[Code of Federal Regulations]
[Title 7, Volume 6]
[Revised as of January 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 7CFR632.42]

[Page 468-470]
 
                          TITLE 7--AGRICULTURE
 
   CHAPTER VI--NATURAL RESOURCES CONSERVATION SERVICE, DEPARTMENT OF 
                               AGRICULTURE
 
PART 632_RURAL ABANDONED MINE PROGRAM--Table of Contents
 
                    Subpart E_Appeals and Violations
 
Sec. 632.42  Violation procedures.

    (a) Scope. This section prescribes the regulations dealing with 
contract violations. The Chief reserves the right to revise or 
supplement any of the provisions of this section at any time if the 
action does not adversely affect the land user, or if the land user has 
been officially notified before this action is taken. No cost-share 
payment shall be made pending the decision on whether a contract 
violation has occurred.
    (b) Determination by contracting officer. On notification that a 
contract violation may have occurred, the contracting officer is to:
    (1) Determine, with the approval of the State conservationist, that 
a violation did not occur or that the violation was of such a nature 
that no penalty of forfeiture, refund, or payment adjustment is 
necessary. No notice is issued to the land user, and no further action 
is to be taken; or
    (2) Determine that a violation did occur, but the land user agrees 
to accept the penalty. If the land user agrees in writing to accept a 
penalty of forfeiture, refund, payment adjustment or termination, no 
further action is to be taken. The land user's agreement to accept the 
penalty must be approved by the contracting officer and State 
conservationist.
    (c) Notice of possible violation. (1) When the State conservationist 
is notified that a contract violation may have occurred that may warrant 
a penalty of forfeiture, refund, payment adjustment, or termination, he 
is to notify, in writing, each land user who signed the agreement of the 
alleged violation. This notice may be personally delivered or sent by 
certified or registered mail. A land user is considered to have

[[Page 469]]

received the notice at the time of personal receipt acknowledged in 
writing, at the time of the delivery of a certified or registered 
letter, or at the time of the return of a certified or registered letter 
where delivery was refused.
    (2) The notice setting forth the nature of the alleged violation is 
to give the land user an opportunity to appear at a hearing before a 
hearing officer designated by the State conservationist. The land user's 
request for a hearing is to be submitted in writing and must be received 
in the NRCS field office within 30 days after receipt of the notice. The 
land user is to be notified in writing by the hearing officer of the 
time, date, and place for the hearing. The land user is to have no right 
to a hearing if he does not file a written request for a hearing, or if 
he or his representative does not appear at the appointed time, unless 
the hearing officer, at his discretion, permits an appearance. A request 
for a hearing filed by a land user is considered to be a request by all 
land users who signed the contract.
    (d) Hearing. A public hearing is to be conducted to obtain the facts 
about the alleged violation. The hearing officer is to limit the hearing 
to relevant facts and evidence and is not to be bound by the strict 
rules of evidence as required in courts of law. Witnesses may be sworn 
in at the discretion of the hearing officer.
    (1) The land user or his representative is to be given full 
opportunity to present oral or documentary evidence about the alleged 
violation. Likewise, the United States may submit statements and 
evidence. Individuals not otherwise represented at the hearing may be 
permitted, at the discretion of the hearing officer, to give information 
of evidence. The hearing officer, at his discretion, may permit 
witnesses to be cross-examined.
    (2) The hearing officer is to make a record of the hearing so that 
the testimony can be summarized. A summary of the testimony may be made 
if both the land user and the State conservationist agree. A transcript 
of the hearing is to be made if requested by either the State 
conservationist or the land user within 10 days of the hearing. If a 
transcript is requested by the land user, the land user may be assessed 
the cost of a copy of the transcript.
    (3) The hearing officer is to close the hearing after a reasonable 
period of time if the land user or his representative is not present at 
the scheduled time. The hearing officer may, at his discretion, accept 
information and evidence submitted by others present for the hearing.
    (4) The hearing officer is to furnish the State conservationist with 
a written report setting forth his findings, conclusions, and 
recommendations. The report is to include the summary of testimony or 
transcript made of the hearing and any other information that would aid 
the State conservationist in reaching his decision.
    (e) Decision by State conservationist. The State conservationist is 
to make a decision after considering the hearing officer's report, 
including recommendations of the conservation district board if any, and 
any other information available to him, including, if applicable, the 
amount of the forfeiture, refund, or payment adjustment. The decision is 
to state whether the violation is of such a nature as to warrant 
termination of the contract. The State conservationist is to notify, in 
writing, each land user who signed the contract of his decision. The 
State conservationist may authorize or require the reopening of any 
hearing before a hearing officer for any reason at any time before his 
decision.
    (f) Appeal to Chief. Any land user affected by a decision of the 
State conservationist has the right of appeal to the Chief. The appeal 
and any briefs or statements must be received in the Office of the Chief 
within 30 days after the land user has received notice of the State 
conservationist's decision. The State conservationist is to file a brief 
or statement in the Office of the Chief within 20 days after the land 
user's brief or statement is received there. The appeal is to be limited 
to the records and the issues made before the State conservationist. The 
Chief's decision is final. The decision is to be determined by the 
record before him and the issues presented in the appeal, and the land 
user is to be notified in writing.

[[Page 470]]

    (1) If the decision provides for termination of the contract, it is 
to state that the contract is terminated, that all rights to further 
cost-share payments under the contract are forfeited, and that cost-
share payments received under the contract are to be refunded, but the 
refund is not to exceed the difference between the estimated value of 
the land at time of entering into the contract and the value at time of 
termination. The decision is to state the amount of refund and method of 
payment.
    (2) If the decision does not provide for termination of the 
contract, the land user may be required to make a refund of cost-share 
payments or to accept payment adjustments. The decision is to state the 
amount of refunds of cost-share payments or payment adjustments. In 
determining amounts of refund or payment adjustments, the following are 
to be considered:
    (i) The extent of the violation.
    (ii) Whether the violation was deliberate or the result of 
negligence or was caused by circumstances beyond the control of the land 
user.
    (iii) The effect on the program if no refund or payment adjustment 
is required.
    (iv) The extent to which the land user benefited by the violation.
    (v) The effect of the violation on the contract as a whole.
    (vi) Other considerations including the appropriateness and 
reasonableness of the refund or payment adjustment.

[43 FR 44749, Sept. 28, 1978; 45 FR 65181, Oct. 2, 1980]