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[Federal Register: November 20, 2008 (Volume 73, Number 225)]
[Rules and Regulations]
[Page 70245-70256]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20no08-1]
Rules and Regulations
Federal Register
________________________________________________________________________
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[[Page 70245]]
DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR Part 1465
RIN 0578-AA50
Agricultural Management Assistance Program
AGENCY: Commodity Credit Corporation, United States Department of
Agriculture.
ACTION: Interim final rule with request for comment.
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SUMMARY: The Natural Resources Conservation Service (NRCS) is amending
the regulations for the Agricultural Management Assistance program
(AMA). Section 2801 of the Food, Conservation, and Energy Act of 2008
(2008 Act) amended the Agricultural Management Assistance program (AMA)
by: Expanding the program's geographic scope to include Hawaii; and
providing $15 million in mandatory funding for each of fiscal years
2008 through 2012. NRCS issues this interim final rule with request for
comment to incorporate statutory changes resulting from the 2008 Act
and to make administrative changes to improve program efficiency.
DATES: Effective Date: The rule is effective November 20, 2008. Comment
date: Submit comments on or before January 20, 2009.
ADDRESSES: You may send comments (identified by Docket Number NRCS-IFR-
08002) using any of the following methods:
Government-wide rulemaking Web site: go to http://
www.regulations.gov and follow the instructions for sending comments
electronically.
Mail: Director, Financial Assistance Programs Division,
Natural Resources Conservation Service, Agricultural Management
Assistance Program Comments, P.O. Box 2890, Room 5237-S, Washington, DC
20013.
Fax: (202) 720-4265
Hand Delivery: Room 5237-S of the USDA South Office
Building, 1400 Independence Avenue, SW., Washington, DC 20250, between
9 a.m. and 4 p.m., Monday through Friday, except Federal Holidays.
Please ask the guard at the entrance to the South Office Building to
call: (202) 720-4527 in order to be escorted into the building.
This interim final rule may be accessed via Internet.
Users can access the NRCS homepage at http://www.nrcs.usda.gov/; select
the Farm Bill link from the menu; select the Interim final link from
beneath the Final and Interim Final Rules Index title. Persons with
disabilities who require alternative means for communication (Braille,
large print, audio tape, etc.) should contact the USDA TARGET Center
at: (202) 720-2600 (voice and TDD).
FOR FURTHER INFORMATION CONTACT: Director, Financial Assistance
Programs Division, Natural Resources Conservation Service, P.O. Box
2890, Washington, DC 20013-2890; Phone: (202) 720-1844; Fax: (202) 720-
4265; or e-mail: AMA2008@wdc.usda.gov.
SUPPLEMENTARY INFORMATION:
Regulatory Certifications
Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
interim final rule is a non-significant regulatory action under
Executive Order 12866.
Regulatory Flexibility Act
NRCS has determined that the Regulatory Flexibility Act is not
applicable to this interim final rule because NRCS is not required by 5
U.S.C. 553, or any other provision of law, to publish a notice of
proposed rule making with respect to the subject matter of this rule.
Environmental Analysis
The National Environmental Policy Act (NEPA) applies to ``major
Federal actions'' where the agency has control and responsibility over
the actions and has discretion as to how the actions will be carried
out (40 CFR part 1508.18). Accordingly, any actions that are directed
by Congress to be implemented in such manner that there is no
discretion on the part of the agency are not required to undergo an
environmental review under NEPA. The lack of discretion over the action
by the agency undermines the rationale for NEPA review--evaluation of
the environmental impacts of the proposed action and consideration of
alternative actions to avoid or mitigate the impacts. Where Congress
has directed that a specific action be implemented and an agency has no
discretion to consider and take alternative actions, NEPA review would
be moot.
For AMA, Congress has mandated the addition of Hawaii to the list
of States to which the Secretary is authorized to provide financial
assistance. The Secretary of Agriculture is, therefore, required to
make this addition to the program. There is no discretion on the part
of the agency to take this action. For this reason, an environmental
review of these changes under NEPA is not required.
Civil Rights Impact Analysis
NRCS has determined through a Civil Rights Impact Analysis that the
issuance of this interim final rule will not have a significant effect
on minorities. Copies of the Civil Rights Impact Analysis may be
obtained from Director, Financial Assistance Programs Division, U.S.
Department of Agriculture (USDA), Natural Resources Conservation
Service (NRCS), P.O. Box 2890, Washington, DC 20013-2890.
Paperwork Reduction Act
Section 2904 of the 2008 Act requires that implementation of
programs authorized by Title II of the 2008 Act be made without regard
to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
Therefore, NRCS is not reporting recordkeeping or estimated paperwork
burden associated with this interim final rule.
Government Paperwork Elimination Act
NRCS is committed to compliance with the Government Paperwork
Elimination Act, which requires Government agencies, in general, to
provide the public the option of submitting information or transacting
business electronically to the maximum extent possible. To better
accommodate public access, NRCS has developed an online application and
information system for public use.
[[Page 70246]]
Executive Order 12988
This interim final rule has been reviewed in accordance with
Executive Order 12988, Civil Justice Reform. The provisions of this
interim final rule are not retroactive. Furthermore, the provisions of
this interim final rule preempt State and local laws to the extent such
laws are inconsistent with this interim final rule. Before an action
may be brought in a Federal court of competent jurisdiction, the
administrative appeal rights afforded persons at 7 CFR parts 11 and 614
must be exhausted.
Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994
USDA classified this interim final rule as ``not major'' under
Section 304 of the Department of Agriculture Reorganization Act of
1994, Public Law 104-354. Therefore, a risk assessment is not required.
Unfunded Mandates Reform Act of 1995
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,
Public Law 104-4, NRCS 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 governments, or anyone in the private sector, and
therefore, a statement under section 202 of the Unfunded Mandates
Reform Act is not required.
Discussion of Program
The conservation provisions of AMA are administered and implemented
under the general supervision and direction of the Chief of NRCS, who
is a Vice President of the Commodity Credit Corporation (CCC).
Accordingly, where NRCS is mentioned in this rule it also refers to the
CCC's funds, facilities, and authorities where applicable. While NRCS
has leadership for the conservation provisions of AMA, other agencies
have authority for different aspects of the program. The Agricultural
Marketing Service (AMS) has responsibility for the organic
certification cost-share program and the Risk Management Agency (RMA)
has responsibility for the insurance cost-share program for mitigation
of financial risk.
Through AMA, NRCS provides technical and financial assistance to
participants in eligible States to address issues, such as water
management, water quality, and erosion control by incorporating
conservation practices into their agricultural operations. Producers
may construct or improve water management structures or irrigation
structures; plant trees for windbreaks or to improve water quality; and
mitigate risk through production diversification or resource
conservation practices, including soil erosion control, integrated pest
management, or organic farming.
Section 524(b) of the Federal Crop Insurance Act, as amended by
Section 133 of the Agricultural Risk Protection Act of 2000, authorized
AMA to provide assistance to producers in States that historically had
low participation in the Federal Crop Insurance Program. The Farm
Security and Rural Investment Act of 2002 (2002 Act) made amendments to
AMA to specify the eligible States and provide additional clarity to
the assistance to be made available. The AMA regulation (7 CFR part
1465) was published in the Federal Register on April 9, 2003.
Section 2801 of the 2008 Act amended AMA to include Hawaii as an
eligible State, and to authorize $15 million in funding each year from
fiscal year (FY) 2008 through FY 2012. NRCS has evaluated seven years
of program implementation and identified opportunities to improve
program administration and alignment with other financial assistance
programs administered by the Agency. The revisions to the AMA
regulation, described below, reflect the changes mandated by the 2008
Act and opportunities to improve program administration for greater
efficiency.
Summary of Provisions
Section 1465.1, Purposes and Applicability
Section 1465.1, ``Purposes and Applicability,'' sets forth the
purpose, scope, and objectives of AMA. Through AMA, NRCS provides
technical and financial assistance to producers in statutorily-
designated States. Section 2801 of the 2008 Act expanded AMA's
geographic scope to include the State of Hawaii. In response, NRCS
revises Sec. 1465.1 to add Hawaii to the list of States eligible for
AMA assistance and replaces ``15'' with the number ``16'' when
referring to the number of eligible States. AMA is now available in
Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Maine, Nevada,
New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Utah,
Vermont, West Virginia, and Wyoming.
Section 1465.2, Administration
Section 1465.2, ``Administration,'' describes the role of NRCS and
provides a brief overview of the Agency's administrative
responsibilities. NRCS amends Sec. 1465.2 to reflect the 2003 decision
made by USDA to have NRCS administer the AMA natural resource
conservation provisions and to clarify NRCS's relationship with the
Commodity Credit Corporation (CCC). Prior to FY 2004, NRCS and the Farm
Service Agency (FSA) jointly administered the AMA natural resource
conservation provisions. A 2003 decision made by USDA transferred all
administrative responsibilities to NRCS. Therefore, Sec. 1465.2 is
revised to remove reference to Farm Service Agency (FSA) and reflect
that NRCS has the responsibility for issuing payments for conservation
practices. NRCS also revises Sec. 1465.2(c) to clarify that lower
delegations of authority can be overridden by the Chief, if necessary,
to uphold the purposes of AMA. This addition is consistent with other
NRCS natural resource conservation programs.
Section 1465.3, Definitions
Section 1465.3 sets forth definitions for terms used throughout
this regulation. Several new definitions have been added or revised to
align AMA terms with terms used by other NRCS conservation programs.
The following existing definitions are revised: ``Applicant,''
``Conservation district,'' ``Conservation practice,'' ``Contract,''
``Indian Tribe,'' ``Liquidated damages,'' ``Participant,''
``Producer,'' ``State Conservationist,'' and ``Technical assistance.''
NRCS also replaces several existing terms with terms more reflective of
AMA's purposes. The term,``Cost-share payment'' is replaced with
``Payment,'' to reflect the breadth of the types of costs that may be
considered in determining payments. The term ``Indian trust lands'' is
replaced with the term ``Indian land'' to broaden the scope and align
AMA with other NRCS conservation programs. Finally, the term
``Conservation plan'' is replaced with the term ``AMA plan of
operations (APO)'' to align AMA with other NRCS conservation programs
that identify a plan of operations. NRCS adds the following terms and
definitions to the AMA regulations to be consistent with related
conservation programs: ``Agricultural land,'' ``Agricultural
operation,'' ``Beginning farmer or rancher,'' ``Historically
underserved producer,'' ``Joint operation,'' ``Legal entity,''
``Limited resource farmer or rancher,'' ``Livestock,'' ``Natural
Resources Conservation Service (NRCS),'' ``Nonindustrial private forest
land,'' ``Operation and maintenance (O&M) agreement,'' ``Person,''
``Resource concern,'' ``Socially disadvantaged farmer or rancher,''
``Structural
[[Page 70247]]
practice,'' and ``Technical Service Provider (TSP).'' The terms, ``Unit
of concern'' and ``State Technical Committees'' are removed since they
are no longer used in the AMA regulations.
Specifically, the following definitions have been amended:
NRCS adds the definition of ``agricultural land'' to better define
the land where AMA assistance will be provided. Agricultural land is
cropland, grassland, rangeland, pasture, and other agricultural land,
on which agricultural and forest-related products or livestock are
produced and resource concerns may be addressed. Agricultural lands
include cropped woodland, marshes, incidental areas included in the
agricultural operation, and other types of agricultural land used for
the production of livestock.
NRCS adds the definition of ``agricultural operation'' to closely
align AMA's definitions with definitions used by other NRCS
conservation programs. Section 1465.3 defines an ``agricultural
operation'' as ``a parcel or parcels of land whether contiguous or
noncontiguous, which the producer is listed as the operator or owner/
operator in the Farm Service Agency (FSA) record system, which is under
the effective control of the producer at the time the producer applies
for a contract, and which is operated by the producer with equipment,
labor, management, and production, forestry, or cultivation practices
that are substantially separate from other operations.''
NRCS replaces the term, ``conservation plan'' with ``AMA plan of
operations'' to ensure consistency across NRCS programs. Prior to this
regulation, AMA participants developed and implemented an AMA plan of
operations. The addition of this term and associated definition
clarifies what constitutes an AMA plan of operations and clarifies
existing processes and documentation procedures. An AMA plan of
operations, which is part of the AMA contract, identifies the location
and timing of conservation practices that the participant agrees to
implement.
NRCS revises the definition, ``applicant,'' to simplify the
definition and incorporate the 2008 Act's references to ``person'' and
``legal entity.'' The term, ``applicant,'' is defined as follows: ``a
person, legal entity, or joint operation that has an interest in an
agricultural operation, who has requested in writing to participate in
AMA.''
NRCS adds the definition, ``beginning farmer and rancher'' in
accordance with Section 2708 of the 2008 Act which seeks to expand
conservation program participation among farmers and ranchers who have
been historically underserved. The definition of ``beginning farmer and
rancher'' reflects the definition provided defined in 1201(a) of the
Food Security Act of 1985. Generally speaking, a ``beginning farmer or
rancher'' is an individual who has not operated a farm or ranch, or who
has operated a farm or ranch for not more than 10 consecutive years.
This requirement applies to all members of an entity, who will
materially and substantially participate in the operation of the farm
or ranch. NRCS also revises the ``conservation district'' definition to
reflect the 2008 Act's definition. A conservation district means ``any
district or unit of State, Tribal, or local government formed under
State, Tribal, or territorial law for the express purpose of developing
and carrying out a local soil and water conservation program.'' Such
district or unit of government may be referred to as a ``conservation
district,'' ``soil conservation district,'' ``soil and water
conservation district,'' ``resource conservation district,'' ``natural
resource district,'' ``land conservation committee,'' or similar name.
NRCS revises ``conservation practice'' to clarify what is meant by
conservation treatment. Specifically, a conservation practice means
``one or more conservation improvements and activities, including
structural practices, land management practices, vegetative practices,
forest management, and other improvements that achieve program
purposes.''
NRCS revises the definition of ``contract'' in an effort to make
definitions consistent across other programs. A contract is ``a legal
document that specifies the rights and obligations of any participant
in the program. An AMA contract is a binding agreement for the transfer
of assistance from USDA to the participant to share in the costs of
applying conservation practices.''
The term, ``historically underserved producer,'' merges the terms
``beginning farmer or rancher,'' ``limited resource farmer or
rancher,'' and ``socially disadvantaged farmer or rancher'' into one
definition to simplify terms within this regulation.
NRCS revises the definition of ``Indian Tribe'' to ensure the
definition incorporates Alaska Native village corporations, as
established pursuant to the Alaska Claims Settlement Act (43 U.S.C.
1601 et seq.).
NRCS replaces the term and definition, ``Indian trust land,'' to
make it consistent with the term and associated definition, ``Indian
land,'' which is used by other NRCS conservation programs. The ``Indian
land'' definition encompasses lands which are also held in fee title by
Indian tribes or Tribal members. Specifically, ``Indian land'' is ``an
inclusive term describing all lands held in trust by the United States
for individual Indians or Tribes, or all lands, titles to which are
held by individual Indians or Tribes, subject to Federal restrictions
against alienation or encumbrance, or all lands which are subject to
the rights of use, occupancy and/or benefit of certain Tribes.''
NRCS adds the term, ``joint operation,'' to maintain consistency
across all NRCS conservation programs. A joint operation is ``a general
partnership, joint venture, or other similar business arrangement, in
which the members are jointly or severally liable for the obligations
of the organization.''
NRCS adds the term, ``legal entity,'' to maintain consistency
across all NRCS conservation programs. As defined by 7 CFR 1400, ``a
legal entity is an entity created under Federal or State law that: (1)
Owns land or an agricultural commodity, product, or livestock; or (2)
produces an agricultural commodity, product, or livestock.''
NRCS adds the term and associated definition ``limited resource
farmer,'' in accordance with Section 2708 of the 2008 Act which seeks
to expand conservation program participation among farmers and ranchers
who have been historically underserved. The definition of ``limited
resource farmer'' reflects the definition used in the Environmental
Quality Incentive Program's regulation, 7 CFR part 1466. Generally
speaking, a limited resource farmer is a person with direct or indirect
gross farms sales not more than $155200 in each of the previous two
years, who has a total household income at or below the national
poverty level for a family of four, or less than 50 percent of the
county median household income in each of the two previous years.
NRCS revises the definition, ``liquidated damages,'' to make the
definition consistent with the definition used by other NRCS
conservation programs; however, the overall meaning of the term remains
the same as the original regulation's definition. Liquidated damages is
``a sum of money stipulated in the AMA contract that the participant
agrees to pay NRCS if the participant fails to adequately complete the
terms of the contract. The sum represents an estimate of the expenses
incurred to service the contract and reflects the difficulties of proof
of loss and the inconvenience or non-feasibility
[[Page 70248]]
of otherwise obtaining an adequate remedy.''
NRCS adds the term, ``livestock,'' to maintain consistency across
NRCS conservation programs. Livestock means ``all animals produced on
farms and ranches, as determined by the Chief.'' NRCS adds the term,
``Natural Resources Conservation Service,'' to define the USDA agency
that has responsibility for administering AMA.
NRCS adds the term, ``nonindustrial private forest land,'' to
further define land eligible for AMA assistance. Nonindustrial forest
land is rural land that has existing tree cover or is suitable for
growing trees; and is owned by any nonindustrial private individual,
group, association, corporation, Indian Tribe, or other private legal
entity that has definitive decisionmaking authority over the land.
NRCS adds the term ``operation and maintenance agreement'' to
describe the document that, in conjunction with the AMA plan of
operations, specifies the participant's operation and maintenance
responsibilities for conservation practices installed with AMA
assistance.
NRCS revises the definition of ``participant,'' to make it
consistent with other NRCS conservation programs. A participant is ``a
person, joint operation, or legal entity who is receiving payment or is
responsible for implementing an AMA contract's terms and conditions.''
NRCS replaces the term, ``cost share payment'' with the term,
``payment'' to more adequately describe how participants will be
compensated. Payment means the ``financial assistance provided to the
participant based on the estimated costs incurred in performing or
implementing conservation practices, including costs for: planning,
design, materials, equipment, installation, labor, maintenance,
management, or training, as well as the estimated income foregone by
the producer for the designated conservation practices.''
NRCS adds the term, ``person,'' to maintain consistency across all
NRCS conservation programs. As defined by 7 CFR part 1400, a person is
``an individual, natural person and does not include a legal entity.''
NRCS expands upon the definition of ``producer,'' to include
persons or entities involved in forestry management.
NRCS adds the term, ``resource concern,'' to maintain a consistency
of terms across NRCS conservation programs. A resource concern is ``a
specific natural resource problem that represents a significant concern
in a State or region and is likely to be addressed successfully through
the implementation of the conservation practices by producers.''
NRCS adds the term, ``socially disadvantaged farmer or rancher,''
in accordance with Section 2708 of the 2008 Act which seeks to expand
conservation program participation among farmers and ranchers who have
been historically underserved. A socially disadvantaged famer or
rancher is one ``who has been subjected to racial or ethnic prejudices
because of their identity as a member of a group without regard to
their individual qualities.''
NRCS revises the definition, ``State Conservationist,'' to clarify
that the former State Conservationist of Hawaii has become the director
of the Pacific Islands.
NRCS adds the term, ``structural practice,'' to better define a
conservation practice that involves establishing, constructing, or
installing a site-specific measure to conserve and protect a resource
from degradation, or improve soil, water, air, or related natural
resources in the most cost-effective manner.
NRCS revises the term, ``technical assistance,'' to further clarify
the nature of technical assistance under AMA, as well as the types of
land where AMA technical assistance is available.
NRCS adds the term and definition, ``Technical Service Provider
(TSP)'' to clarify that participants may receive technical assistance
from an individual, private-sector entity, or public agency certified
by NRCS to provide technical services, in lieu of or on behalf of NRCS.
Section 1465.4, National Priorities
NRCS inserts a new Sec. 1465.4, entitled ``National Priorities,''
and redesignates the subsequent sections accordingly. The new Sec.
1465.4 provides that NRCS establishes national priorities to guide
funding allocations to States, selection of AMA contracts, and
implementation priority for AMA conservation practices. This new
section also states that the national priorities are reviewed
periodically by NRCS to ensure that the program is addressing priority
conservation concerns. This addition improves AMA consistency with
related conservation programs administered by NRCS.
Section 1465.5, Program Requirements
Section 1465.5, ``Program requirements,'' sets forth land and
applicant eligibility. Throughout the Section the terminology is
revised to make it consistent with the terms used in Sec. 1465.3,
``Definitions.''
Specifically, NRCS revises paragraph (a), replacing the term,
``cost share'' payment with the term, ``payment,'' to more adequately
reflect the type of payments a participant may receive. NRCS also
replaces the term, ``conservation plan,'' with the term, ``AMA plan of
operations,'' to describe the specific document that contains the
conservation practice implementation schedule.
NRCS revises paragraph (c)(2), which requires that the applicant
provide written evidence of ownership or legal control for the life of
the contract and its associated O&M agreement, which is consistent with
additions in Sec. Sec. 1465.3 and 1465.22. NRCS also revises paragraph
(c)(4) to clarify that additional information required by NRCS is for
the purposes of assessing a proposed project's merits and to assist in
monitoring contract compliance.
Section 1465.5 is revised to incorporate existing program
requirements that previously have not been included in the AMA
regulations because they apply via other statutory provisions. In
particular, NRCS revises Sec. 1465.5(c)(6) to clarify that AMA
participants are subject to AGI limitations, 7 CFR Part 1400 and
amendments to Section 1001D of the Food Security Act of 1985 as
authorized by Section 1604 of Title I of the 2008 Act. The AGI and
program eligibility requirements also necessitate that NRCS obtain from
legal entities a list of members, including members in embedded
entities, along with their social security numbers, and percent
interest in the legal entity. Specifically, text has been added to
Sec. 1465.5, ``Program requirements,'' that requires participants to
``supply other information, as required by NRCS, to determine payment
eligibility as established by 7 CFR 1400, Adjusted Gross Income
(AGI).'' This revision also makes AMA consistent with other NRCS
conservation programs.
Paragraph (c) is revised to further clarify that applicants must
provide a list of all members of the legal entity and embedded entities
along with members' social security numbers and percentage interest in
the entity. In the event an applicant uses a unique identification
number rather than a social security or tax identification number, the
unique identification number must be used universally for any and all
AMA contracts. The original subparagraph 1465.5(c)(4) has been removed
as it is redundant with Sec. 1465.5(c)(6), and subparagraph
1465.5(c)(5) has been redesignated as Sec. 1465.5(c)(8). Subparagraph
1465.5(c)(10) is added to clarify that a participant must develop and
agree to comply with an APO and to describe the
[[Page 70249]]
Agency expectation regarding the O&M agreement.
NRCS adds new program requirements in paragraph (c)(9) to improve
program administration and ensure that AMA program goals are met. A
provision is added that requires AMA participants to be in compliance
with terms of all other USDA-administered agreements to which they are
a party. In this manner, NRCS ensures that a participant who receives
NRCS conservation program benefits is meeting existing responsibilities
prior to receiving additional assistance.
Sections 1465.5(d)(2)(i) through Sec. 1465.5(d)(2)(iii) are
redesignated as Sec. 1465.5(d)(2)(A), Sec. 1465.5(d)(2)(B), and Sec.
1465.5(d)(2)(C), respectively. In an effort to make AMA consistent with
other programs, the language contained within paragraph (d)(2) that
addresses enrolling public land is slightly revised, although the
overall intent of the language remains the same.
Section 1465.6, AMA Plan of Operations
NRCS inserts a new section Sec. 1465.6, entitled ``AMA plan of
operations,'' which describes the AMA plan of operations as the
document that contains the information related to practices and
activities to be implemented under AMA. Section 1465.6 specifies the
requirements for the APO and that participants are responsible for
implementing the APO. This addition brings AMA into alignment with
other NRCS conservation programs. Subsequent sections are redesignated
accordingly.
Section 1465.7, Conservation Practices
Section 1465.7, ``Conservation practices,'' describes how NRCS
determines eligible conservation practices. Specifically, Sec.
1465.7(a) is revised to clarify that NRCS will identify and provide
public notice of the conservation practices eligible for payments under
the program. This revision improves AMA consistency with related NRCS
conservation programs. The reference to ``State Technical Committees''
providing advice on the types of conservation practices eligible for
payment is removed, since State Technical Committees are permitted only
to provide advice on conservation programs, authorized by Title XII of
the Food Security Act of 1985. AMA is authorized by the Federal Crop
Insurance Act; therefore, State Technical Committees are not authorized
to provide advice on AMA.
Subpart B--Contracts
Section 1465.20, Application for Participation and Selecting
Applications for Contracting
Section 1465.20, ``Application for participation and selecting
applications for contracting,'' describes the processes for submitting
and selecting applications. This Section remains the same; however, the
term, ``national priorities,'' is inserted in paragraphs (c) and (d) to
account for the policy outlined in Sec. 1465.4, ``National
priorities.'' The reference to ``State Technical Committees'' providing
advice on AMA ranking criteria is removed, since State Technical
Committees are permitted only to provide advice on conservation
programs, authorized by Title XII of the Food Security Act of 1985. AMA
is authorized by the Federal Crop Insurance Act; therefore, State
Technical Committees are not authorized to provide advice on AMA.
Section 1465.21, Contract Requirements
Section 1466.21, ``Contract requirements,'' identifies elements
contained within an AMA contract and the responsibilities of the
participant who is party to the AMA contract. Specifically, paragraph
(a) is revised to change the term ``cost-share payments'' to
``payments,'' and clarify that costs related to technical services may
be included in the contract. This revision does not change current
program practice.
Under Sec. 1465.21(b)(2), contract duration is revised from 3 to
10 years to a minimum duration of one year after completion of the last
practice, and a maximum of 10 years. This provides the flexibility
needed for establishing agreement lengths based on conservation
concerns and other factors, and aligns AMA with other conservation
programs administered by NRCS.
Overall, Sec. 1465.21(b) is restructured to account for additions
to the section and to make the formatting consistent throughout the AMA
regulations, although with the exception of replacing the terms,
``contract and conservation plan'' with ``APO,'' the text has not
changed. Accordingly, subparagraphs 1465.21(b)(3)(i) through
1465.21(b)(3)(iv) are redesignated as 1465.21(b)(3)(A) through
1465.21(b)(3)(D).
Section 1465.22, Conservation Practice Operation and Maintenance
Section 1465.22, ``Conservation practice operation and
maintenance,'' addresses the participant's responsibility for operating
and maintaining conservation practices. Section 1465.22 is divided into
logical content paragraphs and revised to be consistent with the O&M
agreement definition in Sec. 1465.3. NRCS revised Sec. 1465.22 to
clarify that the O&M agreement is part of the AMA contract. The O&M
agreement specifies the terms and conditions under which the
participant must operate and maintain the conservation practices
installed with AMA assistance. This section also clarifies that NRCS
may periodically inspect conservation practices to ensure that they are
being maintained for the conservation practice lifespan as detailed in
the O&M agreement. In the event that NRCS finds that a participant is
not operating and maintaining practices for the specified lifespan
during the contract duration, NRCS may request a refund of payments in
accordance with the AMA contract. NRCS has created an O&M agreement to
articulate the Agency's expectation that the participant is responsible
for maintaining each conservation practice. NRCS has developed this O&M
agreement for two reasons: (1) To increase transparency of a
participant's contract responsibilities; and (2) To ensure these
conservation practices are maintained for the length in time in which
they were designed and created.
NRCS adds Sec. 1465.22(d) to clarify to the participant that
conservation practices installed before contract approval, but included
in the application in order to obtain ranking points, must be operated
and maintained as specified in the contract and O&M agreement. This
addition is consistent with other NRCS conservation programs' policies.
Section 1465.23, Payments
The Section title is revised from ``Cost-share payments'' to
``Payments'' to reflect the variety of costs that are considered in
establishing program payments. Accordingly, the term ``cost-share
payment'' is replaced by ``payment'' throughout the Section. This
section addresses payments and payment limitations applicable to a
participant. Subparagraphs 1465.23(a)(1), 1465.23(a)(2), 1465.23(a)(3),
1465.23(b), 1465.23(c), and 1465.23(d) are redesignated as 1465.23(a),
1465.23(b), 1465.23(c), 1465.23(d), 1465.23(e), 1465.23(f), and
1465.23(g), respectively, to accommodate additions to the section and
to make the formatting consistent throughout the AMA regulations.
Section 1465.23(a) is revised to allow payments of ``up to 75
percent of the estimated cost of an eligible practice
[[Page 70250]]
and up to 100 percent of the estimated income foregone'' rather than
providing a flat rate of 75 percent. Allowing for a range of payment
rates makes it possible to provide reduced rates where participants can
implement a conservation practice at a lower cost. This allows the
opportunity to distribute AMA funds to more participants. A new section
1465.23(a)(2) is added to allow historically underserved producers to
receive the applicable payment rate plus an additional rate that is not
less than 25 percent, provided that this increase does not exceed 90
percent. These changes implement the 2008 Act's emphasis on encouraging
participation by those who have been historically underserved and are
consistent with other related NRCS conservation programs.
Section 1465.23(c) is revised to clarify how conservation practices
implemented or initiated prior to AMA contract approval will be
handled. Section 1465.23(c)(1) states that payments will not be made
for practices applied prior to contract approval. Section 1465.23(c)(2)
describes that practices initiated prior to contract approval are not
eligible for payment, unless the participant had obtained a waiver in
advance from the State or Designated Conservationist. This revision
aligns AMA with other NRCS-administered conservation programs.
NRCS revises Sec. 1465.23(e) as follows: Sec. 1465.23(e) is
expanded to include the statutory reference of the ``Payment Limitation
and Payment Eligibility'' at 7 CFR part 1400. NRCS will attribute
payments to each participating person and legal entity using the same
protocol outlined in 7 CFR part 1400 for commodity and conservation
programs. This is consistent with other conservation programs
administered by NRCS. Subparagraphs 1465.23(c)(i) through
1465.23(c)(iv) are removed as the majority of the provisions are
addressed by reference to 7 CFR part 1400 in the Section.
Section 1465.23(f) is added to state that payments will not be made
for conservation practices on eligible land if payments are already
being received for the same practice on the same land under a USDA
conservation program. These additions are consistent with other related
conservation programs administered by NRCS.
Section 1465.23(h) is added to state that subject to fund
availability, the payment rates for conservation practices scheduled
after the year of contract obligation may be adjusted to reflect
increased costs. NRCS adds this paragraph to enable the Agency to
adjust payments to accommodate for inflation, higher fuel costs, and
increased labor, which impact the cost of implementing a conservation
practice.
Section 1465.24, Contract Modifications, Extensions, and Transfers of
Land
Section 1465.24, ``Contract modifications, extensions, and
transfers of land,'' addresses contract modifications, changes in land
ownership or control of the land, and contract implications if the
participant loses control of the land. Specifically, Sec. 1465.24(a)
is revised to state that when an AMA contract is revised, the APO also
must be revised. The designated conservationist must approve the
modified contract. This new language is consistent with modifications
made in Sec. 1465.6 and with other conservation programs administered
by NRCS.
Language related to contract extensions for up to the 10-year limit
is deleted in Sec. 1465.24(b) because contract duration is addressed
in Sec. 1465.21(b)(2). New language is included to clarify that
participants are responsible for notifying NRCS if they anticipate loss
of control of the land. This addition is consistent with other related
conservation programs administered by NRCS.
Section 1465.24(c) is revised to clarify contract transfer issues
related to division of payments and transferee eligibility.
Subparagraphs 1465.24(c)(1) and 1465.24(c)(2) explain the requirements
for a transferee to receive payments, the obligations of the transferee
to comply with the terms of the contract and O&M agreement, and the
rights of the parties in distribution of payments. This revision brings
AMA into alignment with related conservation programs administered by
NRCS.
Section 1465.24(e) is added to clarify that participants to a
contract will be jointly and severally responsible for refunding
payments. The language is consistent with related NRCS-administered
conservation programs.
Section 1465.24(f) is added to ensure that in the event a
conservation practice fails through no fault of the participant, the
State Conservationist may issue payments to re-establish the
conservation practice, in accordance with established payment rates and
limitations.
Section 1465.25, Contract Violations and Terminations
Section 1465.25, ``Contract violations and terminations,''
addresses the procedures that NRCS takes where a violation has occurred
or a contract termination is necessary. Section 1465.25 is revised to
account for additions to the Section and to make the formatting
consistent throughout the AMA regulations. Section 1465.25(a) is
revised by removing the term ``reasonable'' as it is too subjective and
replaces it with ``60 days, unless otherwise determined by the State
Conservationist.'' This language is consistent with related NRCS-
administered conservation programs. Subparagraphs 1465.25(a)(1) and
1465.25(a)(2) are redesignated as Sec. 1465.25(a) and Sec.
1465.25(b), respectively.
The terms ``scheme or device'' are added to Sec. 1465.25(b) to be
clear that such actions may result in contract violation or
termination. This revision is consistent with Sec. 1465.35 and with
related conservation programs administered by NRCS. Subparagraphs
1465.25(b)(1), 1465.25(b)(2), 1465.25(b)(3), 1465.25(b)(4), and
1465.25(b)(5) are redesignated as 1465.25(c), 1465.25(c)(2),
1465.25(c)(2)(A), 1465.25(c)(2)(B), and 1465.25(c)(2)(C), respectively.
Section 1465.25(c) is revised as follows: Sec. 1465.25(c) is
expanded to clarify that participants who are in violation of AMA
contracts may be ineligible for future NRCS-administered conservation
program funding. The language is consistent with other NRCS
conservation programs. Subparagraph 1465.25(c)(2)(A) is revised to
clarify that hardship claims must be well documented and must result
from conditions that did not exist prior to application to the program.
This revision is consistent with related conservation programs
administered by NRCS.
Subpart C--General Administration
Section 1465.30, Appeals
Section 1465.30, ``Appeals,'' references the policies that govern
when a producer seeks an appeal to an adverse decision made by NRCS.
NRCS has not made any substantive changes to this section, other than
formatting. The following formatting changes are made to Sec. 1465.30:
Sec. 1465.30(b)(4)(i) through Sec. 1465.30(b)(4)(iii) are
redesignated as Sec. 1465.30(b)(4)(A), Sec. 1465.30(b)(4)(B), and
Sec. 1465.30(b)(4)(C), respectively.
Section 1465.31, Compliance With Regulatory Measures
No changes have been made in this section.
[[Page 70251]]
Section 1465.32, Access to Operating Unit
Section 1465.32, ``Access to operating unit,'' provides notice to
applicants, participants, and the public that NRCS has the right to
enter an operating unit or tract for the purpose of ascertaining the
accuracy of any representations related to contract performance.
Section 1465.32 is amended to notify potential AMA applicants that an
authorized NRCS representative may enter an agricultural operation for
the purposes of eligibility determinations. NRCS will continue to
provide the participant notice, prior to entering the property.
Section 1465.33, Equitable Relief
The caption of Sec. 1465.33 is changed from ``Performance based
upon advice or action or representatives of NRCS'' to ``Equitable
relief'' to be consistent with related NRCS-administered conservation
programs. Section 1465.33, ``Equitable relief,'' outlines the policy
when a participant relies upon erroneous advice provided by NRCS.
Specifically, Sec. 1465.33 is divided into two paragraphs. Paragraph
1465.33(b) is revised to add that any action the participant has taken
based on the advice of a certified TSP is the responsibility of that
certified TSP. The language clarifies program administration and is
consistent with other NRCS conservation programs.
Paragraph 1465.33(c) clarifies that AMA participants who acted in
good faith based on erroneous information provided by NRCS or its
representatives may be entitled to equitable relief. This revision
makes AMA consistent with other conservation programs administered by
NRCS.
Section 1465.34, Offsets and Assignments
Section 1465.34, ``Offsets and assignments,'' governs offsets and
withholdings, as well as assignment of payments. The term ``person'' is
changed to ``participant'' to reflect that this policy applies to
persons, joint operations, and legal entities who are party to an AMA
contract.
Section 1465.35, Misrepresentation and Scheme or Device
Section 1465.35, ``Misrepresentation and scheme or device,''
outlines the policies governing producers who have erroneously or
fraudulently represented themselves. Section 1465.35 is revised to
improve transparency related to the participant actions and
consequences of engaging in misrepresentation or scheme or device. This
revision aligns AMA with other NRCS conservation programs.
Paragraph 1465.35(b) expands on the actions that may be deemed
misrepresentation or scheme or device to include any action intended to
deprive a tenant or sharecropper of entitled payments. These revisions
are consistent with other NRCS conservation programs.
Paragraph 1465.35(c) is added to clarify that if paragraphs Sec.
1465.35(a) or Sec. 1465.35(b) apply to a participant, their interest
in all contracts will be terminated and they may be determined
ineligible for future funding from any NRCS conservation programs.
Section 1465.36, Environmental Services Credits for Conservation
Improvements
Section 1465.36 is added to provide clarity related to
environmental credits that may be produced on lands under AMA
contracts. It establishes that NRCS asserts no interest in credits
earned, but that the Agency retains the authority to ensure that the
requirements for AMA-funded improvements are met and maintained
consistent with the terms of the contract. Where activities may affect
the land covered by an AMA contract, participants are highly encouraged
to request a compatibility assessment from NRCS prior to entering into
any environmental credit agreements. This provision is consistent with
other conservation programs administered by NRCS.
List of Subjects in 7 CFR Part 1465
Conservation contract, Conservation plan, Conservation practices,
Soil and water conservation.
0
For the reasons stated in the preamble, the Natural Resources
Conservation Service revises Part 1465 of Title 7 of the Code of
Federal Regulations to read as follows:
PART 1465--AGRICULTURAL MANAGEMENT ASSISTANCE
Subpart A--General Provisions
Sec.
1465.1 Purposes and applicability.
1465.2 Administration.
1465.3 Definitions.
1465.4 National priorities.
1465.5 Program requirements.
1465.6 AMA plan of operations.
1465.7 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 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 Equitable relief.
1465.34 Offsets and assignments.
1465.35 Misrepresentation and scheme or device.
1465.36 Environmental Services Credits for Conservation
Improvements.
Authority: 7 U.S.C. 1524(b).
Subpart A--General Provisions
Sec. 1465.1 Purposes and applicability.
Through the Agricultural Management Assistance program (AMA), the
Natural Resources Conservation Service (NRCS) provides financial
assistance funds annually to producers in 16 statutorily designated
States to: Construct or improve water management structures or
irrigation structures; plant trees to form windbreaks or to improve
water quality; and mitigate risk through production diversification or
resource conservation practices, including soil erosion control,
integrated pest management, or the transition to organic farming. AMA
is applicable in Connecticut, Delaware, Hawaii, Maine, Maryland,
Massachusetts, 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 for the Commodity Credit Corporation (CCC) is
assigned to the NRCS, using the funds, facilities, and authorities of
the CCC. Accordingly, where NRCS is mentioned in this Part, it also
refers to the CCC's funds, facilities, and authorities, where
applicable.
(b) NRCS will:
(1) Provide overall management and implementation leadership for
AMA;
(2) Establish policies, procedures, priorities, and guidance for
implementation;
(3) Establish payment limits;
(4) Determine eligible practices;
(5) Develop and approve AMA plans of operation and contracts with
selected participants;
(6) Provide technical leadership for implementation, quality
assurance, and evaluation of performance;
(7) Make funding decisions and determine allocations of AMA funds;
and
(8) Issue payments for conservation practices completed.
[[Page 70252]]
(c) No delegation in this part to lower organizational levels shall
preclude the Chief of NRCS from determining any issues arising under
this Part or from reversing or modifying any determination made under
this Part.
Sec. 1465.3 Definitions.
The following definitions apply to this part and all documents used
in accordance with this part, unless specified otherwise:
Agricultural land means cropland, grassland, rangeland, pasture,
and other agricultural land on which agricultural or forest-related
products or livestock are produced. Other agricultural lands may
include cropped woodland, marshes, incidental areas included in the
agricultural operation, and other types of agricultural land used for
production of livestock.
Agricultural operation means a parcel or parcels of land whether
contiguous or noncontiguous, which the producer is listed as the
operator or owner/operator in the Farm Service Agency (FSA) record
system, which is under the effective control of the producer at the
time the producer applies for a contract, and which is operated by the
producer with equipment, labor, management, and production, forestry,
or cultivation practices that are substantially separate from other
operations.
AMA plan of operations (APO) means the document that identifies the
location and timing of conservation practices that the participant
agrees to implement on eligible land in order to address the resource
concerns and program purposes. The APO is part of the AMA contract.
Applicant means a person, legal entity, or joint operation that has
an interest in an agricultural operation, as defined in 7 CFR 1400, who
has requested in writing to participate in AMA.
Beginning farmer or rancher means a person or legal entity who:
(1) Has not operated a farm or ranch, or who has operated a farm or
ranch for not more than 10 consecutive years. This requirement applies
to all members of an entity who will materially and substantially
participate in the operation of the farm or ranch.
(2) In the case of a contract with an individual, individually or
with the immediate family, material and substantial participation
requires that the individual provide substantial day-to-day labor and
management of the farm or ranch, consistent with the practices in the
county or State where the farm or ranch is located.
(3) In the case of a contract with an entity or joint operation,
all members must materially and substantially participate in the
operation of the farm or ranch. Material and substantial participation
requires that each of the members provide some amount of the
management, or labor and management necessary for day-to-day
activities, such that if each of the members did not provide these
inputs, operation of the farm or ranch would be seriously impaired.
Chief means the Chief of NRCS, United States Department of
Agriculture (USDA), or designee.
Conservation district means any district or unit of State, Tribal,
or local government formed under State, Tribal, or territorial law for
the express purpose of developing and carrying out a local soil and
water conservation program. Such district or unit of government may be
referred to as a ``conservation district,'' ``soil conservation
district,'' ``soil and water conservation district,'' ``resource
conservation district,'' ``natural resource district,'' ``land
conservation committee,'' or similar name.
Conservation practice means one or more conservation improvements
and activities, including structural practices, land management
practices, vegetative practices, forest management, and other
improvements that achieve program purposes.
Contract means a legal document that specifies the rights and
obligations of any participant accepted into the program. An AMA
contract is a binding agreement for the transfer of assistance from
USDA to the participant to share in the costs of applying conservation
practices.
Designated conservationist means an NRCS employee whom the State
Conservationist has designated as responsible for AMA administration in
a specific area.
Historically underserved producer means an eligible person, joint
operation, or legal entity who is a beginning farmer or rancher,
socially disadvantaged farmer or rancher, or limited resource farmer or
rancher.
Indian land is an inclusive term describing all lands held in trust
by the United States for individual Indians or Tribes, or all lands,
titles to which are held by individual Indians or Tribes, subject to
Federal restrictions against alienation or encumbrance, or all lands
which are subject to the rights of use, occupancy and/or benefit of
certain Tribes. For purposes of this Part, the term Indian land also
includes land for which the title is held in fee status by Indian
tribes, and the U.S. Government-owned land under the Bureau of Indian
Affairs jurisdiction.
Indian Tribe means any Indian tribe, band, nation, or other
organized group or community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant
to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.)
that is eligible for the special programs and services provided by the
United States to Indians because of their status as Indians.
Joint operation means, as defined in 7 CFR part 1400, a general
partnership, joint venture, or other similar business arrangement in
which the members are jointly and severally liable for the obligations
of the organization.
Legal entity means, as defined in 7 CFR part 1400, an entity
created under Federal or State law that:
(1) Owns land or an agricultural commodity, product, or livestock;
or
(2) Produces an agricultural commodity, product, or livestock.
Lifespan means the period of time in which a conservation practice
should be operated and maintained and used for the intended purpose.
Limited resource farmer or rancher means:
(1) A person with direct or indirect gross farm sales of not more
than $155,200 in each of the previous two years (adjusted for inflation
using the Prices Paid by Farmer Index as compiled by the National
Agricultural Statistics Service), and
(2) Has a total household income at or below the national poverty
level for a family of four, or less than 50 percent of county median
household income in each of the previous two years (to be determined
annually using Commerce Department data).
Liquidated damages means a sum of money stipulated in the AMA
contract that the participant agrees to pay NRCS if the participant
fails to adequately complete the terms of the contract. The sum
represents an estimate of the expenses incurred to service the contract
and reflects the difficulties of proof of loss and the inconvenience or
non-feasibility of otherwise obtaining an adequate remedy.
Livestock means all animals produced on farms and ranches, as
determined by the Chief.
Natural Resources Conservation Service (NRCS) is an agency of the
USDA, which has responsibility for administering AMA using the funds,
facilities, and authorities of the CCC.
Nonindustrial private forest land means rural land that has
existing tree cover or is suitable for growing trees; and is owned by
any nonindustrial private individual, group, association, corporation,
Indian Tribe, or other
[[Page 70253]]
private legal entity that has definitive decision-making authority over
the land.
Operation and maintenance means work performed by the participant
to keep the applied conservation practice functioning for the intended
purpose during the conservation practice lifespan. 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.
Operation and maintenance (O&M) agreement means the document that,
in conjunction with the APO, specifies the operation and maintenance
responsibilities of the participants for conservation practices
installed with AMA assistance.
Participant means a person, legal entity, or joint operation who is
receiving payment or is responsible for implementing the terms and
conditions of an AMA contract.
Payment means the financial assistance provided to the participant
based on the estimated costs incurred in performing or implementing
conservation practices, including costs for: Planning, design,
materials, equipment, installation, labor, maintenance, management, or
training, as well as the estimated income foregone by the producer for
the designated conservation practices.
Person means, as defined in 7 CFR part 1400, an individual, natural
person and does not include a legal entity.
Producer means a person, legal entity, or joint operation who has
an interest in the agricultural operation, according to 7 CFR part
1400, or who is engaged in agricultural production or forestry
management.
Resource concern means a specific natural resource problem that
represents a significant concern in a State or region and is likely to
be addressed successfully through the implementation of the
conservation practices by producers.
Secretary means the Secretary of the USDA.
Socially disadvantaged farmer or rancher means a farmer or rancher
who has been subjected to racial or ethnic prejudices because of their
identity as a member of a group without regard to their individual
qualities.
State Conservationist means the NRCS employee authorized to direct
and supervise NRCS activities in a State, the Caribbean Area, or the
Pacific Island Area.
Structural practice means a conservation practice, including a
vegetative practice, that involves establishing, constructing, or
installing a site-specific measure to conserve and protect a resource
from degradation, or improve soil, water, air, or related natural
resources in the most cost-effective manner. Examples include, but are
not limited to, animal waste management facilities, terraces, grassed
waterways, tailwater pits, livestock water developments, contour grass
strips, filterstrips, critical area plantings, tree plantings,
establishment or improvement of wildlife habitat, and capping of
abandoned wells.
Technical assistance means technical expertise, information, and
tools necessary for the conservation of natural resources on land
active in agricultural, forestry, or related uses. The term includes
the following: (1) Technical services provided directly to farmers,
ranchers, and other eligible entities, such as conservation planning,
technical consultation, and assistance with design and implementation
of conservation practices; and (2) technical infrastructure, including
activities, processes, tools, and agency functions needed to support
delivery of technical services, such as technical standards, resource
inventories, training, data, technology, monitoring, and effects
analyses.
Technical Service Provider (TSP) means an individual, private-
sector entity, or public agency certified by NRCS to provide technical
services to program participants or in lieu of or on behalf of NRCS.
Sec. 1465.4 National priorities.
(a) The Chief, with advice from State Conservationists, will
identify national priorities to achieve the conservation objectives of
AMA.
(b) National priorities will be used to guide annual funding
allocations to States.
(c) State Conservationists will use national priorities in
conjunction with State and local priorities to prioritize and select
AMA applications for funding.
(d) NRCS will undertake periodic reviews of the national priorities
and the effects of program delivery at the State and local level to
adapt the program to address emerging resource issues.
Sec. 1465.5 Program requirements.
(a) Participation in AMA is voluntary. The participant, in
cooperation with the local conservation district, applies for practice
installation for the agricultural operation. The NRCS provides payments
through contracts to apply needed conservation practices within a time
schedule specified in the APO.
(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 AMA in consideration of national
priorities established under Sec. 1465.4.
(c) To be eligible to participate in AMA, an applicant must:
(1) Own or operate an agricultural operation within an applicable
State, as listed in Sec. 1465.1;
(2) Provide NRCS with written evidence of ownership or legal
control for the life of the proposed contract, including the O&M
agreement. An exception may be made by the Chief:
(i) 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 NRCS with the
written concurrence of the landowner in order to apply a structural
practice(s);
(3) Submit an application form NRCS-CPA-1200, which is located
electronically at http://www.nrcs.usda.gov/programs/AMA/index.html;
(4) Agree to provide all information to NRCS determined to be
necessary to assess the merits of a proposed project and to monitor
contract compliance;
(5) Provide a list of all members of the legal entity and embedded
entities along with members' tax identification numbers and percentage
interest in the entity. Where applicable, American Indians, Alaska
Natives, and Pacific Islanders may use another unique identification
number for each individual eligible for payment;
(6) Supply other information, as required by NRCS, to determine
payment eligibility as established by 7 CFR part 1400, Adjusted Gross
Income (AGI);
(7) With regard to any participant that utilizes a unique
identification number as an alternative to a tax identification number
will utilize only that identifier for any and all other AMA contracts
to which the participant is a party. Violators will be considered to
have provided fraudulent representation and be subject to full
penalties of Sec. 1465.25;
(8) States, political subdivisions, and entities thereof will not
be persons eligible for payment. Any cooperative
[[Page 70254]]
association of producers that markets commodities for producers shall
not be considered to be a person eligible for payment;
(9) Be in compliance with the terms of all other USDA-administered
conservation program agreements to which the participant is a party;
and
(10) Develop and agree to comply with an APO and O&M agreement, as
described in Sec. 1465.3.
(d) Land may only be considered for enrollment in AMA if NRCS
determines that the land is:
(1) Privately owned land;
(2) Publicly owned land where:
(i) The land is a working component of the participant's
agricultural and forestry operation; and
(ii) The participant has control of the land for the term of the
contract; and
(iii) The conservation practices to be implemented on the public
land are necessary and will contribute to an improvement in the
identified resource concern that is on private land; or
(3) The land is federally recognized Tribal, BIA allotted, or
Indian land.
Sec. 1465.6 AMA plan of operations.
(a) All conservation practices in the APO must be approved by NRCS
and developed and carried out in accordance with the applicable NRCS
technical guidance.
(b) The participant is responsible for implementing the APO.
(c) The APO must include:
(1) A description of the participant's specific conservation and
environmental objectives to be achieved;
(2) To the extent practicable, the quantitative or qualitative
goals for achieving the participant's conservation and environmental
objectives;
(3) A description of one or more conservation practices in the
conservation system, including conservation planning, design, or
installation activities, to be implemented to achieve the conservation
and environmental objectives;
(4) A description of the schedule for implementing the conservation
practices, including timing, sequence, operation, and maintenance; and
(5) Information that will enable evaluation of the effectiveness of
the plan in achieving the environmental objectives.
(d) An APO may be modified in accordance with Sec. 1465.24.
Sec. 1465.7 Conservation practices.
(a) The State Conservationist will determine the conservation
practices eligible for AMA payments. To be considered eligible
conservation practices, the practices must meet the purposes of the AMA
as set out in Sec. 1465.1. A list of eligible practices will be
available to the public.
(b) The APO includes the schedule of operations, activities, and
payment rates of the practices needed to solve identified natural
resource concerns.
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 AMA at a USDA service center. Producers who are
members of a joint operation shall file a single application for the
joint operation.
(b) NRCS will accept applications throughout the year. The State
Conservationist will distribute information on the availability of
assistance, national priorities, and the State-specific goals.
Information will be provided that explains the process to request
assistance.
(c) The State Conservationist will develop ranking criteria and a
ranking process to select applications, taking into account national,
State, Tribal, and local priorities.
(d) The State Conservationist or designated conservationist using a
locally led process will evaluate, rank and select applications for
contracting based on the State-developed ranking criteria and ranking
process.
(e) The State Conservationist or designated conservationist will
work with the applicant to collect the information necessary to
evaluate the application using the ranking criteria.
Sec. 1465.21 Contract requirements.
(a) In order for a participant to receive payments, the participant
shall enter into a contract agreeing to implement one or more eligible
conservation practices. Costs for technical services may be included in
the contract.
(b) An AMA contract will:
(1) Incorporate by reference all portions of an agricultural
operation receiving AMA assistance;
(2) Be for a minimum duration of one year after completion of the
last practice, but not more than 10 years;
(3) Incorporate all provisions as required by law or statute,
including participant requirements to:
(i) Not conduct any practices on the agricultural operation that
would tend to defeat the purposes of the contract according to Sec.
1465.25;
(ii) Refund any AMA payments received with interest, and forfeit
any future payments under AMA, on the violation of a term or condition
of the contract, consistent with the provisions of Sec. 1465.25;
(iii) Refund all AMA 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, including operation and maintenance of the AMA contract's
conservation practices, consistent with the provisions of Sec.
1465.24; and
(iv) Supply information as required by NRCS to determine compliance
with the contract and requirements of AMA.
(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) Specify any other provision determined necessary or appropriate
by NRCS.
(c) The participant must apply the practice(s) according to the
schedule set out in the APO.
Sec. 1465.22 Conservation practice operation and maintenance.
(a) The contract will incorporate the O&M agreement that describes
the lifespan and operation and maintenance of the conservation
practices applied under the contract.
(b) The O&M agreement incorporates the Agency expectation that the
participant will operate and maintain the conservation practice(s)
installed under the contract for its intended purpose for the lifespan
of the conservation practice, as specified in the O&M agreement.
(c) NRCS may periodically inspect the conservation practice(s)
during the contract duration to ensure that operation and maintenance
requirements are being carried out, and that the conservation practice
is fulfilling its intended objectives.
(d) Conservation practices installed before the contract execution,
but included in the contract to obtain the environmental benefits
agreed upon, must be operated and maintained as specified in the
contract and O&M agreement.
Sec. 1465.23 Payments.
(a) The Federal share of payments to a participant will be:
(1) Up to 75 percent of the estimated incurred cost or 100 percent
of the estimated income foregone of an eligible practice, except as
provided in paragraph (a)(2) of this section.
(2) In the case of historically underserved producers, the payment
rate will be the applicable rate and an additional rate that is not
less than 25
[[Page 70255]]
percent above the applicable rate, provided that this increase does not
exceed 90 percent of the estimated incurred costs or estimated income
foregone.
(3) In no instance shall the total financial contributions for an
eligible practice from other sources exceed 100 percent of the
estimated incurred cost of the practice.
(b) Participants may contribute their portion of the estimated
costs of practices through in-kind contributions, including labor and
materials, providing the materials contributed meet the NRCS standard
and specifications for the practice being installed.
(c) Payments for practices applied prior to application or contract
approval--
(1) Payments will not be made to a participant for a conservation
practice that was applied prior to application for the program.
(2) Payments will not be made to a participant for a conservation
practice that was initiated or implemented prior to contract approval,
unless the participant obtained a waiver from the State Conservationist
or designated conservationist prior to practice implementation
(d) The total amount of payments paid to a participant under this
Part may not exceed $50,000 for any fiscal year.
(e) For purposes of applying the payment limitations provided for
in this section, NRCS will use the provisions in 7 CFR part 1400,
Payment Limitation and Payment Eligibility.
(f) A participant will not be eligible for payments for
conservation practices on eligible land if the participant receives
payments or other benefits for the same practice on the same land under
any other conservation program administered by USDA.
(g) The participant and NRCS must certify that a conservation
practice is completed in accordance with the contract before NRCS will
approve any Payment.
(h) Subject to fund availability, the payment rates for
conservation practices scheduled after the year of contract obligation
may be adjusted to reflect increased costs.
Sec. 1465.24 Contract modifications, extensions, and transfers of
land.
(a) The participant and NRCS may modify a contract if both parties
agree to the contract modification, the APO is revised in accordance
with NRCS requirements, and the designated conservationist approves the
modified contract.
(b) It is the participant's responsibility to notify NRCS when he/
she either anticipates the voluntary or involuntary loss of control of
the land.
(c) The participant and NRCS may mutually agree to transfer a
contract to another party.
(1) To receive an AMA payment, the transferee must be determined by
NRCS to be eligible to participate in AMA and shall assume full
responsibility under the contract, including the O&M agreement for
those conservation practices already installed and those conservation
practices to be installed as a condition of the contract.
(2) With respect to any and all payment owed to participants who
wish to transfer ownership or control of land subject to a contract,
the division of payment shall be determined by the original party and
the party's successor. In the event of a dispute or claim on the
distribution of payments, NRCS may withhold payments without the
accrual of interest pending a settlement or adjudication on the rights
to the funds.
(d) NRCS may require a participant to refund all or a portion of
any assistance earned under AMA if the participant sells or loses
control of the land under an AMA contract and the successor in interest
is not eligible or refuses to accept future payments to participate in
the AMA or refuses to assume responsibility under the contract.
(e) The participants to the contract shall be jointly and severally
responsible for refunding the payments with applicable interest
pursuant to paragraph (d) of this section.
(f) In the event a conservation practice fails through no fault of
the participant, the State Conservationist may issue payments to re-
establish the conservation practice, at the rates established in
accordance with Sec. 1465.23, provided such payments do not exceed the
payment limitation requirements as set forth in Sec. 1465.23.
Sec. 1465.25 Contract violations and termination.
(a) If NRCS determines that a participant is in violation of the
terms of a contract, O&M agreement, or documents incorporated by
reference into the contract, NRCS shall give the participant notice and
60 days, unless otherwise 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 contract.
(b) Notwithstanding the provisions of paragraph (a) 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, scheme, or device 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.
(c) If NRCS terminates a contract, the participant shall forfeit
all rights to future payments under the contract and refund all or part
of the payments received, plus interest. Participants violating AMA
contracts may be determined ineligible for future NRCS-administered
conservation program funding.
(1) The State Conservationist may require only a 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 the absence of 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 life span of the practice.
(2) If NRCS 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 prescribed in the contract. The State Conservationist will
have the option to waive the liquidated damages depending upon the
circumstances of the case.
(i) When making all contract termination decisions, NRCS 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 existence of hardships beyond the participant's control
that have prevented compliance with the contract. If the participant
claims hardship, that claim must be well documented and cannot have
existed when the applicant applied for participation in the program.
(ii) The participant may voluntarily terminate a contract if NRCS
agrees based on NRCS's determination that termination is in the public
interest.
(iii) In carrying out NRCS's role in this section, NRCS may consult
with the local conservation district.
[[Page 70256]]
Subpart C--General Administration
Sec. 1465.30 Appeals.
(a) A participant may obtain administrative review of an adverse
decision under AMA in accordance with 7 CFR parts 11 and 614, except as
provided in paragraph (b) of this section.
(b) The following decisions are not appealable:
(1) Payment rates, payment limits;
(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, permits,
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 NRCS representative shall have the right to enter an
operating unit or tract for the purpose of determining eligibility and
for ascertaining the accuracy of any representations related to
contracts and performance. Access shall include the right to provide
technical assistance; determine eligibility; inspect any work
undertaken under the contracts, including the APO and O&M agreement;
and collect information necessary to evaluate the conservation practice
performance as specified in the contracts. The NRCS representative
shall make an effort to contact the participant prior to exercising
this provision.
Sec. 1465.33 Equitable relief.
(a) If a participant relied upon the advice or action of any
authorized NRCS representative and did not know, or have reason to
know, that the action or advice was improper or erroneous, the State
Conservationist may grant relief to the extent it is deemed appropriate
by NRCS. Where a participant believes that detrimental reliance on the
advice or action of a NRCS representative resulted in an ineligibility
or program violation, the participant may request equitable relief
under 7 CFR part 635.
(b) The financial or technical liability for any action by a
participant that was taken based on the advice of an NRCS certified
non-USDA TSP is the responsibility of the certified TSP and will not be
assumed by NRCS when NRCS authorizes payment.
(c) If, during the term of an AMA contract, a participant has been
found in violation of a provision of the contract, the O&M agreement,
or any document incorporated by reference through failure to fully
comply with that provision, the participant may be eligible for
equitable relief under 7 CFR part 635.
Sec. 1465.34 Offsets and assignments.
(a) Except as provided in paragraph (b) of this section, any
payment or portion thereof to any participant 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 at
7 CFR part 1403 shall be applicable to contract payments.
(b) AMA participants may assign any payments in accordance with 7
CFR part 1404.
Sec. 1465.35 Misrepresentation and scheme or device.
(a) A participant who is determined to have erroneously represented
any fact affecting an AMA determination made in accordance with this
part shall not be entitled to contract payments and must refund to NRCS
all payments plus interest, as determined in accordance with 7 CFR part
1403.
(b) A participant shall refund to NRCS all payments, plus interest,
as determined by NRCS, with respect to all NRCS contracts to which they
are a party if they are determined to have knowingly:
(1) Adopted any scheme or device that tends to defeat the purpose
of AMA;
(2) Made any fraudulent representation;
(3) Adopted any scheme or device for the purpose of depriving any
tenant or sharecropper of the payments to which such person would
otherwise be entitled under the program; or
(4) Misrepresented any fact affecting an AMA determination.
(c) Where paragraph (a) or paragraph (b) of this section apply, the
participant's interest in all contracts shall be terminated. In
accordance with Sec. 1465.25(c), NRCS may determine the producer
ineligible for future funding from any NRCS conservation programs.
Sec. 1465.36 Environmental Services Credits for Conservation
Improvements.
USDA recognizes that environmental benefits will be achieved by
implementing conservation practices funded through AMA, and that
environmental credits may be gained as a result of implementing
activities compatible with the purposes of an AMA contract. NRCS
asserts no direct or indirect interest on these credits. However, NRCS
retains the authority to ensure that the requirements for AMA funded
improvements are met and maintained consistent with Sec. 1465.22.
Where activities required under an environmental credit agreement may
affect land covered under an AMA contract, participants are highly
encouraged to request a compatibility assessment from NRCS prior to
entering into such agreements.
Dated: November 12, 2008.
Arlen L. Lancaster,
Vice President, Commodity Credit Corporation and Chief, Natural
Resources Conservation Service.
[FR Doc. E8-27398 Filed 11-19-08; 8:45 am]
BILLING CODE 3410-05-P
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