7 USC CHAPTER 98, SUBCHAPTER VIII: NATIONAL APPEALS DIVISION

From Title 7—AGRICULTURECHAPTER 98—DEPARTMENT OF AGRICULTURE REORGANIZATION

SUBCHAPTER VIII—NATIONAL APPEALS DIVISION

§6991. Definitions

For purposes of this subchapter:

(1) Adverse decision

The term "adverse decision" means an administrative decision made by an officer, employee, or committee of an agency that is adverse to a participant. The term includes a denial of equitable relief by an agency or the failure of an agency to issue a decision or otherwise act on the request or right of the participant. The term does not include a decision over which the Board of Contract Appeals has jurisdiction.

(2) Agency

The term "agency" means any agency of the Department designated by the Secretary or a successor agency of the Department, except that the term shall include the following (and any successor to the following):

(A) The Farm Service Agency (or other office, agency, or administrative unit of the Department assigned the functions authorized for the Farm Service Agency under section 6932 of this title).

(B) The Commodity Credit Corporation, with respect to domestic programs.

(D) The Federal Crop Insurance Corporation.

(E) The Rural Development Administration.

(F) The Natural Resources Conservation Service (or other office, agency, or administrative unit of the Department assigned the functions authorized for the Natural Resources Conservation Service under section 6936(b) of this title).

(G) A State, county, or area committee established under section 590h(b)(5) of title 16.

(3) Appellant

The term "appellant" means a participant who appeals an adverse decision in accordance with this subchapter.

(4) Case record

The term "case record" means all the materials maintained by the Secretary related to an adverse decision.

(5) Director

The term "Director" means the Director of the Division.

(6) Division

The term "Division" means the National Appeals Division established by this chapter.

(7) Hearing officer

The term "hearing officer" means an individual employed by the Division who hears and determines appeals of adverse decisions by any agency.

(8) Implement

The term "implement" refers to those actions necessary to effectuate fully and promptly a final determination of the Division not later than 30 calendar days after the effective date of the final determination.

(9) Participant

The term "participant" shall have the meaning given that term by the Secretary by regulation.

(Pub. L. 103–354, title II, §271, Oct. 13, 1994, 108 Stat. 3228; Pub. L. 115–334, title XII, §§12404(b)(2), 12410(c)(2)(B), Dec. 20, 2018, 132 Stat. 4975, 4978.)

Editorial Notes

References in Text

This subchapter, referred to in text, was in the original "this subtitle", meaning subtitle H (§§271–283) of title II of Pub. L. 103–354, Oct. 13, 1994, 108 Stat. 3228, which enacted this subchapter, amended sections 2006 and 5101 to 5106 of this title and section 2202e of Title 12, Banks and Banking, and repealed sections 1433e and 1983b of this title.

This chapter, referred to in par. (6), was in the original "this title", meaning title II of Pub. L. 103–354, Oct. 13, 1994, 108 Stat. 3209, known as the Department of Agriculture Reorganization Act of 1994. For complete classification of title II to the Code, see Short Title note set out under section 6901 of this title and Tables.

Amendments

2018—Par. (2)(A). Pub. L. 115–334, §12404(b)(2), substituted "Farm" for "Consolidated Farm" in two places.

Par. (2)(F). Pub. L. 115–334, §12410(c)(2)(B), substituted "section 6936(b) of this title" for "section 6962(b) of this title".

§6992. National Appeals Division and Director

(a) Establishment of Division

The Secretary shall establish and maintain an independent National Appeals Division within the Department to carry out this subchapter.

(b) Director

(1) Appointment

The Division shall be headed by a Director, appointed by the Secretary from among persons who have substantial experience in practicing administrative law. In considering applicants for the position of Director, the Secretary shall consider persons currently employed outside Government as well as Government employees.

(2) Term and removal

The Director shall serve for a 6-year term of office, and shall be eligible for reappointment. The Director shall not be subject to removal during the term of office, except for cause established in accordance with law.

(3) Position classification

The position of the Director may not be a position in the excepted service or filled by a noncareer appointee.

(c) Direction, control, and support

(1) Direction and control

(A) In general

Except as provided in paragraph (2), the Director shall be free from the direction and control of any person other than the Secretary or the Deputy Secretary of Agriculture.

(B) Administrative support

The Division shall not receive administrative support (except on a reimbursable basis) from any agency other than the Office of the Secretary.

(C) Prohibition on delegation

The Secretary may not delegate to any other officer or employee of the Department, other than the Deputy Secretary of Agriculture or the Director, the authority of the Secretary with respect to the Division.

(2) Exception

The Assistant Secretary for Administration is authorized to investigate, enforce, and implement the provisions in law, Executive order, or regulations that relate in general to competitive and excepted service positions and employment within the Division, including the position of Director, and such authority may be further delegated to subordinate officials.

(d) Determination of appealability of agency decisions

If an officer, employee, or committee of an agency determines that a decision is not appealable and a participant appeals the decision to the Director, the Director shall determine whether the decision is adverse to the individual participant and thus appealable or is a matter of general applicability and thus not subject to appeal. The determination of the Director as to whether a decision is appealable shall be administratively final.

(e) Division personnel

(1) In general

The Director shall recommend to the Secretary persons for appointment as hearing officers as are necessary for the conduct of hearings under section 6997 of this title. The Director shall appoint such other employees as are necessary for the administration of the Division. A hearing officer or other employee of the Division shall have no duties other than those that are necessary to carry out this subchapter. Each position of the Division shall be filled by an individual who is not a political appointee.

(2) Political appointee

In this subsection, the term "political appointee" means an individual occupying—

(A) a position described under sections 5312 through 5316 of title 5 (relating to the Executive Schedule);

(B) a noncareer position in the Senior Executive Service, as described under section 3132(a)(7) of that title;

(C) a position in the executive branch of the Government of a confidential or policy-determining character under schedule C of subpart C of part 213 of title 5, Code of Federal Regulations; or

(D) a position which has been excepted from the competitive service by reason of its confidential, policy-determining, policy-making, or policy-advocating character.

(Pub. L. 103–354, title II, §272, Oct. 13, 1994, 108 Stat. 3229; Pub. L. 113–79, title I, §1610(a), Feb. 7, 2014, 128 Stat. 709; Pub. L. 115–334, title XII, §12412, Dec. 20, 2018, 132 Stat. 4980.)

Editorial Notes

References in Text

This subchapter, referred to in subsec. (e), was in the original "this subtitle", meaning subtitle H (§§271–283) of title II of Pub. L. 103–354, Oct. 13, 1994, 108 Stat. 3228, which enacted this subchapter, amended sections 2006 and 5101 to 5106 of this title and section 2202e of Title 12, Banks and Banking, and repealed sections 1433e and 1983b of this title.

Amendments

2018—Subsec. (e). Pub. L. 115–334 amended subsec. (e) generally. Prior to amendment, text read as follows: "The Director shall appoint such hearing officers and other employees as are necessary for the administration of the Division. A hearing officer or other employee of the Division shall have no duties other than those that are necessary to carry out this subchapter."

2014—Subsec. (c). Pub. L. 113–79 added subsec. (c) and struck out former subsec. (c). Prior to amendment, text read as follows: "The Director shall be free from the direction and control of any person other than the Secretary. The Division shall not receive administrative support (except on a reimbursable basis) from any agency other than the Office of the Secretary. The Secretary may not delegate to any other officer or employee of the Department, other than the Director, the authority of the Secretary with respect to the Division."

§6993. Transfer of functions

There are transferred to the Division all functions exercised and all administrative appeals pending before the effective date of this subchapter (including all related functions of any officer or employee) of or relating to—

(1) the National Appeals Division established by section 1433e(c) ¹ of this title (as in effect on the day before October 13, 1994);

(2) the National Appeals Division established by subsections (d) through (g) of section 1983b ¹ of this title (as in effect on the day before October 13, 1994);

(3) appeals of decisions made by the Federal Crop Insurance Corporation; and

(4) appeals of decisions made by the Soil Conservation Service (as in effect on the day before October 13, 1994).

(Pub. L. 103–354, title II, §273, Oct. 13, 1994, 108 Stat. 3230.)

Editorial Notes

References in Text

The effective date of this subchapter, referred to in text, probably means the date of enactment of Pub. L. 103–354, which was approved Oct. 13, 1994.

Section 1433e of this title, referred to in par. (1), was repealed by Pub. L. 103–354, title II, §281(b), Oct. 13, 1994, 108 Stat. 3233.

Section 1983b of this title, referred to in par. (2), was repealed by Pub. L. 103–354, title II, §281(c), Oct. 13, 1994, 108 Stat. 3233.

¹ See References in Text note below.

§6994. Notice and opportunity for hearing

Not later than 10 working days after an adverse decision is made that affects the participant, the Secretary shall provide the participant with written notice of such adverse decision and the rights available to the participant under this subchapter or other law for the review of such adverse decision.

(Pub. L. 103–354, title II, §274, Oct. 13, 1994, 108 Stat. 3230.)

§6995. Informal hearings

(a) In general

If an officer, employee, or committee of an agency makes an adverse decision, the agency shall hold, at the request of the participant, an informal hearing on the decision.

(b) Farm Service Agency

With respect to programs carried out through the Farm Service Agency (or other office, agency, or administrative unit of the Department assigned to carry out the programs authorized for the Farm Service Agency under section 6932 of this title), the Secretary shall maintain the informal appeals process applicable to such programs, as in effect on October 13, 1994.

(c) Mediation

If a mediation program is available under title V of the Agricultural Credit Act of 1987 (7 U.S.C. 5101 et seq.) as a part of the informal hearing process, the participant shall—

(1) be offered the right to choose such mediation; and

(2) to the maximum extent practicable, be allowed to use both informal agency review and mediation to resolve disputes under that title.

(Pub. L. 103–354, title II, §275, Oct. 13, 1994, 108 Stat. 3230; Pub. L. 110–234, title XII, §12032, May 22, 2008, 122 Stat. 1391; Pub. L. 110–246, §4(a), title XII, §12032, June 18, 2008, 122 Stat. 1664, 2153; Pub. L. 115–334, title XII, §12404(b)(3), Dec. 20, 2018, 132 Stat. 4975.)

Editorial Notes

References in Text

The Agricultural Credit Act of 1987, referred to in subsec. (c), is Pub. L. 100–233, Jan. 6, 1988, 101 Stat. 1568. Title V of the Act is classified principally to chapter 82 (§5101 et seq.) of this title. For complete classification of this Act to the Code, see Short Title of 1988 Amendments note set out under section 2001 of Title 12, Banks and Banking, and Tables.

Codification

Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.

Amendments

2018—Subsec. (b). Pub. L. 115–334 substituted "Farm" for "Consolidated Farm" in two places.

2008—Pub. L. 110–246, §12032, designated the three sentences of existing provisions as subsecs. (a) to (c), respectively, inserted headings, and in subsec. (c) designated part of existing provisions as par. (1) and added par. (2).

Statutory Notes and Related Subsidiaries

Effective Date of 2008 Amendment

Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title.

§6996. Right of participants to Division hearing

(a) Appeal to Division for hearing

Subject to subsection (b), a participant shall have the right to appeal an adverse decision to the Division for an evidentiary hearing by a hearing officer consistent with section 6997 of this title.

(b) Time for appeal

To be entitled to a hearing under section 6997 of this title, a participant shall request the hearing not later than 30 days after the date on which the participant first received notice of the adverse decision.

(Pub. L. 103–354, title II, §276, Oct. 13, 1994, 108 Stat. 3230.)

§6997. Division hearings

(a) General powers of Director and hearing officers

(1) Access to case record

The Director and hearing officer shall have access to the case record of any adverse decision appealed to the Division for a hearing.

(2) Administrative procedures

The Director and hearing officer shall have the authority to require the attendance of witnesses, and the production of evidence, by subpoena and to administer oaths and affirmations. Except to the extent required for the disposition of ex parte matters as authorized by law—

(A) an interested person outside the Division shall not make or knowingly cause to be made to the Director or a hearing officer who is or may reasonably be expected to be involved in the evidentiary hearing or review of an adverse decision, an ex parte communication (as defined in section 551(14) of title 5) relevant to the merits of the proceeding;

(B) the Director and such hearing officer shall not make or knowingly cause to be made to any interested person outside the Division an ex parte communication relevant to the merits of the proceeding.

(b) Time for hearing

Upon a timely request for a hearing under section 6996(b) of this title, an appellant shall have the right to have a hearing by the Division on the adverse decision within 45 days after the date of the receipt of the request for the hearing.

(c) Location and elements of hearing

(1) Location

A hearing on an adverse decision shall be held in the State of residence of the appellant or at a location that is otherwise convenient to the appellant and the Division.

(2) Evidentiary hearing

The evidentiary hearing before a hearing officer shall be in person, unless the appellant agrees to a hearing by telephone or by a review of the case record. The hearing officer shall not be bound by previous findings of fact by the agency in making a determination.

(3) Information at hearing

The hearing officer shall consider information presented at the hearing without regard to whether the evidence was known to the agency officer, employee, or committee making the adverse decision at the time the adverse decision was made. The hearing officer shall leave the record open after the hearing for a reasonable period of time to allow the submission of information by the appellant or the agency after the hearing to the extent necessary to respond to new facts, information, arguments, or evidence presented or raised by the agency or appellant.

(4) Burden of proof

The appellant shall bear the burden of proving that the adverse decision of the agency was erroneous.

(d) Determination notice

The hearing officer shall issue a notice of the determination on the appeal not later than 30 days after a hearing or after receipt of the request of the appellant to waive a hearing, except that the Director may establish an earlier or later deadline. If the determination is not appealed to the Director for review under section 6998 of this title, the notice provided by the hearing officer shall be considered to be a notice of an administratively final determination.

(e) Effective date

The final determination shall be effective as of the date of filing of an application, the date of the transaction or event in question, or the date of the original adverse decision, whichever is applicable.

(Pub. L. 103–354, title II, §277, Oct. 13, 1994, 108 Stat. 3230.)

§6998. Director review of determinations of hearing officers

(a) Requests for Director review

(1) Time for request by appellant

Not later than 30 days after the date on which an appellant receives the determination of a hearing officer under section 6997 of this title, the appellant shall submit a written request to the Director for review of the determination in order to be entitled to a review by the Director of the determination.

(2) Time for request by agency head

Not later than 15 business days after the date on which an agency receives the determination of a hearing officer under section 6997 of this title, the head of the agency may make a written request that the Director review the determination.

(b) Determination of Director

The Director shall conduct a review of the determination of the hearing officer using the case record, the record from the evidentiary hearing under section 6997 of this title, the request for review, and such other arguments or information as may be accepted by the Director. Based on such review, the Director shall issue a final determination notice that upholds, reverses, or modifies the determination of the hearing officer. However, if the Director determines that the hearing record is inadequate, the Director may remand all or a portion of the determination for further proceedings to complete the hearing record or, at the option of the Director, to hold a new hearing. The Director shall complete the review and either issue a final determination or remand the determination not later than—

(1) 10 business days after receipt of the request for review, in the case of a request by the head of an agency for review; or

(2) 30 business days after receipt of the request for review, in the case of a request by an appellant for review.

(c) Basis for determination

The determination of the hearing officer and the Director shall be based on information from the case record, laws applicable to the matter at issue, and applicable regulations published in the Federal Register and in effect on the date of the adverse decision or the date on which the acts that gave rise to the adverse decision occurred, whichever date is appropriate.

(d) Equitable relief

Subject to regulations issued by the Secretary, the Director shall have the authority to grant equitable relief under this section in the same manner and to the same extent as such authority is provided to the Secretary under section 7996 of this title and other laws. Notwithstanding the administrative finality of a final determination of an appeal by the Division, the Secretary shall have the authority to grant equitable or other types of relief to the appellant after an administratively final determination is issued by the Division.

(e) Effective date

A final determination issued by the Director shall be effective as of the date of filing of an application, the date of the transaction or event in question, or the date of the original adverse decision, whichever is applicable.

(Pub. L. 103–354, title II, §278, Oct. 13, 1994, 108 Stat. 3232; Pub. L. 107–171, title I, §1613(j)(2), May 13, 2002, 116 Stat. 221.)

Editorial Notes

Amendments

2002—Subsec. (d). Pub. L. 107–171 substituted "section 7996 of this title" for "section 1339a of this title".

§6999. Judicial review

A final determination of the Division shall be reviewable and enforceable by any United States district court of competent jurisdiction in accordance with chapter 7 of title 5.

(Pub. L. 103–354, title II, §279, Oct. 13, 1994, 108 Stat. 3233.)

§7000. Implementation of final determinations of Division

(a) In general

On the return of a case to an agency pursuant to the final determination of the Division, the head of the agency shall implement the final determination not later than 30 days after the effective date of the notice of the final determination.

(b) Reports

(1) In general

Not later than 180 days after the date of the enactment of this subsection, and every 180 days thereafter, the head of each agency shall submit to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate, and publish on the website of the Department, a report that includes—

(A) a description of all cases returned to the agency during the period covered by the report pursuant to a final determination of the Division;

(B) the status of implementation of each final determination; and

(i) the reason that the final determination has not been implemented; and

(ii) the projected date of implementation of the final determination.

(2) Updates

Each month, the head of each agency shall publish on the website of the Department any updates to the reports submitted under paragraph (1).

(Pub. L. 103–354, title II, §280, Oct. 13, 1994, 108 Stat. 3233; Pub. L. 110–234, title XIV, §14009, May 22, 2008, 122 Stat. 1446; Pub. L. 110–246, §4(a), title XIV, §14009, June 18, 2008, 122 Stat. 1664, 2208.)

Editorial Notes

References in Text

The date of the enactment of this subsection, referred to in subsec. (b)(1), is the date of enactment of Pub. L. 110–246, which was approved June 18, 2008.

Codification

Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.

Amendments

2008—Pub. L. 110–246, §14009, designated existing provisions as subsec. (a), inserted heading, and added subsec. (b).

Statutory Notes and Related Subsidiaries

Effective Date of 2008 Amendment

§7001. Conforming amendments relating to National Appeals Division

(a) Decisions of State, county, and area committees

(1) Application of subsection

(A) In general

Except as provided in subparagraph (B), this subsection shall apply only with respect to functions of the Farm Service Agency or the Commodity Credit Corporation that are under the jurisdiction of a State, county, or area committee established under section 590h(b)(5) of title 16 or an employee of such a committee.

(B) Nonapplicability

This subsection does not apply to—

(i) a function performed under section 2008k of this title; or

(ii) a function performed under a conservation program administered by the Natural Resources Conservation Service.

(2) Finality

Each decision of a State, county, or area committee (or an employee of such a committee) covered by paragraph (1) that is made in good faith in the absence of misrepresentation, false statement, fraud, or willful misconduct shall be final not later than 90 days after the date of filing of the application for benefits, unless the decision, before the end of the 90-day period, is—

(A) appealed under this subchapter; or

(B) modified by the Administrator of the Farm Service Agency or the Executive Vice President of the Commodity Credit Corporation.

(3) Recovery of amounts

If the decision of the State, county, or area committee has become final under paragraph (2), no action may be taken by the Farm Service Agency, the Commodity Credit Corporation, or a State, county, or area committee to recover amounts found to have been disbursed as a result of a decision in error unless the participant had reason to believe that the decision was erroneous.

(4) Savings provision

For purposes of this subsection, a reference to the "Farm Service Agency" includes any other office, agency, or administrative unit of the Department assigned the functions authorized for the Farm Service Agency under section 6932 of this title.

(b), (c) Omitted

(Pub. L. 103–354, title II, §281, Oct. 13, 1994, 108 Stat. 3233; Pub. L. 107–171, title I, §1613(i), May 13, 2002, 116 Stat. 221.)

Editorial Notes

Codification

Section is comprised of section 281 of Pub. L. 103–354. Subsecs. (b) and (c) of section 281 of Pub. L. 103–354 repealed sections 1433e and 1983b of this title, respectively.

Amendments

2002—Subsec. (a)(1). Pub. L. 107–171, §1613(i)(1), (2), designated existing provisions as subpar. (A), inserted heading, substituted "Except as provided in subparagraph (B), this subsection" for "This subsection" and "Farm Service Agency" for "Consolidated Farm Service Agency", and added subpar. (B).

Subsec. (a)(2). Pub. L. 107–171, §1613(i)(3), inserted ", before the end of the 90-day period," after "unless the decision" in introductory provisions.

Subsec. (a)(2)(B), (3), (4). Pub. L. 107–171, §1613(i)(1), substituted "Farm Service Agency" for "Consolidated Farm Service Agency" wherever appearing.

§7002. Authorization of appropriations

There are authorized to be appropriated such sums as may be necessary to carry out the activities of the Division.

(Pub. L. 103–354, title II, §283, Oct. 13, 1994, 108 Stat. 3235.)