[Federal Register: May 30, 2006 (Volume 71, Number 103)]
[Rules and Regulations]
[Page 30568-30574]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30my06-3]
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DEPARTMENT OF AGRICULTURE
Farm Service Agency
7 CFR Part 780
RIN 0560-AG88
Appeal Procedures
AGENCY: Farm Service Agency, USDA.
ACTION: Final rule.
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SUMMARY: In an interim rule that was published on July 27, 2005, and
made effective on August 26, 2005, the Farm Service Agency (FSA)
amended the regulations for informal agency appeals to make conforming
and clarifying changes. This rule adopts the interim rule with some
minor clarifying amendments.
DATES: Effective Date: This rule is effective June 29, 2006.
FOR FURTHER INFORMATION CONTACT: H. Talmage Day, Appeals and Litigation
Staff, Farm Service Agency, United States Department of Agriculture,
1400 Independence Avenue, SW., AG STOP 0570, Washington, DC 20250-0570.
Telephone: 202-690-3297. E-mail: Tal.Day@wdc.usda.gov.
SUPPLEMENTARY INFORMATION:
Background
On July 27, 2005, the Farm Service Agency (FSA) published an
interim final rule amending the FSA appeal regulations at 7 CFR part
780 (70 FR 43262-43270). The interim final rule became effective on
August 26, 2005.
Public Comment
FSA received 20 comments from the public concerning the interim
final rule: one comment from the lead plaintiff in class action
litigation pending against FSA, one comment from class counsel in that
litigation, one comment from a minority advocacy organization, one
comment from a farm advocacy organization, two comments from farm
advocates, one comment from an organization of recipients of grants
under FSA's Certified Agricultural Mediation Program, 7 CFR part 785,
and 13 comments from recipients of grants under that program. These
comments and FSA's responses are as follows:
[[Page 30569]]
Regulatory Definitions
Four respondents made suggestions or questioned certain regulatory
definitions. One respondent suggested that the regulation should define
``interested parties'' and ``third parties.'' The substance of this
respondent's concern is that all interested and third parties uniformly
be given notice and opportunity to participate in mediation. Current
rules allow for sufficient and appropriate flexibility in introducing
other parties to the mediation. No change to the regulations was found
to be warranted.
Two respondents who have served as advocates in appeals suggested
that the definition of ``appellant'' should include an appellant's
authorized representative, noting a reference to authorized
representatives in NAD rules. FSA believes that the change is
unnecessary. This comment goes to the authority of authorized
representatives to act for appellants, a point not addressed in the
rule. NAD's regulatory definition encompassing appellants'
representatives has significance in its rules because the NAD Procedure
specifically preclude appellants' representatives from submitting
requests for NAD hearings or for reviews of NAD hearing officers'
determinations by the NAD Director that are ``not personally signed by
the named appellant.'' See 7 CFR 11.6(b) and 11.9(a)(2). The procedures
for agency informal appeals specify no circumstances where an
``authorized representative'' as defined in the interim final rule
cannot act for an appellant. Unless the representative's authority is
limited in writing by the participant, FSA does not intend to restrict
a representative's ability to represent the participant in proceedings
governed by part 780.
Two respondents expressed concern that the definition of ``agency
record'' in the interim final rule conflicts with the definition of
``agency record'' in the NAD rules. FSA reviewed the corresponding
definitions in the two rules and does not perceive a conflict. The
definition of ``agency record'' in the NAD rules refers not to ``all
records'' as suggested by one respondent, but only to records related
``to the adverse decision at issue.'' In any event, part 780 provides
for excluding irrelevant matters. No change in the regulations is
needed.
One respondent complained that use of the term ``covered programs''
in 7 CFR 780.6(a) and of ``covered'' in 7 CFR 780.6(c) of the interim
final rule was ``cryptic'' and proposed that FSA list examples of such
programs. FSA believes that the scope of the interim final rule and
programs covered is adequately addressed in section 780.4 of the
interim final rule. Section 780.4(a)(1) describes programs to which
part 780 applies and section 780.4(a)(3) describes those programs as
``covered programs.''
Appeal Options
Five respondents expressed concern that the interim final rule
effected a change in prior rules to require that participants in
agricultural credit programs appeal to county and State committees. The
respondents' concerns are unfounded. As set forth in section 780.6(b),
appeals to county and State committees are not options available to
participants in agricultural credit programs.
One respondent expressed concern that the interim final rule can be
read as requiring that all agency appeal procedures be exhausted before
an appeal to NAD. NAD rules cover NAD jurisdiction. Hence, this comment
goes beyond the scope of the current rulemaking. NAD rules do require
that decisions by subordinates of county committees must first be
appealed to the county committee before any other appeal options are
available. Also of note, FSA directives call for incorporating language
in decision letters that specifies in detail how participants must be
given notice of their options at each stage of decision-making in a
covered program.
One respondent expressed concern that the rule will attenuate the
appeals process, causing delay and adverse economic impact. For the
reasons noted above, FSA also regards that concern as unfounded. Apart
from the limitation precluding appeals directly to NAD from decisions
of subordinates of county committees, the rule imposes no limitation on
participants' option to appeal adverse decisions directly to NAD.
Three respondents from advocacy organizations, a coalition of
recipients of certified mediation program grants under 7 CFR part 785,
and five State recipients of certified mediation program grants under
that part expressed concern that the respective listings of agency
informal appeal procedures available in section 780.6 of the interim
final rule implied that the options mentioned must be pursued in a
particular order. FSA believes that the concerns are misplaced. As
noted, pursuant to agency directives, FSA decision letters furnish
notice of available appeal or review options that must be incorporated
substantially verbatim in all decision letters to participants. The
language identifies the options available to participants, but does not
presume to advocate which, if any, option a participant should choose.
The listings of options available in section 780.6 merely reflect the
organization of the interim final rule.
Time Limitation for Filing of Appeal Requests
Two respondents affiliated with advocacy organizations and four
State recipients of grants under the certified agricultural mediation
program objected that the interim final rule reduces time for
participants to request appeals from 30 to 23 days. FSA believes that
this concern arises from a misreading of the ``mailing rule'' in Sec.
780.15(e)(2) of the interim final rule. The interim final rule changed
prior procedure, which required a participant to appeal within 30 days
from the date of an adverse decision letter, so the time limitation to
exercise appeal options would be the same for agency informal appeals
and appeals to NAD, and would run from receipt of the decision. The
rule allows 7 days for receipt. If actual receipt was earlier, the 30-
day period runs from that date. No change in the regulation was made.
Non-Appealability of Determinations Under FSA State Executive Directors
(SEDs) Special Relief Authority
Two respondents questioned why decisions on equitable relief under
the special relief authority granted SEDs under section 1613(e) of the
Farm Security and Rural Investment Act of 2002 (2002 Act) (Pub. L. 107-
171; 7 U.S.C. 7996) are administratively final and not appealable to
NAD. This is statutory. Section 1613(e) specifically vests this
statutory authority in the SED and, by statute, it may not be exercised
by other agency officials. An SED determination is subject to reversal
only by the Secretary, who may not delegate that authority. NAD decides
the proper extent of its own authority, however, as neither the NAD
Director nor any agency reviewing authority may exercise or reverse the
decision of an SED under this special relief authority, such a decision
must be administratively final. Also, in contrast to NAD
determinations, which are subject to judicial review, see 7 U.S.C.
6999, judicial review of SED exercises of the special relief authority
granted in section 1613(e) is specifically precluded in section
1613(f). Any appeal to NAD from an SED's denial of relief under the
special relief authority granted in section 1613(e) would, therefore,
create a statutory conflict. However, denials of equitable relief under
other authority in
[[Page 30570]]
programs where equitable relief is available are appealable to NAD.
Similarly, an SED's denial of equitable relief under the special
relief authority provided in section 1613(e) does not preclude a
participant from appealing the underlying adverse decision to NAD if
the matter involves disputed issues of fact and is otherwise appealable
to NAD.
Appealability of Farm Loan Requests Not Granted Solely Because of Lack
of Funding
One respondent questioned the provision in section 780.5(a)(7) that
denials because of lack of funding are not appealable. The respondent
correctly observed that under the provisions of the Consolidated Farm
and Rural Development Act (CONACT), as amended, requests for farm loans
that are denied because of lack of funding are not final administrative
decisions. Section 331A(a)(4)(A) (7 U.S.C. 1983a(a)(4)(A)) of the
CONACT provides that loan requests that are to be disapproved only
because of a lack of funding shall not be disapproved but shall be
placed in pending status. The lack of finality is also grounds for
denying the appeal. However, section 780.5(a)(7) covers other programs,
too. Appeals where no relief is possible would include advisory rulings
which go beyond the intended scope of these regulations.
Notice of Appeal Rights When Corrections Are Made
One respondent objected to use of the term ``appropriate notice''
in section 780.3(a), contending that participants must be given appeal
rights when corrections are made. FSA agrees that certain corrections
could be appealable as adverse decisions; however, that is unlikely to
be the case as a general rule because corrections, when made, generally
have the effect of bringing matters into accord with rules generally
applicable in administration of a program. Appropriate notice in such
cases may be notice of the correction that has been made. If the change
involves no ``new'' decision, advising participants of appeal or review
rights could merely create confusion when there could be no possibility
for dispute of an issue of fact. FSA, therefore, believes that the term
``appropriate notice'' accurately reflects that circumstances may
differ.
Timetable for Notice of an Adverse Decision
One respondent questioned whether the interim final rule requires
FSA to give participants notice of their appeal rights along with a
notice of an adverse decision and also questioned, as did one other
respondent, whether FSA has any discretion to exceed the 10-working day
goal for furnishing notice of an adverse decision. The respondent
asserts no additional time is permitted because the statutory source of
the 10-day provision. FSA agrees that appellants must be given notice
of their appeal and review rights in a decision. As a matter of agency
policy, mandatory forms for notice of appeal rights available under
agency and NAD rules are set forth in agency directives. Accordingly,
``may'' in section 780.7(a) is changed to ``will.''
As for the 10-working day provision, the rule is consistent with
the statutory provision but reflects that in certain cases more time
may be required to issue an adverse decision that will be accurate and
clear. Moreover, the operative date of the decision might be changed to
restart the 10-day period. Delay does not shorten the time for a NAD
appeal as that time runs from receipt of the notice as determined under
NAD regulations.
Reviews of Non-Appealability Determinations by SEDs
Two respondents questioned whether the provision in section
780.5(b) for reviews of appealability determinations by the SED is an
``additional safeguard.'' The provision for appealability reviews by
SED's is without prejudice to a participant's right to request an
appealability review by NAD and is optional for participants. In
addition, as protection for a participant's right to request an
appealability review by NAD, the rule provides in section 780.5(c) that
an SED's appealability determination is considered a new agency
decision. The effect of this provision is to afford a participant a
full 30 days from receipt of an SED's appealability determination to
request an appealability review from NAD. As FSA's guidelines for
determining whether decisions are appealable reflect the same standards
as apply in NAD appeals, the main effect of the provision for
appealability reviews by SED's is to increase the availability of
agency appeals procedures to those who may wish to take advantage of
those procedures.
Notice of Appeal Options
One respondent expressed concern that the rule make clear that
agency appeals procedures are optional for participants and that
participants are not required to request reconsideration of adverse
decisions. FSA does not believe any changes to the rule are necessary
to address this concern. Options are covered in the determination
letters and can vary based on the circumstances. Nothing in the
regulations improperly misclassifies an optional procedure as
mandatory. Hence, no adjustment was made.
Availability of Agency Directives on the Internet
Two respondents observed that agency directives setting forth
generally applicable interpretations of regulations should be available
to the public on the Internet. FSA agrees that wide distribution of
agency views is beneficial. FSA notices and handbooks are available at
http://www.fsa.usda.gov/pas. However, no change in the appeal
regulations is needed with respect to this comment on information
policy.
Appealability of Decisions Based on Rules of General Applicability
One respondent contended that participants should be able to appeal
decisions that rely on generally applicable interpretations of
regulations. FSA believes that this comment misconstrues the function
of the current part 780 administrative appeal process. Neither NAD's
appeal process nor FSA's routine appeal process are means available to
participants to dispute the validity of agency regulations or their
generally applicable interpretations. These limitations do not preclude
challenges to the validity of agency regulations and their
interpretation in the courts. Nor do they prohibit petitioning policy
making officials for a change in general instructions to be acted upon
with such additional procedures and modifications as may be warranted.
Implementation of Decisions That Are Administratively Final
Two comments from advocacy organizations contend that all steps
necessary to implement a decision must be taken within 30 calendar days
after an agency decision becomes a final administrative decision,
questioning the term ``to the extent practicable'' in the interim rule.
FSA believes that the qualification is an appropriate recognition of
what may be feasible depending upon the program that a decision
concerns. In cases where a decision involves only a payment of money or
a revised determination on program eligibility, implementation can
ordinarily occur within 30 calendar days after the decision becomes
final. However, if additional information is required from a
participant before action can be taken or if other steps are required
that cannot feasibly be accomplished within 30 calendar days,
[[Page 30571]]
additional time is required. FSA, therefore believes the text of
section 780.16 accurately reflect what is statutorily required and is
qualified appropriately so as not to be misleading to participants.
Prohibition on Personal Electronic Recordings of Agency Hearings or
Other Administrative Review Proceedings
Commenters questioned the prohibition on personal recordings of
appeal proceedings in Sec. 780.13 of the interim final rule. The
prohibition was inadvertently omitted in the interim final rule that
was previously published in 1995. FSA regards this provision as
technical and necessary to assure that any record of a proceeding is
reliable and made under circumstances that will afford all parties
equal access to the appeal record.
Duration of Mediation
The interim final rule incorporated into regulations the guidelines
for mediation of program disputes that had been operative under the
prior interim rule. In States without a certified agricultural
mediation program that is a recipient of a grant under 7 CFR part 785,
requests for mediation must be submitted to the SED. When a certified
agricultural mediation program is operating in a State, mediation is
made available through that program.
FSA received comments from 12 of the 34 State mediation programs
receiving grants under part 785 and from an organization representing
those grant recipients. The comments from each of these program
recipients raised a number of issues stated, for the most part, in
substantially identical language. FSA also received comments on the
mediation provisions from two advocacy organizations.
Duration of Mediation
Seven of the commenting mediation programs stated that FSA should
clarify section 780.9(b) to indicate that a single mediation may
involve more than one session. The interim final rule does not preclude
multiple sessions or other services as part of a mediation. Therefore,
no change in the rule is necessary to accommodate this concern.
Confidentiality in Mediations
One advocacy organization commented that Sec. 780.9(e), providing
that mediations shall be confidential consistent with the purposes of
the mediation, appeared to conflict with the definition of
``confidential'' in Sec. 780.2. FSA does not believe that the
provisions are in conflict. A similar provision for confidentiality in
7 CFR part 785 provides an exception in Sec. 785.9 for purposes of
evaluation, audit, and monitoring of certified agricultural mediation
programs. FSA agrees with the respondents' observations regarding the
importance of confidentiality in mediations. The provision for
confidentiality in Sec. 780.9(e) accordingly reflects that
confidentiality as appropriate to effect the purposes of the mediation
will be protected. Also, the suggestion of four other certified
mediation programs that these regulations should be amended to make
State law on confidentiality in mediation applicable is not adopted.
The standards should be the same nationwide and these regulations
reflect that desire.
One mediation program commented that, in the interest of
confidentiality, notes by an agency representative during mediation
should not be made part of the record that would be submitted to a
higher reviewing authority if the mediation is followed by an appeal.
FSA agrees with the substance of this comment and believes it is
appropriate to incorporate this guideline into agency directives
concerning mediation of agricultural program disputes. However, no
change in the regulations is needed.
Two other mediation programs questioned procedures for
communication by an agency representative in mediation with other FSA
officials, one proposing that the consent of other parties should be
required as a condition for such communications, the second disputing
that any communications among agency officials could be valid and
consistent with due process. Such communications are not, as such,
addressed in the regulations. The absolute prohibition sought would be
inappropriate as communication with other officials may be necessary to
the agency conduct of the mediation and other business. Such a
limitation would also be impracticable without providing a material
benefit. Presumably, all intra-governmental communication will be
relevant to the conduct of agency business.
Stay of Time Limitations During Mediation
Five respondents, including three certified agricultural mediation
programs, objected that no provision in the interim final rule
specifies the effect of mediation on time deadlines for appeals.
Accordingly, Sec. 780.15 is amended in this rule to provide that the
time period for requesting appeal is tolled by mediation. Likewise, the
amendment specifies that the time deadline for payment limitations in 7
CFR 1400.9 are extended. If following mediation there should be a new
decision modifying the adverse decision that was mediated, the interim
final rule provides a full 30-day period for a participant to exercise
any remaining appeal options with respect to the modified decision. An
adverse decision that is not modified as a result of mediation is not a
new decision.
Waiver of Appeal Options and Withdrawal of Appeals
Six respondents, using substantially identical language, requested
that FSA clarify the distinctions between waiver and withdrawal in
Sec. Sec. 780.7(b) and (d) concerning reconsideration, and Sec. Sec.
780.10(b) and (c) concerning State committee appeals. Section 780.7(b)
provides for waiver of reconsideration because reconsideration is
available as an alternative to mediation. The rule is sufficiently
descriptive. ``Waiver'' properly describes a pre-request
disqualification. ``Withdrawal'' properly describes a post-request
correction or removal. However, Sec. 780.10(c) is amended to provide
that deemed withdrawal of a request for a State committee hearing as a
result of a mediation request will not preclude a subsequent request
for a State committee hearing.
Contact Information for Certified Agricultural Mediation Programs in
Adverse Decisions
One commenting recipient of a grant under part 785 proposed that
Sec. 780.9(f) concerning notice of the opportunity for mediation
should be amended to include notice of a toll-free telephone number, e-
mail address, and Web address for a certified agricultural mediation
program, if available. Providing notice of a toll-free number and other
means for communicating electronically with a mediation program will,
as the respondent noted, facilitate participants' inquires about
mediation services that may be available. Three other recipients of
grants under part 785 proposed that participants be given notice of the
toll-free telephone number for a certified agricultural mediation
program, if available.
FSA notes that the rule requires that any request for mediation in
an appeal under this rule must be submitted in writing on or before 30
days from the date an adverse decision is received. Contacts with a
certified agricultural mediation program by means of a toll-free number
are not effective to document when a request is submitted so as to
monitor the 30-day limitation for a participant to exercise other
appeal rights because that 30-day clock is
[[Page 30572]]
stayed from the time mediation begins until it closes. With regard to
other means for participants to contact certified agricultural
mediation programs, the rule provides sufficient flexibility to enable
programs and States to work out procedures without need for revisions
to the rule.
This respondent, and four other recipients of grants under part
785, also proposed that mediation programs should consistently be the
designated contact to receive mediation requests in states using a
certified mediation program. FSA believes that it is appropriate to
provide in the rule for variations to meet local circumstances but also
anticipates that a certified program will ordinarily be the designated
point of contact in a State with a certified agricultural mediation
program. As the rule anticipates that a certified agricultural
mediation program will ordinarily be the point of contact, but provides
for flexibility to accommodate unanticipated circumstances, no change
in the rule is necessary.
The recipient of notice will be expected to maintain records of the
date when a participant's written request for mediation is received.
The records should include a date-stamped original of the participant's
written request and a record of the date when a mediation is closed so
that the running of or compliance with applicable limitation periods is
supported by documentary evidence that may be reliably monitored by
FSA, NAD, or others with the authority to monitor appeal procedures.
Participant's Submission of Copy of Adverse Decision With Mediation
Request
Six recipients of agricultural mediation program grants under part
785 and an organization of agricultural mediation program grant
recipients commented that requiring participants to furnish a copy of
the subject adverse decision with a request for mediation is a hardship
for participants. FSA notes that the NAD rules require participants
requesting NAD hearings to include a copy of the adverse decision with
their written request. FSA also notes the concern of many of these same
respondents that participants in States with certified agricultural
mediation programs should be uniformly instructed to contact the
mediation program to request mediation. Requiring a participant to
include a copy of the adverse decision seems particularly appropriate
in that circumstance to minimize confusion, to provide a reliable check
on the timeliness of the participant's request for mediation, and to
ensure proper tracking of the request in relation to other appeal
processes that a participant may have initiated. Accordingly, no change
in the regulation was made.
Mediation as an Alternative Dispute Resolution Technique
As a matter of procedure, the interim final rule is neutral
regarding mediation and other participant options for dispute
resolution. FSA believes that options should be presented clearly so
that participants understand their options and how they may be
exercised. In this regard, two respondents questioned the emphasis in
the preamble on the requirement that resolutions in mediation must
conform to the statutes, regulations, and FSA's generally applicable
interpretations of statutes and regulations governing a program as a
distinctive feature of mediation of program disputes. FSA agrees with
the respondents that mediators, as a general matter, may assist parties
in exploring their interests, but does not agree that parties'
interests may preempt regulatory or statutory constraints enabling a
participant to obtain in mediation a result not legally obtainable by
other means. These comments address only text in the preamble to the
interim final rule and no amendment to the rule needs to be considered.
Any change which would allow local override of national policy are not
warranted and contrary to the public interest.
Authority of Agency Representative in Mediation
Two advocacy groups, four recipients of certified agricultural
mediation program grants, and an organization of mediation program
grant recipients commented that the rule should require that the
decision-maker, rather than a designated agency representative,
participate in the mediation. One of the respondents indicated that
having members of a county committee attend mediation had been workable
in some circumstances. FSA believes that it may be appropriate in some
circumstances for the official who has issued a decision to attend a
mediation session, but for decisions on matters that are delegated only
to an SED, State Committees, or county committees, it is an
impracticable commitment of resources to require as a general rule that
the decision-maker attend a mediation. Also, such participation in
mediation would conflict with a decision maker's decision-making role.
The rule instead provides that proposed resolutions in mediation will
be forwarded to the decision-maker for approval or implementation.
A concern was expressed in comments, in substantially identical
language, by two advocacy groups, an organization of agricultural
mediation program grantees, and nine recipients of agricultural
mediation programs that approval of proposed agreements in mediation by
officials with properly delegated authority is contrary to due process
and arbitrary. FSA believes that the concern is misplaced. Contrary to
the impression of one of these respondents, generally applicable
interpretations of program regulations are established by National
Office program managers in consultations with other officials and with
counsel when appropriate, not by others.
As defined in the rule, mediation is a means to explore parameters
for resolution consistent with program requirements in a setting where
the mediator has no decision-making power. Under these circumstances,
it is unreasonable to suggest that due process is compromised by a
review of proposed dispute resolutions by officials with delegated
authority who are accountable for administration of the subject
programs consistent with national policy. FSA believes that mediation
programs and mediators may need to clarify the purpose of mediation,
including its limitations, when mediation occurs as an option in the
FSA appeals process. The re-delegations of authority within FSA that
these comments imply would create substantial risks of inconsistent
results and compromised program integrity. Accordingly, the regulation
is not changed in response to the comments. Any change that overrides
national policy or standards would be fiscally irresponsible and
contrary to the public interest.
Termination of Mediation by an SED
Two advocacy organizations questioned the provision in section
780.9(h) authorizing a State Executive Director to determine mediation
to be at an impasse. The respondents argue that problems of mediation
program mismanagement should be addressed with mediation program
managers. FSA concurs that any problems arising in management of
agricultural mediation programs must be addressed with the responsible
program managers. The authority granted in the rule merely affords a
means to deal with such problems as they affect specific mediations
that could not otherwise be resolved under regulations to bring the
mediations to closure. FSA believes the authority provided is necessary
in the
[[Page 30573]]
rule, but does not anticipate that the authority granted to an SED
under section 780.9(h) is authority that an SED would need to invoke
routinely. Accordingly, the regulations are not changed.
Mediation in Advance of an Adverse Decision
In the preamble to the interim final rule, FSA noted that the rule
does not establish guidelines for mediations that may occur in advance
of any decision that is appealable under the rule. The preamble noted
that in certain limited cases where only one issue would be in dispute
and some resolution would seem feasible, mediation in advance of an
adverse decision could be appropriate. An example would be mediation of
a dispute among successors-in-interest with respect to an existing
Conservation Reserve Program contract regarding their respective
successor shares--an entirely private dispute in which all parties
should have a mutual interest to resolve to continue receiving
payments.
Seven recipients of agricultural mediation program grants and an
organization of mediation program grant recipients commented that the
rule should be amended to provide expressly for mediation in advance of
an adverse decision. FSA believes that such an amendment is
inappropriate because the rule concerns appeals from adverse decisions
and rules and procedures for determining what decisions may be
appealable. Mediation in advance of an adverse decision may be
appropriate in certain cases. This rule, in Sec. 780.9(a), clarifies
when a party may request mediation of an adverse decision, but it does
not preclude mediation in advance of an adverse decision in appropriate
cases. Accordingly, the rule is not changed.
Miscellaneous
Also, these regulations have been amend to correct a reference to
an Internet address.
Executive Order 12866
The Office of Management and Budget (OMB) has determined this rule
is not significant for the purposes of Executive Order 12866;
therefore, this rule has not been reviewed by OMB.
Paperwork Reduction Act of 1995
This rule does not change the information collection requirements
of any programs of FSA approved by OMB under the Paperwork Reduction
Act of 1995 (44 U.S.C. chapter 35).
Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA)
establishes requirements for Federal agencies to assess the effects of
their regulatory actions on State, local, and tribal governments and
the private sector. This rule contains no Federal mandates (under the
regulatory provisions of title II of the UMRA) for State, local, and
tribal governments or the private sector. Therefore, this rule is not
subject to the requirements of sections 202 and 205 of the UMRA.
Executive Order 12612
It has been determined under section 6(a) of Executive Order 12612,
Federalism, that this rule does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment. The
provisions contained in this rule will not have a substantial direct
effect on States or their political subdivisions or on the distribution
of power and responsibilities among the various levels of government.
Regulatory Flexibility Act
As stated in the interim final rule, FSA has determined that there
will not be a significant economic impact on a substantial number of
small entities pursuant to section 605(b) of the Regulatory Flexibility
Act, 5 U.S.C. 605 (b).
Executive Order 12372
These regulations are not subject to the provisions of Executive
Order 12372, which require intergovernmental consultation with State
and local officials. See the notice related to 7 CFR part 3015, subpart
V, published at 48 FR 29115, June 24, 1983.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. The provisions of this rule are not retroactive. The
provisions of this rule preempt State and local laws to the extent such
State and local laws are inconsistent. Generally, all administrative
appeal provisions, including those published at 7 CFR part 11, must be
exhausted before any action for judicial review may be brought in
connection with the matters that are the subject of this rule.
Environmental Evaluation
The environmental impacts of this rule have been considered
consistent with the provisions of the National Environmental Policy Act
of 1969 (NEPA), 42 U.S.C. 4321 et seq., the regulations of the Council
on Environmental Quality, 40 CFR parts 1500-1508, and the FSA
regulations for compliance with NEPA, 7 CFR parts 799 and 1940, subpart
G. Due to this rule's administrative nature, no extraordinary
circumstances or other unforeseeable factors exist which would require
preparation of an environmental assessment or environmental impact
statement.
List of Subjects in 7 CFR Part 780
Administrative practice and procedure, Agricultural commodities,
Agriculture, Farmers, Federal aid programs, Loan programs, Price
support programs, Soil conservation, Wetlands.
0
Accordingly, the interim rule amending 7 CFR part 780 which was
published at 70 FR 43262 on July 27, 2005, is adopted as final with the
following changes:
0
1. The authority citation for part 780 continues to read as follows:
Authority: 5 U.S.C. 301 and 574; 7 U.S.C. 6995; 15 U.S.C. 714b
and 714c; 16 U.S.C. 590h.
0
2. Amend Sec. 780.7(a) to read as follows:
Sec. 780.7 Reconsideration.
(a) A request for reconsideration must be submitted in writing by a
participant or by a participant's authorized representative and
addressed to the FSA decision maker as will be instructed in the
adverse decision notification.
* * * * *
0
3. Amend Sec. 780.9 by revising paragraph (f)(3) to read as follows:
Sec. 780.9 Mediation.
* * * * *
(f) * * *
(3) A listing of certified State mediation programs and means for
contact may be found on the FSA Web site at http://www.usda.gov/fsa/disputemediation.htm
.
* * * * *
0
4. Revise Sec. 780.10(c) to read as follows:
Sec. 780.10 State committee appeals.
* * * * *
(c) If a participant requests mediation or requests an appeal to
NAD before a request for an appeal to the State Committee has been
acted upon, the appeal to the State Committee will be deemed withdrawn.
The deemed withdrawal of a participant's appeal to the State Committee
will not preclude a subsequent request for a State Committee hearing on
appealable matters not resolved in mediation.
* * * * *
[[Page 30574]]
0
5. Amend Sec. 780.15 by revising paragraph (c) and correcting the
second sentence in paragraph (d) to read as follows:
Sec. 780.15 Time limitations.
* * * * *
(c) A participant requesting reconsideration, mediation or appeal
must submit a written request as instructed in the notice of decision
that is received no later than 30 calendar days from the date a
participant receives written notice of the decision. A participant that
receives a determination made under part 1400 of this title will be
deemed to have consented to an extension of the time limitation for a
final determination as provided in part 1400 of this title if the
participant requests mediation.
(d) * * *A participant does not have the right to seek an exception
under this paragraph.* * *
* * * * *
Signed at Washington, DC, on May 10, 2006.
Teresa C. Lasseter,
Administrator, Farm Service Agency.
[FR Doc. E6-8221 Filed 5-26-06; 8:45 am]
BILLING CODE 3410-05-P