determinations.
(a) The Hearing Officers and the Director are not bound by previous
findings of facts by the agency in making a determination.
(b) In making a determination on the appeal, Hearing Officers and
the Director shall ensure that the decision is consistent with the laws
and regulations of the agency, and with the generally applicable
interpretations of such laws and regulations.
(c) All determinations of the Hearing Officers and the Director
must be based on information from the case record, laws applicable to
the matter at issue, and applicable regulations published in the
Federal Register and in effect on the date of the adverse decision or
the date on which the acts that gave rise to the adverse decision
occurred, whichever date is appropriate under the applicable agency
program laws and regulations.
Sec. 11.10 Effective date and implementation of final determinations
of the Division.
(a) On the return of a case to an agency pursuant to the final
determination of the Division, the head of the agency shall implement
the final determination not later than 30 days after the effective date
of the notice of the final determination.
(b) A final determination will be effective as of the date of
filing of an application, the date of the transaction or event in
question, or the date of the original adverse decision, whichever is
applicable under the applicable agency program statutes or regulations.
Sec. 11.11 Judicial review.
(a) A final determination of the Division shall be reviewable and
enforceable by any United States District Court of competent
jurisdiction in accordance with chapter 7 of title 5, United States
Code.
(b) An appellant may not seek judicial review of any agency adverse
decision appealable under this part without receiving a final
determination from the Division pursuant to the procedures of this
part.
Sec. 11.12 Filing of appeals and computation of time.
(a) An appeal, a request for Director review, or any other document
will be considered ``filed'' when delivered in writing to the Division,
when postmarked, or when a complete facsimile copy is received by the
Division.
(b) Whenever the final date for any requirement of this part falls
on a Saturday, Sunday, Federal holiday, or other day on which the
Division is not open for the transaction of business during normal
working hours, the time for filing will be extended to the close of
business on the next working day.
(c) The time for filing an appeal, a request for Director review,
or any other document, with the Division expires at 5:00 p.m. Eastern
Standard Time or Eastern Daylight Savings time as applicable on the
last day on which such filing may be made.
Done at Washington, D.C., this 12 day of May, 1995.
Dan Glickman,
Secretary of Agriculture.
[FR Doc. 95-12261 Filed 5-19-95; 8:45 am]
BILLING CODE 3410-01-M
