30-Day Rule For Filing Administrative Appeals Tested in Recent NAD Cases

By Phillip L. Fraas, Stinson, Morrison, Hecker, LLP, Washington, DC.

In 2009, a number of Florida sugarcane growers applied to participate in the Biomass Crop Assistance Program (BCAP), a program operated by the Farm Service Agency (FSA) that pays growers for providing biomass for use in renewable energy production. [BCAP was established by section 9001 of the Food, Conservation, and Energy Act of 2008 (the 2008 farm bill) which added the BCAP provisions to title IX of the Farm Security and Rural Investment Act of 2002 (the 2002 farm bill) as section 9011 (122 Stat. 2089-2093).]

BCAP documents issued in 2009 and 2010 indicated that sugarcane bagasse (the residue of the cane after sugar is extracted) supplied to renewable energy producers would be eligible for the program. [See, e.g., FSA Notice BCAP-7, Exh. 1 (Nov. 27, 2009); FSA Notice BCAP 9, Exh. 1 (Jan. 26, 2010); 75 Fed. Reg. 6269 (Feb. 8, 2010)(proposed FSA regulations to implement BCAP).]  However, as described in the findings of facts made by a National Appeals Division (NAD) hearing officer in one of the cases discussed here, it took a concerted effort for sugarcane growers supplying bagasse to Florida BCAP facilities to receive BCAP payments. 
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