[Code of Federal Regulations]

[Title 7, Volume 4]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 7CFR276.7]



[Page 882-885]

 

                          TITLE 7--AGRICULTURE

 

    CHAPTER II--FOOD AND NUTRITION SERVICE, DEPARTMENT OF AGRICULTURE

 

PART 276_STATE AGENCY LIABILITIES AND FEDERAL SANCTIONS--Table of Contents

 

Sec. 276.7  Administrative review process.



    (a) General. (1) Whenever FNS asserts a claim against a State 

agency, the State agency may appeal the claim by requesting an 

administrative review. FNS claims that may be appealed are billings 

resulting from financial losses involved in the acceptance, storage, and 

issuance of coupons (Sec. 276.2), billings based on charges of 

negligence or fraud (Sec. 276.3), and disallowances of Federal funds 

for State agency failures to comply with the Food Stamp Act, 

regulations, or the FNS-approved State Plan of Operations (Sec. 276.4).

    (2) A State agency aggrieved by a claim shall have the option of 

requesting a hearing to present its position in addition to a review of 

the record and any written submission presented by the State agency. 

Unless circumstances warrant differently, hearings of appeals of 

negligence claims and disallowances of Federal funds shall be before an 

Appeals Board and hearings of appeals of other claims shall be before a 

single hearing official. In any case, the people reviewing the claim 

shall be people who were not involved in the decision to file the claim.

    (b) Notice of claim. FNS shall provide a notice by certified mail or 

personal service when asserting claims against State agencies.

    (c) Filing an appeal. A State agency aggrieved by claims asserted 

against it may file written appeals with the Secretary, U.S. Department 

of Agriculture, c/o the Executive Secretary, State Food Stamp Appeals 

Board, Food and Nutrition Service, USDA, Washington, DC 20250, 

requesting an opportunity to present information in support of its 

position. The State agency shall attach a copy of the FNS claim to its 

appeal. Appeals must be filed with



[[Page 883]]



the Executive Secretary or postmarked within 10 days of the date of 

delivery of the notice of claim. If the State agency does not appeal 

within the prescribed 10-day period, the FNS decision on the claim shall 

be final. No extension shall be granted in the time allowed for filing 

an appeal.

    (d) Computation of time. In computing any period of time prescribed 

or allowed under these procedures, the day of delivery of any notice of 

action, acknowledgment, or reply shall not be included. The last day of 

the period so computed shall be included unless it is a Saturday, Sunday 

or Federal or State holiday. In that case, the period runs until the end 

of the next day which is not a Saturday, Sunday or Federal or State 

holiday.

    (e) Stay of administrative action. With one exception, the filing of 

a timely appeal and request for administrative review shall 

automatically stay the action of FNS to collect the claim asserted 

against the State agency until a decision is reached on the 

acceptability of the appeal, and in the case of an acceptable appeal, 

until a final determination has been issued. The exceptions to this 

provision are those claims that are asserted against State agencies due 

to State agency failure to comply with an order to reduce, suspend or 

cancel benefits in accordance with Sec. 271.7. In situations where a 

State agency does not reduce, suspend or cancel benefits as directed and 

FNS takes action to disallow administrative funds or bill the State 

agency, the disallowance and/or billing shall remain in effect during 

the review process. Should the Appeals Board uphold the State agency, 

all disallowed funds and/or funds collected as a result of the billing 

shall be restored to the State agency promptly.

    (f) Acknowledging an appeal. Upon receipt of an appeal and request 

for administrative review, the Executive Secretary shall provide the 

State agency with a written acknowledgment of the appeal, including a 

statement of whether or not the appeal is timely and can be accepted. A 

copy of each acknowledgment shall be provided to FNS. The acknowledgment 

of a timely and acceptable appeal and request for administrative review 

shall also include a copy of Secretary's Memorandum No. 2003, Revised, 

``State Food Stamp Appeals Board,'' and the identity of the Appeals 

Board member(s) designated by the Secretary to review the claim.

    (g) Submitting additional information. (1) State agencies shall have 

30 days from their request for an appeal to submit five sets of the 

following information to the Executive Secretary of the Appeals Board:

    (i) A clear, concise identification of the issue or issues in 

dispute;

    (ii) The State agency's position with respect to the issue or issues 

in dispute;

    (iii) The pertinent facts and reasons in support of the State 

agency's position with respect to the issue or issues in dispute;

    (iv) All pertinent documents, correspondence and records which the 

State agency believes are relevant and helpful toward a more thorough 

understanding of the issue or issues in dispute;

    (v) The relief sought by the State agency;

    (vi) The identity of the person(s) presenting the State agency's 

position when a hearing is involved; and

    (vii) A list of prospective State agency witnesses when a hearing is 

involved.

    (2) At the request of the Executive Secretary, FNS shall promptly 

submit five complete sets of all documents, correspondence and records 

compiled by FNS in support of its claim.

    (3) The Executive Secretary shall provide each person hearing an 

appeal and FNS with a complete set of the State agency information when 

it is received. The Executive Secretary shall also provide each person 

hearing an appeal and the State agency with a complete set of the 

information supplied by FNS when it is received.

    (h) Scheduling and conducting hearings. When a hearing is afforded, 

the Appeals Board or hearing official has up to 60 days from receipt of 

the State agency's information, outlined in paragraph (g) of this 

section, to schedule and conduct the hearing. The Executive Secretary 

shall advise the State agency of the time, date and location



[[Page 884]]



of the hearing at least 10 days in advance of the hearing. The State 

agency is solely responsible for ensuring the attendance of all State 

agency witnesses at the hearing.

    (1) A hearing is an informal proceeding designed to permit the State 

agency an opportunity to present its position before a neutral third 

party. Because the final determination is subject to judicial review and 

trial de novo, the Appeals Board and hearing official shall not be bound 

by the rules of civil procedure applicable in the court or by the 

adjudicatory requirements of the Administrative Procedures Act.

    (2) The Appeals Board Chairman, his designee or the hearing official 

is the presiding officer at the hearing. The presiding officer shall 

have full authority to ensure a fair and impartial proceeding, avoid 

delays, maintain order and decorum, receive evidence, examine witnesses, 

and otherwise regulate the course of the hearing. The State agency may 

represent itself at the hearing or be represented by counsel.

    (3) The Appeals Board or hearing official shall receive into 

evidence the oral testimony of State agency witnesses and any documents 

which are relevant and material. Neither the Department nor FNS is 

required to present witnesses at the hearing. However, the Department 

and FNS shall make staff available to provide any information or 

clarification requested by the Appeals Board or hearing official. Under 

no circumstances shall the Department or FNS introduce new evidence at 

the hearing. Departmental and FNS staff, as well as State agency 

witnesses, shall be subject to examination by the Appeals Board or 

hearing official. Departmental and FNS staff shall not be subject to 

cross-examination by State agency representative or counsel. Likewise, 

State agency witnesses shall not be subject to cross-examination by 

Departmental or FNS staff. Each side shall be permitted to make a 

closing statement to the Appeals Board or hearing official upon 

completion of the taking of evidence and testimony.

    (4) FNS and the State agency shall have the opportunity to submit 

additional written information to the Appeals Board or hearing official 

within 10 days after the close of the hearing. No new factual material 

may be introduced except as it directly relates to evidence or testimony 

presented at the hearing. Five complete sets of such information must be 

filed with the Executive Secretary or postmarked prior to the expiration 

of the 10-day deadline for it to be considered.

    (5) An official verbatim transcript of each hearing shall be kept on 

file in the Office of the Executive Secretary for public inspection. A 

copy shall be furnished to FNS and the State agency. Anyone wishing to 

purchase a copy may make arrangements to do so with the commercial 

reporting service involved.

    (i) Final determination. (1) When a hearing is afforded, a final 

determination shall be made within 30 days of the hearing, and the final 

determination shall take effect 30 days after delivery of the notice of 

this final decision to the State agency. When a hearing is not held, a 

final determination shall be made within 30 days after receipt of the 

State agency's information. The final determination shall take effect 30 

days after delivery of the notice of the final decision to the State 

agency.

    (2) The Appeals Board or hearing official shall either uphold the 

claim, deny the claim, or adjust the claim downward in such amounts and 

for such reasons as the Appeals Board or hearing official shall 

determine and declare. The final determination is not subject to 

reconsideration.

    (j) Judicial review. State agencies aggrieved by the final 

determination may obtain judicial review and trial de novo by filing a 

complaint against the United States within 30 days after the date of 

delivery of the final determination, requesting the court to set aside 

the final determination. The final determination shall remain in effect 

during the period the judicial review or any appeal therefrom is pending 

unless the court temporarily stays such administrative action after a 

showing that irreparable injury will occur absent a stay and that the 

State agency is likely to prevail on the merits of the case.

    (k) Extension of time. (1) No extension of time shall be permitted a 

State agency in which to file an initial request for an administrative 

review. All



[[Page 885]]



other requests from the State agency or from FNS for the extension of 

any deadline contained in Sec. 276.7 of these regulations or imposed by 

the Appeals Board or hearing official shall be granted only for good 

cause shown and only when received by the Executive Secretary before the 

expiration of the particular deadline involved. All requests for an 

extension shall be in writing. Filing a request for an extension stops 

the running of the prescribed period of time. When a request for an 

extension is granted, the requester shall be notified in writing of the 

amount of additional time granted. When a request is denied for being 

untimely or for cause, the requester shall be notified and the 

prescribed period of time shall resume from the date of denial.

    (2) The Appeals Board or hearing official may grant itself such 

additional time as it may reasonably require to complete any of its 

assigned responsibilities. If the Appeals Board or hearing official does 

find it necessary to grant itself an extension of time, the Executive 

Secretary shall notify all parties in writing.



[Amdt. 168, 45 FR 77263, Nov. 21, 1980, as amended by Amdt. 274, 51 FR 

18752, May 21, 1986; Amdt. 356, 59 FR 29714, June 9, 1994]



    Effective Date Note: By Amdt. 397, 70 FR 72354, Dec. 5, 2005, Sec. 

276.7 was amended by revising paragraph (b), effective January 4, 2006. 

For the convenience of the user, the revised text is set forth as 

follows:



Sec. 276.7  Administrative review process.



                                * * * * *



    (b) Notice of claim. When asserting a claim against a State agency, 

FNS shall provide the notice to the State agency using any delivery 

method as long as the method provides evidence of the delivery.



                                * * * * *