M_440_510 - Part 510 - Appeals and Mediation

Subpart A - NRCS Administration of Appeals and Organization
 

510.0  Administration of Appeals and Organization

A.  National Appeals Staff within NRCS

(1)  Appeals are administrated under the Strategic Planning Accountability (SPA), Compliance Division.  Staff at National Headquarters (NHQ) includes a national appeals and equitable relief specialist, an equitable relief specialist, and a paralegal.  NHQ assists with the monitoring and coordinating of all administrative appeal activities nationwide including development of policy, directives, and guidance; drafting of director review determinations and reconsideration requests; and the representation of NRCS at NAD prehearings and hearings.  NHQ also assists the Office of General Counsel (OGC) and the Department of Justice (DOJ) with administrative appeals and litigation involving NRCS and other USDA agencies in which NRCS has an interest.  NHQ provides guidance and training to NRCS State offices on appeal cases, Equal Access to Justice Act (EAJA) cases, equitable relief, mediation, and litigation matters.

(2)  National Appeals Cadre (NAC) provides assistance towards the appeals workload.  The NAC is composed of NRCS employees nationwide with appeals and mediation expertise and experience specific to NRCS programs and technical determinations.  Cadre members serve in collateral duty assignments with assistance provided at the overall discretion of the State Conservationist.  The State requesting a cadre member’s assistance is responsible for negotiating the use of their services and payment of any appropriate reimbursements with the supervising State Conservationist.  Cadre members provide direct assistance to the States on appeals, EAJA, mediation, and equitable relief, and offer training assistance.  The national appeals and equitable relief specialist is available to consult with cadre members when a situation exceeds the cadre member’s level of expertise.  Additionally, all appeals documents being submitted to the National Appeals Division (NAD) for the Chief’s signature (including requests for director review under 7 CFR Section 11.9 and request for director reconsideration under 7 CFR Section 11.11) will be drafted  by the NAC member and reviewed and finalized by NHQ.  The State appeals coordinator or agency representative should request assistance from cadre members within the appropriate region unless the expertise needed is available only from another region.  Contacts for assistance should be made as early as possible in the appeals process in order for the state to receive timely assistance. 

B.  State Appeals Contact (SAC)

(1)  Each State office will designate at least one employee as the SAC who will be responsible for—

(i)  Ensuring NRCS’s interests in the appeal are properly and adequately represented.

(ii)  Protecting the integrity of NRCS’s programs in all administrative appeal proceedings.

(iii)  Assigning, as appropriate, appeal cases to an NRCS employee for administration.

(iv)  Tracking appeal information in a national database and responding to national inquiries concerning appeals.

(v)  Assisting, to the extent necessary, the employee assigned the case, assembling and preparing the agency record, agency narrative statement, or both.

(vi)  Coordinating appeal activities with agency representative.

(vii)  Monitoring receipt and implementation of final NAD determinations ensuring all NAD determinations are properly and timely implemented.

(viii)  Reviewing and distributing, as appropriate, copies of NAD appeal summaries that are issued by NHQ.

(ix)  Working, and consulting, with NHQ on program issues relating to a specific case, including guidance on national policy and procedure, and, as appropriate, authority to resolve a case.

(x)  The State Conservationist must provide electronic notification to NHQ staff within the Compliance Division of the SAC’s name and contact information.

(2)  The NRCS Appeal Representative Duties

The employees designated or appointed as the NRCS representatives for an appeal are responsible for—

  • Ensuring NRCS’s interests in the appeal are properly and adequately represented.
  • Protecting the integrity of NRCS’s programs in all administrative appeal proceedings.
  • Preparing and assembling NRCS’s agency record by making sure that all relevant and pertinent documents, program operating guidelines, and applicable regulations are included.
  • Ensuring all appeal administrative actions and deadlines are met as provided in Federal regulations and policy or as directed by NAD.
  • Submitting documents as requested to a USDA agency (for example, the Farm Service Agency), mediator or NAD hearing officer; reviewing and providing copies to the agency representative, appellant, and third parties, as applicable.
  • Preparing for the informal or formal hearing including the evaluation of the adverse decision being appealed.  Representatives should be prepared to competently defend any adverse decision appealed by a program participant or applicant and cite the statutory and regulatory authority.
  • Communicating the basis (factual basis and policy and regulation basis) for each adverse decision.
  • Communicating the procedure by which a program applicant or participant can obtain their USDA administrative appeal rights.
  • Understanding the uses of mediation as a tool for potentially resolving an adverse decision (limits and benefits).
  • Knowing when and how to use the waivers, exemptions, variances, and equitable relief provisions of the various programs.
  • Appearing at the NAD in-person hearing as agency’s authorized representative or participating in a teleconference hearing.
  • Reviewing the agency or NAD determinations for appropriate action.
  • Coordinating appeal activities with SAC.
  • Working with SAC in consulting with NHQ on program issues relating to a specific case, including guidance on national policy and procedure, and, as appropriate, authority to resolve a case.
  • Ensuring NAD determinations are properly and timely implemented.
[M_440_510_A - August 2012 - Amend. 91 - August 2012]

Subpart B - General Information

510.10  General Information

A.  What is an Appeal?

An appeal is a written request by a participant requesting a review of an adverse NRCS technical determination or program decision (7 CFR Section 614.2).  A request for mediation is considered an appeal.  The appeal request must be made in writing and sets out the reasons for the appeal and includes any supporting documentation.  The appeal is considered filed when the participant’s request is receipted by the accepting official as indicated in the adverse decision notice. 

B.  Who May Appeal?

USDA program participants, including third parties, who are directly and adversely affected by an NRCS technical determination or program decision made by officials of NRCS may file an appeal.  A participant is any individual or entity who has applied for, or whose right to participate in, or receive, a payment or other benefit in accordance with any program administered by NRCS.  The term does not include those individuals or entities excluded in the definition of participant published at 7 CFR Section 11.1. 

C.  What is an Adverse Decision?

An adverse decision is an administrative decision made by an officer, employee, or committee of NRCS that is adverse to the individual participant and not a matter of general applicability.  Adverse decisions are subject to the National Appeals Division’s (NAD’s) jurisdiction and judicial review.

D.  Sources of Authority for Appeals

The legislation and regulations authorizing the policy and procedures contained within are in figure 510-B1.

Figure 510-B1

Description

Source of Authority

The Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994, Title II

7 U.S.C. Section 6995 et seq.

Public Law 103-354

The Agricultural Credit Act of 1987, Title 5

7 U.S.C. Section 5101 et seq.

The Administrative Dispute Resolution Act of 1996

Public Law 104-320

National Appeals Division (NAD) Rules of Procedure, Final Rule, 64 FR 33367, June 23, 1999, and Notification of Modified Privacy Act, 69 FR 57254, September 24, 2004

7 CFR Part 11

Natural Resources Conservation Service (NRCS) Appeals Procedures, Final Rule, 71 FR 28239, June 11, 2012

7 CFR Part 614

Farm Service Agency (FSA) Appeals Regulation, Final Rule, 71 FR 30568, May 30, 2006, and 70 FR 43262, July 27, 2005

7 CFR Part 780

Note:  The references are current as of August 20, 2010, and are subject to change.

E.  Specific Sources of Authority for Conservation Programs

The procedures within this section apply to title XII and non-title-XII programs.  Figure 510-B2 provides specific conservation program sources of appeal authority.

Figure 510-B2

Conservation Program

Source of Authority

Agriculture Management Assistance Program (AMA)

7 U.S.C. Section 1524(b); 7 U.S.C. Section  2501; 16 U.S.C. Section 3801; 7 CFR Part 1465; Final Rule, 74 F.R. 64591, December 8, 2009

Conservation Reserve Program (CRP) and Conservation Reserve Enhancement Program (CREP) (administered by the USDA-Farm Service Agency in partnership with NRCS)

15 U.S.C. Sections 714(b) and 714(c); 16 U.S.C. Sections 3801-3847; 7 CFR Section 1410; 68 FR 24835, May 8, 2003, as amended 69 FR 26763, May 14, 2004

Conservation Security Program (CSP)

16 U.S.C. Section 3830 et seq. 7 CFR Part 1469, Interim Final Rule, 70 FR 15201, March 25, 2005

Conservation Stewardship Program (CSP)

16 U.S.C. Section 3838 et seq.7 CFR Section 1470, Final Rule, 70 FR 31609, June 3, 2010

Conservation Technical Assistance

7 CFR Part 610

Emergency Wetlands Reserve Program (EWRP)

16 U.S.C. Sections 3837-3837f

7 CFR Part 623, 58 FR 62497, November 29, 1993

Environmental Quality Incentives Program (EQIP)

16 U.S.C. Sections 3839aa-3839aa(8)7 CFR Part 1466, Interim Final Rule, 74 FR 2308,  January 15, 2009

Farm and Ranch Lands Protection Program (FRPP)

7 U.S.C. Sections 3838(h)-3838(i);

7 CFR Part 1491; Final Rule, 74 FR 2809, January 16, 2009

Grassland Reserve Program (GRP)

16 U.S.C. Sections 3838n-3838q;

7 CFR Part 1415; Final Rule, 74 FR 3856, January 21, 2009

Healthy Forest Reserve Program

16 U.S.C. Sections 6571-6578;

7 CFR Part 625, Final Rule, 75 FR 6539, February 10, 2010

Highly Erodible Land and Wetland Conservation (HELC/WC)

16 U.S.C. Section 3801 et seq.;

7 CFR Part 12, Sept 6, 1996

Watershed Protection and Flood Prevention Program

16 U.S.C. 1001 et seq.; 33 U.S.C. 701b-1;

7 CFR Part 622, 49 FR 6078, February 17, 1984

Wetlands Reserve Program (WRP)

16 U.S.C. Section 3837, et seq.;

7 CFR Part 1467, Interim Final Rule, 74 FR 2317, January 15, 2009

Wildlife Habitat Incentives Program (WHIP)

16 U.S.C. Section 3839(bb-1);

7 CFR Part 636; Interim Final Rule, 74 FR 2786, January 16, 2009

Note:  The references are current as of August 20, 2010, and are subject to change.

F.  Decision Categories

The types of decisions may be technical or programmatic:

(i)  Technical determinations (7 CFR Section 614.2).  See Subpart C, “Preliminary and Final Technical Determinations.”

  • Preliminary technical determinations
  • Final technical determinations

(ii)  Program decision (7 CFR Section 614.2).  See Subpart D, “Program Decisions”

G.  Types of Appeals

(1)  Informal Appeals

The goal of the informal appeals process is to maximize opportunity for resolution of factual disputes between participants and NRCS at the lowest possible level within the agency.  The informal appeals process provides opportunity for review by persons or committees with detailed knowledge of natural resources or NRCS programs, knowledge of farming and ranching operations, and expertise in farm and ranch management.  This is in contrast to appeals administered by NAD under rules at 7 CFR Part 11.  While participants have the option to seek review at NAD, typically more difficult and complex unresolved disputes proceed to further appeals before NAD.  Types of informal appeals include—

  • A field visit, office visit, or other designated location meeting site and reconsideration of a preliminary technical determination by the designated conservationist at the local level (7 CFR Section 614.7(b)(1)).
  • Mediation or other forms of alternative dispute resolution of technical determinations or program decisions (7 CFR Sections 614.7(a)(2) and 614.9(b)(2) respectively).
  • An informal hearing before NRCS about programmatic decisions (7 CFR Section 614.9(a)(1)).
  • Informal appeal to the FSA county committee (COC) on final technical determinations and program decisions (7 CFR Sections 614.8(b)(1) and 614.9(a)(3)).

(2)  Formal Appeals

NAD hears formal appeals on final technical determinations and program decisions (7 CFR Sections 614.8(b)(2) and 614.9(a)(4)).  NAD conducts hearings to afford a participant the opportunity to present testimony or documentary evidence or both in order to have a previous determination or decision reversed and demonstrate why an adverse decision was in error.  A NAD hearing is held and conducted within the agency’s authority defined at 7 CFR Part 11.  (See the NAD Hearing Guide NAD Hearing Officer’s Guide.)

H.  Waiver of Preliminary Technical Determination Reconsideration and Review Rights (7 CFR Section 614.7(d))

In order to immediately address application needs or resource issues on the ground, a participant who has received a preliminary technical determination may waive his or her preliminary reconsideration and field review rights in order to obtain expedited finality of the technical determination.  The participant must request the waiver in writing to the State Conservationist (STC).  Upon waiver request review, the STC will issue a final technical determination, as appropriate.

I.  Mediation Option Must Be Offered (7 CFR Section 614.11)

Any USDA program participant that receives an adverse preliminary technical determination or program decision from NRCS must be provided the option to mediate. This authority is set forth in the Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994 (Public Law 103-354; 7 U.S.C. Section 6995 et seq.), and 7 CFR Part 614.

510.11  General Rules

A.  Appealable Issues (7 CFR Section 614.3)

Participants may request an appealability review or an appeal of technical determinations or program decisions with respect to conservation programs and regulatory requirements concerning any of the following issues:

(i)  Denial of participation in a program

(ii)  Compliance with program requirements

(iii)  Issuance of payments or other program benefits to a program participant

(iv)  Technical determinations made under HELC/WC provisions

(v)  Technical determinations that affect program participation or benefits

(vi)  The failure of an official of NRCS to issue a technical determination or program decision

(vii)  All matters relating to correctly applying regulations pertinent to an issue of fact

B.  Nonappealable Issues (7 CFR Section 614.4)

(1)  Generally, only technical determination and program decisions issued in response to a particular request for technical assistance, resulting from compliance or contract reviews, specific agreements, or similar instruments are subject to appeal, mediation, or appeal.  The following issues are not appealable:

(i)  Any general program provisions or program policy or any statutory or regulatory requirement that is applicable to similarly situated participants; examples include program application ranking criteria, program application screening criteria, published soil surveys, or conservation practice technical standards included in the local Field Office Technical Guide (FOTG) or electronic FOTG (eFOTG)

(ii)  Mathematical or science-based formulas established under statute or program regulation and program decision or technical determination based solely on the application of those formulas

(iii)  Decisions made in accordance with statutes that expressly make program decisions or technical determinations final or their implementing regulations

(iv)  Decisions issued by another Federal or State agency

(v)  Disapproval or denials of assistance due to lack of agency funding or lack of agency authority

(vi)  Decisions based on technical information provided by another Federal or State agency (e.g., lists of endangered and threatened species)

(vii)  Corrections by NRCS of errors in data entered on program contracts, easement documents, loan agreements, and other program documents

(viii)  The fairness or constitutionality of Federal laws

(ix)  Decisions based on requirements and conditions of an easement

(x)  Issues of discrimination

(2)  Paragraph (1) describes issues that are not appealable.  Decisions involving cases that do not have any disputes of fact are not appealable.  Participants have the right to appeal when there is a question of fact or when there is some dispute as to the correct application of a rule, regulation, or generally applicable provision.  However, participants may not appeal the rules, regulations, or generally applicable provisions themselves. 

(3)  Letters notifying participants that a decision is not appealable must clearly explain to the participant the reasons the decision is not appealable.  Avoid using general or vague statements that do not sufficiently demonstrate the reasons that the decision is not appealable.  After fully explaining the adverse decision according to policy in this part and the reasons why the facts in the case are not in dispute, include the following language in the adverse decision:

“NRCS has determined that the issue is not appealable.  You may seek a review of this determination by filing with the National Appeals Division (NAD) director a written request no later than 30 calendar days after the date you receive this notice in accordance with the NRCS appeal procedures found at 7 CFR Part 614 and the NAD appeal procedures found at 7 CFR Part 11.  If you believe that this issue is appealable, you must write to the NAD director at the applicable address shown and explain why you believe this determination is appealable.  If you seek an appealability review with the NAD director, provide NRCS a copy of your request.  [Insert NAD addresses.]”

(4)  Any participant who receives a nonappealable determination may request an appealability review of the NAD director.

C.  Appealability Reviews (7 CFR Section 614.13)

A request must be filed not later than 30 calendar days after notification that an issue is not appealable.  The NAD director or designee will determine whether the issue is adverse to the participant, and thus appealable, or is a matter of general applicability and not appealable.  The NAD director's determination is final and not subject to review.

D.  Issues Not Subject to This Policy (7 CFR Sections 614.4 (b) and (c) and 7 CFR Section 11.1)

The following issues are not subject to the policy contained in this part:

(i)  Appeals of contractual issues subject to the jurisdiction of the Agriculture Board of Contract Appeals.  (The Board of Contract Appeals is a separate USDA entity that adjudicates contract issues related to procurement, service, and rental agreements.)

(ii)  Complaints resulting from program delivery discrimination subject to USDA civil rights rules and regulations.

(iii)  Complaints from persons not associated with the farm (such as neighbors who claim offsite impacts) that are handled through the USDA whistleblower procedures.

E.  Witness Testimony

When appropriate, agency employees may be requested by the appellant to serve as witness.  These employees will generally be made available for appeal hearings. Witnesses may also be required to attend a proceeding as a witness by subpoena if the agency determines the requested witness will not testify at a NAD hearing.  Employees who receive a request to testify at an appeal hearing or are subpoenaed must immediately notify their supervisor and the STC or designee.  The employee may not provide any statements to the NAD hearing officer or the appellant without the prior knowledge and consent of the STC.

F.  Authority of the Chief (7 CFR Section 614.5)

The Chief of NRCS or a designee has the authority to make or modify any decision or determination for any of the programs that NRCS administers.  The Chief may also revise or modify in writing, with sufficient reason given, any program decision or technical determination made by an NRCS official.

G.  Reopening Appealed Decisions or Determinations

(1)  A reopening of a case will not be considered if the matter has been appealed to, or is being considered by, a higher reviewing authority.

(2)  Cases may be reopened by the State Conservationist at the appellant’s request to accept additional evidence not privy towards the previous review. 

(3)  If warranted, a new, corrected determination or technical decision will be issued.  The notification must either rescind or amend the previous decision or determination and provide the basis for such action. (See Section 510.13, “Notification.”)

Note:  Do not use this process to accept and allow appeals of technical determinations or program decisions in which the request was not receipted within the specified period.  This authority is provided solely to allow the STC the discretion to reopen a case after an informal hearing if the evidence presented by NRCS, the appellant, or a third party warrants further review.

H.  Civil Rights Program Delivery or Discrimination Complaint or Bankruptcy Involved

(1)  NRCS will notify persons of their right to file a program discrimination complaint with the Civil Rights Division, NRCS, if it becomes apparent that discrimination has occurred.

(2)  The Civil Rights Division will be notified of any potential civil rights complaint that arises due to the appeal review process.

Note:  The agency will receive direction from NAD regarding implementation of NAD decisions that are adverse to a participant while a related discrimination complaint or bankruptcy by the same individual is pending.  NAD procedures provide NAD will continue an appeal if appellant has a pending discrimination complaint; however, NAD will dismiss an appeal from an appellant in bankruptcy with leave to refile.  NAD regulations require NRCS to implement NAD’s final decisions not later than 30 days after the effective date of the notice of the final determination (see 7 CFR Section 11.12(a)).

510.12  Agency Record (7 CFR Section 614.6(a))

A.  Definition

The term “agency record” means all documents and materials, including documents submitted by the participant and those generated by the agency, that were relied upon to make the adverse determination or decision.  The agency record contains all materials related to an appeal.  It should be prepared when the appeal request is made.  It should be prepared and assembled assuming that those reviewing the record have no prior knowledge of the case or procedure governing the case. 

B.  Required Content

(1)  The agency record must contain the following:

(i)  Appeal summary (See Subpart G, Section 510.62, Exhibit 10, “Summary Outline for an Appeal”)

(ii)  Chronology of events specific to determination or decision that is under appeal, issues considered, or both

(iii)  The technical determination or program decision under appeal

(iv)  All materials included in the agency record that provide findings of fact for the issues under appeal

(v)  All materials relied upon in issuing the technical determination or program decision

(2)  This could include numerous items, depending on the scope of the adverse decision. Please refer the checklist that can be developed to help identify the documentation required to place in the agency record and to indicate which documents have been included. (See subpart G, section 510.62, exhibit 2.)

C.  Agency Record Organization

(1)  Materials included in the agency record may be organized using an exhibit-based format, as shown in subpart G, section 510.61, exhibit 1.

(2)  NAD procedure requires that all materials submitted as the agency record be organized, marked numerically in the lower right hand corner of the document, easy to find, follow, and use during the hearing.  (See section 510.52D for labeling requirements.  Also see the NAD Hearing Officer’s Guide.)

D.  Record Maintenance

NRCS will always maintain the original copy of the agency record, including all original documents.  All copies of documents must—

(i)  Be completely legible.

(ii)  Contain all the required signatures, dates, and pages.

(iii)  Show both sides of all two-sided documents, regardless of the nature of the information on the back, including contracts, appendices, etc.  The agency record documents should be one-sided (8½ inches by 11 inches) whenever possible. 

E.  Record Transmission

(1)  Each NRCS office must ensure that a complete copy of the agency record is transmitted, as applicable, to all appropriate parties.

(i)  The appellant and any authorized representatives

(ii)  The agency, group, or individual conducting the appeal

(iii)  Potential third parties whose interests might be adjudicated by the appeal decision

Note:  The agency record must be furnished to all parties to the appeal at no charge.  Furthermore, charges are not to be made for photocopying, reprinting of FSA compliance slides, or similar reproduction costs associated with providing the agency record in an appeal.

(2)  The State office must maintain all original materials in the agency record for all appeals, including all records and correspondence associated with a specific appeal. File and maintain these records in accordance with the Records Guide, Title 120, General Manual, Part 408.  Appeal records must be retained for a minimum of 5 years.

510.13  Notification (7 CFR Section 614.6(b))

A.  Decision Notices

Generally, to minimize confusion on the part of participants, NRCS will not issue letters that provide participants opportunity to challenge, seek reconsideration, or appeal favorable decisions.  NRCS is required by law and regulation to notify participants of adverse decisions and their appeal rights. 

B.  Decision Notice Content

(1)  The notification letter should use plain and simple language and terminology, with an explanation of acronyms and abbreviations that participants and others can easily understand.  Notification should contain as much information as possible summarizing all pertinent information and program provisions that are relevant to the determination.  A good notification letter adequately summarizes and explains the facts of a case and requires little additional information to explain what is at issue in an agency determination or decision.  The notification letter is the starting point for the next administrative review authority.

(2)  Notification letters must contain the following: 

(i)  A background or brief narrative explaining the reason for the letter. 

(ii)  NRCS finding of facts that provide the basis for the technical determination or program decision.  These include the pertinent facts based on evidence that is specific to the determination, decision or issue considered in making the decision.

(iii)  The regulatory, statutory, or policy basis for the technical determination or program decision and how the facts or findings relate to the information cited.

(iv)  NRCS’s decision based on the facts applied to the general program provision.

(v)  The information regarding any informal appeal rights applicable to the determination or decision, the process for requesting an informal appeal, and the procedure for requesting further review before the FSA COC or NAD.  The following options must be provided in each notification letter specific to the determination or decision:

  • For Preliminary Technical Determinations

--  “You may request that the [insert district conservationist or designated conservationist, as applicable] reconsider this determination by filing a written request no later than 30 calendar days after you receive this notice in accordance with the NRCS’s appeal procedures found at 7 CFR Part 614. If you request reconsideration, you have the right to a field visit, office visit, or other designated location meeting site for an informal review with the decisionmaker.  During the review you or your representative may provide additional information and discuss the facts relating to the preliminary technical determination.  If you choose to seek reconsideration, you may appeal the determination to the FSA county committee (COC) or the National Appeals Division (NAD).  To request reconsideration, write to the [insert district conservationist or designated conservationist, as applicable] at the following address and explain why you believe this determination is erroneous.  [Insert address]”

--  “Mediation is available as part of NRCS’s informal appeal process.  Mediation may enable NRCS to narrow the issues and resolve the matter by mutual agreement.  You may have to pay all or part of the cost of mediation. If you request mediation, the running of the timeframe in which you may file an appeal stops.  When mediation closes, the clock restarts and you will have the balance of the days remaining in that period to file an appeal.  To request mediation, you must submit your written request no later than 30 calendar days after you receive this notice.  To request mediation, write to the [insert State name] State mediation program at the following address and provide a copy of your request for mediation to NRCS.  [Insert mediation program address or other address as agreed on by the State certified mediation program and State office]”

  • For Final Technical Determinations

--  “You may appeal this determination to the FSA county committee (COC) by filing a written request no later than 30 calendar days after you receive this notice in accordance with the FSA appeal procedures found at 7 CFR Part 780.  If you appeal to the COC, you have the right to an informal hearing that you or your representative may attend either personally or by telephone.  To appeal, write to the COC at the following address and explain why you believe this determination is erroneous.  [Insert COC address]”

--  “Alternatively, you may appeal this determination to the National Appeals Division (NAD) by filing a written request no later than 30 calendar days after you receive this notice in accordance with the NAD appeal procedures found at 7 CFR Part 11.  If you appeal to NAD, you have the right to a hearing that you or your representative may attend.  Once a hearing with NAD begins, you waive any rights to reconsideration, an appeal to FSA, and mediation.  To appeal, you must write to NAD at the following address, explain why you believe this determination is erroneous, and provide a copy to FSA.  You must personally sign your written appeal to NAD and include a copy of this letter.  [Insert NAD address]”

  • For Program Decisions

--  “Mediation is available as part of NRCS’s informal appeal process.  Mediation may enable us to narrow the issues and resolve the matter by mutual agreement.  You may have to pay all or part of the cost of mediation.  If you request mediation, the running of the timeframe in which you may file an appeal stops.  When mediation closes, the clock restarts and you will have the balance of the days remaining in that period to file an appeal.  To request mediation, you must submit your written request no later than 30 calendar days after you receive this notice.  To request mediation, write to the [insert State name] State mediation program at the following address and provide a copy of your request for mediation to NRCS.  [Insert mediation program address or other address as agreed on by the State certified mediation program and State Office]”

--  “You may request that the NRCS State Conservationist  (STC) reconsider this decision by filing a written request no later than 30 calendar days after you receive this notice in accordance with NRCS’s appeal procedures found at 7 CFR Part 614.  If you request reconsideration, you have the right to an informal hearing with NRCS STC that you or your representative may attend personally or by telephone.  If you choose to seek reconsideration, you may later appeal the decision to NAD.  To request reconsideration, write to the NRCS STC at the following address and explain why you believe this determination is erroneous.  [Insert applicable address]”

--  “You may appeal this decision to the FSA county committee (COC) by filing a written request no later than 30 calendar days after you receive this notice in accordance with the FSA appeal procedures found at 7 CFR Part 780.  If you appeal to the COC, you have the right to an informal hearing which you or your representative may attend either personally or by telephone.  To appeal, write to the COC at the following address and explain why you believe this decision is erroneous.  [Insert COC address]”

--  “You may appeal this decision to NAD by filing a written request no later than 30 calendar days after you receive this notice in accordance with the NAD appeal procedures found at 7 CFR Part 11. If you appeal to NAD, you have the right to a hearing that you or your representative may attend.  Once a hearing with NAD begins, you waive any rights to reconsideration, an appeal to FSA, and mediation.  To appeal, you must write to NAD at the following address, explain why you believe this determination is erroneous, and provide a copy to FSA.  You must personally sign your written appeal to NAD and include a copy of this letter.  [Insert NAD address]”

  • Denial of Equitable Relief

--  “You may appeal a determination of the decision to deny equitable relief to the National Appeals Division (NAD) by filing a written request no later than 30 calendar days after you receive this notice in accordance with the NAD appeal procedures found at 7 CFR Part 11 and  Section 614.9(e) and Final Rule, 77 FR 34186, June 11, 2012.   If you appeal to NAD, you have the right to a hearing that you or your representative may attend.  Once a hearing with NAD begins, you waive any rights to reconsideration, an appeal to FSA, and mediation.  To appeal, you must write to NAD at the following address, explain why you believe this denial is erroneous, and provide a copy to NRCS.  You must personally sign your written appeal to NAD and include a copy of this letter. [Insert NAD address]”

C.  Notice Timing and Documentation (7 CFR Section 614.6)

(1)  The steps in the appeals process follow strict timelines.  In order to document adherence to timeframes, documentation is important when issuing decision notices.

(2)  Notices may be delivered in any of the following manners:

(i)  Mailed certified return receipt (for documentation of receipt)

(ii)  Mailed using any other method of delivery notification available from the U.S. Postal Service

(iii)  Hand delivered (if hand delivered, participants must acknowledge receipt of notice in writing)

510.14  Mediation (7 CFR Section 614.11 and 7 CFR Part 785)

A.  Mediation Option

Participants who request mediation must file their request within 30 days of receiving an adverse preliminary technical determination or a program decision.  Mediation requests must be made to the NRCS official designated in the decision notice (see 7 CFR Section 614.11(a)).

B.  Mediation (See Subpart E, “Mediation”)

A qualified mediator will facilitate disputes.  The mediator has no decisionmaking authority.  A qualified mediator is a neutral third party who serves as an impartial facilitator between two or more disputants to assist them in resolving a dispute.  The mediator helps the parties identify areas of agreement and encourage the parties to explore potential options toward resolution.

C.  Mediation Settlement Timeline

The parties will have 30 days from the date of the first mediation session to reach a settlement agreement.  This date can be extended upon agreement of the parties.  The mediator will notify the State Conservationist whether the parties have reached an agreement (see 7 CFR Section 614.11(c)).

D.  Also see Subpart E, “Mediation” (for USDA certified mediation programs).

510.15  Appeals to FSA County Committees (7 CFR Sections 614.10 and 780.11)

A.  Decisions Appealable Before the Farm Services Agency COC

(1)  A participant may appeal a final technical determination or a program decision to the FSA COC for decisions made under title XII. 

(2)  The appeals rules contained in 7 CFR Part 780 and policy included in the Farm Service Agency Handbook 1-APP apply to all appeals of technical determinations to the FSA county or area committee.

(3)  The following Web sites provide access to the applicable FSA directives:

(i)  FSA Handbook Notices

(ii)  FSA Handbooks

B.  County Committee Authorities

The FSA COC does not have the authority to overrule an NRCS decision.  Their role is to hear the participant’s case and determine whether they believe there is enough evidence that the NRCS State Conservationist should reconsider the adverse decision.

C.  Process for Appeals to the FSA County Committee

(1)  The participant may make a written request for an informal appeal by the applicable FSA county committee within the applicable timeframe as provided in the decision notice COC.

(2)  The COC will discuss the merits of the appeal at a COC meeting.  An NRCS representative must be present during the FSA COC hearing or meeting.

(3)  If the local COC finds merit in appeal, the FSA county executive director (CED) must send the case record and findings of merit to the FSA State executive director (SED) requesting review.

(4)  The FSA SED will send a letter to the NRCS STC to review the case and reconsider the NRCS decision.

Note:  If the STC issued the final decision during reconsideration or through the informal hearing process, NRCS may choose not to review the appeal under consideration by the COC if there are no new findings or issues to consider.

(5)  The STC will consult with the State appeals contact and designate an appropriate NRCS official to gather any additional information necessary for review of the adverse decision or determination.  The NRCS official is to obtain additional oral and documentary evidence from any party with personal or expert knowledge about the facts under review.  A field visit may be required.

(6)  NRCS will provide a written appeal response that contains the following:

(i)  A background or brief narrative explaining the reason for the response.

(ii)  Statement of issues being addressed

(iii)  The factual findings that provide the basis for the response.  These include the pertinent facts based on evidence that is specific to the issues under appeal. 

(iv)  The regulatory, statutory, or policy basis for the appeal response and how the facts or findings relate to the information cited.

(v)  The STC’s decision based on the issues under appeal and the facts applied to the general program provisions.

(vi)  NRCS will provide the response with a copy of any additional information and evidence gathered during the review.

(7)  FSA will complete the appeal notification to the participant.

510.16  Appeals to NAD

A.  NAD Organizational Structure (7 CFR Section 11.2)

(1)  NAD is an agency within the USDA, independent from all other agencies and offices of the Department.

(2)  The NAD National Headquarters office is located in Alexandria, VA.  The agency is organized into three regions. (See subpart G, exhibit 5, for the NAD regional office addresses and the States served by the specific regional office.)

(i)  Eastern Regional Office ­– Indianapolis, IN.

(ii)  Southern Regional Office – Cordova, TN.

(iii)  Western Regional Office – Lakewood, CO.

(3)  NAD hearing officers are located in offices throughout the United States.  Hearing officers serve one or more States and are assigned cases by the NAD regional office.

B.  Functions

Through the NAD appeals process, participants in USDA programs are afforded an opportunity for a hearing before an independent hearing officer who is not bound by any prior agency findings of fact.  The hearing officer will make relevant findings of fact and must apply the law and regulations of the agency to the facts of the case.

C.  Also see subpart F.

510.17  Exhaustion of the Appeals Process

A.  When Appeal Rights are Exhausted

Appeal rights are exhausted and the appeal process is final when one of the following occurs:

(i)  The participant has not requested an appeal within 30 calendar days of the final technical determination or program decision.

(ii)  Within 30 calendar days of a State Conservationist review of programmatic decisions, and no additional appeal is requested.

(iii)  Within 30 calendar days of an FSA county or area committee final decision, and no additional appeal is requested.

(iv)  After a final technical determination or technical decision has been agreed upon through mediation.

(v)  After a NAD hearing officer issues a final appeal determination and neither the agency nor the appellant requests a director review.

(vi)  After a decision is rendered by the NAD director on a request for a director review, and neither the agency nor the appellant requests a reconsideration.

(vii)  After a decision is rendered by the NAD director on reconsideration of a previous director decision.

B.  Judicial Relief (7 CFR Section 614.17)

An appellant may not seek judicial relief in a United States District Court of competent jurisdiction until all administrative remedies provided by NAD are exhausted and a final decision is issued in the appeal.

510.18  Guidelines for Rescinding an NRCS Adverse Decision 

A.  Generally, NRCS should rescind an adverse determination or decision only when some error is detected or when it is determined to be in NRCS’s best interest, and possibly the participant’s best interest, to rescind the incorrect or misleading determination.  A rescission immediately removes the adverse decision out of the administrative review process.  At any time an appeal is pending before NAD, NRCS may rescind the adverse determination or decision if the action is warranted.  NRCS must notify the appellant, any agency representatives, and NAD if a determination or adverse decision is rescinded.  The agency is not required to state why it has chosen to rescind its adverse decision.

B.  Although exceptions may exist, an adverse NRCS determination or decision generally may not be rescinded after NAD has ruled on the issues under appeal. 

Note:  Caution should be exercised before rescinding any adverse decision.  Only those authorized NRCS appeal representatives and authorized NRCS officials may rescind the adverse decisions. (e.g., the STC is the only authority that can rescind a final technical determination or a program decision).

[M_440_510_B - August 2012 - Amend. 91 - August 2012]

Subpart C - Preliminary and Final Technical Determinations

510.20  General Information

A.  General Information

This subpart provides the procedures for informal review and appeal of preliminary and final technical determinations.

B.  Preliminary and Final Technical Determinations

(1)  Participation in programs is often related to technical decisions of highly erodible land (HEL) and wetland compliance (WC).  Disputes arising from an adverse technical determination vary in complexity and feasibility of resolution.  Therefore, the availability of effective, informal appeal procedures is central to NRCS’s goal of achieving just, speedy, and cost-effective resolutions.  Accordingly, this rule sets forth three separate means of informal appeal:  mediation, reconsideration, and hearing.  The text of the rule provides appeal options in the alternative, meaning a participant must choose one avenue of appeal.  This structure was adopted in order to facilitate efficient resolution of disputes.  The following sections describe each of the appeal options available to participants.  A request for reconsideration, mediation, or appeal is considered “filed” on the date—

(i)  The request was personally delivered, in writing, to the appropriate reviewing authority.

(ii)  Of postmark, if the request is mailed and properly addressed with adequate postage paid.

·  If a request is received by mail and does not have a postmark, was not properly addressed, or had postage due, the request is  considered filed on the date the request was received by the appropriate reviewing authority.

(iii)  A complete FAX copy is received by the reviewing authority.

(2)  All requests will be receipted with date of filing.  A participant does not have a right to an exception to the time limit set for filing requests for appeal ability, reconsideration, mediation, or appeal within NRCS.  An NRCS decision not to accept a late-filed appeal is final and not subject to further review or appealability review. 

(i)  If written requests for reconsideration, mediation, or appeal are received beyond the time period specified in the determination or decision notice, the NRCS reviewing authority will notify the participant that the request (for reconsideration, mediation, or appeal) was either of the following:

·  Not filed timely with NRCS, and therefore, will not be further processed

·  Considered not timely filed, but that the participant has 7 workdays to provide the Farm Service Agency (FSA) a written explanation of why the late-filed request (for reconsideration, mediation, or appeal) should be accepted for further processing

(ii)  NRCS has authority and discretion to accept late filed requests, if the circumstances warrant such action.  The reviewing authority must document, in writing, the reasons for accepting a late-filed request and provide acknowledgement of appeal receipt to the participant.

(3)  If the participant seeks reconsideration, mediation, or appeal with a properly filed request, NRCS will issue an acknowledgement letter providing pertinent information towards the appeal process. 

(i)  Of the right to an informal hearing or meeting with the reviewing authority

(ii)  That a copy of the agency record will be sent to the appellant’s address of record in advance of the hearing or mediation

(iii)  Of the scheduled date, time, and location of the hearing or meeting with agency allowing at least 10 calendar days notice

(iv)  That the hearing may be a personal hearing or may be by telephone, if sufficient telephone equipment is available

(v)  That if the appellant or representative cannot, or chooses not to, attend the hearing or meeting, the appellant may submit written comments before the scheduled review

(vi)  That the Government does not reimburse appellants for expenses incurred with an informal hearing or meeting

(4)  NRCS will send the acknowledgement letter to the appellant and all persons affected by the matter under review notifying them of their right to be present or to submit information for consideration. 

 510.21  Preliminary Technical Determinations (7 CFR Section 614.7)

A.  Preliminary Technical Determination Authority

Until the preliminary technical determination becomes final, NRCS maintains jurisdiction over the issue.

B.  Preliminary Technical Determination Review Process

(1)  A preliminary technical determination becomes final 30 calendar days after the participant receives the decision unless—

(i)  The participant files a written request asking for review of the adverse preliminary technical determination.  The appeal is considered filed when the appropriate official, as indicated in the adverse decision notice, has received the participant’s request.  The participant may request either of the following review processes:

·  Reconsideration with a field visit, office visit, or other designated location meeting site.

·  Mediation (See subpart B, section 510.10 (I), and subpart E.).

(ii)  The participant submits a written request to the State Conservationist to waive his or her preliminary reconsideration and review rights in order to obtain immediate finality of the technical determination.  Upon approval of the waiver request, the participant will be granted those appeal rights available for a final technical determination.  (See section 510.12.)

(2)  State Conservationist may grant expedited finality to those requests that address application needs or resource issues immediately (i.e., wetland restoration) for the determined area. The State Conservationist will provide written notification of approval of waiver and grant those appeal rights available for a final technical determination. 

(3)  Preliminary Technical Determination Reconsideration With a Field Visit, Office Visit, or Other Designated Location Meeting Site

(i)  Participant requests reconsideration of an adverse preliminary technical decision.

(ii)  The designated conservationist sends an acknowledgement letter and secures the agency record and provides a copy of the record to the appellant. 

(iii)  The designated conservationist, participant, and, at the option of the conservation district, a district representative will make a field or office visit or meet with the appellant at a designated location to review the record and determination.  The purpose of the meeting is to gather additional information and discuss the facts relating to the preliminary technical determination.  The participant should provide additional documentation and relevant information concerning the issues of the appealer’s oral statements to the designated conservationist.  The evidence gathered should be added to the agency record. 

(4)  Within 15 calendar days of the visit, the designated conservationist will reconsider his or her preliminary technical determination based on the agency record.  The designated conservationist is to ensure that an accurate and concise written record of the meeting and supplemental information gathered is maintained.  The agency record should include a summary of the appellant’s issues under appeal, names of all persons present at any time during the meeting, proper organization and identification of all materials considered towards the findings and facts, analysis and conclusions afforded the appeal issue(s) (see Section G, Section 510.62, “Summary Outline for an Appeal”).

(5)  If the reconsidered determination is no longer adverse to the participant, the designated conservationist issues the reconsidered determination as a final technical determination.

(6)  If the preliminary technical determination remains adverse, the designated conservationist will send the reconsideration decision and agency record to the STC for an independent review and final determination.  This additional review will consist of the following:

(i)  Review the decision to ensure that all regulations, policy, and procedures are followed.

(ii)  Review the agency record to ensure that the record fully supports the determination.

(7)  If either one of these reviews demonstrates a lack of support for the adverse determination or the issues under appeal, the State Conservationist will either remand the decision back to the field office for supplemental actions and documentation or request a new field investigation by appropriate staff.

510.22  Final Technical Determination (7 CFR Section 614.8)

A.  Issuing the Final Technical Determination

(1)  The STC will issue a final technical determination, with appropriate appeal rights, to the participant as soon as is practicable after receiving the reconsideration and agency record from the designated conservationist.

(2)  The technical determination issued by the State Conservationist becomes a final NRCS decision upon receipt by the participant.

B.  Appealing the Final Technical Determination

Preliminary technical determinations become final and appealable—

(i)  Thirty calendar days after the participant receives the preliminary technical determination unless the determination is appealed in a timely manner.

(ii)  Thirty calendar days after the beginning of a mediation session if a mutual agreement has not been reached by the parties.

C.  Further Appeal Rights

A participant may appeal a final technical determination to either of the following:

(i)  The FSA county committee (see Section 510.15, “Appeals to FSA County Committees, 7 CFR Sections 614.10 and 780.11”).

(ii)  National Appeals Division (see Section 510.16, “Appeals to NAD”).

D.  Authority (7 CFR Section 614.5)

If NRCS finds error on a previously issued final technical determination, the State Conservationist will rescind the determination in error.  The designated conservationist will issue a new preliminary technical determination, providing an explanation of the reason for reversing or modifying the original determination, and provide appeal rights.

[M_440_510_C - August 2012 - Amend. 91 - August 2012]

Subpart D - Program Decisions
   

            510.30  Program Decisions (7 CFR Section 614.9)

Program decisions are final when the participant receives the program decision notice.  Equitable relief is a possible option for NRCS to provide relief to a participant if the participant is in noncompliance with the contract or NRCS standards and specifications, has acted in good faith, and has either been subject to misaction or misinformation by NRCS or has failed to fully comply with NRCS program requirements on a contract that is eligible for equitable relief.

510.31  Appeal Options for Program Decisions

The participant has the following options for appealing program decisions:

(1)  An informal hearing before the NRCS State Conservationist (see 7 CFR Sections 614.9(a)(1) and 614.9(b)-(d)).

(2)  Mediation (see 7 CFR Section 614.9(a)(2)).

(3)  Appeal before the Farm Service Agency county committee (provided that a title XII conservation program decision is being appealed (see 7 CFR Section 614.9(a)(3)).

(4)  A hearing before NAD (see 7 CFR Section 614.9(a)(4)).

510.32  Informal Hearing With the NRCS State Conservationist

While the participant has the option of selecting the appeal process listed above, NRCS prefers to first attempt to address the adverse decision through the informal hearing process with the State Conservationist (see 7 CFR Section 614.9(i)(b)-(c)).

(1)  Initiating the Informal Hearing

A program participant must file an appeal request for a hearing with the appropriate State Conservationist, as indicated in the decision notice, within 30 calendar days from the date the participant received the program decision.  The State Conservationist may waive the 30-day timeline if he or she determines that circumstances warrant such an action.

(2)  Scheduling the Informal Hearing

(i)  The State Conservationist will hold a hearing no later than 30 calendar days from the date that the appeal request is received. 

(ii)  The State Conservationist must—

·  Ask the participant if the hearing will be in person or by telephone.

·  Schedule the date, time, and place of the hearing, if applicable.  The State Conservationist will make a reasonable effort to schedule the hearing at a time and location convenient to the participant.

·  Provide adequate notice to the appellant. 

(iii)  If the appellant does not accept any of the choices, after making every reasonable accommodation and effort, the State Conservationist will establish a date and notify the appellant that the hearing will be held on the date provided.   If the appellant cannot or will not participate on that date, NRCS will not hold a hearing.  Instead, the State Conservationist will issue the NRCS final decision based solely on the administrative record and any documents submitted by the appellant.

(3)  Issuing the Informal Hearing Decision

(i)  The informal hearing record will be closed after the appellant and NRCS have presented their evidence for consideration.

(ii)  The State Conservationist will issue the NRCS final decision following the informal review no later than 30 working days from the hearing record is closed. 

(iii)  If the State Conservationist determines that the evidence presented by the appellant or the agency warrants additional followup or field review, the record may be reopened.  The State Conservationist must send the appellant written notice when he or she decides to reopen the record for any of the following activities:

·  A field review of the evidence presented at the informal hearing

·  A request to the parties for either more information or clarification of the evidence in the record

·  A request for additional testimony

·  Other additional information requiring the record to be reopened

    


      
      

     
    

[M_440_510_D - August 2012 - Amend. 91 - ]

Subpart E - Mediation
    

           510.40  General Information

A.  General Information

This part provides guidelines regarding mediation of adverse program decisions or preliminary technical determinations as governed by 7 CFR Section 614.11.  This subpart is applicable to both title XII and non-title-XII conservation programs as provided by regulation at 7 CFR Section 614.3.  National Appeals Division (NAD) regulations for any mediation program under title V of the Agricultural Credit Act of 1987, 7 U.S.C. 5101 et seq., are found at 7 CFR Section 11.5(c).

B.  Mediation Defined

Mediation means a process in which a neutral third party, the mediator, meets with the disputing parties (the participant and agency representative), to assist them in trying to reach a mutually agreeable resolution or settlement.  Through mediation, the parties have the opportunity to work together with the assistance of the mediator to improve communications, understand the relevant issues, develop and explore alternatives, and reach a mutually satisfactory resolution (see 7 CFR Section 614.2(m)).

C.  Mediation Process

Mediation is a step-by-step process that usually involves the five steps listed in figure 510-E1.

Figure 510-E1

Step

Action

1

Participant receives an adverse preliminary technical determination or program decision and subsequently requests mediation within 30 days of the decision notice (see 7 CFR Section 614.11(a)).

2

Each party gathers facts prior to and shares them during the mediation session.

3

The dispute is mediated by a qualified mediator as defined at 7 CFR Section 614.2.  Relevant issues are discussed and settlement options are evaluated.

4

Parties have 30 days from the date of the first mediation session to reach a settlement agreement unless both parties agree to extend the deadline.

5

A settlement agreement must be in writing, signed by all parties to the mediation, and comply with the applicable statutes, regulations, and policies.  In addition, the participant must waive all appeal and judicial rights as to the issues resolved by the settlement agreement. (See 7 CFR Sections 614.11(c) and 614.11(d)).

D.  Confidentiality

Mediation is a confidential process.  There are no formal witnesses and the mediation resolution agreement may not be disclosed by any of the parties to mediation.

E.  When to Use Mediation

Mediation can be useful when—

(i)  There are multiple issues to be resolved.

(ii)  There is no need to establish a precedent.

(iii)  There is no single "right" solution required.

(iv)  Communication between the parties has broken down.

(v)  Time is a major factor.

(vi)  The failure to agree does not benefit one or more parties.

(vii)  The issues are complex, and individual parties have an interest in maintaining confidentiality.

(viii)  Both parties want or need to maintain a relationship.

Note:  Mediation must be used if the participant selects that option.  NRCS may point out to the participant the benefits of mediation to resolve an issue.

F.  Situations When Mediation Is Not Appropriate

Mediation is not appropriate when—

(i)  There is a need to focus public attention or set a precedent.

(ii)  There is a need for a formal opinion.

(iii)  When the participant wants to utilize the formal appeals process.

Note:  Mediation must be used if the participant selects that option.

510.41  Mediation Availability

A.  Rights to Mediation

Mediation will be offered as an option in the following cases:

(i)  Issuance of an adverse preliminary technical determination (see 7 CFR Section 614.7(a)(2)).

(ii)  Issuance of an adverse program decision (see 7 CFR Section 614.9(a)(2)).

B.  States With a USDA Certified State Mediation Program

(1)  The Secretary has delegated authority to the Administrator of the Farm Service Agency (FSA) to administer grants in support of the USDA Certified State Mediation Program and to certify State mediation programs to establish their eligibility for such grants.  (See 7 CFR Part 785.)

(2)  NRCS must provide the following in an adverse decision notice:

(i)  Certified State Mediation Program contact information

(ii)  The contact information of the designated NRCS official (see 7 CFR Section 614.11(a))

(3)  A listing of Certified State Mediation Programs and means for contact may be found on the NRCS Web Site.

(4)  FSA is responsible for developing and coordinating the administration, funding, and operation of the Certified State Mediation Program in cooperation with other USDA agencies and State mediation programs.

(5)  State Conservationists should work with the FSA State executive director in developing a memorandum of understanding to obtain mediation services.  (See FSA Handbook 1-APP, Part 6, Paragraph 99.)

C.  Uncertified States

For States without USDA Certified Mediation Programs, the State Conservationist must maintain a list of mediators from which a participant may make a selection. The adverse decision notice must include the contact information of the designated NRCS official who may provide a list of mediators. Contact the NRCS national appeals and equitable relief specialist for an updated list of mediators. 

D.  Paying for Mediation

NRCS must pay appropriate and reasonable costs associated with securing mediation services, if requested by the participant.

E.  Reasonable Costs

The following are considered to be reasonable costs:

(i)  State Certified Programs.—The pro rata share is the cost specified for each of the parties in the State Program.

(ii)  Uncertified States.—The pro rata share is determined by dividing the total cost among all the parties in the mediation.

Note:  The State Conservationist may use discretion in deciding what constitutes reasonable costs, as long as the decision to pay more than the pro rata share is not considered to be capricious or arbitrary.

(iii)  If a decision is made to pay more than the pro rata share, the State Conservationist must provide documentation of the reasons for this decision.

F.  Payment Authorization

(1)  Public Law 103-354 (7 U.S.C. Section 6995 and 16 U.S.C. Section 590a(3)) authorizes payment for mediation of NRCS technical determinations or technical decisions.  Payments will be made from the applicable program fund, or, if there are no specific program funds available, the payments for mediation will come from the State's general budget.

(2)  The State Conservationist or the Regional Conservationist makes the final funding decisions.

(3)  Supporting documentation for payment should consist of a letter or report that includes an explanation of—

(i)  The issue being mediated.

(ii)  Facts surrounding the issue.

(iii)  The complexity of the issue.

(iv)  The reason NRCS used mediation.

510.42  Requesting Mediation

A.  Processing Requests

A participant who wishes to pursue mediation must file a request for mediation with the official designated in the decision notice.  This request must be filed no later than 30 calendar days after the date on which the decision notice was received.  This policy is applicable to both the title XII and non-title-XII conservation programs.  Requesting mediation pauses the 30-calendar-day time clock after which the decision becomes final. If mediation is unsuccessful, the 30-calendar-day time clock will restart with the remaining balance of the 30 calendar days.  The following guidance is provided.

Figure 510-E2

Program Type

Guidance

Certified State

NRCS will provide the participant with the name, address, telephone, and FAX of the designated NRCS contact and the State Mediation Program manager in the decision notice.  If the participant files a timely request for mediation through the NRCS contact, NRCS will forward the participant information along with the adverse decision to the State Mediation Program manager.

Uncertified State

NRCS will provide the participant with the name, address, telephone, and FAX of the designated NRCS contact in the decision notice.  If the participant files a timely request for mediation through the NCRS contact, NRCS will provide a list of mediators which has been prepared in accordance with section 510.41(C).  NRCS officials must assist in making arrangements for the mediation session.

Note:  Participants in mediation may be required to pay fees established by the mediation program (see 7 CFR Section 614.11(a)).

B.  Mediator Selection

In States without a USDA Certified State Mediation Program, the participant may request that a qualified mediator be added to the current NRCS list.  If the mediator meets the requirements established by 7 CFR Section 614.2, the State Conservationist may add the mediator to the list.

510.43  Responsibilities and Roles

A.  Roles of NRCS

(1)  NRCS and all relevant parties must agree to mediate in good faith.  NRCS demonstrates good faith in the mediation process by, among other things (see 7 CFR Section 614.11(e))—

(i)  Designating an NRCS representative in the mediation.

(ii)  Making pertinent records available for review and discussion during the mediation.

(iii)  To the extent that the NRCS representative does not have authority to bind the agency, directing the NRCS representative to forward in a timely manner any written agreement proposed in mediation to the appropriate NRCS official for consideration.

Note:  Preference should be given to designating an NRCS representative who has authority to bind the agency in cases when this authority is possible.

(2)  NRCS is also obligated to—

(i)  Demonstrate consideration for participants who choose mediation.

(ii)  Set a positive, constructive tone in mediation sessions.

(iii)  Cooperate with requests for information or analysis of information made in the course of mediation.

(iv)  Encourage a positive, constructive approach by other participants in the session.

(v)  Make a conscientious effort to identify and explore additional options that may resolve the dispute, including equitable relief, if applicable.

(vi)  Ensure that any agreement reached during the mediation process is consistent with statutes, regulations, and policy governing the program.

B.  Role of the Mediator

(1)  Mediators have no authority to bind the participants in mediation.  The mediator's role is to (see 7 CFR Section614.2)—

(i)  Lead the mediation participants and help make discussion easier.

(ii)  Assist in planning the agenda, setting up the equipment, and maintaining the session climate.

(iii)  Establish the ground rules and maintain the participant's focus.

(iv)  Encourage participation.

(v)  Take notes or provide for note taking.

(vi)  Engage the participants in brainstorming potential options toward issue resolution.

(vii)  Safeguard the process to ensure that no party in the mediation session is unfairly pressured.

(viii)  Assist in drafting any mediated settlement agreement.

(2)  Mediator Impartiality

No person may serve as a mediator in an adverse dispute who has previously served as an advocate or representative for any party in the mediation.  Furthermore, no person serving as mediator may thereafter advocate for a participant in any other proceeding arising from or related to the mediated dispute (see 7 CFR Section 614.11(f)).

C.  Roles of the Participants

The participant's responsibilities are to—

(i)  Gather all documents relevant to the dispute.

(ii)  Make a list of all participants, including appropriate business partners, relatives, and USDA or other Federal officials who need to be involved in the session and provide this list to NRCS and the mediator prior to the first mediation session.

(iii)  Consider what is most important to the other participants of the dispute:

·  What are the options?

·  What are the alternatives?

(iv)  Keep an open mind.

(v)  Identify all relevant information that may help resolve the dispute.

D.  Confidentiality (7 CFR Section 614.11(g))

Mediation is a confidential process except for the limited exceptions permitted by the Administrative Dispute Act at 5 U.S.C. Section 574.  As a condition of participation, the participants and any interested parties joining the mediation must agree to the confidentiality of the mediation process.  The mediator will not testify in administrative or judicial proceedings concerning the issues discussed in mediation, nor submit any report or record of the mediation discussions, other than the mediation agreement or the mediation report, except as required by law.

510.44  Closing Out Mediation

A.  Mediation Settlement Agreements

(1)  Any agreement reached during, or as a result of, the mediation process must conform to the statutory, regulatory, and policy provisions governing the program.  The final settlement agreement becomes part of the official record and all parties are bound to the terms of that agreement.

(2)  Parties in mediation will only be expected to execute an agreement if the mediation results in either of the following:

(i)  Narrowing of the issues in dispute

(ii)  Other steps resolving a program dispute

(3)  The mediation settlement agreement may or may not require NRCS to modify the terms of the adverse decision.  In either case, the mediator must draft an agreement for execution by the participant, NRCS, and any other affected parties that includes at least the following terms:

(i)  A statement of the terms of the parties' agreement on each mediated item

(ii)  For each mediated issue, a statement of the actions that the parties have agreed to take to implement their agreement on the issue and the schedule for such actions, including all contingencies, conditions, terms, obligations, timeframes, and dates, including the date on which the mediation will conclude

(iii)  A statement that the positions set out in the agreement have been reviewed by the participant, NRCS, and other affected parties and reflect their respective understandings of the terms for resolution of the mediated issues

(iv)  A statement that the participant waives all appeal and judicial rights (see 7 CFR Section 614.11(d)) and that breach of the mediation agreement will result in reinstatement of the adverse decision that was subject to the mediation

(4)  The mediator will ensure that all parties receive a copy, fully executed and signed by all participants, of any agreement reached through the mediation.  This will conclude the appeal process on the issues resolved by this agreement.

B.  Participant’s Failure to Perform

A participant’s failure to perform the actions identified by the settlement agreement will cause reinstatement of the adverse decision that was subject to the mediation.  The State Conservationist will give written notification to the participant and other parties to the following:

(i)  The factual basis for NRCS’s determination that the participant has failed to perform under the mediation agreement or that other conditions agreed to by the parties have not been met

(ii)  Notice that the adverse decision is reinstated

(ii)  Notice of the participant’s right to request a NAD review of the decision

C.  Agreed Impasse

(1)  Participants may agree to discontinue a mediation session.  The mediator will document the parties' discontinuance of the mediation session with a report including the following statements:

(i)  The terms of any agreement reached by the parties on a mediated issue

(ii)  That the parties reached an impasse

(iii)  Notification to the parties that the participant may or may not have time remaining to continue the appeal process

Note:  An explanation on how the timeframe for a participant to appeal to NAD is calculated when mediation is unsuccessful is provided in 7 CFR Section 11.5(c).  A participant also has the right to utilize any available alternative dispute resolution (ADR) or mediation program, including any mediation program available under title V of the Agricultural Credit Act of 1987, 7 U.S.C. Section 5101 et seq., in order to attempt to seek resolution of an adverse decision of an agency prior to a NAD hearing.

(2)  If a participant requests mediation or ADR prior to filing an appeal with NAD, the participant stops the running of the 30-day period during which a participant may appeal to NAD under 7 CFR Section 11.6(b)(1), and will have the balance of days remaining in that period to appeal to NAD once mediation or ADR has concluded.  If an agreement is not reached, the mediation process is closed, and the participant may continue to pursue relief through the appeal process through NAD, subject to the availability of any of the originally allotted 30 calendar days (see section 510.32).

D.  Reopening Mediation

Parties may attempt to reopen a mediation that was at an impasse only when all of the following apply:

(i)  The participant requests that the mediation be reopened and additional information is presented that will have an affect on a possible resolution.

(ii)  Additional information is requested by the NRCS decisionmaker.

(iii)  The NRCS official makes a counterproposal and agrees, with written State Conservationist concurrence, that the mediation may be reopened.

E.  Terminating Mediation by a Mediator

(1)  The mediator has the right to terminate mediation when either of the following applies:

(i)  A necessary party in the mediation is not participating in good faith.

(ii)  The mediator determines that the mediation is at impasse.

(2)  As applicable, the mediator will provide a notice of impasse to the State Conservationist and, if applicable, to the State Certified Mediation Program.

(3)  At the time of termination of the mediation, the mediator will provide written notice to the parties that—

(i)  The mediation is closed.
(ii)  Parties may pursue other administrative and legal remedies if any are available.    


      
    

    
 

[M_440_510_E - August 2012 - Amend. 91 - ]

Subpart F - National Appeals Division

           510.50  General Information

A.  National Appeals Division

The National Appeals Division (NAD) of the USDA is an independent agency that hears appeals for USDA agencies specified in 7 CFR Section 11.1, including NRCS.  Appeals to NAD must be made by participants in accordance with NAD regulations at 7 CFR Section 11.1 et seq. Appeals to NAD are subject to strict requirements and timelines.  (See NAD Hearing Guide.)

(i)  Agency Record

Upon notice of an appeal to NAD, NAD will immediately request that NRCS provide copies of the agency record to the appellant and themselves.

(ii)  Prehearing Teleconference (7 CFR Section 11.8(c)(4))

Upon receipt of the agency record, NAD will conduct a prehearing teleconference for all parties involved. The prehearing teleconference will identify all parties, clarify the decision and issues under appeal, and establish the time, date, location, and procedure for the actual formal hearing.

(iii)  Formal Hearing (7 CFR Sections 11.8 (c) and (e)).—The formal hearing may be conducted—

·  In person at a location selected by the hearing officer and the participant.

·  By teleconference.

·  By a review of the agency record and any materials submitted by the appellant.

--  The appellant has the burden of proof in demonstrating agency error in making the adverse decision, including whether NRCS followed the applicable regulations when the decision or determination was issued.  It is NRCS’s, as well as the representative agency’s, responsibility to ensure the adverse decision is correct and follows all applicable regulations and policy.

(iv)  Director Review

Either party to the appeal, NRCS or the appellant, may request a review of the hearing officer’s determination by the NAD director. Director reviews have very strict timelines for submission and response (see 7 CFR Section 11.9)).

(v)  NRCS must implement the final NAD determination no later than 30 days after agency receipt of the determination (7 CFR Section 614.15).

Implementing the final NAD determinations will likely result in a withdrawal of the NRCS technical determination or program decision.  The agency is required to consider that NAD has no authority to assert the technical determination or program decision.  NAD adjudication provides a proving of agency error. 

B.  Ex Parte Communications

(1)  Prohibition

(i)  NRCS employees may not communicate in writing or orally at any time between the filing of an appeal and issuance of the final determination with any NAD employee having any interest in an appeal pending before NAD (see 7 CFR Section 11.7).

(ii)  This prohibition does not apply to—

·  Procedural or administrative matters related to the appeal.

·  Discussions between NRCS and the appellant or third parties on merits of the appeal where all parties have been provided notice of opportunity to participate in the discussions.  In such case, a memorandum of the discussion will be made part of the hearing record (see 7 CFR Section 11.7(a)(1)(ii)). 

(iii)  All discussions on the merits of the appeal in the presence of the NAD hearing officer must be made a part of the hearing record.

(2)  Communications With NAD

(i)  When providing documents to the NAD hearing officer, the NRCS must give the appellant a copy of all written correspondence relating to an appeal, including any attachments.

(ii)  The agency representative should be the only employee to contact NAD during an appeal.  NRCS must notify the appellant before contacting NAD, unless the two exceptions in section 510.50(B)(1)(ii) above apply. The appellant must be given the opportunity to participate in any dialogue regarding the merits of the appeal.

(3)  Documenting Ex Parte Communications

If an employee participating in an appeal believes there has been an ex parte communication that is not documented in the hearing record by the NAD hearing officer, he or she must—

(i)  Provide a copy of all written communications believed to be ex parte communications to the NAD hearing officer and make the communication a part of the agency administrative record (see 7 CFR Section 11.7(c)).

(ii)  Document all oral communications in a memorandum, providing a copy of the documentation to the NAD hearing officer and making the documentation a part of the agency administrative record (see 7 CFR Section 11.7(a)(2)).

(4)  Ex Parte Consequences

Any party to the appeal making an ex parte communication may be required to prove why that party's claim or interest in the appeal should not be dismissed, denied, disregarded, or otherwise have an adverse affect on the outcome of the appeal (see 7 CFR Section 11.7(d)).

510.51  Appeal Rights Under NAD

A.  Participant's Rights

Participants have the right to—

(i)  File an appeal with NAD of any NRCS title XII final technical determination. 

(ii)  File an appeal with NAD of any NRCS program decision for title XII and non-title-XII programs.  File a request with the NAD director to determine the appealability of an NRCS technical determination or program decision (see 7 CFR Section 11.6).  Receive notification of the appeal hearing at least 14 calendar days before the scheduled hearing (see 7 CFR Section 11.8(c) (3)). Request an inperson hearing in the participant's State of residence or a location convenient to the appellant, NRCS, and NAD (see 7 CFR Section 11.8(c)(3)).

(iii)  Participate in a prehearing conference with the NAD hearing officer and NRCS prior to the hearing (see 7 CFR Section 11.8(c)(4)).

(iv)  Have an individual represent them in the NAD appeal process (see 7 CFR Section 11.6(c)).

(v)  A hearing within 45 calendar days of the appeal request (see 7 CFR Section 11.8(c)(1)).

(vi)  Request a NAD director review of a hearing officer's appeal determination (see 7 CFR Section 11.9(a)(1)).

(vii)  Request a reconsideration of the NAD director review determination (see 7 CFR Section 11.11(a)).

B.  Agency Rights

NRCS has the right to—

(i)  Select an agency representative who will represent the agency at the appeal hearing.

(ii)  Participate in a prehearing conference with the NAD hearing officer and appellant prior to the hearing (see 7 CFR Section 11.8(c)(4)).

(iii)  Receive notification of the appeal hearing at least 14 calendar days before the scheduled hearing (see 7 CFR Section 11.8(c)(3)).

(iv)  Participate in the NAD hearing and present the agency's case to support the final technical determination or program decision (see 7 CFR Section 11.8(c)(5)(ii)).

(v)  Request a director review of an NAD hearing officer's appeal determination (see 7 CFR Section 11.9(a)(2)).

(vi)  Request a reconsideration of the NAD director review determination (see 7 CFR Section 11.11(a)).

(vii)  Rescind the agency's adverse technical determination or program decision at any time prior to NAD rendering a determination that adjudicates the issues on appeal. 

C.  Burden of Proof (7 CFR Section 11.8(e))

The appellant has the burden of proving that the NRCS adverse decision was erroneous by a preponderance of the evidence.  This means that the appellant must demonstrate it is more likely than not that the agency's adverse decision is in error.

510.52  NAD Appeal Process

A.  Agency Record (7 CFR Section 11.1)

The agency record, with respect to a NAD appeal, consists of documents contained in the administrative record relevant  to the adverse decision on appeal and are not otherwise protected by other laws, including the Privacy Act.  In all cases, NRCS must include a copy of the adverse decision, all correspondence, legal documents, relevant regulations, statutes, and agency operating procedures relied upon by the agency in reaching the adverse decision.  Additional information regarding the agency record can be found in section 510.50(A)(ii).

B.  Access to Records (7 CFR Section 11.8(a)(1))

The NAD director, hearing officers, the appellant, third parties, and any authorized representatives, such as legal counsel of record, will have access to the agency record for any adverse decision appealed to NAD.

C.  Submitting the Record (7 CFR Section 11.8(b)(1))

The NAD regional office will notify the agency to submit a copy of the agency administrative record.  The agency must promptly submit the record within 10 calendar days of receipt of the request to all parties to the appeal.

D.  Labeling Requirements (NAD Hearing Officer Guide VI(c)(5)) 

The documentary evidence presented at the hearing must be kept organized and as easy as possible to find, follow, and use, throughout the appeal process.  All documents submitted as evidence prior to the prehearing must be labeled numerically in the lower right corner of the page (see NAD Hearing Officer Guide V(c)(5)). 

Example:  "Agency Record, page 1”

E.  Hearing Record (7 CFR Section 11.1)

(1)  The hearing record consists of all documents, evidence, and other materials generated in a NAD hearing.

(2)  All documents that are part of the agency record will be entered into the hearing record.

F.  Transcripts

(1)  The agency may request a verbatim transcript if the State Conservationist determines that a verbatim transcript is necessary to protect the agency's interests.  The agency should only request a verbatim transcript in cases involving the following:

(i)  Extremely sensitive issues

(ii)  High-profile cases

(iii)  Complex cases involving multiple appellants or witnesses

(2)  Either party may request a verbatim transcript be made a part of the official hearing record.  The party requesting the transcript must—

(i)  Pay for the transcription service.

(ii)  Provide a certified copy to the hearing officer free of charge.

(iii)  Allow any other party desiring to purchase a copy of the transcript to order it from the transcription service.

G.  Official Recordings (7 CFR Section 11.8(c)(5)(iii))

An official audio recording will be made of the proceedings of every NAD prehearing and hearing.  This record will be made by an official digital recording by NAD. 

H.  Written Statements

Parties may introduce relevant written statements made by others while the appeal record is open. If the witness who made the statement is not available for questioning, the agency representative should ask sufficient questions to determine the identity and credibility of the witness and the basis for the witness's knowledge.

510.53  NAD Hearings

A.  Prehearing Teleconferences (7 CFR Section 11.8(c)(4))

(1)  Though not required by their Federal regulations at 7 CFR Part 11, NAD will generally hold prehearing teleconferences for every appeal to narrow the issues and disputes and prepare all parties for the appeals process.  A prehearing teleconference will be conducted by telephone with all parties and the hearing officer.  They must be held at least 14 calendar days prior to the NAD appeal hearing.  These teleconferences serve as a tool to ensure the agency's adverse decision and position is clearly understood by the hearing officer and the appellant.

(2)  Prehearing teleconferences allow the parties to—

(i)  Resolve disputes.

(ii)  Clearly define the issues under appeal.

(iii)  Narrow the issues under appeal.

(iv)  Clarify procedure to be followed during the NAD appeal process.

(v)  Stipulate (or agree to) to certain facts that are not in dispute.

Note:  Any and all agency objections regarding NAD's jurisdiction to hear an appeal should be raised and made part of the prehearing record.

B.  Components of the Prehearing Teleconference

(1)  The prehearing teleconference is not intended as an opportunity for the parties to present evidence.  The NRCS representative will be requested to reference the regulatory citations and the applicable agency operating procedures relied upon to issue the adverse decision.

(2)  Prehearing teleconferences may also be used to discuss possible witnesses or exhibits and what evidence must be presented. The hearing officer will also discuss options available to the appellant.

C.  Features of NAD Hearings

(1)  Under NAD rules of procedure, the agency’s adverse decision under appeal is presumed to be correct.  Therefore, while the hearing officers exercise control over the conduct of hearings, normally after both parties have made opening statements, the appellant will be required to submit evidence or make arguments to demonstrate that the appealed adverse decision is erroneous.

(2)  The record of a NAD hearing should exclude irrelevant, immaterial, and unduly repetitive evidence.  The record should only include relevant and credible evidence.

D.  Appellant Options From NAD for Resolving Issues

Appellants have the right to one of the following:

(i)  An Inperson Hearing.—An inperson hearing is the preferred appeal forum for NAD under their “Face-to-Face Fairness” mission statement to adjudicate the issues on appeal (see 7 CFR Section 11.8(c)(5)(i)).

(ii)  A Telephone Hearing.—In this type of hearing, the process is essentially the same as if it were in person.  For the hearing record, parties should identify all individuals present (see 7 CFR Section 11.8(c)(5)(i)).

(iii)  A Record Review.—A record review is an appeal request in which the hearing officer’s appeal determination is based on the agency record and other information submitted by the appellant and the agency, including information submitted by affidavit or declaration (see 7 CFR Section 11.1).  If the appellant requests a record review—

·  The appellant waives the right to an inperson or telephone hearing.

·  Both parties have the option 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.

E.  Hearing Officer Actions (7 CFR Section 11.8(c)(2))

In preparation for the hearing, the hearing officer will set a reasonable deadline for submission of the following documents by the—

(i)  Appellant:

·  A short statement of why the adverse decision is wrong

·  A copy of any document not in the agency record that the appellant anticipates introducing at the hearing

·  A list of anticipated witnesses

·  A brief description of the evidence each witness will offer

(ii)  Agency:

·  A copy of the adverse decision the appellant is challenging

·  A written explanation of the agency's position, including the regulatory or statutory basis, detailing the agency record documents previously submitted to the hearing officer and their significance in support of the adverse 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

F.  Opportunities at Hearings (7 CFR Section 11.8(c)(5)(ii))

Parties to the appeal shall have the opportunity to—

(i)  Present oral and documentary evidence.

(ii)  Present oral testimony of witnesses.

(iii)  Present arguments in support of the party's positions.

(iv)  Dispute evidence relied on by any other party.

(v)  Question all witnesses.

G.  Normal Order of the Hearing

The hearing will be conducted in a manner most likely to obtain the facts relevant to the matters at issue.  Therefore, procedures should conform to the hearing format (see NAD Hearing Officer Guide VI(B)(7)).  The general order of a NAD hearing will be as detailed in figure 510-F1.

Figure 510-F1

Step

Action

1

Hearing officer's opening statement.

2

Appellant's opening statement.

3

Agency's opening statement.

4

Appellant main presentation including—

·  Evidence presentation.

·  Witness testimony.

The agency may cross-examine witnesses. Objections may be noted and ruled on by the hearing officer.

5

Agency main presentation including—

·  Evidence presentation (see subpart G, exhibit 6)

·  Witness testimony.

The appellant may cross-examine witnesses. Objections may be noted and ruled on by the hearing officer.

6

Appellant's rebuttal period.

7

Agency's rebuttal period.

8

Appellant's closing argument

9

Agency's closing argument.

10

Hearing officer's instructions regarding posthearing proceedings, including the NAD director review process, submission of documents, deadline for closing the hearing record, etc.

Note:  This order may be modified by the hearing officer.

510.54  Specific NAD Hearing Procedures

A.  Opening Statement (NAD Hearing Officer Guide VI(B)(9)) 

The NRCS representative should use the opening statement to summarize the evidence in the agency record that supports the agency's adverse decision. (See subpart G, exhibit 7)

Note:  If the agency believes that NAD is hearing a nonappealable issue, an objection to the jurisdictional issues should be made at the prehearing and noted again at the appeal hearing.

B.  Relevant Evidence (7 CFR Section 11.8(c)(5)(ii))

(1)  Only evidence that is relevant to the underlying issues should be submitted to the hearing officer.  Relevant evidence is generally defined as evidence that has any tendency to make the existence of any fact more probable or less probable than it would have been without the evidence.  Hearing officers have the authority to exclude evidence if it is irrelevant or repetitive, though either party may object for the record to any such exclusions.  The NAD regulation (7 CFR Section 11.1, “Definitions”) requires that "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 Section11.8."

(2)  Evidence may be presented in three forms:

(i)  Testimony by the parties

(ii)  Testimony by other witnesses

(iii)  Through documents

(3)  NAD hearing officers may allow presentation of evidence at the hearing by any party without regard to whether the evidence was known to the agency at the time the adverse decision was made.  The formal rules of evidence used in judicial proceedings do not apply to NAD appeal proceedings.

C.  Rebuttal (NAD Hearing Officer Guide VI(B)(11)(g)) 

Each party is afforded the opportunity to present evidence.  This includes an adequate opportunity to rebut the other side's presentation.  It is the hearing officer's responsibility to ensure that each party has sufficient opportunity for rebuttal.

D.  Exhibits and Documentary Evidence (NAD Hearing Officer Guide VI(B)(11)(c)) 

(1)  There may be instances in which documentary evidence presented at a hearing has not been exchanged prior to the hearing.  In such instances, the party seeing information for the first time may ask for time to review the new evidence.  If this happens, the hearing officer may provide time for review by taking a short recess or, in unusual cases, may continue the hearing until a later date.

(2)  Each party has the right to object to evidence before it is accepted into the record. A party may argue that the evidence is irrelevant, cumulative, or unnecessarily prejudicial.  If a hearing officer accepts evidence into the record in the face of an objection, the hearing officer will usually state for the record why the evidence was accepted.  Likewise, if evidence is rejected, the hearing officer will usually make a similar statement for the record.  The mere acceptance of evidence into the record is not indicative that the hearing officer accepts what the evidence purportedly represents. The hearing officer has the authority to determine the appropriate weight accorded to each piece of evidence in the record.

Note:  All materials maintained by the agency related to the adverse decision under consideration that have been submitted as the agency record to NAD will be deemed admitted as evidence (7 CFR Section 11.1).

(3)  The hearing officer also has the right to introduce documents into the record.  If the hearing officer decides to take such action, each party to the hearing will have the opportunity to review evidence and respond accordingly.

(4)  If, for some reason, evidence was not available for the hearing that a party or the hearing officer believes relevant to decide the case, NAD rules allow for the record to remain open for 10 workdays after the hearing, or for whatever time period that the hearing officer establishes for the submission of additional evidence.  The hearing officer has the authority to either adjourn the hearing or to continue the hearing in lieu of the new evidence submission.  (See 7 CFR Section 11.8(c) (7).)

E.  Witness Testimony (NAD Hearing Officer Guide VI(B)(11)(d)) 

(1)  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.

(2)  All witnesses, including the parties involved in the hearing, are required to be sworn in prior to providing testimony.

(3)  When appropriate, agency witnesses requested by the appellant will be made available at the hearing.  An employee who receives a request to testify at an NAD hearing must immediately notify his or her supervisor and the State Conservationist or designee.  The employee may not provide any statements to the hearing officer or the appellant without the prior knowledge and consent of the State Conservationist.

(4)  Both parties may cross-examine all witness.  If the appellant or the appellant's representative asks improper questions, the NRCS representative may object to this practice or may point out to the hearing officer that the representative is asking improper questions.

F.  Closing Statement (NAD Hearing Officer Guide VI (B)(12)).—The NRCS representative should ensure that the agency's closing statement sufficiently summarizes the evidence in the hearing record.  The closing statement should support the agency's adverse decision and refute the appellant's position.

(1)  Example:  "The hearing officer should find the agency’s adverse decision is correct because [state the reasons], [and/or] the appellant failed to meet [his/her] burden of proof because [state the reasons]."

(2)  Written closing statements are generally not necessary or required by NAD.  A written statement should be submitted to ensure program integrity in complex cases, cases that need additional clarification, or other similar cases including record review cases.

(3)  If additional information will be submitted by either party, the NRCS representative should ensure that the hearing officer establish deadlines for the submission of such evidence before the hearing concludes.

G.  Posthearing Procedure (7 CFR Section 11.8(c)(7))

(1)  The hearing officer may leave the hearing record open after the hearing for 10 workdays, or for whatever time period the hearing officer establishes, to allow submission of information by the appellant or the agency, to the extent necessary to respond to new facts, information, arguments, or evidence presented or discussed at the hearing.

(2)  The hearing officer will include any new information submitted in the hearing record. The party submitting the additional information must provide copies to all parties.

(3)  The hearing officer may, at his or her discretion, allow the parties to the appeal to make a response to the newly submitted information.

H.  Hearing Officer Authority (7 CFR Section 11.10 (a) and (b); NAD Hearing Officer Guide VII(D))

(1)  In making a determination on the issue under review, the hearing officer is not bound by previous findings of fact on which the agency based its adverse decision. Therefore, the hearing officer has the authority to make findings of fact.  The hearing officer applies the statutes and regulations governing the program to the findings of fact. 

Note:  NAD has determined that agency policy and procedure interprets statutes and regulations.  Statutes within the U.S. Code and Federal regulations take precedence over agency policy and procedure.

(2)  Reopening Hearings (NAD Hearing Officer Guide VI(I)).—Circumstances may require the hearing officer to reopen the hearing or the hearing record.  Such situations include the following:

(i)  The hearing officer receives unsolicited and relevant evidence from either party after the hearing record is closed.

(ii)  NAD director remands the case to the hearing officer for additional evidence.

510.55  NAD Hearing Officer Determination

A.  Timeframes (7 CFR Section 11.8(f))

(1)  NAD hearing officers issue appeal determinations to appellants, their representatives, and the FSA or NRCS (depending on jurisdiction of the case) no later than 30 calendar days after the date of the hearing or 30 calendar days after the hearing record is closed.

(2)  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 (see 7 CFR Section 11.8(f)).

B.  Distribution of the Decision

(1)  The hearing officer appeal determination will be forwarded to the NRCS program appeals electronic mailbox (via FSA, if title XII) for action, if any is required on the part of NRCS.  The mailbox is maintained and reviewed by the national appeals and equitable relief specialist.

(2)  The NRCS Chief or a designee, such as the State Conservationist, will ensure that the NAD final determination is fully implemented not later than 30 days after the effective date of the notice of final determination, unless a NAD director review is to be requested (see 7 CFR Section 11.12).

C.  Effect of NAD Decision on Highly Erodible Land Conservation or Wetland Conservation Compliance (HELC/WC) Determinations

If a NAD decision reverses an agency technical determination for HELC/WC and all requests for review or reconsideration fail or the agency does not request a review, NRCS must issue a revised NRCS-CPA-026-E, changing the HEL or WC determination to designations such as “NHEL/NAD” or “NW/NAD.”  Also note that the NAD decision is only applicable to NRCS programs (the Food Security Act of 1985, as amended).  Other local, State, or Federal laws, regulations, and permits may still apply.

510.56  NAD Director Reviews

A.  Requesting a NAD Director Review (7 CFR Section 11.9)

(1)  Either party to the appeal may request a NAD director review of a hearing officer appeal determination.  The timeframes are as follows:

(i)  NRCS Chief.—Not later than 15 business days after the date on which the agency receives the NAD hearing officer's decision.

(ii)  Appellant.—Not later than 30 calendar days after the date the appellant receives the hearing officer's decision.

(2)  When requesting a NAD director review, the party filing the request must provide the other party with a copy of the request (7 CFR Section 11.9(a)(3)).  Failure to do so may result in denial of the request.

(3)  The NAD director will promptly notify the agency decision maker of an appellant's request for review (7 CFR Section 11.9(b)).  If the original appeal was filed with FSA, then FSA will be the agency representative before NAD on behalf of NRCS.

B.  Responding to Appellant's Request for Director Review

(1)  NRCS has 5 business days upon receipt of the notification from NAD to respond to the appellant's request for a NAD director review (7 CFR Section 11.9(c)).  If a response is warranted, State Conservationist must—

(i)  Prepare replies to an appellant's request (in coordination with the NRCS national appeals and equitable relief specialist).

(ii)  Fax the response to the NAD director.

(2)  A complete copy of the agency response must be provided to the appellant or to the appellant's designated representative.  Failure to do so may result in NAD disregarding the agency response.

C.  Guidelines for NRCS Director Review Request

Within 5 working days of receipt of a hearing officer's appeal determination that determined agency error, the State Conservationist must provide a recommendation to the NRCS national appeals and equitable relief specialist if a NAD director review will be pursued.  An analysis explaining the recommendation should be included with the following information:

(i)  The case background, including the important and relevant facts of the case

(ii)  An actual or approximate value of program benefits at issue

(iii)  An assessment of the significance of the decision to implementation of agency programs

(iv)  A summary of the relevant issues, including the reasons why the hearing officer's appeal determination should be challenged or why the determination should not be challenged, such as specific errors of fact or erroneous application of regulations or agency procedures

(v)  Specific recommendations regarding whether a request should be submitted to the NAD director seeking a review of the hearing officer's appeal determination.

(vi)  Reference key documents, if known, which provided a significant basis for the hearing officer’s appeal determination

Note:  Do not submit the complete agency record unless specifically requested by National Headquarters.  Do not submit original documents.

D.  Chief's Responsibilities (7 CFR Section 11.9(a)(2))

(1)  The Chief must submit a written request to the NAD director within 15 business days from the date the agency receives a hearing officer's appeal determination that reverses or modifies an agency technical determination or decision.

(2)  All agency requests for a NAD director review must be—

(i)  Signed by the Chief (FSA Administrator for title XII conservation program appeals).

(ii)  Coordinated through the NRCS appeals and equitable relief specialist.

E.  National Appeals and Equitable Relief Specialist’s Responsibilities

(1)  The national appeals and equitable relief specialist will review the request and make recommendations to the Chief.

(2)  If it is determined that a NAD director review is not warranted, the State Conservationist will be notified within 10 days of the decision, including an explanation of why the request was denied.

(3)  If the request for the NAD director review is approved, the State Conservationist will be notified and furnished a copy of the request within 15 days.

(4)  All correspondence and information regarding agency requests for a NAD director review, and all other correspondence and information provided to the NAD director, will be coordinated through the national appeals and equitable relief specialist.

510.57  Requests for Reconsideration of a NAD Director Review Determination (7 CFR Section 11.11)

A.  Timeframe

The Chief must submit requests for reconsideration of a NAD director's determination within 10 calendar days of receipt of the decision.

B.  Requirements

A request for review of a NAD director's determination must show one or both of the following:

(i)  A material error of fact in the NAD director’s determination

(ii)  The NAD director's determination is contrary to statute or regulations

C.  State Office Review

If, upon review, the State Conservationist believes that the NAD director's determination contains a material error of fact or is contrary to statute, regulation, or agency policy, the State Conservationist should contact the national appeals and equitable relief specialist immediately.

510.58  Implementing NAD Determinations (7 CFR Section 11.12)

A.  Final Determinations

Final determinations include—

(i)  Determinations issued by a NAD hearing officer that became final as a result of no request for review by the NAD director.

(ii)  Determinations that became final after review or reconsideration by the NAD director.

B.  Proper and Prompt Action

NRCS personnel must take appropriate actions in the case of all appeal actions to ensure that all final technical determinations or program decisions are properly and promptly implemented.  The agency is required to implement all final NAD determinations 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.    



 
    

[M_440_510_F - August 2012 - Amend. 91 - ]

Subpart G - Exhibits

510.60 General Information

Part 510 Appeals and Mediation

Subpart G - Exhibits

510.60 General Information

(a) General Information

This subpart gives examples of formats and letters as cited throughout the previous subparts. These examples are only suggestions and should be modified to address the specific issue under consideration.

(b) Exhibits Included

The following table lists the Exhibits included in this subpart.

Section

Exhibit

Description

510.61

1

Agency Administrative Record Organization, Exhibit-Based Format

510.62

2

Administrative Record Content Checklist

510.63

3

Letter about a Change in a Technical Determination or Technical Decision

510.64

4

Letter for No Change in a Technical Determination or Technical Decision

510.65

5

Technical Determination or Technical Decision Suggested Format

510.66

6

Preliminary Technical Determination Transmittal Letter

510.67

7

Letter to Acknowledge Request for a Field Visit and Reconsideration

510.68

8

Final Technical Determination or Technical Decision Transmittal Letter

510.69

9

Request for State Conservationist Review and Appeal Acknowledgment Letter

510.70

10

Appeal Summary Outline

510.71

11

State Conservationist Decision Format

510.72

12

Appealability Letter Format

510.73

13

States with Certified Mediation Programs

510.74

14

Sample NRCS Opening Statement for a NAD Appeals Hearing

510.75

15

Sample NRCS Evidentiary Presentation for a NAD Appeals Hearing

510.76

16

NAD Regions, with applicable States


[M_440_510_G_60 - First Edition Amendment 3 - September 2006]

510.61 Exhibit 1, Example of the Agency Administrative Record Organization

510.61 Exhibit 1, Example of the Agency Administrative Record Organization


Exhibit Number

Exhibit Description

1

7 CFR Part 12, Highly Erodible Land and Wetland Conservation, Code of Federal Regulations 7, Parts 0 to 26, (Revised as of January 1, 1995)

2

USDA, Soil Conservation Service, National Food Security Act Manual (NFSAM), Third Edition (March 1994) - Excerpt from:

Part 511 - Determining Highly Erodible Land and Predominantly HEL Fields

Part 512 - FSA Conservation Plans and Systems

Part 518 - Status Reviews

3

Highly Erodible Land Conservation (HELC) and Wetland Conservation (WC) Certification Form (AD-1026 AND AD-1026A)

Reference:

7 CPR Part 12, Subpart A, Section 12.6(c)(4)

4

USDA/SCS Soil Map with Soil Map Legend for Tract Number [enter tract number]

References:

7 CFR Part 12, Subpart B, Paragraph 12.20(c)

NFSAM Part 511.11, Page 511-4

5

[insert county, State] LS (length/slope) and EI (erodibility index) list, [insert date]

References:

7 CFR Part 12, Subpart B, Section 12.21(a) and (b)

7 CFR Part 12, Subpart A, Section 12.2(a0) and (15)

NFSAM Part 511.12, page 511-6.

6

[insert county, State] Highly Erodible Land Legend - 1/90

Reference: 7 CFR Part 12, Subpart B, Section 12.20(b)

7

Erosion Determination Worksheet, Food Security Act, [insert tract, FSA farm number]

References:

7 CFR Part 12, Subpart A, Section 12.7(a)(1)

7 CFR Part 12, Subpart B, Section 12.22(a)(1)

8

Highly Erodible Land and Wetland Conservation Determination (Form SCS-CPA-026) [insert tract and FSA farm number]

References:

7 CFR Part 12, Subpart A, Sections 12.6(c)(4) and 12.6(c)(4(i)

9

Letter of October 5, 1993, to [Insert Appellant Name] (Technically Inadequate Plan...Plan to be Revised...If wish to examine other alternatives for this tract, etc.)

Reference:

7 CFR Part 12, Subpart B, Section 22.23(c) and 12.23(f)(2)

10

Alternative Systems for Conservation Compliance Provisions of the Food Security Act of 1985 (Filed in NRCS/SCS Field Office Technical Guide [insert county/State name])

Reference:

7 CFR Part 12, Subpart B, Section 12.23(a) and (c)

11

Record of Decisions and Application - Conservation Plan for [insert tract number]

References:

7 CFR Part 12, Subpart A, Section 12.2(4) and (5)

7 CFR Part 12, Subpart A, Section 12.5(a)(2)

7 CFR Part 12, Subpart B, Section 12.23(a), (c), and (d)

12

Update for AD-1026, Highly Erodible Land Conservation (HELC) and Wetland Conservation (WC) and CCC-502, Farm Operating Plan for Payment Eligibility Review (Form AD-1026U and CCC-502U) Signed by [insert participant name and date signed].

References:

7 CFR Part 12, Subpart A, Section 12.7(a)(2)

7 CFR Part 12, Subpart B, Section 12.23(f)(1) and (2)

13

Status Review Worksheet, (Form SCS-CPA-18) Dated [insert date and tract number].

References:

7 CFR Part 12, Subpart A, Section 12.4(a)(1) and 12.4(b)

NFSAM, Part 518.23(a)

14

USDA/SCS Letter from [Insert NRCS official name] of Initial Decision of Not Actively Applying the Approved Conservation Plan, [Insert Date and Tract Number].

References:

7 CFR Part 12, Subpart A, Section 12.4(a)(1)

7 CFR Part 12, Subpart A, Section 12.6(c)(2)(vii) and (viii)

7 CFR Part 12, Subpart B, Section 12.23(g)

NFSAM, Part 518.22, pages 518-18 and 518-19

15

Letter of Appeal for [insert tract number, appellant name] to [insert name and date].

References:

7 CFR Part 12, Subpart A, Section 12.12

7 CFR Part 12, Subpart B, Section 12.23(g)

16

Decision Letter for Reconsideration of Appeal for [Insert Tract Number] from [insert NRCS official name, title] to [insert appellant name and date of letter]

References:

7 CFR Part 12, Subpart A, Section 12.6(c)(2)(vii) and (viii)

7 CFR Part 12, Subpart A, Section 12.12

17

Letter of Appeal for [insert tract number] from [insert appellant name] to [insert NRCS official name and title] dated [insert date]

References:

7 CFR Part 12, Subpart A, Section 12.12

7 CFR Part 12, Subpart B, Section 12.23(g)

18

Trip Report dated [insert date] to [insert name, title] prepared by [insert name, title].

References:

7 CFR Part 12, Subpart A, Section 12.6(c)(2)(vii) and (viii)

19

Polaroid photos of [insert tract number] made by [insert name] during a field visit on [insert date] for documentation in the appeal.

Reference:

7 CFR Part 12, Subpart A, Section 12.6(c)(2)(vii) and (viii)

20

Before plan and as planned erosion amounts (Form XX-CPA-17) prepared by [insert NRCS official name, title] for [insert tract number] to show planned and actual erosion rates determined during the appeal process.

References:

7 CFR Part 12, Subpart B, Section 12.23(a)

7 CFR Part 12, Subpart B, Section 12.21(1)(i), (ii), and (iii)

21

Decision letter from [insert name/title of USDA official] for [insert tract number] dated [insert date of letter].

References:

7 CFR Part 12, Subpart A, Section 12.6(c)(2)(vii) and (viii)

22

Followup Correspondence letter to [insert appellant name] from [insert USDA official name/title] dated [insert date].

References:

7 CFR Part 12, Subpart A, Section 12.12

7 CFR Part 12, Subpart B, Section 12.23(g)

23

Form AD-1026U and CCC-502U signed by the appellant on [insert date].

References:

7 CFR Part 12, Subpart A, Section 12.7(a)(2)

7 CFR Part 12, Subpart B, Section 12.23(f)(1) and (2)

24

Appendix to Form AD-1026

Reference:

7 CFR Part 12, Subpart A, Section 12.7(a)(2)

25

Notes and progress listing for [insert tract number]

Note: It should be noted that this format does not constitute an exact reconstruction of an agency administrative record, nor does it represent the exact order or presentation, but is a suggested format. It does not represent the only way to organize the agency record.

[M_440_510_G_61 - First Edition Amendment 3 - September 2006]

510.62 Exhibit 2, Administrative Record Content Checklist

510.62 Exhibit 2, Administrative Record Content Checklist

(a) Administrative Record Contents

The items listed in the following table may be needed and/or required in the agency administrative record depending on the program and the technical determination or technical decision. This list may not be all inclusive, so a review of the applicable program manual, handbook, or regulation is suggested when compiling the agency administrative record or appeals Exhibits.

Item

Types of Documentation

General

Letters documenting all technical determinations or technical decisions


First and all subsequent technical determinations or technical decisions


Chronology of events


Statutes, regulations, policy and procedure manuals and handbooks


Memorandum of Understanding


Conservation assistance notes


Verbatim transcripts of any hearings


Any documents or materials provided by the appellant for previous consideration


The appeals summary, as prepared according to Exhibit 10, 510.70


Records of all previous agency reviews, and any actions taken to date


Cropping history records


SWCD comments or meeting minutes


FSA county committee comments or meeting minutes


NRCS or USDA employee statements

Specific Forms

ACP-245


ACP-246


ACP-247


AD-1026, 1026A, 1026B, 1026C, and 1026U


AD-1049


AD-1069


CCC-1200 and Appendix


CCC-1201


CCC-1245


CRP-1, 1A, and Appendix


CRP-2


CRP-3


FSA-18


FSA-569


FSA-578


NRCS-CPA-1


NRCS-CPA-6


NRCS-CPA-18


NRCS-CPA-19


NRCS-CPA-21


NRCS-CPA-22


NRCS-CPA-026, 026A, or 026E


NRCS-CPA-30


NRCS-CPA-31


NRCS-CPA-32, or similar State form


NRCS-CPA-33, or similar COE form


NRCS-CPA-34, or similar COE form


NRCS-CPA-35, or similar COE form


NRCS-CPA-36, or similar COE form


NRCS-CPA-37, or similar COE form


NRCS-CPA-38


NRCS-CPA-68


NRCS-CPA-69


NRCS-CPA-027 or 027E


NRCS-FNM-140


NRCS-FNM-141


NRCS-LTP-1


NRCS-LTP-2


NRCS-LTP-005


NRCS-LTP-8


NRCS-LTP-9


NRCS-LTP-10


NRCS-LTP-11, 11A, 11B


NRCS-LTP-12


NRCS-LTP-13


NRCS-LTP-14


NRCS-LTP-15


NRCS-LTP-150


NRCS-LTP-151


NRCS-LTP-152


NRCS-LTP-153


NRCS-LTP-156


SF-270

Photography

FSA aerial photographs or photocopies


NHAP aerial photography


FSA color IR slides


Color or black-and-white photographs, on-site photography


Color IR photography


35 mm slides

Maps

Conservation Plan maps or photocopies


Soil maps


Digital ortho photo quads


USFWS NWI maps


USGS topographic quadrangles


Geologic quadrangles


Area maps


Road maps, State, county

Soils Information

Soils legends


Soil series descriptions


County Highly Erodible Land Legend


On-site examination notes and report on PHEL soils


Soil transect information


Name and acres of HEL and NHEL soil map units by field


HEL calculations


Soil loss calculations, and the methods used


Hydric soils lists


Soil descriptions in the FOTG

Other Technical Information

On-site evaluation reports


Records and notes from field visits


Soils field notes


Vegetation field notes


Scope and effect information


Mitigation plans


Hydrology data and calculations


Climate information


Remotely sensed data


Minimal effects data and information


Weather data


Plants data


Prevalence Index Worksheet


Abandonment issues


Conversion issues


Artificial wetland issues


Technical standards


Technical job sheets


Operation and Maintenance Plans


Conservation Plans


Approved conservation systems


Before and after soil loss calculations


CRP Environmental Benefits Index Calculations


EQIP Offer Index Calculations


WHIP Contract Worksheets


WRP Eligibility Determinations


Functional assessments


Minimal Effects Agreements


Post-Conversion Minimal Effects Determinations


Wetland Restoration Evaluations


Standard Easements


Wetland Restoration Plans


Field Office Technical Guides


Application Ranking Report

Note: This listing is not all inclusive. Anything having any bearing on the issues in the appeal needs to be made a part of the agency administrative record and/or presented as evidence in an appeal hearing.


[M_440_510_G_62 - First Edition Amendment 3 - September 2006]

510.63 Exhibit 3, Sample Letter Correcting a Technical Determination or Technical Decision

510.63 Exhibit 3, Sample Letter Correcting a Technical Determination or Technical Decision

[Insert date]

[Insert participant's mailing address]

Dear [insert participant name]:

At your request, we reviewed the technical [determination or decision] for [insert program if applicable] for [insert tract/farm number]. On [insert date] we made a field visit to your tract and found that the following error(s) had been made:

[Give example(s) such as "the acreage affected was found to be smaller than originally delineated," etc.]

Attached is the corrected final technical [insert determination or decision]. (Use format shown in Exhibit 5 or similar format that will fully explain the technical determination or technical decision.) We have also provided [insert FSA, if applicable, or other agency(s) if applicable] with a copy of the corrected final technical determination for their records.

If you still disagree with the final technical [insert determination or decision] you may [complete the sentence with the appropriate appeals process with either of the following as applicable]:

[For Title XII programs only:] If you wish to appeal to the Farm Service Agency (FSA) county committee you may contact that office at [insert address and telephone]. If you do not appeal to the FSA county committee within 30 calendar days, no further consideration on the matter will be given.

or

[For non-Title XII programs:] You may (1) Request an appeal from the Natural Resources Conservation Service NRCS State Conservationist at [insert address and telephone]; 2: request mediation of the issues in dispute [insert contact address and telephone]; or 3: request appeal to the National Appeals Division (NAD) [insert address and telephone].

You have 30 calendar days from the date of this letter to make any requests as outlined above.

Sincerely,

[Insert name of NRCS Official]

[M_440_510_G_63 - First Edition Amendment 3 - September 2006]

510.64 Exhibit 4, Sample Letter, No Change in the Technical Determination or Technical Decision

510.64 Exhibit 4, Sample Letter, No Change in the Technical Determination or Technical Decision

[Insert date]

[Insert participant's mailing address]

Dear [insert participant's name]:

At your request, we reviewed the technical [determination or decision] for [insert program if applicable] for [insert tract/farm number]. On [insert date], we made a field visit to your tract and found that the [insert preliminary or final technical determination or technical decision] was made correctly. The following information supports the [insert preliminary or final technical determination or technical decision]:

Attached are the findings of the field visit and a final technical [insert determination or decision]. (Use format shown in Exhibit 5 or similar format that will fully explain the technical determination or technical decision.) We have also provided [insert FSA, if applicable, or other agency(s) if applicable] with a copy of the corrected final technical determination for their records.

If you still disagree with the final technical [insert determination or decision], you may [complete the sentence with the appropriate appeals process with either of the following as applicable]:

[for Title XII programs:] Appeal to the Farm Service Agency (FSA) county committee at [insert address and telephone]. If you do not appeal to the FSA county committee within 30 calendar days, no further consideration on the matter will be given.

or

[for non-Title XII programs:] to 1: Request an appeal from the Natural Resources Conservation Service NRCS State Conservationist at [insert address and telephone]; 2: Request mediation of the issues in dispute [insert contact address and telephone]; or 3: Request appeal to the National Appeals Division (NAD) [insert address and telephone].

You have 30 calendar days from the date of this letter to make any requests as outlined above.

Sincerely,

[Insert name of NRCS Official]

[M_440_510_G_64 - First Edition Amendment 3 - September 2006]

510.65 Exhibit 5, Sample Technical Determination or Technical Decision Format

510.65 Exhibit 5, Sample Technical Determination or Technical Decision Format

See the hyperlinked file of a sample technical determination or technical decision format.

[M_440_510_G_65 - First Edition Amendment 3 - September 2006]

510.66 Exhibit 6, Sample Preliminary Technical Determination Transmittal Letter

510.66 Exhibit 6, Sample Preliminary Technical Determination Transmittal Letter

[Insert date]

[Insert participant's mailing address]

Dear [insert participant's name]:

Attached is the Preliminary Technical Determination as requested for [insert program].

This preliminary technical determination will become final 30 calendar days from the date of this notification unless you notify this office at the above address or [insert telephone number] to request a field visit for reconsideration or mediation of the preliminary technical determination. This will be the only notification you will receive unless you contest the preliminary technical determination conveyed by this notification.

If after the preliminary technical determination becomes final you believe that the final technical determination is in error, you may elect to appeal to the Farm Service Agency (FSA) county committee at [insert address and telephone]. If you do not appeal to the FSA county committee, no further consideration on the matter will be given.

You have 30 calendar days from the date of this letter to make any requests as outlined above.

Sincerely,

[Insert name of NRCS Official]

[M_440_510_G_66 - First Edition Amendment 3 - September 2006]

510.67 Exhibit 7, Sample Field Visit Acknowledgement Letter

510.67 Exhibit 7, Sample Field Visit Acknowledgement Letter

[Insert date]

[Insert participant's mailing address]

Dear [insert participant's name]:

This letter is to acknowledge your request for a field visit and reconsideration of the [specify the determination to be reviewed] [insert preliminary or final] [insert determination or decision] regarding [be specific as to the farm, tract, program, etc.].

[Identify the reviewing authority] will review your request on [insert date and time] at your farm, as agreed upon earlier. You, your authorized representative, or both are invited to be present during the field review and may submit any additional information in support of your request to participate in [insert program name].

If you are unable to participate in the field review, you may submit any information to NRCS at the above specific address within 15 calendar days of the date of this letter. [Reviewing authority] will consider all information gathered or presented during the field review and will arrive at the agency's final technical determination based on all applicable [program] procedures.

The final determination will be sent to you as soon as possible following the field review. If you have any questions regarding this matter, you may contact [insert name of contact person] at [insert telephone number].

Sincerely,

[Insert name of NRCS Official]

[M_440_510_G_67 - First Edition Amendment 3 - September 2006]

510.68 Exhibit 8, Sample Final Technical Determination or Final Technical Decision Transmittal Letter

510.68 Exhibit 8, Sample Final Technical Determination or Final Technical Decision Transmittal Letter

[Insert date]

[Insert participant's mailing address]

Dear [insert participant's name]:

Attached is the Final Technical [insert determination or decision] as requested for [insert program].

If you believe that the [insert determination or decision] is in error, you may elect [complete the sentence for the appropriate appeals process with either of the following as applicable]

[for Title XII programs:] Appeal to the Farm Service Agency (FSA) county committee within 30 calendar days from the date of this notice, at [insert address and telephone]. If you do not appeal to the county committee, no further consideration on the matter will be given.

or

[for non-Title XII programs:] 1. Request, within 30 calendar days of the date of this notice, an appeal from the Natural Resources Conservation Service (NRCS) State Conservationist at [insert address and telephone]; Request mediation [insert address and telephone]; or Request appeal to the National Appeals Division (NAD) [insert address and telephone].

You have 30 calendar days from the date of this letter to make any requests as outlined above.

Sincerely,

[Insert name of NRCS Official]


[M_440_510_G_68 - First Edition Amendment 3 - September 2006]

510.69 Exhibit 9, Sample State Conservationist Review and Appeal Acknowledgement Letter

510.69 Exhibit 9, Sample State Conservationist Review and Appeal Acknowledgement Letter

[Insert date]

[Insert participant's mailing address]

Dear [insert participant's name]:

This letter acknowledges your request for a field review and reconsideration of the [specify the determination to be reviewed] decision regarding [be specific as to the farm, tract, program, etc.] by [insert name], State Conservationist.

[Identify the reviewing authority] will review your request on [insert date and time] at [specify location]. You, your authorized representative, or both are invited to be present during the hearing, and may submit any additional information in support of your request to participate in [insert program name].

[Use the following paragraph if applicable]

As discussed previously, we would like to conduct a review in the field to verify facts and gather any additional information germane to your issue. [Insert name(s)] will be at you farm on [insert time and date] to conduct this review. You, your representative, or both are also invited to be present at this review.

The hearings are informal and verbatim transcripts are not ordinarily made. However, if you want a transcript to be made at your expense, please let us know at least a week before the hearing, and we will make arrangements. Neither NRCS nor the Department will reimburse you for any costs you may incur in connection with your request for a reconsideration.

If you choose not to attend the hearing, you may submit, before the scheduled review, any further facts or evidence you wish to be considered. [Reviewing authority] will consider your request and arrive at a decision based on the records and other information. The review will include all of the information submitted by you, in addition to the complete file pertaining to your case. You may be assured that the decision will be fair and equitable and made according to program procedure.

The final decision will be sent to you as soon as possible following the field review. If you have any questions regarding this matter, you may contact [insert name of contact person] at [insert telephone number].

Sincerely,

[Insert name of NRCS Official]

[M_440_510_G_69 - First Edition Amendment 3 - September 2006]

510.70 Exhibit 10, Sample Summary Outline for an Appeal

510.70 Exhibit 10, Sample Summary Outline for an Appeal

Appellant's Name:

Represented By:





Farm No(s):

Date of Review:





Matter Under Review:


(Be sure this item includes all of the information pertinent to the adverse decision, including references to regulations and Agency operating procedures. This includes, but is not limited to, the program year, program, and issues being considered.)




Background Information:
Background information should include a brief, but complete synopsis of the technical determination or technical decision being appealed. Review the agency record from the beginning of the specific technical determination or technical decision to be presented.




Applicable Program Provisions:
Explain the laws, rules, and regulations that apply to the technical determination or technical decision. Policy and procedure written by NRCS must be linked to published rules and regulations. NRCS was given the authority to carry out conservation programs by law, not by the manual or handbook. Manuals or handbooks simply state how the authority will be carried out.



Appeal Issues:
Determine and clearly identify all the issues of the appeal. This will require a careful examination of the appeal case. Do not simply state the points of the appellant's position as it appears in the letter of appeal. The issues are usually somewhat different. Number the issues, and address each one in subsequent parts of this report.



Appellant's Position:

Everything that is known about the appellant's position in advance of the hearing should be included. Often very little will be known about the participant's position before the hearing. Identify and number the points made by the appellant in the letter of appeal. These may or may not be relevant to the issues of the appeal.

Evidence Analysis:
This is the most important part of the report because it explains the basis for the agency's decision. It contains the evidence and the basic conclusions on which the NRCS decision (ultimate conclusion) is based. Basic conclusions are called "findings of fact" because they sort out the pertinent evidence from the irrelevant evidence. There should be enough narrative to explain the logic and judgment that was used in sorting through the evidence and reaching the conclusions.
Each point of the appellant's position, and any evidence provided by the producer, should be discussed relevant to the issues. Do not skip any points of the producer's position. If a point is irrelevant, briefly state why.
Findings made by NRCS and the evidence to support them are also part of the analysis. If there are NRCS established procedures for gathering information, reference the procedure and follow it to the letter. This is very important. The most common cause of NRCS losing an appeal is the failure to follow its own procedures. Supporting documentation should be attached to the report.
Basic conclusions should be reached on each of the issues identified in the appeal. If the issue is one of scope, the basic conclusions should address both context (substance) and intensity (extent).

Note: The following hyperlinked information provides additional information and explanation for documenting technical determinations and technical decisions.

[M_440_510_G_70 - First Edition Amendment 3 - September 2006]

510.71 Exhibit 11, Sample State Conservationist Decision Letter

510.71 Exhibit 11, Sample State Conservationist Decision Letter

[Insert date]

[Insert participant's mailing address]

Dear [insert participant's name]:

This responds to the request for a hearing you filed concerning [identify the issue under review including the appellant's name, if different from the addressee, program, program year, farm number, etc.].

Background

[State the relevant background or history that is reflected in the administrative record to present. For example, "The record shows that you entered into a contract to ...," It should be very similar, if not identical, to the information already shown in the "Background" section of the summary outline for the hearing.]

Appellant's Position

[Articulate the appellant's position and arguments. Be sure to include all arguments that are pertinent to the issue(s) being reconsidered. Irrelevant arguments need not be included.]

Finding of Facts

[Clearly state the relevant facts. All statements must be supported by program documents, program procedure, testimony, transcripts, etc. Cite the source, whether documentary evidence or verbal testimony, that the reviewing authority relied upon to make the finding of fact.]

Analysis

[Conclusions drawn from available facts and program provisions. Analyze the facts and address the appellant's arguments. This must be based on applicable program procedures (rules). Cite the program provisions (manuals, regulations, statutes) that are used and applicable.]

Decision

[Specifically state the decision in this section. Cite the regulatory or program procedure authority for the decision and specify the program consequences of the decision.]

If you do not believe this decision is in accordance with the applicable program provisions, you may either request mediation [if this option has not already been used] or appeal to the National Appeals Division at [insert the appropriate regional office address, telephone, and FAX numbers] within 30 calendar days of the date of this notification.

Sincerely,

[Insert name of NRCS State Conservationist]

[M_440_510_G_71 - First Edition Amendment 3 - September 2006]

510.72 Exhibit 12, Sample Appealability Letter

510.72 Exhibit 12, Sample Appealability Letter

[Insert date]

[Insert participant's mailing address]

Dear [insert participant's name]:

This letter is in response to your request for an appeal of [insert the issues and program technical determination(s) or technical decision(s) at issue].

The issue(s) that you have identified are not appealable because it/they is/are [insert the applicable reason, e.g., matters of General program applicability; matters of Federal statute or regulation]. (Cite the statute or regulation to support this, such as 7 CFR 614.5, and also the program regulation or statute that requires the use of a certain formula, etc., by regulation or statute in a General administrative manner, e.g., 7 CFR 610.14(a)).

If you wish, you may request an Appealability Review from the National Appeals Division, Assistant Director, [insert appropriate NAD regional office name, assistant director name, address, and telephone numbers]. The request must be filed within 30 calendar days of the date of this notification and include the reasons why you feel this matter is appealable.

Sincerely,

[insert name of NRCS Official]

[M_440_510_G_72 - First Edition Amendment 3 - September 2006]

510.73 Exhibit 13, USDA State Certified Mediation Programs

510.73 Exhibit 13, USDA State Certified Mediation Programs

State
Contact
Numbers

National Office

Chester A. Bailey USDA Farm Service Agency USDA Agricultural Mediation Program USDA/FSA/EDSO/Stop 0539/ Room 3090-S

Washington, D.C. 20250-0539

email: cbailey@wdc.fsa.usda.gov

internet: http://www.fsa.usda.gov.PAS/publications/facts.html/agmend698.htm

Tel: 202-720-1471 202-690-0490

Fax: 202-690-0644 202-690-3003

Alabama

Joe Byrd Alabama Agricultural Mediation Program Alabama Department of Agriculture and Industries P.O. Box 3336 Montgomery, AL 36109-0336

email: promo@agi.state.al.us
internet: http://www.agri.state.al.us/mediation.htm

Tel: 334-240-7249

Fax: 334-240-7270

Arkansas

Richard S. Johnston Farm/Creditor Mediation Program Arkansas Development Finance Authority P.O. Box 8023 Little Rock, AR 72203

email: rjohnston@adfa.state.ar.us
internet: http://www.state.ar.us/adfa/index.html

Tel: 501-682-5895

Fax: 501-682-5893

Arizona

Eric Thor Natalia Usmanova Arizona Rural and Finance Training Program Morrison School of Agribusiness and Resource Management Arizona State University East 7001 E. Williams Road, Building 40 Mesa, AZ 85212

email: Eric.Thor@asu.eduNatalia.Usmanova@asu.edu
Internet: http://www.east.asu.edu/msabr/reach/agmediation/agmed.htm
Tel. 480-727-1470
Fax: 480-727-1123
Florida

Alison E. Gerencser Florida Agricultural Mediation Service University of Florida College of Law 125 Bruton Geer Hall, Levin College of Law Gainesville, FL 32611

email: gerencse@law.ufl.edu

internet: http://gove.ufl.edu/~mediate/

Tel: 352-392-0412

Fax: 352-392-0414

Idaho

Taylor Cox Idaho Agricultural Mediation Program Idaho State Department of Agriculture P.O. Box 790 Boise, ID 83701

email: tcox@agr.state.id.us

internet: http://www.agri.state.id.us/press/99_012.htm

Tel: 208-332-8564

Fax: 208-334-4062

Illinois

Alicia Hill Ruiz Southern Illinois University School of Law 104 Lesar Law Building Carbondale, IL 62901

email: aruiz@siu.edu

internet: http://www.siu.edu/~lawsch/clinic/iamp/

Tel: 618-453-5181

Fax: 618-453-8727

Indiana

Roslyn A. Amor Joseph R. Pearson Indiana Agricultural Mediation Program Indiana State Commissioner of Agriculture ISTA Center, Suite 414 Indianapolis, IN 46204

email: ruralservices@aol.com

Tel: 317-232-8770 219-299-9648

Fax: 317-232-1362 219-299-9666

Iowa

Michael L. Thompson Executive Director Iowa Mediation Service, Inc. 1025 Ashworth Road, Suite 202 West Des Moines, IA 50265

email: iamed8@netins.net

internet: http://www.mediation-service.com/staff.html

Tel: 515-223-2318

Fax: 515-223-2321

Kansas

Forrest Buhler Kansas Agricultural Mediation Service K-State Research and Extension 2A Edwards Hall Manhattan, KS 66506

email: fbuhler@oznet.ksu.edu

internet: http://www.oznet.ksu.edu/dp_kams/

Tel: 785-532-6958

Fax: 785-352-6532

Maryland

Jane Storrs Agricultural Mediation Program Maryland State Department of Agriculture 50 Harry S. Truman Parkway Annapolis, MD 21401

email: storrsjm@mda.state.md

internet: http://www.farmsense.org/

Tel: 410-841-5770

Fax: 410-841-5987

Michigan

Tara Verdonk Michigan Agricultural Mediation Program State Court Administrative Office 309 N. Washington Square P.O. Box 30048 Lansing, MI 48909

email: verdonkt@jud.state.mi.us

internet: http://www.supremecourt.state.mi.us/programs/cdrp/cdrp_ag.htm

Tel: 517-373-4839

Fax: 517-373-8922

Minnesota

Rod Hamer University of Minnesota Extension Service 146 Classroom Office Building 1994 Buford Avenue St. Paul, MN 55108

email: rhamer@extension.umn.edupreisoo2@umn.edu

internet: http://www3.extension.umn.edu/listing.html?topic=5&subcat=66

Tel: 612-625-1782 218-935-5785

Fax: 612-625-1955

Missouri

Edward D. Taylor Cooperative Extension Service Lincoln University Box 29 Jefferson City, MO 65102

email: johnsonc@lincolnu.edu

Tel: 573-681-5523

Fax: 573-681-5546

Nebraska

Marian Beethe, Administrator Joanne Komenda, Coordinator Farm Mediation Program Nebraska State Department of Agriculture P.O. Box 94947 Lincoln, NE 68509-4947

email: marianjb@agr.state.ne.usjoannek@agr.state.ne.us

internet: http://www.agr.state.ne.us/mediation/index.htm

Tel: 402-471-6890 402-471-2341 1-800-446-4071

Fax: 402-471-3252

Nevada

Don Henderson Paul Iverson Nevada Agricultural Mediation Program Nevada Division of Agriculture 350 Capitol Hill Avenue Reno, NV 89502

email: hnderson@govmail.state.nv.us

Tel: 775-684-5333

Fax: 775-882-5121

New Jersey

Sherry M. Dudas New Jersey Agricultural Mediation Program State of New Jersey Department of Agriculture P.O. Box 330 Trenton, NJ 08625-0330

email: sherry.dudas@ag.state.nj.us

internet: http://www.state.nj.us/agriculture/sadc.htm

Tel: 609-984-2504

Fax: 609-633-2004

New Mexico

Patrick Sullivan New Mexico Agricultural Mediation Program New Mexico Cooperative Extension Service P.O. Box 3003, Department 3AE Las Cruces, NM 88003

email: pasulliv@nmsu.edu

internet: http://www.nmsu.edu/~agmed/right.html

Tel: 505-646-2433

Fax: 505-646-3808

North Dakota

Jeff Knudson, Coordinator North Dakota Agricultural Mediation Service North Dakota Department of Agriculture 600 East Boulevard, 6th Floor Bismarck, ND 58505

email: jknudson@state.nd.us

internet: http://www.state.nd.us/ag/otherpress.html

Tel: 701-328-4769 701-328-2231

Fax: 701-328-4567

Oklahoma

Weldon Schieffer Oklahoma State University Wellness Center 2302 West 7th Street Stillwater, OK 74074

email: weldon@oamp.netchandler@oda.state.ok.us

internet: http://www.oscn.net/adr/statewideprogs.htm

Tel: 1-800-248-5465 405-377-0033

Fax: 405-377-1048

South Dakota

Linda Hodgin South Dakota Department of Agriculture Joe Foss Building, 523 E. Capitol Pierre, SD 57501-3182

email: linda.hodgin@state.sd.us

internet: http://www.state.sd.us/doa/ag_dev/agdev_mediation.htm

Tel: 605-773-5841

Fax: 605-773-3481

Texas

D. Gene Valentini Crystal Stone Texas State South Plains Association of Governments Dispute Resolution Center 1323 58th Street P.O. Box 3730 Lubbock, TX 79452-3730

email: spag.drc@juno.com

internet: http://interoz.com/spag/spaginfo.htm

Tel: 806-762-8721 1-800-858-1809

Fax: 806-765-9544

Utah

Joan Winger Utah State Mediation Program Utah Department of Agriculture P.O. Box 146500 Salt Lake City, UT 84114

email: agmain.jwinger@email.state.ut.us

internet: http://www.ag.state.ut.us/divisns/comisnr/medlinks.htm

Tel: 801-538-7102

Fax: 801-538-7126

Washington

John (Jack) R. Hebner Mediation Director Fulcrum Institute 905 W. Riverside, Suite 304 Spokane, WA 99201-1099

email: hebnerj@worldnet.att.com

internet: http://wcp.usu.edu/nrcs/mediationserv.htm

Tel: 509-838-2799

Fax: 509-838-2799

Wisconsin

Jo Ann Prust Wisconsin State Farm Mediation and Arbitration Wisconsin Department of Agriculture Trade and Consumer Protection 2811 Agriculture Drive P.O. Box 8911 Madison, WI 53708

email: jo.prust@datcp.state.wi.us

internet: http://datcp.state.wi.us/wfc/mediation

Tel: 608-224-5052

Fax: 608-224-5110 608-224-5111

Wyoming

Alan Schroeder Wyoming Agriculture Mediation Board University of Wyoming P.O. Box 3354, University Station Laramie, WY 82071

email: conrad@uwyo.edu

internet: http://soswy.state.wy.us/director/boards/ag-med.htm

Tel: 307-766-5133

Fax: 307-766-3379

Note: Not all State Certified Mediation Programs will mediate conservation program issues. Check with the program contact before offering mediation services from these sources.

[M_440_510_G_73 - First Edition Amendment 3 - September 2006]

510.74 Exhibit 14, Example of NRCS Opening Statement for NAD Appeal Hearing

510.74 Exhibit 14, Example of NRCS Opening Statement for NAD Appeal Hearing

The Natural Resources Conservation Service, formerly the Soil Conservation Service, in conducting a wetland determination for a USDA program participant, which was triggered by an AD-1026 from the Agricultural Stabilization and Conservation Service office, identified approximately [insert acres] of wetlands on the [insert appellant's name] in [insert county/State]. The wetland determination was properly and correctly made, based on the definition that wetlands are "areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions."

The site in question was investigated by a soil scientist, engineer, and biologist to determine if hydric soils, hydrology, and a prevalence of wetland plants existed that would meet the wetland definition. Procedures were followed in accordance with Title 7 of the Code of Federal Regulations, Part 12, Subparts A and C. Technical criteria applied was in accordance with the 1987 Corps Wetland Delineation Manual.

Onsite conditions demonstrate that hydric soils, both Routon and Waverly series, occur. These soils were characterized as saturated based on the criteria that they Exhibited low chromas or colors, oxidized root channels, and concretions that form under anaerobic or no oxygen conditions. These soils were also confirmed onsite to be of known hydric soil series as indicated on the Natural Resources Conservation Service county hydric soils list.

Surface inundation was not evident on those areas confirmed as Routon soils. Some inundation was evident on part of the area mapped as Waverly soils. The hydrology of record for most of the site was due to saturation as indicated during the soils investigation, with some minor ponding.

The plant community was characterized as a hydrophytic plant community based on the predominance of plant species with a wetland indicator status of facultative or facultative wet.

The occurrence of these three parameters, (hydric soils, hydrology, and wetland vegetation) will be demonstrated in Exhibits to confirm that the area does meet the criteria of a wetland.

[M_440_510_G_74 - First Edition Amendment 3 - September 2006]

510.75 Exhibit 15, Example of an Evidentiary Presentation, NAD Appeal Hearing

510.75 Exhibit 15, Example of an Evidentiary Presentation, NAD Appeal Hearing

The NRCS makes wetland determinations for USDA program participants in accordance with Title 7 of the Code of Federal Regulations, Part 12, amended 1/l/95, which is offered as Exhibit 1 at this hearing.

Subpart A, Section 12.7 states that "in order for a person to be determined to be eligible for any of the benefits specified in Section 12.4, it must be determined by SCS whether any farm in which the person applying for the benefits has an interest contains highly erodible land, wetland or converted wetlands. The person applying for the benefits must certify in writing on Form AD-1026 that such person will not plant an agricultural commodity on a converted wetland; or convert a wetland in order to make possible the production of an agricultural commodity."

Subpart A, Section 12.6, Administration by SCS, states that "a person may obtain a highly erodible land or wetland determination by making a written request on Form AD-1026. The determination will be made in writing, and a copy will be provided to the person."

Exhibit 2 shows that the local SCS office received an AD1026 on June 24, 1988. This Exhibit also contains the resultant wetland determination of 44 acres of wetlands as indicated on the SCS-CPA-026. This determination was made utilizing offsite procedures allowed under Subpart A, section 12.6. The wetland determination was re-issued on July 26, 1994 with no change.

Upon receiving a request for reconsideration from the landowner in August 1994, the District conservationist conducted an onsite wetland determination. Later in the NRCS appeal process, procedures for conducting an onsite wetland determination were applied in accordance with a Memorandum of Agreement between the U.S. Environmental Protection Agency, U.S. Department of Agriculture, U.S. Department of the Interior, and the Department of Defense. This Agreement, excerpts from which are presented as Exhibit 3, was signed January 6, 1994, and provides the manner in which wetland delineations and certain other determinations of waters of the United States made by the U.S. Department of Agriculture under the Food Security Act will be relied upon for purposes of Section 404 of the Clean Water Act.

In Exhibit 3, agricultural lands are defined. The Memorandum of Agreement so states that agricultural lands DO NOT include forest lands, wood lots, or tree farms. The Memorandum of Agreement further states that delineations on non-agricultural lands will be in accordance with the 1987 Corps Wetland Delineation Manual.

In Exhibit 4, Part II of the 1987 Corps Wetlands Delineation Manual defines a wetland as "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions."

Wetland determinations are made utilizing the following diagnostic environmental characteristics:

1. A prevalence of hydrophytic vegetation typically adapted to anaerobic soil conditions.

2. Soils present have been classified as hydric, or they possess characteristics that are associated with reducing soil conditions. Reducing soil conditions occur when oxygen is removed from the soil.

3. The area is inundated either permanently or periodically, or the soil is saturated to the surface at some time during the growing season of the prevalent vegetation.

A positive wetland determination is considered when these three parameters are met.

Wetland determinations are made based on indicators as described in Part III of the 1987 Corps Wetland Delineation Manual. A positive hydrophytic vegetation determination is appropriate when more than 50 percent of the dominant species from all plant strata are Obligate, Facultative Wet or Facultative. These terms will be explained in a later Exhibit. Hydric soils are defined as saturated, flooded, or ponded long enough during the growing season to develop anaerobic conditions that favor the growth and regeneration of hydrophytic vegetation. Hydric soil criteria specify that the soil be saturated for at least 15 consecutive days, or inundated for seven or more days during the growing season in most years. Some indications of hydric soils include aquic moisture regimes, reducing soil conditions, gleyed soils, soils with chromas of two or less in mottled soils, soils with chromas of one or less in unmottled soils, soils appearing on the hydric soils list, and iron and manganese concretions.

Wetland hydrology encompasses periodic inundation or soil saturation to the surface at some time during the growing season. Hydrology is indicated by such things as drainage patterns, drift lines, sediment deposition, watermarks, stream gage data, flood predictions, historic records, visual observation of saturated soils, and visual observation of inundation. The 1987 Corps Wetlands Delineation Manual states that wetland hydrology exists if field indicators are present, with hydrology indicated if one primary or two or more secondary indicators are present.

Growing season is considered frost free days and is estimated from climatological data provided in published soil surveys based on 28 degree Fahrenheit days 5 years out of 10.

Exhibit 5 contains a copy of the soils map from the NRCS published soil survey indicating the soils that occur on the wooded portions in question on farm number 1566, tract 2228. Three soil map units, Routon, Waverly and Falaya are indicated to occur on the site. The Routon and Waverly soil map units, indicated by soil map symbols Rt for Routon and Wa for Waverly, are indicated on the county hydric soils list as hydric in [insert county name]. The Falaya series, indicated by the map symbol Fa, is indicated on the county hydric soils list as nonhydric but with possible inclusions of hydric Routon soils. Title 7 of the Code of Federal Regulations, Part 12, Subpart C, Section 12.31 in Exhibit 1 states, "SCS shall identify hydric soils through the use of published soil maps which reflect soil surveys completed by SCS. SCS shall determine whether an area of a field or other parcel of land has a predominance of hydric soils that are inundated or saturated as follows: If a soil map unit has hydric soil as all or part of its name, that soil map unit or portion of the map unit related to the hydric soil shall be determined to have a predominance of hydric soils." Section 12.31 goes on to state that an official list of hydric soil map units shall be maintained at the local SCS office and shall include all soils from the National List of Hydric Soils that can be found in that field office area. It further states that hydric soils are those soils that meet criteria set forth in the publication "Hydric Soils of the United States 198511, which was developed by the National Technical Committee for Hydric Soils. Paragraphs 36 and 44 g of the 1987 Corps Wetlands Delineation Manual states that soils are hydric that appear on this official list. The addendum to the 1987 Corps Manual also states that when available, the local hydric soils list takes precedence over the national list for hydric soil determinations.

Exhibit 6 illustrates a comprehensive onsite soils investigation conducted by [insert name of NRCS employee], a professional soil scientist. Those findings are illustrated on a revised soil map in Exhibit 6, with a reduction of the original soils mapping from approximately 44 acres down to approximately 38.5 acres of hydric soils. Sampling consisted of 22 sample points along a line that encircled the area in question. Those soils considered hydric onsite were confirmed to be Routon and Waverly soils. Those portions of the site considered mismapped were changed to Falaya and Collins soils, both considered nonhydric. The Falaya series was not considered to contain any hydric inclusions. Representative soil descriptions for the onsite observations of the confirmed Routon and Waverly soils are described in Exhibit 6 as soils with gray low chroma matrix colors within a few inches of the surface, reducing conditions, and common iron and manganese concretions. These are all described as indicators for hydric soil in the 1987 Corps Wetlands Delineation Manual in paragraphs 44 e, f, and h.

Plant transacts were conducted in October 1994. The entire site was walked to determine the number of plant communities that occurred. Plant communities for the Routon, Waverly and Falaya soil map units were considered uniform within each soil type. Visual determinations were made at locations indicated on the map in Exhibit 7. Percent cover was estimated based on crown canopy and percent ground cover. The 1987 Corps of Engineers Wetlands Delineation Manual states in paragraph 31 that "as used in the CE wetlands definition, the governing environmental conditions for hydrophytic vegetation are saturated soils resulting from periodic inundation or saturation by surface or ground water. These periodic events must occur for sufficient duration to result in anaerobic soil conditions. When the dominant species in a plant community are typically adapted for life in anaerobic soil conditions, hydrophytic vegetation is present." According to the 1987 Corps of Engineers Wetlands Delineation Manual, hydrophytic vegetation is determined by applying the Basic Rule. This rule states in paragraph 35 a and the addendum, that hydrophytic vegetation is present when more than 50 percent of the dominant species from all strata are Obligate, Facultative Wet, or Facultative, excluding Facultative (-). Table I of the 1987 Corps Manual clarifies the definition of plant indicator status. Obligate plants occur in wetlands with a probability of >99 percent. Facultative Wetland plants occur in wetlands usually >67 percent to 99 percent of the time. Facultative plants usually occur in wetlands from 33 percent to 67 percent of the time. Facultative Upland plants usually occur in wetlands from 1 percent to <33 percent of the time. Data collected clearly shows that the Routon site sampled contained a predominance of wetland plants with 78 percent of the dominant species hydrophytic.

The Waverly site sampled contained a predominance of wetland plants with 100% of the dominant species hydrophytic.

Paragraph 49 of the 1987 Corps of Engineers Wetlands Delineation Manual states that "indicators of wetland hydrology may include, but are not necessarily limited to: drainage patterns, drift lines, sediment deposition, watermarks, stream gage data and flood predictions, historic records, visual observation of saturated soils, and visual observations of inundation." Exhibit 7 indicates that over most of the site, there were no primary indicators of inundation such as water marks, drift lines or sediment deposits. A small part of the Waverly map unit was ponding water and contained a bald cypress, buttonbush plant community. The primary indicator noted onsite for wetland hydrology was saturation in the upper 12 inches as recorded by the soil scientists. At least three secondary indicators for hydrology were noted on each hydric soil map unit. These indicators included oxidized root channels, soil survey data, and a positive FAC neutral test. These are all indicators of soil saturation. The 1987 Corps of Engineers Wetland Delineation Manual states that wetland hydrology exists if such field indicators are present. Hydrology must occur for at least 5% of the growing season. Field indicators for saturation develop due to extended periods of hydrology. The aspect of soil and hydrology indicators reflecting conditions occurring for extended periods in the growing season are confirmed by oxidation around active root channels, and by the fact that the herbaceous plant community is dominated by hydrophytes.

Exhibit 8 introduces the National List of Plant Species that occur in Wetlands: Southeast (Region 2)1. This document, published by the U.S. Fish and Wildlife Service, assigns a wetland plant indicator status to basically all the plants that may occur in wetlands in [insert State]. Paragraph 35 and the addendum of the 1987 Corps of Engineers Wetlands Delineation Manual, as well as Title 7 of the Code of Federal Regulations, Part 12, Subpart C, Section 12.31, states that this document will be used to assign the wetland plant indicator status to those species identified in the determination.

Exhibit 9 contains photographs of plant communities at those locations where plant transacts were made. It also contains a soil profile of the Routon soil typically occurring onsite. Photograph 2 illustrates low chromas with mottles. Photographs 1, 3 and 4 provide insight into the hydrology of the area. Understudy plant communities are weak in the Routon and Waverly areas when compared to the understudy community of the Falaya soil area. Photograph 3 illustrates the standing water area on the Waverly map unit.

Exhibit 10 is the response letter from the State Conservationist in the NRCS appeal process reflecting the reduction of wetland acreage from the original 44 to approximately 38.5 acres. The data collected was provided to the U.S. Army Corps of Engineers and the U.S. Fish and Wildlife Service in concurrence with Section IV B of the Memorandum of Agreement Concerning the Delineation of Wetlands For Purposes of Section 404 of the Clean Water Act and Subtitle B of the Food Security Act ( Exhibit 3.) The agencies provided no return comment, indicating concurrence in the wetland determination made by NRCS. The letter from the State Conservationist also was intended to inform that conversion of a wetland would be potentially be a violation of both the Farm Bill and the Clean Water Act. The Natural Resources Conservation Service has an obligation to keep landowners informed by providing adequate information concerning environmental laws .

Exhibit 11 provides support documentation illustrating that conclusions were similar for two site investigations conducted by staff personnel of the Natural Resources Conservation Service. The documentation also clarifies why wetland acreage was reduced from 44 to approximately 38.5 acres.

In summary, procedures were properly followed, with the estimated final acreage Exhibiting adequate hydric soils, hydrology, and hydrophytic plants to identify the area as wetlands.

[M_440_510_G_75 - First Edition Amendment 3 - September 2006]

510.76 Exhibit 16, NAD Regional Offices

510.76 Exhibit 16, NAD Regional Offices

Eastern Regional Office

William Crutchfield, Assistant Director 3500 DePauw Boulevard Suite 2052 Indianapolis, Indiana 46268 Telephone: 800/541-0457 Fax: 317/875-9674

States:

Connecticut, Delaware, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, Vermont, Virginia, West Virginia, and Wisconsin

Southern Regional Office

Duane Sinclair, Assistant Director Post Office Box 1508 Cordova, Tennessee 38088 Telephone: 800/552-5377 Fax: 901/544-0363

States:

Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Puerto Rico

Western Regional Office

Patricia A. Leslie, Assistant Director 755 Parfet Street, Suite 494 Lakewood, Colorado 80215-5506 Telephone: 800/541-0483 Fax: 303/236-2857

States:

Alaska, Arizona, California, Colorado, Hawaii, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, Wyoming


[M_440_510_G_76 - First Edition Amendment 3 - September 2006]

510.77 Exhibit 17, NAD Regulation

Click here to obtain a copy of NAD Regulation, 7 CFR 11.

[M_440_510_G_77 - First Edition Amendment 46 - May 2008]

510.78 Exhibit 18, NRCS Appeals Regulation

Click here to obtain a copy of NAD Regulation, 7 CFR 614.

[M_440_510_G_78 - First Edition, Amendment 46 - May 2008]

510.79 Exhibit 19, FSA Appeals Regulation

Click here to obtain a copy of FSA Regulations, Interim final rule and click here to obtain a copy of the Final rule, 7 CFR 780.

[M_440_510_G_79 - First Edition Amendment 46 - May 2008]

Table of Contents - Appeals and Mediation
 

Subpart A – NRCS Administration of Appeals and Organization

510.0  Administration of Appeals and Organization

Subpart B – General Information

510.10  General Information

510.11  General Rules

510.12  Agency Record, 7 CFR § 614.6(a)

510.13  Notification, 7 CFR § 614.6(b)

510.14  Mediation, 7 CFR § 614.11 and 7 CFR 785

510.15  Appeals to FSA County Committees, 7 CFR § 614.10 and 7 CFR 780.11

510.16  Appeals to NAD

510.17  Exhaustion of the Appeals Process

510.18  Guidelines for Rescinding an NRCS Adverse Decision

Subpart C – Preliminary and Final Technical Determinations

510.20  General Information

510.21  Preliminary Technical Determinations, 7 CFR § 614.7

510.22  Final Technical Determination

Subpart D – Program Decisions

510.30  Program Decisions, 7 CFR § 614.9

510.31  Appeal Options for Program Decisions

510.32  Informal Hearing with the NRCS State Conservationist

Subpart E – Mediation

510.40  General Information

510.41  Mediation Availability

510.42  Requesting Mediation

510.43  Responsibilities and Roles

510.44  Closing Out Mediation

Subpart F – National Appeals Division

510.50  General Information

510.51  Appeal Rights under NAD

510.52  NAD Appeal Process

510.53  NAD Hearings

510.54  Specific NAD Hearing Procedures

510.55  NAD Hearing Officer Determination

510.56  NAD Director Reviews

510.57  Requests for Reconsideration of a NAD Director Review Decision

510.58  Implementing NAD Decisions

Subpart G – Exhibits

510.60  General Information

510.61  Exhibit 1, Example of the Agency Administrative Record Organization

510.62  Exhibit 2, Administrative Record Content Checklist

510.63  Exhibit 3, Sample Letter Correcting a Technical Determination or Technical Decision

510.64  Exhibit 4, Sample Letter, No Change in the Technical Determination or Technical Decision

510.65  Exhibit 5, Sample Technical Determination or Technical Decision Format

510.66  Exhibit 6, Sample Preliminary Technical Determination Transmittal Letter

510.67  Exhibit 7, Sample Field Visit Acknowledgement Letter

510.68  Exhibit 8, Sample Final Technical Determination or Final Technical Decision Transmittal Letter

510.69  Exhibit 9, Sample State Conservationist Review and Appeal Acknowledgement Letter

510.70  Exhibit 10, Sample Summary Outline for an Appeal

510.71  Exhibit 11, Sample State Conservationist Decision Letter

[M_440_510_M_440_510 - Amend. 91 - January 2008]