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Agricultural Management Assistance Program
Proposed Rules
Federal Register: August 28, 2002 (Volume 67, Number 167)
From the Federal Register Online via GPO Access
www.access.gpo.gov
[DOCID:fr28au02-23]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
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DEPARTMENT OF AGRICULTURE
Natural Resources Conservation Service
7 CFR Part 1465
RIN 0578-AA31
Agricultural Management Assistance Program
AGENCY: Commodity Credit Corporation, USDA.
ACTION: Proposed rule with request for comments.
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SUMMARY: The Commodity Credit Corporation is issuing a proposed rule
with request for comments for the Agricultural Management Assistance
(AMA) Program. Section 524(b) of the Federal Crop Insurance Act, as
amended by Section 133 of the Agricultural Risk Protection Act of 2000,
authorized the AMA Program. This proposed rule sets forth the
procedures for how producers would apply and participate in the AMA
Program.
DATES: Comments must be received by September 27, 2002.
ADDRESSES: Send comments by mail to Conservation Operations Division,
Natural Resources Conservation Service, P.O. Box 2890 or by e-mail to
FarmBillRules@usda.gov; attention:
Agricultural Management Assistance.
FOR FURTHER INFORMATION CONTACT: Mark W. Berkland, Director,
Conservation Operations Division, NRCS, P.O. Box 2890, Washington, DC
20013-2890, telephone: (202) 720-1845; fax: (202) 720-4265; e-mail:
FarmBillRules@usda.gov, Attention:
Agricultural Management Assistance.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
Pursuant to Executive Order 12866 (58 FR 51735, October 4, 1993),
the Office of Management and Budget determined that this proposed rule
is not a significant regulatory action.
Regulatory Flexibility Act
The Regulatory Flexibility Act is not applicable to this rule
because the Commodity Credit Corporation (CCC) is not required by 5
U.S.C. 533 or by any other provision of law to publish a notice of
proposed rulemaking with respect to the subject matter of this rule.
Environmental Analysis
A draft Environmental Assessment (EA) has been prepared to assist
in determining whether this proposed rule, if implemented, would have a
significant impact on the quality of the human environment such that an
Environmental Impact Statement should be prepared. Based on the results
of the draft EA, NRCS proposes issuing a finding of no significant
impact (FONSI) before a final rule is published. Copies of the draft EA
and FONSI may be obtained from Walley Turner, Conservation Operations
Division, Natural Resources Conservation Service, P.O. Box 2890,
Washington, DC 20013-2890 or at
http://www.nrcs.usda.gov/programs/Env_Assess/AMA/AMA.html. Provide comments
on the draft EA and FONSI to
FarmBillRules@usda.gov, Attention:
Agricultural Management Assistance,
or to the National Environmental Coordinator, Ecological Sciences
Division, Natural Resources Conservation Service, P.O. Box 2890,
Washington, DC, 20013-2890.
Civil Rights Impact Analysis
CCC has determined through a Civil Rights Impact Analysis that the
issuance of this proposed rule will not have a significant effect on
minorities. Copies of the Civil Rights Impact Analysis and Finding of
No Significant Impact may be obtained from Walley Turner, Conservation
Operations Division, Natural Resources Conservation Service, P.O. Box
2890, Washington, DC 20013-2890.
Paperwork Reduction Act
This proposed rule sets forth procedures for implementing AMA. CCC
needs certain information from potential applicants in order to carry
out the requirements of the program. CCC submitted the information
collection requirements in this proposed rule to the Office of
Management and Budget (OMB) for approval under the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq., and CCC prepared an Information Collection
Request (ICR) document. The public may obtain a copy of this request
from Walley Turner, Conservation Operations Division, Natural Resources
Conservation Service, P.O. Box 2890, Washington, DC 20013-2890.
NRCS is committed to compliance with the Government Paperwork
Elimination Act (GPEA) and the Freedom to E-File Act, which require
Government agencies in general and NRCS in particular to provide the
public the option of submitting information or transacting business
electronically to the maximum extent possible. The forms and other
information collection activities required for participation in the
program proposed under this rule are not yet fully implemented for the
public to conduct business with NRCS electronically. However, the
application form will be available electronically through the USDA
eForms Web site at
http://www.sc.egov.usda.gov for downloading.
Applications may be submitted at the local USDA service centers, by
mail or by FAX. At this time, electronic submission is not available
because signatures from multiple produces with shares in agricultural
operations are required. Still, full implementation of electronic
submission is underway.
Executive Order 12988
This proposed rule has been reviewed in accordance with Executive
Order 12988. The provisions of this proposed rule are not retroactive.
Furthermore, the provisions of this proposed rule preempt State and
local laws to the extent such laws are inconsistent with this proposed
rule. Before an action may be brought in a Federal court of competent
jurisdiction, the administrative appeal rights afforded persons at 7
CFR parts 614, 780 and 11 must be exhausted.
Unfunded Mandates Reform Act of 1995
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,
Public Law 104-4, CCC assessed the effects of this rulemaking action on
State, local, and Tribal governments, and the public. This action does
not compel the expenditure of $100 million or more by any State, local,
or Tribal government, or anyone in the private sector; therefore a
statement under section 202 of the
Unfunded Mandates Reform Act of 1995 is not required.
Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994
Because USDA classified this proposed rule as ``not major'' under
section 304 of the Department of Agriculture Reorganization Act of
1994, Pub. L. 104-354, a risk assessment is not required.
List of Subjects in 7 CFR Part 1465
Conservation contract, Conservation plan, Conservation practices,
Soil and water conservation.
Accordingly, Title 7 of the Code of Federal Regulations is proposed
to be amended by adding a new part 1465 to read as follows:
PART 1465--AGRICULTURAL MANAGEMENT ASSISTANCE
Subpart A--General Provisions
Sec.
1465.1 Applicability.
1465.2 Administration.
1465.3 Definitions.
1465.4 Program requirements.
1465.5 Conservation practices.
Subpart B--Contracts
1465.20 Applications for participation and selecting applications
for contracting.
1465.21 Contract requirements.
1465.22 Conservation practice operation and maintenance.
1465.23 Cost-share payments.
1465.24 Contract modification, extension, and transfer of land.
1465.25 Contract violations and termination.
Subpart C--General Administration
1465.30 Appeals
1465.31 Compliance with regulatory measures.
1465.32 Access to operating unit.
1465.33 Performance based upon advice or action of CCC
representative.
1465.34 Offsets and assignments.
1465.35 Misrepresentation and scheme or device.
Authority: 7 U.S.C. 1524(b), 16 U.S.C. 3801.
Subpart A--General Provisions
Sec. 1465.1 Applicability.
Through the Agricultural Management Assistance (AMA) program, the
Commodity Credit Corporation (CCC) provides financial assistance funds
annually to producers in 15 statutorily designated States to construct
or improve water management structures or irrigation structures; to
plant trees to form windbreaks or to improve water quality; and to
mitigate risk through production diversification or resource
conservation practices, including soil erosion control, integrated pest
management, or transition to organic farming. The AMA Program is
applicable in Connecticut, Delaware, Maryland, Massachusetts, Maine,
Nevada, New Hampshire, New Jersey, New York, Pennsylvania, Rhode
Island, Utah, Vermont, West Virginia, and Wyoming.
Sec. 1465.2 Administration.
(a) Administration and implementation of the conservation
provisions of AMA Program for the CCC is assigned to the Natural
Resources Conservation Service (NRCS). The Farm Service Agency (FSA) is
responsible for ``person'' determinations under Sec. 1465.23(c) and
making cost-share payments.
(b) NRCS shall:
(1) Provide overall management and implementation leadership for
the AMA Program;
(2) Establish policies, procedures, priorities, and guidance for
implementation;
(3) Establish cost-share payment limits;
(4) Determine eligible practices;
(5) Develop and approve conservation plans and contracts with
selected participants;
(6) Provide technical leadership for implementation, quality
assurance, and evaluation of performance; and
(7) Make funding decisions and determine allocations of AMA funds.
(c) FSA shall:
(1) Determine 'person' and producer eligibility; and
(2) Make cost-share payments for practices completed.
Sec. 1465.3 Definitions.
The following definitions shall apply to this part and all
documents issued in accordance with this part, unless specified
otherwise:
Agricultural land means cropland, hayland, pastureland, rangeland,
land used for subsistence purposes, and other land, such as forestland,
on which crops or livestock are produced.
Applicant means an agricultural producer who has requested in
writing to participate in the AMA Program. Producers who are members of
a joint operation shall be considered one applicant.
Chief means the Chief of NRCS, or designee.
Conservation district means a political subdivision of a State,
Indian tribe, or territory, organized pursuant to the State or
territorial soil conservation district law, or tribal law. The
subdivision may be a conservation district, soil conservation district,
soil and water conservation district, resource conservation district,
natural resource district, land conservation committee, or similar
legally constituted body.
Conservation practice means a specified treatment, such as a
structural or vegetative practice or a land management practice, which
is planned and applied according to NRCS standards and specifications.
Contract means a legal document that specifies the rights and
obligations of any person who has been accepted for participation in
the AMA Program.
Cost-share payment means the financial assistance from CCC to the
participant to share the cost of installing eligible practices.
Designated conservationist means an NRCS employee whom the State
conservationist has designated as responsible for administration of the
AMA Program.
Indian Tribe means any Indian Tribe, band, nation, or other
organized group or community that is recognized as eligible for the
special assistance and services provided by the United States to
Indians because of their status as Indians.
Indian trust lands means real property in which:
(1) The United States holds title as trustee for an Indian or
tribal beneficiary, or
(2) An Indian or Tribal beneficiary holds title and the United
States maintains a trust relationship.
Lifespan means the minimum time period in which the conservation
practices are to be maintained and used for their intended purpose.
Liquidated damages means a sum of money stipulated in the contract
that the participant agrees to pay if the participant breaches the
contract. The sum represents an estimate of the anticipated or actual
harm caused by the breach, and reflects the difficulties of proof of
loss and the inconvenience or non-feasibility of otherwise obtaining an
adequate remedy.
Operation and maintenance means work that shall be performed by the
participant to keep the applied conservation practice functioning for
the intended purpose during its life span. Operation includes the
administration, management, and performance of non-maintenance actions
needed to keep the completed practice safe and functioning as intended.
Maintenance includes work to prevent deterioration of the practice,
repairing damage, or replacement of the practice to its original
condition if one or more components fail.
Participant means an applicant who is a party to an AMA contract.
Producer means a person who is engaged in agricultural production.
Secretary means the Secretary of the U.S. Department of
Agriculture.
State Conservationist means the NRCS employee authorized to direct
and supervise NRCS activities in a State, the Caribbean Area, or the
Pacific Basin Area.
State Technical Committee means a committee established by the
Secretary in a State pursuant to 16 U.S.C. 3861.
Technical assistance means the personnel and support resources
needed to conduct conservation practice survey, layout, design,
installation, and certification; training and providing quality
assurance for professional conservationists; and evaluation and
assessment of the AMA Program.
Unit of concern means a parcel of agricultural land that has
natural resource conditions that are of concern to the participant.
Sec. 1465.4 Program requirements.
(a) Participation in the AMA Program is voluntary. The participant,
in cooperation with the local conservation district, applies for
practice installation for the farm or ranching unit of concern. The CCC
provides cost-share payments through contracts to apply needed
conservation practices within a time schedule specified in the
contract.
(b) The Chief determines the funds available for financial
assistance according to the purpose and projected cost for which the
financial assistance is provided in a fiscal year. The Chief allocates
the funds available to carry out the AMA Program. Funding obligations
shall not exceed the financial assistance provided in a fiscal year.
(c) To be eligible to participate in the AMA Program, an applicant
must:
(1) Meet the Food Security Act ``person'' definition and be an
agricultural producer;
(2) Have control of the land for the life of the proposed contract
period, except that--
(i) An exception may be made by the Chief in the case of land
allotted by the Bureau of Indian Affairs (BIA), Tribal land, or other
instances in which the Chief determines that there is sufficient
assurance of control; or
(ii) If the applicant is a tenant of the land involved in
agricultural production, the applicant shall provide CCC with the
written concurrence of the landowner in order to apply an eligible
practice;
(3) Submit an application that is acceptable to CCC and is in
compliance with the terms and conditions of the AMA Program, and
(4) Supply information as required by CCC to determine eligibility
for the AMA Program.
(5) States, political subdivisions, and entities thereof will not
be persons eligible for payment.
(6) Any cooperative association of producers that markets
commodities for producers shall not be considered to be a person
eligible for payment.
(d) Land used as agricultural land that NRCS determines poses a
threat to watershed or irrigation management, water quality, or
financial risk due to soil erosion, pest infestation, or cultural
practices including the existing agricultural management practices of
the applicant may be eligible for enrollment in the AMA Program. Land
may only be considered for enrollment in the AMA program if NRCS
determines that the land is:
(1) Privately owned land;
(2) Publicly owned land where:
(i) The land is under private control for the contract period and
is included in the participant's operating unit;
(ii) Conservation practices will contribute to improving the
identified natural resource concern; and
(iii) The participant has provided CCC with written authorization
from the government landowner to apply the conservation practices; or
(3) Federally recognized Tribal, BIA-allotted, or Indian trust
land.
Sec. 1465.5 Conservation practices.
(a) The State Conservationist, with advice from the State Technical
Committee, shall determine the conservation practices eligible for AMA
Program payments. To be considered eligible conservation practices, the
practices must improve soil or water management or water quality, or
mitigate financial risk through resource conservation.
(b) The State Conservationist, with advice from the State Technical
Committee, shall determine the conservation practices eligible for AMA
Program payments using a locally led process and guidance in paragraph
(a) of this section.
Subpart B--Contracts
Sec. 1465.20 Applications for participation and selecting applications
for contracting.
(a) Any producer who has eligible land may submit an application
for participation in the AMA Program at a USDA service center.
Producers who are members of a joint operation shall file a single
application for the joint operation.
(b) CCC will accept applications throughout the year. The State
Conservationist, with advice from the State Technical Committee, will
distribute information on the availability of assistance and the state-
specific goals. Information will be provided that explains the process
and how to request assistance.
(c) The State Conservationist, with advice from the State Technical
Committee, will develop ranking criteria and a ranking process to
select applications taking into account local and State priorities.
(d) The State Conservationist, with advice from the State Technical
Committee, will rank and select applications for contracting based on
the State-developed ranking criteria and ranking process.
(e) The designated conservationist will work with the applicant to
collect the information necessary to evaluate the application using the
ranking criteria.
(f) FSA shall determine ``person'' and producer eligibility and
make contract payments.
Sec. 1465.21 Contract requirements.
(a) In order for a participant to receive cost-share payments, the
participant shall enter into a contract agreeing to implement eligible
conservation practices.
(b) An AMA contract shall:
(1) Incorporate by reference all portions of a unit applicable to
the AMA Program;
(2) Be for a duration of 3 to 10 years;
(3) Incorporate all provisions as required by law or statute,
including participant requirements to:
(i) Not conduct any practices on the farm or ranch unit of concern
that would tend to defeat the purposes of the contract according to
Sec. 1465.25;
(ii) Refund any AMA Program payments received with interest, and
forfeit any future payments under the AMA Program, on the violation of
a term or condition of the contract, consistent with the provisions of
Sec. 1465.25;
(iii) Refund all AMA Program payments received on the transfer of
the right and interest of the producer in land subject to the contract
unless the transferee of the right and interest agrees to assume all
obligations of the contract, consistent with the provisions of
Sec. 1465.24; and
(iv) Supply information as required by CCC to determine compliance
with the contract and requirements of the AMA Program.
(4) Specify the participant's requirements for operation and
maintenance of the applied conservation practices consistent with the
provisions of Sec. 1465.22; and
(5) Incorporate any other provision determined necessary or
appropriate by CCC.
(c) The participant must apply the practice(s) within 10 years of
signing a contract.
Sec. 1465.22 Conservation practice operation and maintenance.
The contract shall incorporate the operation and maintenance of the
conservation practice(s) applied under the contract. The participant
shall operate and maintain the conservation practice(s) for its
intended purpose for the lifespan of the conservation practice, as
identified in the contract or conservation plan, as determined by CCC.
CCC may periodically inspect the conservation practices during the
lifespan of the practices as specified in the contract to ensure that
operation and maintenance are occurring.
Sec. 1465.23 Cost-share payments.
(a)(1) The Federal share of cost-share payments to a participant
shall be 75 percent of the actual cost of an eligible practice. In no
instance shall the total financial contributions for an eligible
practice from all public- and private-entity sources exceed 100 percent
of the actual cost of the practice.
(2) Participants may contribute their portion of the costs of
practices through in-kind contributions, including labor and materials,
providing the materials contributed meet the NRCS standards and
specifications for the practice being installed.
(3) Cost-share payments will not be made to a participant who has
applied or initiated the application of a conservation practice prior
to approval of the contract.
(b) The total amount of cost-share payments paid to a person under
this part may not exceed $50,000 for any fiscal year.
(c) For purposes of applying the payment limitations provided for
in this section, CCC shall use the provisions in 7 CFR part 1400
related to the definition of a ``person'' and the limitation of
payments, except that:
(1) The provisions in part 1400, subpart C for determining whether
persons are actively engaged in farming, subpart E for limiting
payments to certain cash rent tenants, and subpart F as the provisions
apply to determining whether foreign persons are eligible for payment,
will not apply.
(2) With respect to land under an AMA Program contract which is
inherited during the contract period, the $50,000 fiscal year
limitation shall not apply to the extent that the payments from any
contracts on the inherited land cause an heir who was party to an AMA
Program contract on other lands prior to the inheritance to exceed the
annual limit.
(3) With regard to contracts on Tribal land, Indian trust land, or
BIA allotted land, payments exceeding one limitation may be made to the
Tribal venture if an official of the BIA or tribal official certifies
in writing that no one person directly or indirectly will receive more
than the limitation.
(4) The status of an individual or entity on the date of the
application shall be the basis on which the determination of the number
of persons involved in the farming operation is made.
(d) The participant and NRCS must certify that a conservation
practice is completed in accordance with the contract before CCC will
approve the payment of any cost-share payment.
Sec. 1465.24 Contract modifications, extensions, and transfers of
land.
(a) The participant and CCC may modify a contract if the
participant and CCC agree to the contract modification.
(b) Contracts that run less than 10 years may be extended for up to
the 10-year limit in order for the participant to complete the
practices scheduled in the contract if such extension is requested by
the participant before the contract expires.
(c) The parties may agree to transfer a contract with the agreement
of all parties to the contract. The transferee must be determined by
CCC to be eligible to participate in the AMA Program and shall assume
full responsibility under the contract, including operation and
maintenance of those conservation practices already installed and to be
installed as a condition of the contract.
(d) CCC may require a participant to refund all or a portion of any
assistance earned under the AMA Program if the participant sells or
loses control of the land under an AMA Program contract and the new
owner or controller is not eligible to participate in the AMA Program
or refuses to assume responsibility under the contract.
Sec. 1465.25 Contract violations and termination.
(a)(1) If CCC determines that a participant is in violation of the
terms of a contract or documents incorporated by reference into the
contract, CCC shall give the participant a reasonable time, as
determined by the State Conservationist, to correct the violation and
comply with the terms of the contract and attachments thereto. If a
participant continues in violation, the State Conservationist may
terminate the AMA Program contract.
(2) Notwithstanding the provisions of paragraph (a)(1) of this
section, a contract termination shall be effective immediately upon a
determination by the State Conservationist that the participant has
submitted false information or filed a false claim, or engaged in any
act for which a finding of ineligibility for payments is permitted
under the provisions of Sec. 1465.35, or in a case in which the actions
of the party involved are deemed to be sufficiently purposeful or
negligent to warrant a termination without delay.
(b)(1) If CCC terminates a contract, the participant shall forfeit
all rights for future payments under the contract and shall refund all
or part of the payments received, plus interest determined in
accordance with part 1403 of this chapter. The State Conservationist
has the option of requiring only partial refund of the payments
received if the State Conservationist determines that a previously
installed conservation practice can function independently, is not
affected by the violation or other conservation practices that would
have been installed under the contract, and the participant agrees to
operate and maintain the installed conservation practice for the
lifespan of the practice.
(2) If CCC terminates a contract due to breach of contract or the
participant voluntarily terminates the contract before any contractual
payments have been made, the participant shall forfeit all rights for
further payments under the contract and shall pay such liquidated
damages as are prescribed in the contract. The State Conservationist
will have the option to waive the liquidated damages depending upon the
circumstances of the case.
(3) When making all contract termination decisions, CCC may reduce
the amount of money owed by the participant by a proportion that
reflects the good faith effort of the participant to comply with the
contract, or the hardships beyond the participant's control that have
prevented compliance with the contract.
(4) The participant may voluntarily terminate a contract if CCC
agrees, based on CCC's determination that termination is in the public
interest.
(5) In carrying out CCC's role in this section, NRCS may consult
with the local conservation district.
Subpart C--General Administration
Sec. 1465.30 Appeals.
(a) A participant may obtain administrative review of an adverse
decision under the AMA Program in accordance with parts 11 and 614 of this
title,
except as provided in paragraph (b) of this section.
(b) The following decisions are not appealable:
(1) Payment rates, payment limits, and cost-share percentages;
(2) Funding allocations;
(3) Eligible conservation practices; and
(4) Other matters of general applicability, including--
(i) Technical standards and formulas;
(ii) Denial of assistance due to lack of funds or authority; or
(iii) Science-based formulas and criteria.
Sec. 1465.31 Compliance with regulatory measures.
Participants who carry out conservation practices shall be
responsible for obtaining the authorities, rights, easements, or other
approvals necessary for the implementation, operation, and maintenance
of the conservation practices in keeping with applicable laws and
regulations. Participants shall be responsible for compliance with all
laws and for all effects or actions resulting from the participant's
performance under the contract.
Sec. 1465.32 Access to operating unit.
Any authorized CCC representative shall have the right to enter an
operating unit or tract to ascertain the accuracy of any
representations made in a contract, in anticipation of entering a
contract, or as to the performance of the terms and conditions of the
contract. Access shall include the right to provide technical
assistance and inspect any work undertaken under the contract. The CCC
representative shall make a reasonable effort to contact the
participant prior to the exercise of this provision.
Sec. 1465.33 Performance based upon advice or action of CCC
representative.
If a participant relied upon the advice or action of any authorized
representative of CCC and did not know or have reason to know that the
action or advice was improper or erroneous, the State Conservationist
may accept the advice or action as meeting the requirements of the AMA
Program and may grant relief, to the extent it is deemed desirable by
CCC, to provide a fair and equitable treatment because of the good-
faith reliance on the part of the participant.
Sec. 1465.34 Offsets and assignments.
(a) Except as provided in paragraph (b) of this section, any
payment or portion thereof to any person shall be made without regard
to questions of title under State law and without regard to any claim
or lien against the crop, or proceeds thereof, in favor of the owner or
any other creditor except agencies of the United States Government. The
regulations governing offsets and withholdings found in part 1403 of
this chapter shall be applicable to contract payments.
(b) Any producer entitled to any payment may assign any payments in
accordance with regulations governing assignment of payment found at
part 1404 of this chapter.
Sec. 1465.35 Misrepresentation and scheme or device.
(a) A producer who is determined to have erroneously represented
any fact affecting an AMA Program determination made in accordance with
this part shall not be entitled to contract payments and must refund to
CCC all payments, plus interest determined in accordance with part 1403
of this chapter.
(b) A producer who is determined to have knowingly:
(1) Adopted any scheme or device that tends to defeat the purpose
of the AMA Program;
(2) Made any fraudulent representation; or
(3) Misrepresented any fact affecting an AMA Program determination,
shall refund to CCC all payments, plus interest determined in
accordance with part 1403 of this chapter, received by such producer
with respect to all contracts. The producer's interest in all contracts
shall be terminated.
Signed in Washington, DC, on August 19, 2002.
Bruce I. Knight,
Vice President, Commodity Credit Corporation and Chief, Natural
Resources Conservation Service.
[FR Doc. 02-21835 Filed 8-27-02; 8:45 am]
BILLING CODE 3410-16-P
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