NRCS Appeals Process for Program Decisions and Technical Determination

The NRCS appeals process for program decisions and technical determinations was modified by the interim final procedures issued in the Federal Register on May 16, 2006. A subsequent bulletin issued by the Deputy Chief for Programs on June 29, 2006, directs NRCS to use this published procedure until the Conservation Programs Manual is updated. Find the Federal Register regulations and the national bulletin at the following link.

National Bulletin 180-6-9: CPA – NRCS Appeals Procedures, 7 Code of Federal Regulations (CFR) 614, Dated May 16, 2006

Below, you will find a summary of the changes included in the Federal Register regulations. Also, see the Montana Technical and Program Appeals Flow Chart Overview that outlines this same procedure. The fact sheet, "How to Appeal Adverse NRCS Technical and Program Decisions," is also available when working with customers.

The Significant Change – Informal Appeals Process

On May 16, 2006, the process that NRCS uses to consider producer appeals to adverse technical or programmatic decisions was modified. New procedures were developed that incorporate greater NRCS involvement in the initial appeal process to clarify issues and avoid disputes.

NRCS believes that providing participants the option of a quick, informal appeal will lead to the cost-effective resolution of many program and technical disputes.

Applicable Program Decisions and Technical Determinations

The following programs are covered by the informal appeals process:

• Conservation Security Program
• Agriculture Management Assistance Program (not available in Montana)
• Conservation Reserve Program
• Emergency Watershed Protection Program
• Conservation Reserve Enhancement Program
• Water Bank Program
• Environmental Quality Incentives Program
• Watershed Protection and Flood Prevention Program
• Farm and Ranch Lands Protection Program
• Healthy Forest Reserve Program (not currently available in Montana)
• Grassland Reserve Program
• Wetland Reserve Program
• Highly Erodible Land Conservation
• Wildlife Habitat Incentives Program
• Wetland Conservation
• Conservation Innovation Grants

Appealable Decisions

With respect to the programs listed above, appealable adverse decisions may include:

• Denial of participation in a program
• Compliance with program requirements
• Issuance of payments or other program benefits to a participant in a program
• Technical determinations
• Technical determinations or program decisions that affect a participant’s eligibility for USDA program benefits
• The failure of an official of NRCS to issue a technical determination or program decision
• Incorrect application of general policies, statutory or regulatory requirements

General Decisions Not Subject to Appeal

Decisions that are not appealable include:

• Any general program provision, program policy or any statutory or regulatory requirement that is applicable to all participants such as:
• Program application ranking criteria
• Program application screening criteria
• Published soil surveys
• Conservation practice technical standards included in the local field office technical guide or the electronic field office technical guide (eFOTG)
• Mathematical or scientific formulas
• Decisions made according to statutory provisions or implementing regulations that expressly made agency determinations final
• Decisions on equitable relief made by a State Conservationist or the NRCS Chief
• Disapproval or denials of assistance due to lack of funding or lack of authority
• Decisions that are based on technical information provided by another federal or state agency, e.g. list of endangered and threatened species
• Corrections by NRCS of errors in data entered on program contracts, easement documents, and other program documents

What if NRCS Says it’s Not Appealable, But the Participant Thinks it Is?

A participant can request a review of a decision denying an appeal based upon appealability. The participant has two options:

1. Submit a written request to the state conservationist within 30 days of the decision. The State Conservationist has 30 days to respond back.
2. Submit a written request to the National Appeals Division (NAD).

Appeals Process for Adverse Technical Determinations

A preliminary technical determination becomes final 30 days after the participant receives the decision, unless the participant files an appeal with the appropriate NRCS official.

If the participant decides to appeal an adverse technical determination, they have the choice of pursuing:

• Reconsideration with a field visit; or
• Mediation (because Montana does not have a USDA Certified Agricultural Mediation Program (see Mediation below) most should choose reconsideration with a field visit).

NRCS preferred alternative - Reconsideration with a Field Visit

1. Upon notice of written appeal, the designated conservationist will visit the subject site for the purpose of gathering additional information and discussing the facts relating to the preliminary technical determination. The participant may also provide any additional documentation to the designated conservationist.

2. Within 15 days of the field visit, the designated conservationist will reconsider his or her preliminary technical determination. At this point, it is not imperative to involve area staff. The designated conservationist is simply reviewing the preliminary determination for accuracy.

3a. If the reconsidered determination is no longer adverse to the participant, the designated conservationist issues the reconsidered determination as a final technical determination.

3b. If the preliminary technical determination remains adverse, then the designated conservationist will forward the revised decision and agency record to the State Conservationist for a final determination pursuant unless further appeal is waived in writing by the participant. The State Conservationist will request an area-level review for consideration.

4. The State Conservationist will issue a final technical determination to the participant as soon as is practicable after receiving the reconsideration and agency record from the designated conservationist. The technical determination issued by the State Conservationist becomes a final NRCS decision upon receipt by the participant. Receipt triggers the running of the 30 day appeal period to NAD or if applicable to the FSA county committee.

Appeals Process for Adverse Program Decisions

Program decisions are final upon receipt of the program decision notice by the participant. The participant has the following options for appeal of the program decisions:

• An informal hearing before the NRCS State Conservationist
• Mediation (because Montana does not have a USDA Certified Agricultural Mediation Program (see Mediation below) most should choose the other options).
• A hearing before NAD or, if the program decision is made under Title XII, appeal before the FSA county committee

NRCS preferred alternative - Informal hearing with NRCS State Conservationist

1. The program participant must file an appeal request for a hearing with the State Conservationist as indicated in the decision notice within 30 calendar days from the date the participant received the program decision.
2. The State Conservationist will hold a hearing no later than 30 days from the date that the appeal request was received. The State Conservationist will issue a written final NRCS decision no later than 30 days from the close of the hearing.

Other Options Available

Farm Services Agency County Committees (FSA COC)

Where applicable, participants may request to appeal adverse program decisions to the FSA COC instead of the NRCS State Conservationist, but not both. When appeals are submitted to the local FSA COC, if the COC finds merit with the appeal, they will request that the NRCS State Conservationist provide a secondary review of the situation. Please contact the local NRCS to obtain the address for the applicable COC.

National Appeals Division (NAD)

Requests for program decision appeals may be submitted to NAD by sending the request to:

Mediation

Mediation is an option in both adverse technical determinations and program decisions. Montana does not have a USDA Certified Agricultural Mediation Program. Participants requesting mediation may be required to pay part or all of mediation services. Information on mediation can be found at the NRCS Conservation Program Mediation web page. This site lists two potential outside sources for mediators:

• National Roster of Environmental Conflict Resolution Practitioners
• Mediation Center of the National Association for Community Mediation

Last Modified: 10/08/2008