[Title 7 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2006 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
7
Parts 700 to 899
Revised as of January 1, 2006
Agriculture
________________________
Containing a codification of documents of general
applicability and future effect
As of January 1, 2006
With Ancillaries
Published by:
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 7:
Subtitle B--Regulations of the Department of Agriculture
(Continued)
Chapter VII--Farm Service Agency, Department of
Agriculture 5
Chapter VIII--Grain Inspection, Packers and
Stockyard Administration (Federal Grain Inspection
Service), Department of Agriculture 257
Finding Aids:
Material Approved for Incorporation by Reference........ 411
Table of CFR Titles and Chapters........................ 413
Alphabetical List of Agencies Appearing in the CFR...... 431
List of CFR Sections Affected........................... 441
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 7 CFR 700.1 refers
to title 7, part 700,
section 1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
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parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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(a) The incorporation will substantially reduce the volume of
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(b) The matter incorporated is in fact available to the extent
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(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
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the revision dates of the 50 CFR titles.
[[Page vii]]
REPUBLICATION OF MATERIAL
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Director,
Office of the Federal Register.
January 1, 2006.
[[Page ix]]
THIS TITLE
Title 7--Agriculture is composed of fifteen volumes. The parts in
these volumes are arranged in the following order: parts 1-26, 27-52,
53-209, 210-299, 300-399, 400-699, 700-899, 900-999, 1000-1199, 1200-
1599, 1600-1899, 1900-1939, 1940-1949, 1950-1999, and part 2000 to end.
The contents of these volumes represent all current regulations codified
under this title of the CFR as of January 1, 2006.
The Food and Nutrition Service current regulations in the volume
containing parts 210-299, include the Child Nutrition Programs and the
Food Stamp Program. The regulations of the Federal Crop Insurance
Corporation are found in the volume containing parts 400-699.
All marketing agreements and orders for fruits, vegetables and nuts
appear in the one volume containing parts 900-999. All marketing
agreements and orders for milk appear in the volume containing parts
1000-1199.
For this volume, Robert J. Sheehan was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Alomha S. Morris.
[[Page 1]]
TITLE 7--AGRICULTURE
(This book contains parts 700 to 899)
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SUBTITLE B--Regulations of the Department of Agriculture (Continued)
Part
chapter vii--Farm Service Agency, Department of Agriculture. 700
chapter viii--Grain Inspection, Packers and Stockyard
Administration (Federal Grain Inspection Service),
Department of Agriculture................................. 800
[[Page 3]]
Subtitle B--Regulations of the Department of Agriculture (Continued)
[[Page 5]]
CHAPTER VII--FARM SERVICE AGENCY, DEPARTMENT OF AGRICULTURE
--------------------------------------------------------------------
Editorial Note: 1. Nomenclature changes to chapter VII appear at 59 FR
60299, Nov. 23, 1994, as corrected at 59 FR 66438, Dec. 27, 1994, and at
60 FR 64297, Dec. 15, 1995.
SUBCHAPTER A--AGRICULTURAL CONSERVATION PROGRAM
Part Page
700 Experimental Rural Clean Water Program...... 7
701 Emergency Conservation Program and certain
related programs previously administered
under this part......................... 21
702 Colorado River Basin Salinity (CRSC) Control
Program................................. 29
707 Payments due persons who have died,
disappeared, or have been declared
incompetent............................. 38
708 Record retention requirements--all programs. 41
SUBCHAPTER B--FARM MARKETING QUOTAS, ACREAGE ALLOTMENTS, AND PRODUCTION
ADJUSTMENT
711 Marketing quota review regulations.......... 42
714 Refunds of penalties erroneously, illegally,
or wrongfully collected................. 51
717 Holding of referenda........................ 54
718 Provisions applicable to multiple programs.. 67
729 Peanuts marketing quotas.................... 87
SUBCHAPTER C--REGULATIONS FOR WAREHOUSES
735 Regulations for the United States Warehouse
Act..................................... 88
743 [Reserved]
SUBCHAPTER D--SPECIAL PROGRAMS
750 Soil Bank [Note]............................ 102
752 Water Bank Program.......................... 102
755 Regional programs........................... 109
760 Indemnity payment programs.................. 117
761 General and administrative.................. 125
762 Guaranteed farm loans....................... 126
764 Emergency farm loans........................ 168
[[Page 6]]
770 Indian tribal land aquisition loans......... 179
771 Boll Weevil Era Dication Loan Program....... 182
772 Servicing minor program loans............... 186
773 Special Apple Loan Program.................. 191
774 Emergency Loan for Seed Producers Program... 195
780 Appeal regulations.......................... 198
781 Disclosure of foreign investment in
agricultural land....................... 205
782 End-Use Certificate Program................. 211
783 Tree Assistance Program..................... 217
784 2004 ewe lamb replacement and retention
payment program......................... 220
785 Certified state mediation program........... 225
SUBCHAPTER E--PROVISIONS COMMON TO MORE THAN ONE PROGRAM
792 Debt settlement policies and procedures..... 232
795 Payment limitation.......................... 241
SUBCHAPTER F--PUBLIC RECORDS
798 Availability of information to the public... 248
SUBCHAPTER G--ENVIRONMENTAL PROTECTION
799 Environmental quality and related
environmental concerns--compliance with
the National Environmental Policy Act... 250
[[Page 7]]
SUBCHAPTER A_AGRICULTURAL CONSERVATION PROGRAM
PART 700_EXPERIMENTAL RURAL CLEAN WATER PROGRAM--Table of Contents
Subpart A_General
Sec.
700.1 Purpose and scope.
700.2 Objective.
700.3 Administration.
700.4 Definitions.
700.5 Responsibilities.
700.6 Officials not precluded from exercising authority.
Subpart B_Project Authorization and Funding
700.10 Applicability.
700.11 Availability of funds.
700.12 Eligible project areas.
700.13 Project applications.
700.14 Review and approval of project applications.
700.15 Transfer of funds.
700.16 Termination of project funding.
Subpart C_Participant's RCWP Contracts
700.20 Eligible land.
700.21 Eligible person (participant).
700.22 Application for assistance.
700.23 Water quality plan.
700.24 Cost-sharing.
700.25 RCWP contract.
700.26 Contract modifications.
700.27 Cost-share payment.
700.28 Appeals.
700.29 Contract violations.
Subpart D_Monitoring and Evaluation
700.40 General program monitoring and evaluation.
700.41 Comprehensive USDA/EPA joint project water, quality monitoring,
evaluation and analysis.
700.42 Program evaluation.
700.43 Public benefits when installing BMP's.
Authority: Pub. L. 96-108, 93 Stat. 821, 835.
Source: 45 FR 14009, Mar. 4, 1980, unless otherwise noted.
Subpart A_General
Sec. 700.1 Purpose and scope.
(a) The purpose of this part is for the U.S. Department of
Agriculture (USDA), with certain concurrences by the U.S. Environmental
Protection Agency (EPA), to set forth regulations to carry out an
experimental Rural Clean Water Program (RCWP) as authorized by the
Agriculture, Rural Development and Related Agencies Appropriations Act,
fiscal year 1980, Pub. L. 96-108 (hereinafter referred to as the ``1980
Appropriations Act'') and subsequent appropriations.
(b) The RCWP will provide financial and technical assistance to
private land owners and operators (participants) having control of
agricultural land. The assistance is provided through long-term
contracts of 3 to 10 years to install best management practices (BMPs)
in approved project areas which have critical water quality problems
resulting from agricultural activities. The project area must reflect
the water quality priority concerns developed through the established
water quality management program process. Participation RCWP is
voluntary.
(c) This is a new USDA program using the experiences under various
on-going USDA programs and the established water quality management
program of EPA.
[45 FR 14009, Mar. 4, 1980, as amended at 46 FR 29454, June 2, 1981]
Sec. 700.2 Objective.
The objectives of the RCWP are to:
(a) Improve impaired water use and quality in the approved project
area in the most cost-effective manner possible in keeping with the
provision of adequate supplies of food, fiber, and a quality
environment.
(b) Assist agricultural land owners and operators to reduce
agricultural nonpoint source water pollutants and to improve water
quality in rural areas to meet water quality standards or water quality
goals.
(c) Develop and test programs, policies and procedures for the
control of agricultural nonpoint source pollution.
[45 FR 14009, Mar. 4, 1980, as amended at 46 FR 29454, June 2, 1981]
[[Page 8]]
Sec. 700.3 Administration.
At the national level, the Secretary of Agriculture will administer
the RCWP in consultation with the Administrator, EPA, including EPA's
concurrence in the selection of the BMPs, as provided in the 1980
Appropriations Act and subsequent appropriations. Authority to approve
projects is reserved to the Secretary. The Secretary of Agriculture
hereby delegates responsibility for administration of the program to the
Administrator, Farm Service Agency (FSA) and the coordination of
technical assistance to the Chief, Soil Conservation Service (SCS). FSA
will be assisted by other USDA agencies in accordance with existing
authorities.
(a) A National Rural Clean Water Coordinating Committee (NCC),
chaired by the Administrator, FSA, will assist in carrying out the RCWP.
(b) A State Rural Clean Water Coordinating Committee (SCC) will
assist the State ASC Committee in administering the program. The State
ASC Committee Chairperson will chair the SCC. Where two or more States
are involved in a project area the Deputy Administrator, State and
County Operations (DASCO), FSA, shall develop a coordinating process.
(c) A Local Rural Clean Water Coordinating Committee (LCC) will be
established to assure coordination at the project level. The LCC
committee will be chaired by the County ASC Committee Chairperson and
will assist the County ASC Committee as provided in these regulations
and as otherwise developed by the SCC and the LCC. Where two or more
counties are involved in a project area, the SCC shall develop a
coordination process.
[45 FR 14009, Mar. 4, 1980, as amended at 46 FR 29454, June 2, 1981 59
FR 60299, Nov. 23, 1994]
Sec. 700.4 Definitions.
(a) Adequate Level of Participation. An adequate level of
participation is reached when participants having control of 75 percent
(unless a different level is approved by the Administrator, FSA, with
the concurrence of the NCC), of the identified critical area(s) or
source(s) of the agricultural nonpoint source pollution problem in the
project area, are under contract.
(b) Administrative Services. The administration of the RCWP except
for the technical phases as assigned in Sec. 700.5 of these
regulations.
(c) Agricultural Land. That portion(s) of a farm or ranch used to
produce: Grains, row crops, seed crops, vegetables, hay, pasture,
orchards, vineyards, trees, field grown ornamentals, livestock or other
agricultural commodities.
(d) Agricultural Nonpoint Source Pollution. Pollution originating
from diffuse sources, including, but not limited to, land areas and
return flows from agricultural lands such as:
(1) Animal waste areas and land used for livestock and/or crop
production, or
(2) Lands with silviculturally related pollution.
(3) Concentrated animal feeding operations defined as point sources
in 40 CFR 125.1 and 125.51, are not eligible for assistance under RCWP.
(e) Applicant. A person in an approved project area who applies for
RCWP assistance.
(f) Average Cost. The calculated cost, determined by recent actual
local costs and current cost estimates, considered necessary for
carrying out BMPs or an identifiable unit thereof.
(g) Best Management Practice (BMP). A single practice or a system of
practices to improve water quality included in the approved RCWP
application that reduces or prevents agricultural nonpoint source
pollution.
(h) BMP Costs. The amount of money actually paid or obligated to be
paid by the participant for equipment use, materials and services for
carrying out BMPs or an identifiable unit of a BMP. Loss of income from
crops during the first twelve months following the conversion of
productive cropland to permanent vegetative cover or trees may be
considered a part of the BMP cost for a project where it is determined
that harvesting or grazing restrictions are necessary in order to
establish properly the practice and the reimbursement for loss of income
is necessary to provide incentives to achieve an adequate level of
participation as defined in 7 CFR 700.4(a). If the participant uses
personal resources, the cost
[[Page 9]]
includes the computed value of personal labor, equipment use, and
materials.
(i) BMP Life Span. Each BMP shall have a life span of not less than
5 years unless otherwise approved by the Administrator, FSA.
(j) Conservation District (CD). A subdivision of a State or
territory organized pursuant to the State Soil Conservation District
Law, as amended. In some States these are called soil conservation
districts, soil and water conservation districts, resource conservation
districts, or natural resource districts.
(k) Contract. The document that includes the water-quality plan and
is executed by the participant and approved by the County ASC Committee.
Such document evidences the agreement between parties for carrying out
BMPs on the participant's land.
(l) Contract Period. That period of time, 3 to 10 years, established
as necessary to implement the BMPs needed to solve the water quality
problems in the contract.
(m) Cost-Share Level. That percentage of the total cost of
installing a BMP which is to be borne by the government under the RCWP.
(n) Cost Share Rate. The amount of money per unit (cubic yard, acre,
etc.) to be paid for carrying out BMPs under the RCWP.
(o) County ASC Committee. The County ASC Committee elected by the
farmers/ranchers in the county as provided for under section 8(b) of the
Soil Conservation and Domestic Allotment Act (16 U.S.C. 590h(b)).
(p) Critical Areas or Sources. Those designated areas or sources of
agricultural nonpoint source pollutants identified in the project area
as having the most significant impact on the impaired use of the
receiving waters.
(q) Direct Costs. The costs that can be specifically identified with
the program.
(r) Farmer/Rancher. An owner and/or operator who has a vested
interest in the operation of the farm or ranch.
(s) Federal Funds Authorized. The total amount of funds authorized
to approved projects.
(t) Fiscal Year. The fiscal year beginning October 1 and ending
September 30.
(u) Identifiable Unit. A part of a BMP that can be clearly
identified as a separate component in carrying out BMPs in the water
quality plan.
(v) Implementation. The act of carrying out or executing a water
quality plan, including both installation and maintenance of BMPs.
(w) Maximum Payment Limitation. The total amount of RCWP payments
which a participant may receive for the full contract period. The total
amount of such payments shall not exceed $50,000.
(x) Offsite Benefits. Favorable effects of BMPs that occur away from
the land of the participant receiving RCWP assistance and which accrue
to the public.
(y) Participant. A land owner and/or operator who is an agricultural
producer and applies for and receives assistance under RCWP.
(z) Participant's Water Quality Plan. The plan that identifies
critical agricultural nonpoint sources of pollution, identifies water
quality problems and schedules the application of BMPs which contribute
to meeting the water quality objectives of the project.
(aa) Plan of Work. A written strategy for implementing the approved
project, outlining the actions needed and to be taken by various USDA,
State and local agencies and interested groups.
(bb) Pooling Agreement. An agreement between two or more
participants or ranchers to pool their resources to treat a common
critical area or source.
(cc) Privately-Owned Rural Land. Lands not owned by Federal, State,
or local governments that include cropland, pastureland, forest land,
rangeland, and other associated lands.
(dd) Project Area. The geographic determination included in the
project application as agreed upon by the SCC and LCC, and approved by
the Secretary, utilizing the water quality planning process which
identifies agricultural nonpoint source water quality problems.
(ee) Project Life Span. The maximum total life span of a project
shall be not greater than fifteen (15) years from the date RCWP funds
are first made available for the project.
[[Page 10]]
(ff) RCWP Project. The total system of BMPs, administrative support,
institutional arrangements, cost-sharing, technical and community
support that are authorized in a RCWP project application.
(gg) Secretary. The Secretary of the U.S. Department of Agriculture.
(hh) Silvicultural. The science and art of cultivating (growing and
tending) forest crops based on the knowledge of forestry. Silviculture-
related pollution is included as agriculture nonpoint source pollution
in the RCWP.
(ii) Standards and Specifications. Requirements that establish the
minimum acceptable quality level for planning, designing, installing,
and maintaining BMPs.
(jj) State ASC Committee (STC). The State ASC Committee appointed by
the Secretary in accordance with Section 8 b of the Soil Conservation
and Domestic Allotment Act, as amended.
(kk) Technical Assistance. The preparation of the participant's
water quality plan, the design, layout and implementation of BMPs to
accomplish the purposes of the water quality plan, and water quality
monitoring and evaluation.
(ll) Water Quality Management Program. A Federal-state-local program
for addressing and solving point and non-point source pollution problems
consistent with national clean water goals. The basic authority for this
program is in section 208 of the Federal Water Pollution Control Act, as
amended, (Pub. L. 92-500).
[45 FR 14009, Mar. 4, 1980, as amended at 46 FR 29454, June 2, 1981]
Sec. 700.5 Responsibilities.
(a) The United States Department of Agriculture (USDA) shall:
(1) Administer the RCWP by entering into contracts with land owners
and operators to install and maintain BMPs to control agricultural
nonpoint source pollution for improved water quality and:
(i) Consult with EPA in the selection of projects;
(ii) Obtain concurrence from EPA in approval of BMPs; and
(iii) Insure an adequate joint USDA/EPA monitoring and evaluation
plan is carried out on selected projects.
(2) Provide technical assistance and share the cost of carrying out
BMPs as specified in the contracts.
(3) Evaluate the overall effectiveness of the program in improving
water quality.
(b) The Environmental Protection Agency (EPA) will:
(1) Participate on the NCC, SCC and LCC.
(2) Furnish information from the water quality management planning
process which can assist in identifying areas with the most critical
water quality problems for project applications.
(3) Participate in the approval of project applications for funding.
(4) Concur with the Secretary on BMPs recommended by the County and
State ASC Committees and approved by the Secretary for funding, or
recommended by the Secretary, with concurrence of the Administrator,
EPA, and approved by the State and County ASC Committees.
(5) Assist USDA in evaluating the effectiveness of the program in
improving water quality, including concurrence on projects selected for
comprehensive monitoring and evaluation and development of the criteria
for the comprehensive, joint USDA/EPA water quality monitoring,
evaluation, and analysis program.
(c) The Farm Service Agency shall:
(1) Serve as chairperson of the NCC, SCC and LCC and be responsible
for developing and administering the RCWP.
(2) Provide to the Secretary those project applications recommended
for approval, including the recommendations of the NCC.
(3) Through County FSA Offices, provide the administrative support
in all approved RCWP projects, such as accepting applications, preparing
and approving contracts, carrying out funds control, issuing cost-share
payments, otherwise administering contracts and payments, provide
compliance oversight, maintain records and develop reports.
(4) Enter into agreements with Federal, State and local agencies and
others as needed for support to be provided in an approved RCWP project.
[[Page 11]]
(5) Through County and Community ASC Committees work with landowners
and operators in the project area to encourage participation.
(6) Develop cost-share rates for installing needed BMPs.
(7) Assure that RCWP is in addition to and is coordinated with other
related programs.
(8) Provide guidance to State and County ASC Committees and
coordinate the Agricultural Conservation Program (ACP), the Forestry
Incentives Program (FIP), and related conservation programs, with RCWP.
(9) Allocate project funds to County ASC Committees in the approved
proj ect areas.
(10) Designate the State ASC Chairperson where a project area
involves a part(s) of two or more States to chair the SCC, for that
project.
(d) The Soil Conservation Service (SCS) shall:
(1) Participate on the NCC, SCC and LCC.
(2) Coordinate technical assistance and recommend appropriate agency
or group to provide technical assistance on a project by project basis.
(3) Provide technical assistance for the appropriate BMPs.
(4) Assist the LCC in developing criteria for use by the County ASC
Committees and the Conservation Districts in determining priorities of
assistance among individual applicants for developing the water quality
plan.
(5) Provide technical assistance in developing and certifying the
technical adequacy of the participant's water quality plan.
(e) The Forest Service (FS) shall:
(1) Participate on the NCC and as appropriate, SCC and LCC.
(2) Have technical responsibility for forestry.
(3) Provide technical assistance for appropriate BMPs, by providing
technical assistance through the State Forestry Agency (State Forester
as appropriate) for planning, applying and maintaining forestry BMPs.
(4) Participate in the monitoring and evaluation as appropriate.
(5) As appropriate, assist in developing the water quality plan to
assure that the most critical water quality problems are addressed.
(f) The Science and Education Administration (SEA), through the
State and County Extension Services, Appropriate, shall:
(1) Participate on the NCC, SCC and LCC.
(2) Develop, implement, and coordinate informational and educational
programs for agricultural nonpoint source water pollution control.
(3) Encourage the State and County Extension Services to develop and
carry out a comprehensive educational and informational program.
(4) Provide technical assistance for appropriate BMPs including, but
not limited to, fertilizer management, pest management, conservation
tillage, and animal waste as appropriate.
(g) The Economics and Statistics Service (ESS) shall:
(1) Participate on the NCC and as appropriate, SCC and LCC.
(2) Assist in the economic evaluation of RCWP projects and BMPs.
(3) Make data available from existing and planned ESS surveys
relating to water quality and related matters.
(4) Conduct socioeconomic research, within ESS authorities and
funds, on relevant policy and program issues pertinent to RCWP.
(5) Assist in the annual program evaluation and be responsible for
the economic component of the comprehensive evaluation of selected
projects.
(h) The Farmers Home Administration (FmHA) shall:
(1) Participate on the NCC, SCC and LCC.
(2) Provide assistance and coordinate their farm loan and grant
programs with RCWP.
(3) Assist in the annual program evaluation.
(i) The National Rural Clean Water Coordinating Committee (NCC). The
NCC is chaired by the Administrator, FSA. Other members of the National
Committee are Director, Office of Environmental Quality, the
Administrators of, FmHA, and ESS: the Chief of FS, SCS; the Director of
SEA; and the Assistant Administrator for Water and Waste Management,
EPA. Nonfederal agencies such as Conservation Districts, State soil and
water conservation agencies, State water quality management agencies,
and other organizations
[[Page 12]]
may attend as observers. The duties of the NCC are to:
(1) Assist the Administrator, FSA, in developing the program
regulations and procedures.
(2) Recommend to the Administrator, FSA, the project applications to
be approved.
(3) Advise the Secretary on the maximum Federal contribution to the
total cost of the project and establish the maximum cost-share levels of
BMPs.
(4) Assist in coordinating individual agency programs with the RCWP.
(5) Make recommendations as appropriate on the technical aspects of
the program.
(6) Recommend project areas and criteria for comprehensive joint
USDA/EPA water quality monitoring, evaluation, and analysis.
(7) Annually review the plans of work and recommend changes in the
projects.
(8) Annually review the progress in each project and periodically
advise the Secretary, the Under Secretary for International Affairs and
Commodity Programs, and Assistant Secretary for Natural Resources and
the Environment on program and policy issues.
(j) The State Rural Clean Water Coordinating Committee (SCC). The
SCC is chaired by the STC chairperson. Members include a representative
of the agency members on the NCC or their designee. Other members are
the State water quality agency having responsibility for the water
quality management program, the State soil and water conservation
agency, the State Director, Cooperative Extension Service, and others,
including those recommended by the Governor, and approved by the
Chairperson of SCC. Other State and local agencies, and organizations,
or individuals may attend as observers. The duties of the committee are
to:
(1) Submit its recommendations for approval of project
application(s) to the State ASC Committee for forwarding to the NCC,
through the Administrator, FSA.
(2) Insure that each project application referred to the state ASC
committee includes a water quality monitoring plan which specifies the
organization(s) responsible for general monitoring, including cost and
budget breakdown by organization(s).
(3) Assure coordination of activities at the project level by
assisting in determining the composition and responsibilities of the
LCC.
(4) Assure adequate public participation, including public
meeting(s), and appropriate environmental evaluation in the preparation
of RCWP applications.
(5) Provide oversight for the RCWP in the State and to assist USDA
and EPA in their comprehensive, joint water quality monitoring and
evaluation of selected project areas, including coordination with the
LCC.
(6) Develop procedures for coordination between the RCWP and other
water quality programs.
(7) Assist the State ASC Committee in developing the membership of
the LCC. For multi county projects, there will be one LCC.
(8) Annually review and approve the plan(s) of work and changes
proposed by the LCC and forward a copy to the NCC through the
administrator, FSA.
(k) The Local Rural Clean Water Coordinating Committee (LCC). The
LCC is chaired by the County ASC Committee Chairperson. Other members
include a representative of the agency members on the NCC, or their
designee, where applicable, and a representative of the soil and water
conservation district, the designated water quality management agency,
State forestry agency, the Director, County Extension Service, and
others recommended by the LCC and approved by the STC. (Where more than
one county is in a project area only one LCC will be established in the
proj ect area.) The duties of the committee are to ensure that a process
exists and actions are taken to implement any approved project. The
duties will include, among others which may be outlined by the SCC, the
following:
(1) Assure an adequate level of public participation in implementing
the project.
(2) Provide project coordination, including development of the plan
of work for implementing the approved project using various USDA
agencies, local agencies and interested groups.
(i) Enlist resources from other agencies and local groups.
[[Page 13]]
(ii) Conduct informational and educational activities relating to
the proj ect.
(iii) Develop criteria with the SCC for use by the County ASC
Committee and the soil conservation district to establish priorities
among individual applications for developing water quality plans.
(iv) Assure the development of an adequate plan for project
monitoring and evaluation.
(3) Consult with SCC for coordination with USDA State officials,
State water quality official, and EPA regional representatives to
develop criteria for project plan of work and project coordination.
(4) Review the project Plan of Work annually and recommend changes
in the approved project to the SCC.
(l) State ASC Committee shall:
(1) Provide the chairperson for the SCC and be responsible for
administration of the RCWP project(s) in the State.
(2) Submit those project applications recommended by the SCC to the
Administrator, FSA.
(3) Provide overall administrative support for the RCWP through the
County ASC Committee(s).
(4) Designate a County ASC Committee Chairperson to serve as
Chairperson of the LCC in multi-county projects.
(5) Approve the BMPs for inclusion in project applications.
(6) Be responsible for all other administrative functions as
provided in these regulations.
(m) The Governor of each State, at the Governor's option, may:
(1) Recommend to the SCC Chairperson appropriate additional
individuals for membership on the SCC.
(2) Furnish to the SCC a listing of the water quality priority areas
in the State which are to be used by the SCCs and LCCs in considering
and developing project applications.
(n) the State soil and water conservation agency will:
(1) Participate on the SCC.
(2) Assist in preparing and submitting RCWP project applications.
(3) Carry out responsibilities of soil conservation districts,
including participation on the LCC, where no soil conservation district
exists.
(o) The State water quality agency will:
(1) Participate on the SCC.
(2) Provide expertise in preparing RCWP project applications.
(3) Assist in monitoring and evaluating the effectiveness of the
water quality projects.
(p) The County ASC Committee shall:
(1) Be responsible for administration of the RCWP at the local
level.
(2) Provide the chairperson of the LCC.
(3) Provide overall administrative support for the RCWP approved
proj ect through the FSA County Office, including accepting
applications, administering the contracts and making payments and
preparing reports.
(4) Recommend approval of BMP's.
(5) Together with the Soil Conservation District, determine the
priority for technical assistance among individual applicants for water
quality plans bases on criteria developed by the LCC to assure that the
most critical water quality problems are addressed.
(6) Establish the recommended cost share level for BMP's in the RCWP
project applications in consultation with the LCC.
(7) Utilize the Community ASC Committee(s) and LCC in encouraging
farmers in the project area to install needed BMPs on the priority basis
developed by the LCC.
(8) Be responsible for developing, and annually reviewing, and
carrying out the plan of work for the approved project.
(q) The Soil Conservation District will:
(1) Participate on the LCC.
(2) Assist in the preparation and submission of applications for the
RCWP.
(3) Assist in the promotion of the approved RCWP project.
(4) Together with the County ASC Committee, determine the priority
of technical assistance among individual applicants for water quality
plans based on criteria developed by the LCC to assure that the most
critical water quality problems are addressed.
[[Page 14]]
(5) Approve applicants' water quality plans and revisions.
[45 FR 14009, Mar. 4, 1980, as amended at 46 FR 29454, June 2, 1981; 59
FR 60299, Nov. 23, 1994]
Sec. 700.6 Officials not precluded from exercising authority.
Nothing in these regulations shall preclude the Secretary;
Administrator, FSA; NCC; or Deputy Administrator, State and County
Operations, FSA; from administering any or all phases of the RCWP
programs delegated to the LCC, County ASC Committee, SCC, State ASC
Committee or any employee(s) where the committee or employee fails to
perform a function required in these regulations. In exercising this
authority either the Secretary, Administrator, FSA, or Deputy
Administrator, FSA, may delegate a person or persons to be in charge
with full authority to carry out the program or other function(s)
without regard to the LCC, ASC committee(s), or employee(s) for such
period of time as is deemed necessary.
[59 FR 60299, Nov. 23, 1994]
Subpart B_Project Authorization and Funding
Sec. 700.10 Applicability.
The RCWP is applicable in project areas that meet the criteria for
eligibility contained in Sec. 700.12 and are authorized for funding by
the Secretary.
Sec. 700.11 Availability of funds.
(a) The allocation of funds to the County ASC Committee(s) in a
project area is to be made on the basis of the total funds needed to
carry out the approved project.
(b) The obligation of Federal funds for RCWP contracts with
participants is to be made on the basis of the total contract costs.
Sec. 700.12 Eligible project areas.
(a) Only those project areas which reflect the water quality
priority concerns developed through the established water quality
management program planning process and have identified agricultural
nonpoint source water quality problems are eligible for authorization
under RCWP. Only those critical areas or sources of pollutants
significantly contributing to the water quality problems are eligible
for financial and technical assistance.
(b) An RCWP project area is a hydrologically related land area.
Exceptions may be made for ease of administration, or to focus on
concentrated critical areas. To be designated as an RCWP project area
eligible for authorization, the area's water quality problems must be
related to agricultural nonpoint source pollutants, including but not
limited to, sediment, animal waste, irrigation return flows, runoff, or
leachate that contain high concentrations of nitrogen, phosphorus,
dissolved solids, toxics (pesticides and heavy metals), or high pathogen
levels.
Sec. 700.13 Project applications.
Existing and subsequent project applications submitted for
consideration must contain adequate information on each item specified
in Sec. 700.14. Instructions on such information requirements will be
issued by the Administrator, FSA. Opportunity will be provided prior to
final approval of a project for the LCC and the SCC, in consultation
with the Govenor, through the applicable County and State ASC
Committees, for modification necessary to bring them into conformance
with the provisions of these regulations.
Sec. 700.14 Review and approval of project applications.
(a) In reviewing applications and recommending priorities, the NCC
will consider the following:
(1) Severity of the water quality problem caused by agricultural and
silvicultural related pollutants, including:
(i) State designated uses of the water affected.
(ii) Kinds, sources, and effects of pollutants.
(iii) Miles of stream or acres of water bodies affected, extent of
groundwater contamination.
(2) Demonstration of public benefits from the project, including:
(i) Effects on human health.
[[Page 15]]
(ii) Population benefited by improved water quality.
(iii) Effects on the natural environment.
(iv) Additional beneficial uses of the waters that result from
improvement of the water quality.
(3) Economic, and technical feasibility to control water quality
problems within the life of the project, including:
(i) Size of the area and extent of BMPs needed.
(ii) Cost per participant and cost per acre or source for solution
of problem.
(iii) Cost effectiveness of BMPs.
(iv) Adequacy of planned actions to meet the project's objectives.
(4) Suitability of the project for the experimental RCWP in the
testing of programs, policies and procedures for the control of
agricultural non-point source pollution, including:
(i) A project representative of a geographic area with significant
water quality problems.
(ii) The potential of the project for monitoring and evaluation,
including existing base line data.
(5) State, local and other input in the project area, including:
(i) Funds for cost-sharing general monitoring and technical
assistance.
(ii) Commitment of local leadership to promote the program.
(iii) Commitment of farmers and ranchers to participate in RCWP.
(6) The project's contribution to meeting the national water quality
goals taking into consideration of other major sources of pollutants
which affect the water quality in or near the project area.
(b) Based on the project application, the NCC is to recommend an
upper limit of the Federal contribution to the total cost of the
project. This includes both BMP cost-share and technical assistance
costs.
(c) All project applications will be reviewed by EPA. BMPs approval
for funding require EPA concurrence, except that the Secretary may
assume EPA's concurrence, if EPA does not act within 15 days following
receipt of the request for concurrence.
(d) The Secretary will approve proj- ects for funding taking into
consideration the recommendations of the NCC and consultation with EPA.
The Chairperson, State ASC Committee, through the SCC, will assure that
involved Federal, State, and local agencies are informed of the project
approval.
Sec. 700.15 Transfer of funds.
(a) Upon approval of a project, the Administrator, FSA, will
transfer funds to the State(s) ASC Committee for funding the project.
The State committee will transfer funds to the County ASC Committee(s)
for the county or counties in an approved proj ect.
(b) FSA will transfer funds to the applicable agency or organization
providing specific technical assistance and/or expanded information and
education. The transfer will be made on a project by project basis.
[45 FR 14009, Mar. 4, 1980, as amended at 46 FR 29454, June 2, 1981]
Sec. 700.16 Termination of project funding.
(a) Based on evidence of failure to accomplish the approved project
objectives, including inadequate level of participation, the
Administrator, FSA, may issue a termination notice after conferring with
the Administrator, EPA, and the NCC.
(b) The State ASC Committee shall give 10-day written notice to the
applicable County ASC Committee of intent to terminate project funding.
The termination shall establish the effective date of termination and
the date for return of funds.
(c) After receipt of a project termination, the County ASC Committee
shall not make any new commitments or enter into any new RCWP contracts.
Those contracts in force at the time of project termination will remain
in force until completed.
Subpart C_Participant's RCWP Contracts
Sec. 700.20 Eligible land.
RCWP is only applicable to privately owned agricultural lands in
approved project areas. Indian tribal lands and lands owned by
irrigation districts are eligible lands.
[[Page 16]]
Sec. 700.21 Eligible person (participant).
(a) Any land owner or operator whose land or activities in a project
area is contributing to the area's agricultural nonpoint source water
quality problems and who has an approved water quality plan is eligible
to enter into an RCWP contract. For the purpose of this section, an
eligible person is an individual, partnership, corporation (except
corporations whose stock is publicly traded), Indian tribe, irrigation
district or other entity.
(b) Federal, State or local governments, or subdivisions thereof
(except irrigation districts), are not considered as an eligible person
for RCWP contracts.
(c) This program will be conducted in compliance with all
requirements respecting nondiscrimination as contained in the Civil
Rights Act of 1964 and amendments thereto and the Regulations of the
Secretary of Agriculture (7 CFR 15.1 through 15.12)
[45 FR 14009, Mar. 4, 1980, as amended at 46 FR 29454, June 2, 1981]
Sec. 700.22 Application for assistance.
(a) Land owners or operators in an approved project area must apply
for RCWP assistance through the office of the County ASC Committee(s) by
completing the prescribed application form.
(b) The priority for developing water quality plans among applicants
is to be determined by the County ASC Committee and the soil
conservation district based on the criteria developed by the LCC in
consultation with the SCC, with technical assistance from SCS.
Sec. 700.23 Water quality plan.
(a) The participant's water quality plan, developed with technical
assistance and certification by the SCS or its designee and approved by
the CD, is to include appropriate approved BMPs. Such BMPs must reduce
the amount of pollutants that enter a stream, aquifer, or lake by:
(1) Methods such as reducing the application rates or changing the
application methods or potential pollutants.
(2) Methods such as practices or combinations of practices which
prevent potential pollutants from leaving source areas or reduce the
amount of potential pollutants that reach a stream or lake after leaving
a source area.
(b) Participants' water quality plans shall include BMPs for the
treatment of all critical areas or sources on the farm on that land
within the project area regardless of eligibility for cost-sharing with
RCWP funds. Management type BMPs which are not cost-shared but for which
technical advice will be given project participants shall be listed in
the plan. A water quality plan is not required for that portion of a
farm that does not include a critical area or source.
(c) The participant is responsible for compliance with all
applicable Federal, State, and local laws including those relating to
the environment, in installing BMPs to solve the nonpoint source water
quality problems.
(d) Time schedules for implementing BMPs are to be provided in the
participant's water quality plan.
(e) The SCS or its designee shall make an annual status review to
assure the technical adequacy of the implementation of the water quality
plan.
Sec. 700.24 Cost-sharing.
(a) The maximum cost-share for each project will be approved by the
Secretary, taking into consideration the recommendation of the NCC. The
Federal cost-share for each BMP shall not exceed 75 percent of the cost
of carrying out the practice unless otherwise approved by the
Administrator, FSA.
(b) The combined cost-sharing by Federal, State, or Subdivision
thereof shall not exceed 100% of the cost of carrying out the BMP.
(c) The County ASC Committee(s) in consultation with the LCC will
annually set maximum individual BMP cost-share rates for the project
area.
(d) BMPs to be cost shared must have a positive effect on water
quality.
(e) Cost sharing is not to be made available for measures installed
primarily for:
(1) Bringing additional land into crop production.
(2) Increasing production on existing crop land.
(3) Flood protection.
[[Page 17]]
(4) Structural measures authorized for installation under Pub. L.
83-566, Watershed Protection and Flood Prevention Act.
[45 FR 14009, Mar. 4, 1980, as amended at 46 FR 29454, June 2, 1981]
Sec. 700.25 RCWP contract.
(a) In order to participate in the RCWP, each landowner, operator,
or person who controls or shares in the control of a tract of land on
which one or more of the BMP's will be performed must execute the RCWP
contract in which they agree to carry out the water quality plan.
(b) The participant must furnish satisfactory evidence of his or her
control of the tract of land on which one or more of the BMP's will be
performed.
(c) Cost-sharing payments cannot be provided for any measure that is
initiated before the contract is approved by the County ASC Committee.
(d) RCWP contracts shall include the basic contract document, the
participant's water-quality plan, schedule of operations, and special
provisions as needed.
(e) Technical assistance will be provided to participants to develop
the water quality plan and to install BMPs.
(f) SCS or its designee shall approve the technical adequacy of the
Water Quality Plan.
(g) Participants shall install BMPs according to the specifications
that are applicable at the time the contract is signed or the measures
are installed.
(h) The contract period is to be not less than 3 and not more than
10 years. A contract is to extend for at least 1 year after the
application of the last cost-shared BMPs. All contract items are to be
accomplished prior to contract expiration.
(i) BMPs are to be maintained by the participant at no cost to the
RCWP.
(j) All BMPs in the water-quality plan shall be maintained for the
established life span of the BMP.
(k) The County ASC Committee in consultation with the LCC shall
establish a BMP life span for each BMP offered in the approved project
area. Each BMP cost-shared shall have a life span of at least 5 years,
unless otherwise approved by the Administrator, FSA.
(l) A participant may enter into a pooling agreement with other
participants to solve mutual water quality problems.
(m) Participants are responsible for:
(1) Accomplishing the water quality plan.
(2) Obtaining and maintaining any required permits and easements
necessary to perform the planned work.
(3) Applying or arranging for the application of BMPs, as scheduled
in the plan, according to approved standards and specifications.
(4) The operation and maintenance of BMPs installed during the
contract period.
(5) Obtaining the authorities, rights, easements, or other approvals
necessary to maintain BMPs in keeping with applicable laws and
regulations.
(n) Unless otherwise approved by the NCC, the County ASC Committees
shall not enter into any new RCWP contracts after five (5) years from
the date when RCWP funds are first made available to the project.
(Pub. L. 96-108, 98 Stat. 821, 835 and Pub. L. 96-528, 94 Stat. 3095,
3111)
[45 FR 14009, Mar. 4, 1980, as amended at 48 FR 42803, Sept. 20, 1983]
Sec. 700.26 Contract modifications.
(a) The County ASC Committee by mutual agreement with the landowner
or operator, may modify contracts previously entered into if it is
determined to be desirable to carry out the purposes of the program,
facilitate the practical administration thereof, or to accomplish
equitable treatment with respect to other conservation, land-use, and/or
water quality programs.
(b) Requirements of active contracts may be modified by the County
ASC Committee only if such modifications are specifically provided for
in these regulations. The concurrence of SCS or its designee and the CD
are necessary when modifications involve a technical aspect of the
participant's water quality plan. A contract may be modified only if it
is determined that such modifications are desirable to carry out
purposes of the program or to facilitate the program's practical
administration.
[[Page 18]]
(c) Contracts may be modified when the participants add or delete
land to the farm.
(d) Contracts may be modified to add, delete, or substitute BMPs
when:
(1) The installed measure failed to achieve the desired results
through no fault of the participant.
(2) The installed measure deteriorated because of conditions beyond
the control of the participant.
(3) Another BMP will achieve the desired results.
(4) The extent of the BMP is changed.
(e) Contract modifications are not required when items of work are
accomplished prior to scheduled completion or within 1 year following
the year of scheduled completion. Other time schedule revisions will
require modification.
(f) If, during the contract period, all or part of the right and
interest in the land is transferred by sale or other transfer action,
the contract is terminated on that portion of the contract, the
participant:
(1) Forfeits all right to any future cost-share payments on the
transferred portion.
(2) Must refund all cost-share payments that have been made on the
transferred land unit unless the new land owner or operator becomes a
party to the contract, except the payment may be retained where it is
determined by the County ASC Committee after consultation with the
technical agency and the CD, that the established BMPs will provide
water quality benefits for the designed life of the BMP.
(g) If the new land owner or operator becomes a party to the
contract:
(1) Payment which has been earned, may be made to the participant
who applied the BMPs and had control prior to the transfer.
(2) The new land owner or operator is to assume all obligations of
the previous participant with respect to the transferred land.
(3) The contract with the new participant is to remain in effect
with the original terms and conditions, except that;
(4) The original contract is to be modified in writing to show the
changes caused by the transfer. If the modification is not acceptable to
the County ASC Committee, the provisions of paragraphs (f)(1) and (2) of
this section apply.
Sec. 700.27 Cost-share payment.
(a) General. Participants are to obtain or contract for materials or
services as needed to install BMPs. Federal cost-share payments are to
be made by the County ASC Committee upon certification by the District
Conservationist, SCS, or designee, that the BMPs, or an identifiable
unit thereof, have been properly carried out and meet the appropriate
standards and specifications.
(b) Payment maximum. The maximum RCWP cost-share payment to a
participant shall be limited to $50,000.
(c) Basis for cost-share payment. (1) Cost-share payments are to be
made by the County ASC Committee at the cost-share percentage specified
in the project approval notice and by one of the following methods as
set out in the contract:
(i) Average cost; or
(ii) Actual cost but not to exceed the average cost.
(2) If the average cost at the time of starting the installation of
a BMP or identifiable unit is less than the costs specified in the
contract, payment is to be at the lower rate. If the costs at the start
of installation are higher, payment may be made at the higher rate. A
modification will be necessary if the higher cost results in a
significant increase in the total cost-share obligation. Cost-share
payment is not to be made until the modification reflecting the increase
is approved.
(d) Average cost development. Average costs are to be developed by
the County ASC Committee for each proj ect using cost data from the
local area. These costs shall be reviewed by the SCC for consistency
with average costs in other USDA programs. These average costs shall be
updated annually by the County ASC Committee in consultation with the
LCC.
(e) Application for payment. Cost-share payments shall be made by
the County ASC Committee after a participant has completed a BMP or an
identifiable unit of a BMP and it is determined to
[[Page 19]]
meet standards and specifications. Application for payment must be
submitted to the County ASC Committee, on the prescribed form and be
supported by such cost receipts as are required by the County ASC
Committee. It is the participant's responsibility to apply for payments.
(f) Authorizations for payments to suppliers. (1) The contract may
authorize that part or all of the Federal cost share for a BMP or an
identifiable unit be made directly to suppliers of materials or
services. The materials or services must be delivered or performed
before payment is made.
(2) Federal cost shares will not be in excess of the cost share
attributable to the material or service used or not in excess of the
cost share for all identifiable units as may be requested by the
participant.
(g) Material inspection and analysis. When authorizations for
payments to suppliers are specified, the County ASC Committee, its
representatives, or the Federal Government reserve the right to inspect,
sample, and analyze materials or services prior to their use.
(h) Assignments, set-offs, and claims. (1) Any person who may be
entitled to any cost-share may assign rights thereto in accordance with
regulations governing the assignments of payments. (31 U.S.C. 203, as
amended, and 41 U.S.C. 15, as amended.)
(2) If any participant to whom compensation is payable under RCWP is
indebted to the United States and such indebtedness is listed on the
county register of indebtedness maintained by the County ASC Committee,
the compensation due the participant must be used (set-off) to reduce
that indebtedness. Indebtedness to USDA is to be given first
consideration. Set offs made pursuant to this section are not to deprive
the participant of any right to contest the justness of the indebtedness
involved. (See 7 CFR part 13.)
(3) Any cost-share payment due any participant shall be allowed
without deduction of claims for advances except as provided for above
and without regard to any claim or lien against any crop, or proceeds
thereof, in favor of the participant or any other creditor.
(i) Access to land unit and records. The County ASC Committee, the
agency providing technical assistance or representatives thereof, shall
have the right of access at reasonable times to land under application
or contract, and the right to examine any program records to ascertain
the accuracy of any representations made in the applications or
contract.
(j) Suspension of payments. No cost-share payments will be made
pending a decision on whether or not a contract violation has occurred.
(k) Ineligible payments. The filing of requests for payment for BMPs
not carried out, or for BMPs carried out in such a manner that they do
not meet the contract specifications, constitutes a violation of the
contract.
Sec. 700.28 Appeals.
(a) The applicant may, prior to execution of the contract, request
that the County ASC Committee review or reconsider administrative
criteria being used in developing his or her contract.
(1) The applicant shall make a written request to the County ASC
Committee setting forth the basis for the appeal.
(2) The County ASC Committee shall have 30 days in which to make a
decision and notify the applicant in writing.
(3) The decision of the County ASC Committee may be appealed to the
State ASC Committee.
(4) The State ASC Committee decision shall be final.
(b) The applicant/participant may request and receive a review by
the SCS State Conservationist of criteria used in developing the water
quality plan or BMP specifications.
(c) After the contract has been executed, the participant may
request and receive a review of administrative procedures under the FSA
appeals procedures set out in 7 CFR part 780.
Sec. 700.29 Contract violations.
(a) The following actions constitute a violation of the RCWP
contract by a participant:
(1) Knowingly or negligently damaging or causing BMPs to become
impaired.
(2) Failing to comply with the terms of the contract.
(3) Filing a false claim.
[[Page 20]]
(4) Misusing conservation materials or services.
(5) Adopting a land use or practice during the contract period which
tends to defeat the purposes of the program.
(b) Contract termination as a result of violations. (1) The
participant agrees to forfeit all rights to further cost-sharing
payments under a contract and to refund all cost-share payments received
if the County ASC Committee with the concurrence of the State ASC
Committee, determines that:
(i) There was a violation of the contract during the time the
participant had control of the land.
(ii) The violation was of such a nature as to warrant termination of
the contract.
(2) The participant shall be obligated to refund all cost-share
payments, including those paid to vendors for materials and services.
(c) Payment adjustments and refunds resulting from violations. (1)
The participant agrees to refund cost-share payments received under the
contract or to accept payment adjustments if the County ASC Committee
determines and the State ASC Committee concurs that:
(i) There was a violation of the contract during the time the
participant had control of the land.
(ii) The nature of the violation does not warrant termination of the
contract.
(2) Payment adjustments may include decreasing the rate of the cost
share, or deleting from the contract a cost-share commitment, or
withholding cost-share payments earned but not paid. The participant who
signs the contract may be obligated to refund cost-share payments.
Subpart D_Monitoring and Evaluation
Sec. 700.40 General program monitoring and evaluation.
(a) Requirement. All approved RCWP projects will be monitored in
sufficient detail to determine BMP application progress and to generally
document water quality improvement trends through the life of the
project. This will include, among others, data on BMP installation
progress, payments made, refunds and periodic water quality monitoring
for addressing short and long-term trends in water quality.
(b) Monitoring Report. A water quality monitoring report will be
submitted as a part of the annual progress report. The initial report
will include:
(1) A description of water quality monitoring strategy for the area.
(2) Data collection schedule.
(3) Parameters being monitored (and baseline values).
(4) Collection and analytical methods.
(5) A summary of existing data and trends.
Subsequent reports will update the initial data and report any
significant changes in water quality land use.
(c) Program Monitoring Funding. The project application and the
proposed monitoring plan are to include an estimate of the local and
State financial and technical support. General monitoring will not be
financed with RCWP funds.
Sec. 700.41 Comprehensive USDA/EPA joint project water quality
monitoring, evaluation, and analysis.
(a) Requirement. The Secretary and Administrator, EPA will jointly
select a limited number of projects to be comprehensively monitored and
evaluated from a list of projects recommended by the NCC. The NCC will
develop criteria for selecting the project areas.
(b) Project Selection. The NCC will recommend projects for this
comprehensive program. The project areas are to be representative of the
agricultural and silvicultural nonpoint source pollution problems.
(c) Plan Development. After a proj ect is selected for the
comprehensive monitoring and evaluation, the SCC is to submit within 90
days, a plan for USDA-EPA review and approval. USDA and EPA will have 30
days for the plan review and approval process.
(d) Plan Requirements. In general, the comprehensive monitoring plan
will address and include the following:
(1) Objective. Define the purpose and scope of the monitoring
program and establish clear objectives for each activity proposed.
(2) Monitoring Strategy. Define the basic hydrological and
meteorological
[[Page 21]]
factors within the proposed RCWP project area and identify the strategy
and parameters to be used to identify the changes in water quality
attributable to the installation of BMPs. Wherever possible, identify
and quantify changes in land use, land use patterns and farming
practices that will affect the quantity, quality or timing of nonpoint
source pollutants reaching an aquatic system and detail information as
to number and location of sampling stations and the frequency of sample
collection.
(3) Socioeconomic Impacts. Identify the positive and negative
impacts on the landowners in the project area and estimate the community
or off-site benefits expected of the project if completed as planned.
(4) Institutional Aspects. Identify and clearly define the role and
responsibility for each participating agency including, where
appropriate fiscal and manpower commitments.
(5) Educational Aspects. Clearly define the approache(s) to be used
to inform and educate individual landowners. Include procedures for
periodic evaluation of this effort so the mid-course corrections can be
made if needed.
(6) Quality Assurance. To insure that the data collected is usable
to make National projections, a quality assurance program must be
included that is consistent with that of the EPA Region within which the
project is located.
(7) Data Storage. The data collected on comprehensive monitoring
projects must be available to USDA and EPA RCWP user groups.
(e) Reporting. Reports for these projects are to be made at least
annually to the NCC based on guidance sent to the SCC by the
Administrator, FSA.
(f) Funding. Funding for the comprehensive monitoring will be
provided from RCWP funds and other authorizations.
Sec. 700.42 Program evaluation.
(a) The RCWP will be evaluated annually by the USDA. The evaluation
will be based on the reports provided in these regulations and on
special studies undertaken by USDA or EPA as part of the RCWP program.
(b) The USDA Deputy Under Secretary for International Affairs and
Commodity Program will have the responsibility for coordinating the
program evaluation and preparing an annual report for transmittal to the
Secretary of Agriculture and the Administrator of EPA. The Deputy
Assistant Secretary for Natural Resources and the Director of Economics,
Policy Analysis and Budget, USDA, and the Assistant Administrator for
Water and Waste Management, EPA will assist in this effort.
Sec. 700.43 Public benefits when installing BMP's.
All BPM's implemented under this program shall be in compliance with
regulations promulgated under part 799 on environmental quality and
related environmental concerns or similar regulations issued by a
technical agency. Persons responsible for any aspect of performing BMPs
shall carry out their responsibilities in such a way as to promote
public benefits:
(a) By improving or preserving environmental quality and ecological
balance.
(b) By preventing or abating pollution and other environmental
degradation.
(c) Benefiting the community by means such as preserving open space
or enhancing the appearance of the area.
(d) Benefiting wildlife and other desirable life forms.
(e) Preserving historic, archaeological, or scenic sites, wetlands,
ecologically critical areas and prime farmland.
(f) Avoiding the creation of hazards to persons or animals.
(g) Avoiding actions that may adversely affect an endangered or
threatened species and flood plains.
PART 701_EMERGENCY CONSERVATION PROGRAM AND CERTAIN RELATED PROGRAMS
PREVIOUSLY ADMINISTERED UNDER THIS PART--Table of Contents
Sec.
701.1 Administration.
701.2 Definitions.
701.3 Scope.
701.4 Producer eligibility.
701.5 Land eligibility.
701.6-701.9 [Reserved]
[[Page 22]]
701.10 Qualifying minimum cost of restoration.
701.11 Prohibition on duplicate payments.
701.12 Eligible ECP practices.
701.13 Submitting requests.
701.14 Onsite inspections.
701.15 Starting practices before cost-share request is submitted; non-
entitlement to payment; payment subject to the availability of
funds.
701.16 Practice approval.
701.17-701.20 [Reserved]
701.21 Filing payment application.
701.22 Eligibility to file for cost-share assistance.
701.23 Eligible costs.
701.24 Dividing cost-share among more than one participant.
701.25 Practices carried out with aid from ineligible persons.
701.26 Maximum cost-share percentage.
701.27 Maximum ECP payments per person.
701.28-701.30 [Reserved]
701.31 Maintenance and proper use of practices.
701.32 Failure to comply with program provisions.
701.33 Death, incompetency, or disappearance.
701.34 Appeals.
701.35 Compliance with regulatory measures.
701.36 Schemes and devices and claims avoidances.
701.37 Loss of control of property during the practice life span.
701.38-701.40 [Reserved]
701.41 Cost-share assistance not subject to claims.
701.42 Assignments.
701.43 Information collection requirements.
701.44 Agricultural Conservation Program (ACP) contracts.
701.45 Forestry Incentives Program (FIP) contracts.
Authority: Pub. L. 95-334, 92 Stat. 420, 16 U.S.C. 2201 et seq.
Source: 69 FR 10302, Mar. 4, 2004, unless otherwise noted.
Sec. 701.1 Administration.
(a) Subject to the availability of funds, this part provides the
terms, conditions and requirements of the Emergency Conservation Program
(ECP) administered by the Farm Service Agency (FSA).
(b) ECP is administered by the Administrator, FSA through the Deputy
Administrator, FSA, and shall be carried out in the field by State and
county FSA committees (State and county committees), subject to the
availability of funds. Except as otherwise provided in this rule,
discretionary determinations to be made under this rule will be made by
the Deputy Administrator. Matters committed to the discretion of the
Deputy Administrator shall be considered in all cases to be permissive
powers and no person shall, under any circumstances, be considered to be
entitled to an exercise of such power in their favor.
(c) State and county committees, and representatives and employees,
do not have authority to modify or waive any regulations in this part.
(d) The State committee may take any action authorized or required
of the county committee by this part, but which the county committee has
not taken, such as:
(1) Correct or require a county committee to correct any action
taken by such county committee that is not in accordance with this part;
or
(2) Require a county committee to withhold taking any action that is
not in accordance with this part.
(e) No provision or delegation herein to a State or county committee
shall preclude the Administrator, FSA, or a designee, from determining
any question arising under the program or from reversing or modifying
any determination made by a State or county committee.
(f) The Deputy Administrator may authorize State and county
committees to waive or modify deadlines and other requirements in cases
where lateness or failure to meet such other requirements does not
adversely affect the operation of the program.
(g) The Deputy Administrator may limit the authority of state and
county committees to approve cost share in excess of specified amounts.
(h) Data furnished by the applicants will be used to determine
eligibility for program benefits. Furnishing the data is voluntary;
however, the failure to provide data could result in program benefits
being withheld or denied.
(i) FSA may consult with any other USDA agency for such assistance
as is determined by FSA to be necessary to implement the ECP. FSA is
responsible for the technical aspects of ECP but may enter into a
Memorandum of
[[Page 23]]
Agreement with another party to provide technical assistance. If this
limitation results in significant hardship to producers in a county the
State committee may request in writing that the Deputy Administrator
waive this requirement for that county.
(j) The provisions in this part shall not create an entitlement in
any person to any ECP cost share or claim or any particular notice or
form or procedure.
(k) Additional terms and conditions may be set forth in the
application or the forms participants will be required to sign for
participation in the ECP.
Sec. 701.2 Definitions.
(a) The terms defined in part 718 of this chapter shall be
applicable to this part and all documents issued in accordance with this
part, except as otherwise provided in this section.
(b) The following definitions shall apply to this part:
Agricultural producer means an owner, operator, or tenant of a farm
or ranch used to produce for food or fiber, crops (including but not
limited to, grain or row crops; seed crops; vegetables or fruits; hay
forage or pasture; orchards or vineyards; flowers or bulbs; or field
grown ornamentals) or livestock (including but not limited to, dairy or
beef cattle; poultry; swine; sheep or goats; fish or other animals
raised by aquaculture; other livestock or fowl) for commercial
production. Producers of animals raised for recreational uses only are
not considered agricultural producers.
Annual agricultural production means production of crops for food or
fiber in a commercial operation that occurs on an annual basis under
normal conditions.
Applicant means a person who has submitted to FSA a request to
participate in the ECP.
Cost-share payment means the payment made by FSA to assist a program
participant under this part to establish practices required to address
qualifying damage suffered in connection with a qualifying disaster.
Deputy Administrator means the Deputy Administrator for Farm
Programs, FSA, the ECP Program Manager, or designee.
Farmland means land devoted to agricultural production, including
land used for aquaculture, or other land as may be determined by the
Deputy Administrator.
Program year means the applicable Federal fiscal year.
Sec. 701.3 Scope.
(a) FSA will provide cost-share assistance to farmers and ranchers
to rehabilitate farmland damaged by wind erosion, floods, hurricanes, or
other natural disasters as determined by the Deputy Administrator, and
to carry out emergency water conservation measures during periods of
severe drought.
(b) The objective of the ECP is to make cost-share assistance
available to eligible participants on eligible land for certain
practices, to rehabilitate farmland damaged by floods, hurricanes, wind
erosion, or other natural disasters, and for the installation of water
conservation measures during periods of severe drought.
(c) Payments may also be made under this part for:
(1) Emergency water conservation or water enhancement measures
(including measures to assist confined livestock) during periods of
severe drought; and
(2) Floodplain easements for runoff and other emergency measures
that the Deputy Administrator determines is necessary to safeguard life
and property from floods, drought, and the products of erosion on any
watershed whenever fire, flood, or other natural occurrence is causing
or has caused, a sudden impairment of the watershed.
(d) Payments under this part are subject to the availability of
appropriated funds and any limitations that may otherwise be provided
for by Congress.
Sec. 701.4 Producer eligibility.
(a) To be eligible to participate in the ECP the Deputy
Administrator must determine that a person is an agricultural producer
with an interest in the land affected by the natural disaster, and that
person must be liable for or have paid the expense that is the subject
of the cost share. The applicant must be a landowner or user in the
[[Page 24]]
area where the qualifying event has occurred, and must be a party who
will incur the expense that is the subject of the cost share.
(b) Federal agencies and States, including all agencies and
political subdivisions of a State, are ineligible to participate in the
ECP.
(c) All producer eligibility is subject to the availability of funds
and an application may be denied for any reason.
Sec. 701.5 Land eligibility.
(a) For land to be eligible, the Deputy Administrator must determine
that land that is the subject of the cost share:
(1) Will have new conservation problems caused as a result of a
natural disaster that, if not treated, would:
(i) Impair or endanger the land;
(ii) Materially affect the productive capacity of the land;
(iii) Represent unusual damage that, except for wind erosion, is not
of the type likely to recur frequently in the same area; and
(iv) Be so costly to repair that Federal assistance is or will be
required to return the land to productive agricultural use. Conservation
problems existing prior to the disaster are not eligible for cost-share
assistance.
(2) Be physically located in a county in which the ECP has been
implemented; and
(3) Be one of the following:
(i) Land expected to have annual agricultural production,
(ii) A field windbreak or a farmstead shelterbelt on which the ECP
practice to be implemented involves removing debris that interferes with
normal farming operations on the farm and correcting damage caused by
the disaster; or
(iii) A farm access road on which debris interfering with the normal
farming operation needs to be removed.
(b) Land is ineligible for cost share if the Deputy Administrator
determines that it is, as applicable:
(1) Owned or controlled by the United States;
(2) Owned or controlled by States, including State agencies or other
political subdivisions of a State;
(3) Protected by a levee or dike that was not effectively and
properly functioning prior to the disaster, or is protected, or intended
to be protected, by a levee or dike not built to U.S. Army Corps of
Engineers, NRCS, or comparable standards;
(4) Adjacent to water impoundment reservoirs that are subject to
inundation when the reservoir is filled to capacity;
(5) Land on which levees or dikes are located;
(6) Subject to frequent damage or susceptible to severe damage
according to paragraph (c) of this section;
(7) Subject to flowage or flood easements and inundation when water
is released in normal operations;
(8) Between any levee or dike and a stream, river, or body of water,
including land between two or more levees or dikes;
(9) Located in an old or new channel of a stream, creek, river or
other similar body of water, except that land located within or on the
banks of an irrigation canal may be eligible if the Deputy Administrator
determines that the canal is not a channel subject to flooding;
(10) In greenhouses or other confined areas, including but not
limited to, land in corrals, milking parlors, barn lots, or feeding
areas;
(11) Land on which poor farming practices, such as failure to farm
on the contour, have materially contributed to damaging the land;
(12) Unless otherwise provided for, not considered to be in annual
agricultural production, such as land devoted to stream banks, channels,
levees, dikes, native woodland areas, roads, and recreational uses; or
(13) Devoted to trees including, but not limited to, timber
production.
(c) To determine the likely frequency of damage and of the
susceptibility of the land to severe damage under paragraph (b)(6) of
this section, FSA will consider all relevant factors, including, but not
limited to, the location of the land, the history of damage to the land,
and whether the land was or could have been protected by a functioning
levee or dike built to U. S. Army Corps of Engineers, NRCS, or
comparable standards. Further, in making such determinations,
information may be obtained and used from
[[Page 25]]
the Federal Emergency Management Agency or any other Federal, State
(including State agencies or political subdivisions), or other entity or
individual providing information regarding, for example, flood
susceptibility for the land, soil surveys, aerial photographs, or flood
plain data or other relevant information.
Sec. Sec. 701.6-701.9 [Reserved]
Sec. 701.10 Qualifying minimum cost of restoration.
(a) To qualify for assistance under Sec. 701.3(a), the eligible
damage must be so costly that Federal assistance is or will be required
to return the land to productive agricultural use or to provide
emergency water for livestock.
(b) The Deputy Administrator shall establish the minimum qualifying
cost of restoration. Each affected State may be allowed to establish a
higher minimum qualifying cost of restoration.
(c) A producer may request a waiver of the qualifying minimum cost
of restoration. The waiver request shall document how failure to grant
the waiver will result in environmental damage or hardship to the
producer and how the waiver will accomplish the goals of the program.
[69 FR 10302, Mar. 4, 2004; 69 FR 22377, Apr. 26, 2004]
Sec. 701.11 Prohibition on duplicate payments.
(a) Duplicate payments. Participants are not eligible to receive
funding under the ECP for land on which the participant has or will
receive funding under:
(1) The Wetland Reserve Program (WRP) provided for in 7 CFR part
1467;
(2) The Emergency Wetland Reserve Program (EWRP) provided for in 7
CFR part 623;
(3) The Emergency Watershed Protection Program (EWP) provided for in
7 CFR part 624; or
(4) Any other program that covers the same or similar expenses so as
to create duplicate payments, or, in effect, a higher rate of cost share
than is allowed under this part.
(b) Refund. Participants who receive any duplicate funds, payments,
or benefits shall refund any ECP payments received.
Sec. 701.12 Eligible ECP practices.
(a) Cost-share assistance may be offered for ECP practices to
replace or restore farmland, fences, or conservation structures to a
condition similar to that existing before the natural disaster. No
relief under this part shall be allowed to address conservation problems
existing before the disaster.
(b) The practice or practices made available when the ECP is
implemented shall be only those practices authorized by FSA for which
cost-share assistance is essential to permit accomplishment of the
program goals.
(c) Cost-share assistance may be provided for permanent vegetative
cover, including establishment of the cover where needed, only in
conjunction with eligible structures or installations where cover is
needed to prevent erosion and/or siltation or to accomplish some other
ECP purpose.
(d) Practice specifications shall represent the minimum levels of
performance needed to address the ECP need.
Sec. 701.13 Submitting requests.
(a) Subject to the availability of funds, the Deputy Administrator
shall provide for an enrollment period for submitting ECP cost-share
requests.
(b) Requests may be accepted after the announced enrollment period,
if such acceptance is approved by the Deputy Administrator and is in
accordance with the purposes of the program.
Sec. 701.14 Onsite inspections.
An onsite inspection must be made before approval of any request for
ECP assistance.
Sec. 701.15 Starting practices before cost-share request is submitted;
non-entitlement to payment; payment subject to the availability of funds.
(a) Subject to paragraphs (b) and (c) of this section, costs will
not be shared for practices or components of practices that are started
before a request for cost share under this part is submitted with the
applicable county FSA office.
[[Page 26]]
(b) Costs may be shared for drought and non-drought ECP practices or
components of practices that are started before a request is submitted
with the county FSA office, only if:
(1) Considered and approved on a case-by-case basis in accordance
with instructions of the Deputy Administrator;
(2) The disaster that is the basis of a claim for cost-share
assistance created a situation that required the producer to take
immediate action to prevent further losses;
(3) The Deputy Administrator determines that the request for
assistance was filed within a reasonable amount of time after the start
of the enrollment period; and
(4) The practice was started no more than 60 days before the ECP
designation was approved for the applicable county office.
(c) Any action taken prior to approval of a claim is taken at the
producer's own risk.
(d) An application for relief may be denied for any reason.
(e) All payments under this part are subject to the availability of
funds.
Sec. 701.16 Practice approval.
(a) Requests shall be prioritized before approval based on factors
deemed appropriate by FSA, which include, but are not limited to:
(1) Type and degree of damage;
(2) Type of practices needed to address the problem;
(3) Availability of funds;
(4) Availability of technical assistance;
(5) Environmental concerns;
(6) Safety factors; or
(7) Welfare of eligible livestock.
(b) Requests for cost-share assistance may be approved if:
(1) Funds are available; and
(2) The requested practice is determined eligible.
Sec. Sec. 701.17-701-20 [Reserved]
Sec. 701.21 Filing payment application.
Cost-share assistance is conditioned upon the availability of funds
and the performance of the practice in compliance with all applicable
specifications and program regulations.
(a) Completion of practice. After completion of the approved
practice, the participant must certify completion and request payment by
the payment request deadline. FSA will provide the participant with a
form or another manner to be used to request payment.
(b) Proof of completion. Participants shall submit to FSA, at the
local county office, the information needed to establish the extent of
the performance of approved practices and compliance with applicable
program provisions.
(c) Payment request deadline. The time limits for submission of
information shall be determined by the Deputy Administrator. The payment
request deadline for each ECP practice will be provided in the agreement
after the application is approved. Time limits may be extended where
failure to submit required information within the applicable time limits
is due to reasons beyond the control of the participant.
Sec. 701.22 Eligibility to file for cost-share assistance.
Any eligible participant, as defined in this part, who paid part of
the cost of an approved practice may file an application for cost-share
payment.
Sec. 701.23 Eligible costs.
(a) Cost-share assistance may be authorized for all reasonable costs
incurred in the completion of the practice, up to the maximums provided
in Sec. Sec. 701.26 and 701.27.
(b) Eligible costs shall be limited as follows:
(1) Costs for use of personal equipment shall be limited to those
incurred beyond the normal operation of the farm or ranch.
(2) Costs for personal labor shall be limited to personal labor not
normally required in the operation of the farm or ranch.
(3) Costs for the use of personal equipment and labor must be less
than that charged for such equipment and labor by commercial contractors
regularly employed in such areas.
(4) Costs shall not exceed those needed to achieve the minimum
performance necessary to resolve the problem being corrected by the
practice. Any costs above those levels shall not be
[[Page 27]]
considered to be eligible costs for purposes of calculations made under
this part.
(c) Costs shall not exceed the practice specifications in Sec.
701.12(d) for cost-share calculations.
(d) The gross amount on which the cost-share eligibility may be
computed will not include any costs that were reimbursed by a third
party including, but not limited to, an insurance indemnity payment.
(e) Total cost-share payments from all sources shall not exceed the
total of eligible costs of the practice to the applicant.
Sec. 701.24 Dividing cost-share among more than one participant.
(a) For qualifying cost-share assistance under this part, the cost
shall be credited to the participant who personally performed the
practice or who paid to have it performed by a third party. If a payment
or credit was made by one participant to another potential participant,
paragraph (c) of this section shall apply.
(b) If more than one participant contributed to the performance of
the practice, the cost-share assistance for the practice shall be
divided among those eligible participants in the proportion they
contributed to the performance of the practice. FSA may determine what
proportion was contributed by each participant by considering the value
of the labor, equipment, or material contributed by each participant and
any other factors deemed relevant toward performance.
(c) Allowance by a participant of a credit to another participant
through adjustment in rent, cash or other consideration, may be
considered as a cost of a practice to the paying party only if FSA
determines that such credit is directly related to the practice. An
applicant who was fully reimbursed shall be considered as not having
contributed to the practice performance.
Sec. 701.25 Practices carried out with aid from ineligible persons.
Any assistance provided by someone other than the eligible
participant, including assistance from a State or Federal agency, shall
be deducted from the participant's total costs incurred for the practice
for the purpose of computing ECP cost shares. If unusual conditions
exist, the Deputy Administrator may waive deduction of such
contributions upon a request from the State committee and demonstration
of the need for such a waiver.
Sec. 701.26 Maximum cost-share percentage.
(a) In addition to other restrictions that may be applied by FSA, an
ECP participant shall not receive more than 75 percent of the lesser of
the participant's total actual cost or of the total allowable costs, as
determined by this part, to perform the practice.
(b) However, notwithstanding paragraph (a) of this section, a
qualified limited resource producer that participates in the ECP may
receive no more than 90 percent of the participant's actual cost to
perform the practice or 90 percent of the total allowable costs for the
practice as determined under this part.
(c) In addition to other limitations that apply, in no case shall
the ECP payment exceed 50 percent of what the Deputy Administrator has
determined is the agricultural value of the affected land.
Sec. 701.27 Maximum ECP payments per person.
A person, as defined in part 1400 of this title, is limited to a
maximum cost-share of $200,000 per person, per disaster.
Sec. Sec. 701.28-701.30 [Reserved]
Sec. 701.31 Maintenance and proper use of practices.
(a) Each participant receiving cost-share assistance is responsible
for the required maintenance and proper use of the practice. Some
practices have an established life span or minimum period of time during
which they are expected to function as a conservation practice with
proper maintenance. Cost-share assistance shall not be authorized for
normal upkeep or maintenance of any practice.
(b) If a practice is not properly maintained for the established
life span, the participant may be required to refund
[[Page 28]]
all or part of cost-share assistance received. The Deputy Administrator
will determine what constitutes failure to maintain a practice and the
amount that must be refunded.
Sec. 701.32 Failure to comply with program provisions.
Costs may be shared for performance actually rendered even though
the minimum requirements otherwise established for a practice have not
been satisfied if a reasonable effort was made to satisfy the minimum
requirements and if the practice, as performed, will adequately address
the need for the practice.
Sec. 701.33 Death, incompetency, or disappearance.
In case of death, incompetency, or disappearance of any participant,
any cost-share payment due shall be paid to the successor, as determined
in accordance with part 707 of this chapter.
Sec. 701.34 Appeals.
Part 11 of this title and part 780 of this chapter apply to
determinations made under this part.
Sec. 701.35 Compliance with regulatory measures.
Participants who perform practices shall be responsible for
obtaining the authorities, permits, rights, easements, or other
approvals necessary to the performance and maintenance of the practices
according to applicable laws and regulations. The ECP participant shall
be wholly responsible for any actions taken with respect to the project
and shall, in addition, be responsible for returning and refunding any
ECP cost shares made, where the purpose of the project cannot be
accomplished because of the applicants' lack of clearances or other
problems.
Sec. 701.36 Schemes and devices and claims avoidances.
(a) If FSA determines that a participant has taken any action
designed to defeat, or has the effect of defeating, the purposes of this
program, the participant shall be required to refund all or part of any
of the program payments otherwise due or paid that participant or
related person for that particular disaster. These actions include, but
are not limited to, failure to properly maintain or deliberately
destroying a practice and providing false or misleading information
related to practices, costs, or arrangements between entities or
individuals that would have an effect on ``person'' determinations made
under this part.
(b) All or any part of cost-share assistance that otherwise would be
due any participant may be withheld, or required to be refunded, if the
participant has adopted, or participated in, any scheme or device
designed to evade the maximum cost-share limitation that applies to the
ECP or to evade any other requirement or provision of the program or
this part.
(c) If FSA determines that a participant has employed any scheme or
device to deprive any other person of cost-share assistance, or engaged
in any actions to receive payments under this part that also were
designed to avoid claims of the United States or its instrumentalities
or agents against that party, related parties, or third parties, the
participant shall refund all or part of any of those program payments
paid to that participant for the project.
(d) For purposes of this section, a scheme or device can include,
but is not limited to, instances of coercion, fraud, or
misrepresentation regarding the claim for ECP assistance and the facts
and circumstances surrounding such claim.
(e) A participant who has knowingly supplied false information or
filed a false claim shall be ineligible for cost-share assistance
related to the disaster for which the false information was filed, or
for any period of time FSA deems appropriate. False information or a
false claim includes, but is not limited to, a request for payment for a
practice not carried out, a false billing, or a billing for practices
that do not meet required specifications.
Sec. 701.37 Loss of control of the property during the practice life
span.
In the event of voluntary or involuntary loss of control of the land
by the ECP cost-share recipient during the
[[Page 29]]
practice life-span, if the person acquiring control elects not to become
a successor to the ECP agreement and the practice is not maintained,
each participant who received cost-share assistance for the practice may
be jointly and severally liable for refunding any ECP cost-share
assistance related to that practice. The practice life span, for
purposes of this section, includes any maintenance period that is
essential to its success.
Sec. Sec. 701.38-701.40 [Reserved]
Sec. 701.41 Cost-share assistance not subject to claims.
Any cost-share assistance or portion thereof due any participant
under this part shall be allowed without regard to questions of title
under State law, and without regard to any claim or lien against any
crop or property, or proceeds thereof, except liens and other claims of
the United States or its instrumentalities. The regulations governing
offsets and withholdings at parts 792 and 1403 of this title shall be
applicable to this program and the provisions most favorable to a
collection of the debt shall control.
Sec. 701.42 Assignments.
Participants may assign ECP cost-share assistance payments, in whole
or in part, according to part 1404 of this title.
Sec. 701.43 Information collection requirements.
Information collection requirements contained in this part have been
approved by the Office of Management and Budget under the provisions at
44 U.S.C. Chapter 35 and have been assigned OMB Number 0560-0082.
Sec. 701.44 Agricultural Conservation Program (ACP) contracts.
Contracts for ACP that are, or were, administered under this part or
similar contracts executed in connection with the Interim Environmental
Quality Incentives Program, shall, unless the Deputy Administrator
determines otherwise, be administered under, and be subject to, the
regulations for ACP contracts and the ACP program that were contained in
the 7 CFR, parts 700 to 899, edition revised as of January 1, 1998, and
under the terms of the agreements that were entered into with
participants.
Sec. 701.45 Forestry Incentives Program (FIP) contracts.
The regulations governing the FIP as of July 31, 2002, and contained
in the 7 CFR, parts 700 to 899, edition revised as of January 1, 2002,
shall continue to apply to FIP contracts in effect as of that date,
except as provided in accord with a delegation of the administration of
that program and such delegation and actions taken thereunder shall
apply to any other FIP matters as may be at issue or in dispute.
PART 702_COLORADO RIVER BASIN SALINITY (CRSC) CONTROL PROGRAM--Table
of Contents
Sec.
702.1 General.
702.2 Definitions.
702.3 Administration.
702.4 Applicability.
702.5 Eligible land.
702.6 Eligible entity.
702.7 Salinity control plan.
702.8 Eligible salinity reduction practices (SRP's).
702.9 CRSC Contract and obligations of the participant.
702.10 Operation and maintenance agreements.
702.11 Obligations of USDA.
702.12 Availability of cost-share payments.
702.13 Levels and rates of cost-share payments.
702.14 Assignments.
702.15 Payments not subject to claims.
702.16 Maximum amount of cost-share payments.
702.17 Transfers of land and contract modifications.
702.18 Violations.
702.19 CRSC Contracts and operation and maintenance agreements not in
conformity with regulations.
702.20 Appeals.
702.21 Access to land.
702.22 Performance based upon advice or action of representatives of the
Department or a CD.
702.23 Filing of false claims.
702.24 Depriving others of payments.
702.25 Miscellaneous.
702.26 Paperwork Reduction Act assigned numbers.
[[Page 30]]
Authority: Sec. 201, Pub. L. 93-320, 88 Stat. 271; Sec. 2, Pub. L.
98-569, 98 Stat. 2933 (43 U.S.C. 1592(c)).
Source: 52 FR 16741, May 5, 1987, unless otherwise noted.
Sec. 702.1 General.
The regulations in this part set forth the terms and conditions of
the Colorado River Salinity Control (CRSC) Program authorized by section
202 of the Colorado River Basin Salinity Control Act, as amended (43
U.S.C. 1592) (the Act). Under the Act the Secretary is authorized to:
(a) Identify salt-source areas in the Colorado River Basin;
(b) Develop plans for implementing conservation measures that will
reduce the salt load in the Colorado River, including the voluntary
replacement of incidental fish and wildlife values foregone;
(c) Share the cost of establishing such conservation measures and
practices;
(d) Provide technical assistance;
(e) Monitor and evaluate changes in salt contributions to the
Colorado River; and
(f) Carry out related research, demonstration and education
activities.
Sec. 702.2 Definitions.
(a) The following definitions shall be applicable for the purposes
of this part:
(1) Applicant means an entity who has offered to enter into a CRSC
Contract in accordance with the provisions of this part;
(2) Actual cost means the direct costs of establishing a salinity
reduction practice, and includes the cost of labor, supplies, and other
necessary activities;
(3) Average cost means the cost, determined by averaging actual
costs and current cost estimates, considered to be necessary for a
participant to carry out a salinity reduction practice, a designated
component of a salinity reduction practice, or a system of practices;
(4) Conservation District (CD) means a subdivision of a State
organized pursuant to applicable State law. The term includes bodies
variously known in the States as conservation district, soil
conservation district, soil and water conservation district, natural
resource district, resource conservation district, or natural resource
conservation district;
(5) Components means measurable units of a salinity reduction
practice which, when completed by the program participant, can be
certified by the Soil Conservation Service (SCS) as reasonable,
identifiable progress toward completion of the practice with respect to
which cost-share payment is being made under the CRSC program;
(6) Conservation treatment means the combination of salinity
reduction practices that will provide the salinity control treatment
required to reduce seepage and improve irrigation water management in
order to achieve the projected salt load reductions indicated in the
applicable published USDA Salinity Control Report. Such treatment may
include replacement of incidental fish and wildlife values foregone as a
result of salinity control treatment applied by the participant under
the CRSC program.
(7) CRSC Contract means the contract including the salinity control
plan, entered into in writing between the local Agricultural
Stabilization and Conservation Committee (COC) and the participant which
sets forth the terms and conditions for participation in the CRSC
Program established in accordance with this part.
(8) Cost-effective means maximization of the CRSC Program on-farm
and offsite benefits at the least Federal cost per unit of salinity
reduction.
(9) Cost-share assistance means the providing of financial resources
to assist program participants in establishing conservation treatment
identified in participants' contracts;
(10) Cost-share rate means a fixed amount of cost-share funds paid
per unit for carrying out certain salinity reduction practices.
(11) Deputy Administrator means the FSA Deputy Administrator for
State and County Operations, or designee.
(12) Entity means an individual or group of individuals, Indian
tribe, partnership, firm, joint-stock company, corporation, association,
trust, estate, irrigation district/company, or other
[[Page 31]]
public or nonpublic entity (except federal agencies), and wherever
applicable, a State, a political subdivision of a State, or any agency
thereof;
(13) Fish and wildlife values foregone means incidental fish and
wildlife habitats that may be affected adversely by salinity reduction
practices applied by the program participant;
(14) Irrigation district/company means a group of individuals
(private or public) associated together in a locality, that has a vested
interested in the operation of an irrigation distribution system that
serve as a specific area. This definition includes irrigation districts,
mutual water companies or districts, water conservancy districts, canal
companies, and other similar entities;
(15) Lifespan means the period of time during which a salinity
reduction practice is expected to effectively achieve or provide the
results for which it was developed and implemented.
(16) Offsite benefits means those benefits which accrue downstream
as a result of reduced salinity concentrations in the Colorado River by
the salt load reductions achieved through implementation of the CRSC
Program and/or its constituent practices and treatments;
(17) On-farm benefits means those benefits which accrue on a farm
from improved irrigation systems and efficiencies, including reduced
production costs, reduced labor costs, reduced operation and maintenance
costs, and improved crop yields;
(18) Operation and Maintenance Agreement means the agreement entered
into between the COC and the participant which sets forth the terms and
conditions requiring the participant to use and maintain the salinity
reduction practices for their effective lifespans as set forth in the
agreement;
(19) Participant means any entity who has entered into an approved
CRSC Contract with the COC to participate in the CRSC Program;
(20) Project implementation plan means a plan of operations
developed by Farm Service Agency, Extension Service and Soil
Conservation Service, in consultation with local officials for the
purpose of implementing a project plan for a specific salt source area;
(21) Project plan means that plan of conservation treatment that is
identified in the applicable USDA Salinity Control Report as the
preferred plan for implementation of salinity reduction practices in a
specific salt source area. The project plan will identify cost-effective
salinity reduction practices, the land which should receive conservation
treatment on a priority basis in relation to other land in the specific
salt source area, and the levels of conservation treatment needed in the
specific salt source area in order to achieve the most cost-effective
salinity control objectives for the particular area to be achieved;
(22) Salinity control plan means the plan and schedule of operations
that sets forth salinity reduction practices that must be establish on a
specific unit of land. The salinity control plan shall be developed by
the applicant with assistance from the SCS and must be approved by the
CD;
(23) Salinity Reduction Practice (SRP) means a specific conservation
practice designed to reduce salt loading from a salt source area or to
replace incidental fish and wildlife values foregone that is identified
in a project plan and project implementation plan for a salt-source
area;
(24) Salt-source area means a geographical area within the Colorado
River Basin that has been identified by SCS as a significant
contributing source of salt to the Colorado River;
(25) Specifications means minimum quantity and quality requirements
established by SCS to meet the standard for a specific conservation
practice;
(26) State Conservationist means the SCS official in charge of
agency operations within a state, as set forth in part 600 of this
chapter;
(27) Technical assistance means use of personnel and financial
resources to identify salt-source areas, develop project plans, prepare
salinity control plans, contracts, and designs, supervise plan
installation, and carry out research, demonstration, education,
monitoring, and evaluation activities;
(28) USDA Salinity Control Report means a report that identifies
salt source areas in the Colorado River Basin and establishes a cost-
effective project plan for such areas designed to
[[Page 32]]
reduce the salinity levels in the Colorado River. The USDA Salinity
Control Report is prepared and published by the Soil Conservation
Service with provision for public comment;
(29) Technical guide means a document on file in the local SCS
office containing technical information and specifications for the
conservation of soil, water, plant, animal, and related natural
resources specifically applicable to the area for which it is prepared.
(b) In the regulations in this part and in all instructions, forms,
and documents in connection therewith, all other words and phrases
shall, unless the context of subject matter otherwise requires, have the
meanings assigned to them in the regulations governing reconstitutions
of farms, allotments and bases, 7 CFR part 719.
[52 FR 16741, May 5, 1987, as amended at 58 FR 11785, Mar. 1, 1993]
Sec. 702.3 Administration.
(a) Farm Service Agency. (1) The Farm Service Agency (FSA), under
the general supervision of the Administrator, FSA, shall administer the
program established by this part. This program shall be carried out in
the field by State ASC committees (STC) and local county ASC committees
(COC).
(2) Except as provided in paragraph (b) of this section, the Deputy
Administrator, State and County Operations, FSA (Deputy Administrator),
may determine any question arising under the program provided for in
this part, may reverse or modify any determination made by an STC or COC
in connection with this program, and may administer any and all phases
of this program delegated to the COC, STC, or any employee(s) where the
COC, STC, or any employee fails to perform a function required in these
regulations. In exercising this authority, the Deputy Administrator may
authorize a person or persons to carry out this program for such period
of time as is deemed necessary.
(b) Soil Conservation Service. (1) The Soil Conservation Service
(SCS) shall:
(i) Identify salt source areas in the Colorado River Basin;
(ii) Develop USDA Salinity Control Reports;
(iii) Assist participants in developing salinity control plans; and
(iv) Provide such other technical assistance in the implementation
of the CRSC Program as is determined to be necessary.
(2) The Chief, SCS, may determine any question arising under the
CRSC Program with respect to the activities of SCS, State
Conservationists, and conservation districts.
(3) In developing the USDA Salinity Control Report and implementing
the project plan, SCS shall coordinate with other agencies of the U.S.
Department of Agriculture, the United States Department of the Interior,
and the Environmental Protection Agency.
(c) The Extension Service (ES) shall develop and coordinate
information and educational programs and may provide other technical
support to carry out the program provided for by this part.
(d) Other USDA agencies such as Cooperative State Research Service
(CSRS) and the Agricultural Research Service (ARS) may conduct research
and may provide other technical support needed to carry out the CRSC
Program.
Sec. 702.4 Applicability.
(a) The provision of this part shall be applicable to areas within
the Colorado River Basin that have been identified by SCS as salt source
areas.
(b) The program provided for by this part shall be applicable to
private lands, Indian tribal lands, lands owned or controlled by
irrigation districts or companies, Federal land under the control of the
USDA, and State and local government lands.
Sec. 702.5 Eligible land.
For the purposes of this part, eligible land is land that is within
the Colorado River Basin area which:
(a) Has been identified by SCS as a salt source area;
(b) Is the subject of a published USDA Salinity Control Report and
an approved project implementation plan;
(c) Has been irrigated at least two years during the period between
1982 and 1986, inclusive; and
(d) Notwithstanding the criteria articulated in paragraphs (a)
through (c)
[[Page 33]]
of this section, the Deputy Administrator has final authority to approve
land for CRSC program eligibility if one of the following conditions is
satisfied:
(1) If it is determined impossible to reorganize the existing
irrigation system to increase irrigation efficiencies to obtain salt
load reduction, irrigated land may be exchanged for nonirrigated land.
(2) Nonirrigated wildlife areas devoted to replacing incidental fish
and wildlife values foregone because of the CRSC program.
(3) Incidental land, which in the course of improving or
reorganizing the existing irrigation system, becomes irrigable.
[52 FR 16741, May 5, 1987, as amended at 58 FR 11785, Mar. 1, 1993]
Sec. 702.6 Eligible entity.
In order to be eligible to enter into a CRSC Contract, an entity
must own or have control over eligible land.
Sec. 702.7 Salinity control plan.
(a) The applicant, in consultation with SCS, shall develop the
salinity control plan which is the most cost-effective consistent with
the project plan.
(b) All salinity control plans must be approved by the CD in order
for the SRP's contained therein to be eligible for cost-share
assistance.
(c) When approving salinity control plans, the CD shall ensure that
the salinity control plan is consistent with the approved project plan
and cost-effective SRP's identified in the approved project
implementation plan for the area.
Sec. 702.8 Eligible salinity reduction practices (SRP's).
(a) Eligible SRP's are those practices specified in the project
implementation plan and the participant's salinity control plan that:
(1) Significantly reduce the salt loading from a unit of land; or
(2) Replace incidental fish and wildlife values foregone; or
(3) Reduce erosion or seepage to a degree which significantly
benefits salinity control.
(b) Notwithstanding the foregoing provisions of this section, the
following practices shall not be considered to be eligible SRP's:
(1) Practices installed primarily for the purpose of bringing
additional land into production, for increasing production above that
which is incidental to application of conservation treatment for
salinity control, or for flood protection; and
(2) Practices which are installed or commenced before the contract
for cost-share assistance has been approved.
Sec. 702.9 CRSC Contract and obligations of the participant.
(a) In order to receive cost-share assistance in accordance with
this part, an eligible entity must enter into a CRSC Contract with a COC
and, if required by the COC, enter into separate operation and
maintenance agreements in accordance with Sec. 702.10 of this part.
(b) The CRSC Contract will be comprised of:
(1) The terms and conditions of the contract; and
(2) The salinity control plan.
(c) All CRSC Contracts shall have a term of not less than 3 nor more
than 10 years.
(d) Eligible entities may offer to enter into a CRSC Contract in
accordance with this part through the COC located in the same county as
the eligible land or such other COC designated to administer contracts
in the project area.
(e) By entering into a CRSC Contract, the participant agrees to:
(1) Carry out the terms and conditions of the CRSC Contract;
(2) Implement the salinity control plan:
(i) In accordance with the schedule of completion dates included in
such plan, unless an extension of time is granted by the COC in
consultation with the CD; and
(ii) Install all SRP's included in the salinity control plan in
accordance with the SCS field office technical guide, regardless of
whether the applicant receives cost-share assistance with respect to a
SRP;
(3) Acquire all authorities, rights, easements, permits or other
approvals
[[Page 34]]
necessary to install and maintain the SRP's and for compliance with
applicable Federal, State, and local laws and regulations;
(4) Hold the Federal government harmless for any losses it may
sustain if the participant infringes on the rights of others or fails to
comply with applicable Federal, State, or local laws or regulations;
(5) Operate and maintain, at no cost to the Federal government, the
SRP's as specified in the salinity control plan and ACP-245, Practice
Approval and Payment Application, or as specified in separate operation
and maintenance agreements entered into by the participant for the
effective lifespan of the SRP's, as determined by SCS; and
(6) Not undertake any action on the land subject to the CRSC
Contract that tends to defeat the purposes of the program provided for
by this part.
(f) All entities who have a present possessory interest in the land,
to be eligible for CRSC cost share, must sign a CRSC contract.
(g) The participant and each entity signing the CRSC Contract shall
be jointly and severally responsible for compliance with the contract
and the provisions of this part and for any refunds or payments which
may be required for violation of any of the terms and conditions of the
CRSC Contract and the provisions of this part.
(h) The CRSC contract may require that all participants and/or
landowners, as a condition of eligibility for cost-share assistance,
grant to the Secretary a recordable security interest in the property or
equipment of the SRP's that are installed, with the value of the granted
interest to be determined by FSA.
(i) The Deputy Administrator, or the Deputy Administrator's
designee, may, in consultation with SCS and the CD, accept or reject
offers to enter into a CRSC Contract.
(j) CRSC Contracts shall be implemented, and salinity control plans
shall be developed, in the order of priority within the applicable salt
source area that is established by the COC and CD in consultation with
SCS.
[52 FR 16741, May 5, 1987, as amended at 58 FR 11785, Mar. 1, 1993]
Sec. 702.10 Operation and maintenance agreements.
(a) The participant shall enter into with the COC any operation and
maintenance agreements determined to be necessary by the COC in order to
ensure proper operation and maintenance of the SRP's provided for in the
CRSC Contract.
(b) The operation and maintenance agreement will be comprised of:
(1) The terms and conditions of the agreement; and
(2) An operation and maintenance plan prepared by SCS.
(c) By entering in an operation and maintenance agreement, the
participant agrees to:
(1) Carry out the terms and conditions of the operation and
maintenance agreement;
(2) Operate and maintain, at no cost to the Federal government, the
SRP's for the effective lifespan of all SRP's included in the operation
and maintenance agreement;
(3) Operate, maintain and inspect the SRP's in accordance with the
operation and maintenance plan;
(4) Obtain prior COC and SCS approval of all plans, designs, and
specifications for any alteration to the SRP's;
(5) Prohibit the installation of any structure or facility that will
interfere with the operation and maintenance of the SRP's;
(6) Notify the COC and SCS of any agreement to be entered into with
other parties for the operation and maintenance of all or part of SRP's
and provide the COC and SCS with a copy of such agreement when it has
been signed by the participant and the other party; and
(7) Not undertake any action on the land subject to the operation
and maintenance agreement that tends to defeat the purposes of the CRSC
program;
(d) The participant and each person signing the operation and
maintenance agreement shall be jointly and severally responsible for
compliance with the operation and maintenance agreement and the
provisions of this part and for any refunds or payment adjustments that
may be required for violation of any of the terms and conditions
[[Page 35]]
of the operation and maintenance agreement and provisions of this part.
Sec. 702.11 Obligations of USDA.
FSA shall, subject to the availability of funds, share the cost with
participants of establishing eligible SRP's specified in the salinity
control plan at the levels and rates of cost-sharing determined in
accordance with the provisions of Sec. 702.13 and SCS shall provide
such technical assistance as may be necessary to assist the participant
in carrying out the CRSC Contract.
Sec. 702.12 Availability of cost-share payments.
(a) Cost-share payments shall be made available to a participant in
a CRSC Contract upon a determination by the COC that SCS has certified
that the eligible SRP or an identifiable portion thereof has been
established in accordance with the appropriate standards and
specifications and that such SRP would serve the functional purposes for
which the practice is intended.
(b) Cost-share payments may be made available under this part only
for the establishment or installation of an eligible SRP.
(c) Cost-share assistance may be approved for the replacement,
enlargement, or restoration of SRP's installed under a CRSC Contract if
such practices, as originally installed, failed to achieve the desired
salinity reduction and if:
(1) The replacement, enlargement, or restoration of the SRP is
required to solve identified problems or to achieve salt reduction
benefits;
(2) The approved specifications for the SRP were met in the original
installation of the practice; and
(3) The failure of the SRP to solve the identified problem or to
achieve salt reduction benefits was caused by circumstances beyond the
control of the participant.
(d) If a participant has taken any action which tends to defeat the
purposes of the program provided for by this part, the COC may withhold
or require a refund of all or part of any payments otherwise due or paid
that participant in accordance with this part. Such actions include, but
are not limited to, failure to properly maintain or deliberately
destroying a SRP.
Sec. 702.13 Levels and rates of cost-share payments.
(a) The level of Federal cost-share assistance for the required
SRP's for the project shall be determined by formulas as established in
the USDA Salinity Control Report.
(b) Except as provided in paragraph (c) of this section, cost-share
payments shall not exceed the lesser of 70 percent of the average cost
or 70 percent of the actual cost of the installation of the SRP.
(c) The Deputy Administrator, in consultation with the USDA Salinity
Control Coordinating Committee, may approve cost-share levels in excess
of 70 percent of the average or actual cost of installation of the SRP
or in excess of the level based on the ratio of on-farm and offsite
benefits if such increased assistance is necessary to obtain acceptable
program participation. Higher cost-share levels shall be considered only
when one or more of the following apply, unless the Secretary finds at
his descretion that such cost-sharing requirement would result in a
failure to proceed with needed on-farm measures:
(1) On-farm benefits that are low relative to offsite benefits;
(2) Higher degree of project cost-effectiveness and magnitude of
salinity reduction benefits to be achieved relative to other projects;
(3) The need for and the cost of implementing voluntary SRP's to
replace incidental fish and wildlife values foregone;
(d) The combined cost-share assistance provided by Federal, State,
and local governments or subdivisions thereof shall not exceed 100
percent of the cost of installing the SRP.
[52 FR 16741, May 5, 1987, as amended at 58 FR 11786, Mar. 1, 1993]
Sec. 702.14 Assignments.
Any participant entitled to cost-share payments under this program
may assign the right to receive such payment, in whole or in part, as
provided in the regulations at 7 CFR part 709, Assignment of Payment, or
as provided in instructions issued by the Deputy Administrator.
[[Page 36]]
Sec. 702.15 Payments not subject to claims.
Subject to the regulations found at 7 CFR part 13, any cost-share
payment or portion thereof due any entity shall be allowed without
regard to questions of title under State law, and without regard to any
claim or lien against the practice in favor of the owner or any other
creditor, except agencies of the United States Government.
Sec. 702.16 Maximum amount of cost-share payments.
(a) Maximum payments for on-farm SRP's.
(1) Except as provided in paragraph (a)(2) of this section, the
maximum amount of cost-share payments that a COC may approve for the
establishment of on-farm SRP's on all land owned or controlled by a
participant for the life of the program provided for by this part shall
not exceed $100,000.
(2) The Deputy Administrator may approve cost-share payments to a
participant for the establishment of on-farm SRP's in excess of
$100,000.
(b) Except as provided in paragraphs (b)(1) and (b)(2) of this
section, the maximum program cost-share payment that a COC may approve
for implementing required SRP's for installing and improving canals and
laterals on all land owned and controlled by a participant for the life
of the program shall not exceed $200,000.
(1) Upon the request of the COC, the STC may authorize the COC to
approve cost-share payments to a participant for the establishment of
canal and lateral improvements in an amount that exceeds, $200,000 but
not greater than $400,000.
(2) Upon the request of the COC, the Deputy Administrator may
authorize the COC to approve cost-share payments to a participant for
the establishment of canal and laterals improvements in amounts
exceeding $400,000.
(c) Cost-sharing payments in excess of $100,000 shall be considered
only when such payment will result in greater total offsite benefits,
because the offsite benefits for the participants SCP, are greater than
those of other participants under consideration at the same time and one
or more of the following conditions exist:
(1) The cost of establishing required SRP's on the participant's
land is high relative to the cost of installing practices on other
similar land because of barriers or limitations imposed by nature or by
man through past irrigation system practices;
(2) The extent of SRP's that must be established on a participant's
land; and
(3) Increases in the cost of conservation materials and services
that are beyond the participant's control.
Sec. 702.17 Transfers of land and contract modifications.
(a) CRSC Contracts may be transferrred or modified with the
agreement of all parties to the contract. The transferee shall assume
full responsibility for performance under the CRSC Contract, including
the implementation of scheduled SRP's and the operation and maintenance
of existing and scheduled SRP's.
(b) A participant who sells or loses control of the land under a
CRSC Contract or any related operation and maintenance agreement to a
new owner who refuses to perform the provisions of the CRSC Contract or
operation and maintenance agreement or a participant who sells the water
rights before there is compliance with all of the terms and conditions
of a CRSC Contract or operation and maintenance agreement may be
required to refund all or a portion of the cost-share assistance earned
under the program.
Sec. 702.18 Violations.
(a)(1) If a participant violates the CRSC Contract or any related
operations and maintenance agreement, the COC may, after considering the
recommendations of the CD and SCS, terminate the CRSC Contract and
operation and maintenance agreement.
(2) If the CRSC Contract is terminated by the COC in accordance with
this section, the participant shall forfeit all rights to further cost-
share payments under the CRSC Contract and shall refund all or part of
the payments received as determined by the COC.
(b) The following actions constitute a violation of the CRSC
Contract or any related operation and maintenance agreement by a
participant:
[[Page 37]]
(1) Destruction of a SRP on land which is the subject of a CRSC
Contract, unless prior approval in writing is granted by FSA with SCS
concurrence;
(2) Failure to comply with the terms and conditions of the CRSC
Contract and any related operation and maintenance agreements;
(3) Filing of a false claim;
(4) Undertaking any action during the CRSC Contract or any operation
and maintenance agreement period that tends to defeat the purpose of the
program, including the destruction of any existing conservation
practices that were established under any other cost-share program
unless the participant provides evidence that all of the participant's
obligations under such other program have been met; or
(5) Employment of any scheme or device to obtain cost-share
assistance or additional cost-share assistance, or to deprive any other
land user of cost-share assistance or the right to participate in the
program.
(c) The Deputy Administrator may terminate any CRSC Contract and any
related operation and maintenance agreements by mutual agreement with
the paticipant based upon recommendations from COC, STC, SCS, and CD, if
the termination of the CRSC Contract and operation and maintenance
agreement is determined to be in the best interest of the public.
(d) If the participant fails to perform the terms and conditions of
the CRSC contract and the Deputy Administrator determines, after
considering the recommendations of the CD and SCS, that such failure
does not warrant termination of the CRSC contract, the Deputy
Administrator may require such participant to refund all or part of the
payments received under the CRSC contract, or to accept such adjustments
in the payment as are determined to be appropriate by the Deputy
Administrator.
[52 FR 16741, May 5, 1987, as amended at 58 FR 11786, Mar. 1, 1993]
Sec. 702.19 CRSC Contracts and operation and maintenance agreements
not in conformity with regulations.
If, after a CRSC Contract and related operation and maintenance
agreement are entered in by the COC with a participant, it is discovered
that such contract and operation and maintenance agreement are not in
conformity with the provisions of this part as the result of a
misunderstanding of the program procedures by a signatory to the
contract and operation and maintenance agreement, a modification of the
contract and operation and maintenance agreement may be made by mutual
agreement. If the parties to the CRSC Contract and operation and
maintenance agreement cannot reach agreement with respect to such
modification, the contract and operation and maintenance agreement shall
be terminated and all payments paid or payable under the contract shall
be forfeited or refunded to the Federal government, except as may
otherwise be allowed in accordance with the provisions of Sec. 702.18
of this part.
Sec. 702.20 Appeals.
The participant may obtain a review, in accordance with the
provisions of 7 CFR part 614 and 7 CFR part 11, of any administrative
decision made under the provisions of this part.
[60 FR 67316, Dec. 29, 1995]
Sec. 702.21 Access to land.
The COC, SCS or other agency providing technical services or
representatives thereof shall have the right of access to land for which
application to enter into a CRSC Contract has been made or for which a
CRSC Contract has been entered into and the right to examine any program
records to ascertain the accuracy of any representation made in the
application or to determine compliance with the contract.
Sec. 702.22 Performance based upon advice or action of representatives
of the Department or a CD.
Notwithstanding any other provision of law, performance rendered in
good faith in reliance upon the action or advice of any authorized
representative of a CD, a representative of SCS or the STC or COC may be
accepted by the Chief of SCS or the Deputy Administrator, as applicable,
as meeting the requirements of this program. SCS or the Deputy
Administrator, respectively, may grant relief because of such good
[[Page 38]]
faith reliance to the extent it is deemed necessary to provide fair and
equitable treatment.
Sec. 702.23 Filing of false claims.
(a) If it is determined by the COC, with STC concurrence, that any
participant has knowingly submitted false information or filed a false
claim, such participant shall be ineligible for payments under the
provisions of this part with respect to the calendar year in which the
false information or claim was filed.
(b) False information or false claims include a claim for payment
for a SRP not carried out or for the establishment of SRP's which do not
meet the required specifications. Any amounts paid under these
circumstances shall be refunded and any amounts otherwise due the
participant shall be withheld. The withholding or refunding of such
payments will be in addition to any other penalty or liability otherwise
imposed by law.
Sec. 702.24 Depriving others of payments.
If the COC with STC concurrence finds that any participant has
employed any scheme or device to deprive any other person of payments
under this part, it may withhold or require a refund of all or part of
any program payment otherwise due or paid that person in accordance with
the CRSC Contract. A scheme or device includes, but is not limited to,
coercion, fraud, or misrepresentation.
Sec. 702.25 Miscellaneous.
(a) In accordance with the regulations set forth at 7 CFR part 796:
(1) No payment shall be made to any participant who harvests or
knowingly permits to be harvested for illegal use, marihuana or other
such prohibited drug-producing plants on any part of the lands owned or
controlled by such participants; and
(2) Any participant who is convicted under Federal or State law of
planting, cultivating, growing, producing, harvesting, or storing a
controlled substance in any crop year shall be ineligible for any
payments under this part during that crop year and the four (4)
succeeding crop years.
(b) In case of death, incompetency, or disappearance of any
participant, any cost-share payment due shall be paid to the
participant's successor in accordance with provisions of 7 CFR part 707.
Sec. 702.26 Paperwork Reduction Act assigned numbers.
The Office of Management and Budget has approved the information
collection requirements contained in these regulations under the
provisions of 44 U.S.C. Chapter 33 and OMB number 0560-0128 has been
assigned.
PART 707_PAYMENTS DUE PERSONS WHO HAVE DIED, DISAPPEARED, OR HAVE BEEN
DECLARED INCOMPETENT--Table of Contents
Sec.
707.1 Applicability.
707.2 Definitions.
707.3 Death.
707.4 Disappearance.
707.5 Incompetency.
707.6 Death, disappearance, or incompetency of one eligible to apply for
payment pursuant to the regulations in this part.
707.7 Form of application.
Authority: 54 Stat. 728, as amended, sec. 121, 70 Stat. 197, sec.
375, 52 Stat. 66, as amended, sec. 124(i), 75 Stat. 300, sec. 307(h), 76
Stat. 617, sec. 318, 76 Stat. 622, sec. 324(2), 76 Stat. 630, sec. 704,
68 Stat. 911, secs. 4, 8(b), 49 Stat. 164, 1149, as amended, sec.
101(4), 76 Stat. 606, sec. 3, 77 Stat. 45, sec. 4, 62 Stat. 1070; 5
U.S.C. 301, 7 U.S.C. 1334 note, 1339, 1375, 1379j, 1385, 1783, 1809; 16
U.S.C. 590d, 590h(b), 590(e), 590p(h), 15 U.S.C. 714b(d)(j)(k).
Source: 30 FR 6246, May 5, 1965, unless otherwise noted.
Sec. 707.1 Applicability.
This part applies to all programs in title 7 of the Code of Federal
Regulations which are administered by the Farm Service Agency under
which payments are made to eligible program participants. This part also
applies to all other programs to which this part is applicable by the
individual program regulations.
Sec. 707.2 Definitions.
``Person'' when relating to one who dies, disappears, or becomes
incompetent, prior to receiving payment,
[[Page 39]]
means a person who has earned a payment in whole or in part pursuant to
any of the programs to which this part is applicable. ``Children'' shall
include legally adopted children who shall be entitled to share in any
payment in the same manner and to the same extent as legitimate children
of natural parents. ``Brother'' or ``sister'', when relating to one who,
pursuant to the regulations in this part, is eligible to apply for the
payment which is due a person who dies, disappears, or becomes
incompetent prior to the receipt of such payment, shall include brothers
and sisters of the half blood who shall be considered the same as
brothers and sisters of the whole blood. ``Payment'' means a payment by
draft, check or certificate pursuant to any of the Programs to which
this part is applicable. Payments shall not be considered received for
the purposes of this part until such draft, check or certificate has
been negotiated or used.
Sec. 707.3 Death.
(a) Where any person who is otherwise eligible to receive a payment
dies before the payment is received, payment may be made upon proper
application therefor, without regard to claims of creditors other than
the United States, in accordance with the following order of precedence:
(1) To the administrator or executor of the deceased person's
estate.
(2) To the surviving spouse, if there is no administrator or
executor and none is expected to be appointed, or if an administrator or
executor was appointed but the administration of the estate is closed
(i) prior to application by the administrator or executor for such
payment or (ii) prior to the time when a check, draft, or certificate
issued for such payment to the administrator or executor is negotiated
or used.
(3) If there is no surviving spouse, to the sons and daughters in
equal shares. Children of a deceased son or daughter of a deceased
person shall be entitled to their parent's share of the payment, share
and share alike. If there are no surviving direct descendants of a
deceased son or daughter of such deceased person, the share of the
payment which otherwise would have been made to such son or daughter
shall be divided equally among the surviving sons and daughters of such
deceased person and the estates of any deceased sons or daughters where
there are surviving direct descendants.
(4) If there is no surviving spouse and no direct descendant,
payment shall be made to the father and mother of the deceased person in
equal shares, or the whole thereof to the surviving father or mother.
(5) If there is no surviving spouse, no direct descendant, and no
surviving parent, payment shall be made to the brothers and sisters of
the deceased person in equal shares. Children of a deceased brother or
sister shall be entitled to their parent's share of the payment, share
and share alike. If there are no surviving direct descendants of the
deceased brother or sister of such deceased person, the share of the
payment which otherwise would have been made to such brother or sister
shall be divided equally among the surviving brothers and sisters of
such deceased person and the estates of any deceased brothers or sisters
where there are surviving direct descendants.
(6) If there is no surviving spouse, direct descendant, parent, or
brothers or sisters or their descendants, the payment shall be made to
the heirs-at-law in accordance with the law of the State of domicile of
the deceased person.
(b) If any person who is entitled to payment under the above order
of prec edence is a minor, payment of his share shall be made to his
legal guardian, but if no legal guardian has been appointed payment
shall be made to his natural guardian or custodian for his benefit,
unless the minor's share of the payment exceeds $1,000, in which event
payment shall be made only to his legal guardian.
(c) Any payment which the deceased person could have received may be
made jointly to the persons found to be entitled to such payment or
shares thereof under this section or, pursuant to instructions issued by
the Farm Service Agency, a separate payment may be issued to each person
entitled to share in such payment.
[[Page 40]]
Sec. 707.4 Disappearance.
(a) In case any person otherwise eligible to receive payment
disappears before receiving the payment, such payment may be made upon
proper application therefor, without regard to claims of creditors other
than the United States, to one of the following in the order mentioned:
(1) The conservator or liquidator of his estate, if one be duly
appointed.
(2) The spouse.
(3) An adult son or daughter or grandchild for the benefit of his
estate.
(4) The mother or father for the benefit of his estate.
(5) An adult brother or sister for the benefit of his estate.
(6) Such person as may be authorized under State law to receive
payment for the benefit of his estate.
(b) A person shall be deemed to have disappeared if (1) he has been
missing for a period of more than 3 months, (2) a diligent search has
failed to reveal his whereabouts, and (3) such person has not
communicated during such period with other persons who would be expected
to have heard from him. Evidence of such disappearance must be presented
to the county committee in the form of a statement executed by the
person making the application for payment, setting forth the above
facts, and must be substantiated by a statement from a disinterested
person who was well acquainted with the person who has disappeared.
Sec. 707.5 Incompetency.
(a) Where any person who is otherwise eligible to receive a payment
is adjudged incompetent by a court of competent jurisdiction before the
payment is received, payment may be made, upon proper application
therefor, without regard to claims of creditors other than the United
States, to the guardian or committee legally appointed for such
incompetent person. In case no guardian or committee has been appointed,
payment, if not more than $1,000, may be made without regard to claims
of creditors other than the United States, to one of the following in
the order mentioned for the benefit of the incompetent person:
(1) The spouse.
(2) An adult son, daughter, or grandchild.
(3) The mother or father.
(4) An adult brother or sister.
(5) Such person as may be authorized under State law to receive
payment for him (see standard procedure prescribed for the respective
region).
(b) In case payment is more than $1,000, payment may be made only to
such person as may be authorized under State law to receive payment for
the incompetent.
Sec. 707.6 Death, disappearance, or incompetency of one eligible to
apply for payment pursuant to the regulations in this part.
In case any person entitled to apply for a payment pursuant to the
provisions of Sec. 707.3, Sec. 707.4, Sec. 707.5, or this section,
dies, disappears, or is adjudged incompetent, as the case may be, after
he has applied for such payment but before the payment is received,
payment may be made upon proper application therefor, without regard to
claims of creditors other than the United States, to the person next
entitled thereto in accordance with the order of precedence set forth in
Sec. 707.3, Sec. 707.4, or Sec. 707.5, as the case may be.
Sec. 707.7 Form of application.
Persons desiring to claim payment in accordance with this part 707
may do so on Form FSA-325, ``Application for Payment of Amounts Due
Persons Who Have Died, Disappeared, or Have Been Declared Incompetent''.
If the person who died, disappeared, or was declared incompetent did not
apply for payment by filing the applicable program application for
payment form, such program application for payment must also be filed in
accordance with applicable regulations. If the payment is made under the
Naval Stores Conservation Program, Part II of the Form FSA-325 shall be
executed by the local District Supervisor of the U.S. Forest Service. In
connection with applications for payment under all other programs
itemized in Sec. 707.1, Form FSA-325, and program applications for
payments where required, shall be filed with the FSA county office where
the person who earned the payment would have been required to file his
application.
[[Page 41]]
PART 708_RECORD RETENTION REQUIREMENTS_ALL PROGRAMS--Table of Contents
Authority: Sec. 4, 49 Stat. 164, secs. 7-17, 49 Stat. 1148, as
amended; 16 U.S.C. 590d, 590g-590q.
Sec. 708.1 Record retention period.
For the purposes of the programs in this chapter, no receipt,
invoice, or other record required to be retained by any agricultural
producer as evidence tending to show performance of a practice under any
such program needs to be retained by such producer more than two years
following the close of the program year of the program.
[25 FR 105, Jan. 7, 1960. Redesignated at 26 FR 5788, June 29, 1961]
[[Page 42]]
SUBCHAPTER B_FARM MARKETING QUOTAS, ACREAGE ALLOTMENTS, AND PRODUCTION
ADJUSTMENT
PART 711_MARKETING QUOTA REVIEW REGULATIONS--Table of Contents
General
Sec.
711.1 Effective date.
711.2 Expiration of time limitations.
711.3 Definitions.
711.4 Forms.
711.5 Public information.
Review Committee
711.6 Eligibility as member of a panel.
711.7 Appointment of members of a panel.
711.8 Oath of office.
711.9 Composition of review committee.
711.10 Term of office.
711.11 Compensation.
711.12 Effect of change in composition of review committee.
Jurisdiction
711.13 Areas of venue and jurisdiction.
Application for Review of Quota
711.14 Application for review.
711.15 Matters subject to review.
711.16 County committee answer.
711.17 Amendments.
Hearing and Determination
711.18 Place and schedule of hearing.
711.19 Notice of hearing.
711.20 Continuances.
711.21 Conduct of hearing.
711.22 Nonappearance of applicant.
711.23 Determination by review committee.
711.24 Service of determination.
711.25 Reopening of hearing.
711.26 Record of hearing.
Court Proceedings
711.27 Procedure in the case of court proceedings.
Puerto Rico
711.28 Special provisions applicable to Puerto Rico.
OMB Control Numbers
711.29 OMB control numbers assigned pursuant to the Paperwork Reduction
Act.
Authority: Secs. 301, 363-368, 371, 374, 375, 379, 52 Stat. 38, as
amended, 63-66, amended, 79 Stat. 1211, as amended; 7 U.S.C. 1301, 1363-
1368, 1371, 1374, 1375, 1379.
Source: 35 FR 15355, Oct. 2, 1970, unless otherwise noted.
General
Sec. 711.1 Effective date.
The Marketing Quota Review Regulations (26 FR 10204, 27 FR 4831,
6539, 28 FR 3913, 31 FR 4271, 5663, 32 FR 15704) shall remain in effect
and shall apply to all actions and proceedings taken prior to October
15, 1970, and such regulations are superseded as of midnight, October
14, 1970. The provisions of Sec. Sec. 711.1 to 711.50 are effective
October 15, 1970.
Sec. 711.2 Expiration of time limitations.
The provisions of part 720 of this chapter concerning the expiration
of time limitations shall apply to this part.
Sec. 711.3 Definitions.
(a) General terms. In determining the meaning of the provisions of
this part, unless the context indicates otherwise, words importing the
singular include and apply to several persons or things, words importing
the plural include the singular, words importing the masculine gender
include the feminine as well, and words used in the present tense
include the future as well as the present. The definitions in part 719
of this chapter shall apply to this part.
(b) Act. Act means the Agricultural Adjustment Act of 1938, and any
amendments or supplements thereto.
(c) Applicant. Applicant means the farmer who filed an application
for review of a farm marketing quota and if a hearing involves the quota
of a farm resulting from the reconstitution by division of a parent
farm, the farm operator of each farm resulting from such reconstitution
shall be considered an applicant for purposes of this part.
(d) Clerk. Clerk means the county executive director for the county
in which the application for review is filed unless another employee of
the county or State office is designated by the State executive director
to serve as clerk to the review committee.
(e) Review committee. Review committee means three farmers
designated
[[Page 43]]
to review a quota by the State executive director from the panel of
farmers appointed by the Secretary under section 363 of the Act.
(f) Quota. Quota means the farm marketing quota established under
the Act for a farm during a year in which quotas are approved in the
national referendum for a commodity, including any of the following
factors:
(1) Farm acreage allotment, farm marketing quota, and any
adjustments in such allotment and quota resulting from: (i) Program
violations; (ii) lease and transfer; (iii) sale and purchase; (iv)
overmarketing and undermarketing; (v) release and reapportionment; (vi)
eminent domain transactions; and (vii) forfeiture and reallocation.
(2) Farm preliminary yield, farm normal yield and farm yield.
(3) A determination of the land constituting a farm for which a farm
acreage allotment or farm marketing quota is established, including the
following: (i) Land devoted to nonagricultural use, (ii) land used for
agricultural purposes, (iii) cropland acreage; and (iv) tillable
cropland.
(4) Acreage planted to the commodity on the farm.
(5) Actual production for the farm.
(6) Farm marketing excess (acres or pounds).
(7) Marketing quota penalties, including but not limited to,
assessments for marketing quota violations involving: (i) False
identification, (ii) failure to account for production and disposition,
(iii) failure to file a report, and (iv) the filing of a false report.
(Secs. 301, 363-368, 371, 374, 375, 379, 52 Stat. 38 as amended, 63-64,
as amended, 66, as amended; 7 U.S.C. 1301, 1363-1368, 1375)
[35 FR 15355, Oct. 2, 1970, as amended by Amdt. 9, 45 FR 37398, June 3,
1980; 49 FR 38240, Sept. 28, 1984]
Sec. 711.4 Forms.
The following general forms, as revised from time to time, are
prescribed for use in connection with review proceedings;
(a) MQ-53 Application for Review of Farm Marketing Quota.
(b) MQ-54 Notice of Untimely Filing of Review Application.
(c) MQ-56 Notice of Hearing of Review Application.
(d) MQ-58 Determination of Review Committee Farm Marketing Quota.
(e) MQ-59 Oath of Review Committeeman.
Sec. 711.5 Public information.
The clerk shall maintain a record of applications and review
committee proceedings which shall be available at the office of the
clerk for public inspection and copying in accordance with part 798 of
this chapter.
Review Committee
Sec. 711.6 Eligibility as member of a panel.
Any farmer who meets the eligibility requirements for county
committeeman prescribed in the regulations in part 7 of subtitle A of
this title, as amended, in a county within the area of venue for which
he is to be appointed shall be eligible for appointment as a member of a
review committee panel for such area of venue. If the area of venue
consists of only one county or a part of a county, these eligibility
requirements must be met in such county or in a nearby county. No farmer
whose legal residence is in one State shall be eligible for appointment
as a member of a review committee panel for an area of venue in another
State.
Sec. 711.7 Appointment of members of a panel.
The Secretary shall appoint six or more eligible farmers to serve as
members of a review committee panel in each area of venue. Notice of
appointment shall be sent to the State committee, which shall notify the
farmers so appointed. Appointments may be made before, during, or after
the period in which applications for review of quotas are required to be
filed. Notwithstanding the foregoing, the Secretary shall have the
continuing power to revoke or suspend any appointment made pursuant to
the regulations in this part, and subject to the provisions of the act,
to make such other appointment deemed proper.
[[Page 44]]
Sec. 711.8 Oath of office.
Each farmer appointed to serve as a member of a review committee
panel shall, as soon as possible after appointment, execute an oath of
office on such form as may be prescribed by the Deputy Administrator,
duly subscribed and sworn to or affirmed before a notary public. No
farmer shall serve on a review committee unless such oath of office has
been duly executed and filed with the State executive director or the
clerk. A farmer appointed for consecutive terms to serve as a member of
a review committee panel shall not be required to file a new oath of
office after the original filing. If the form of oath of office is
materially changed, a new oath of office shall be executed if required
by the Deputy Administrator.
Sec. 711.9 Composition of review committee.
(a) Three designated members from the panel constitute a review
committee. Three members from the panel shall act as a review committee
to hear applications for review for the prescribed area of venue. The
State executive director shall designate from the panel of members for
the prescribed area of venue three members who shall act as a review
committee to hear specific applications and shall designate one of these
three members as chairman of the review committee and another member as
vice-chairman. Where the number of applications pending require two or
more review committees for prompt disposition of such applications, the
State executive director shall designate the members of each review
committee, the chairman and vice chairman thereof, and the specific
application to be heard by each review committee. Two or more review
committees may hear applications concurrently in an area of venue. In
the absence of the chairman, the vice chairman shall perform the duties
and exercise the powers of the chairman. The State executive director
shall notify members of each review committee of the schedule of
hearings. No member shall serve in any case in which a quota will be
reviewed for a farm in which such member, any of his relatives or
business associates, is interested, nor shall any member serve where he
had acted as State, county, or community committee member on a quota to
be reviewed by the review committee.
(b) Only two members present to commence hearing. Where only two
members of a review committee are present to commence a hearing,
although three members were scheduled to hear the application, at the
request of or with the consent of the applicant in writing, a hearing
conducted by two members of the review committee shall be deemed to be a
regular hearing of the review committee as to such application. The
determination made by such members shall constitute the determination of
the review committee. In the event such members cannot agree upon a
determination, such fact shall be set forth in writing and a new hearing
scheduled by the State executive director. If the applicant does not
consent in writing to a hearing conducted by two members of the review
committee, the hearing shall be rescheduled.
(c) Only two members remain to complete a hearing. Where only two
members of a review committee remain to complete a hearing commenced
with three members, due to serious illness, death, or other cause which
prevents one of the members from completing the hearing within a
reasonable time, at the request or with the consent of the applicant in
writing, the remaining two members of the review committee shall
henceforth constitute an entire review committee for the purpose of such
hearing. In the event such members cannot agree upon a determination,
such fact shall be set forth in writing and a new hearing scheduled by
the State executive director. If the applicant does not consent in
writing to completion of the hearing by two members of the review
committee, the hearing shall be rescheduled.
(d) Reopened or remanded hearings. In the case of a reopened or
remanded hearing, if any member of the review committee is no longer in
office because of death, resignation, or ineligibility, the State
executive director shall designate another member of the review
committee panel to serve on the review committee. If a hearing held
pursuant to paragraph (b) or (c) of this section is reopened or remanded
and
[[Page 45]]
only one review committee member is available to hear such reopened or
remanded hearing, the State executive director shall designate two
additional members from the review committee panel to serve on the
review committee.
Sec. 711.10 Term of office.
Appointment as a member of a review committee panel shall be for a
term of 3 calendar years. A member may be reappointed for succeeding
terms. Notwithstanding the foregoing, a review committee shall continue
in office to conclude hearings before it which are begun during such 3-
year term and make final determinations thereof, or to hold a reopened
hearing, or to conclude a hearing remanded to it by a court.
[Amdt. 3, 38 FR 967, Jan. 8, 1973]
Sec. 711.11 Compensation.
The members designated as review committeemen shall receive
compensation when serving at the same rate as that received by the
members of the county committee which established the quotas sought to
be reviewed. No member of a review committee shall be entitled to
receive compensation for services as such member for more than 30 days
in any one year. Payment of compensation, reimbursement for travel
expenses and rates therefor, shall be made under such conditions as may
be prescribed by the Deputy Administrator.
Sec. 711.12 Effect of change in composition of review committee.
Nothing contained in Sec. Sec. 711.6 to 711.11 relating to any
vacancy or revocation or suspension of appointment and nothing done
pursuant thereto shall be construed as affecting the validity of any
prior hearing conducted or determination made in accordance with the
regulations in this part, in which the member of the review committee
whose office has become vacant participated, or as affecting in any way
court proceeding which may be instituted to review such determination.
Jurisdiction
Sec. 711.13 Areas of venue and jurisdiction.
(a) Areas of venue. The State committee shall establish one or more
areas of venue in the State. An area of venue may consist of all or part
of a county, or more than one county within a State. In establishing
areas of venue, the State committee shall take into consideration the
requirements of section 363 of the Act as to eligibility of review
committee members, the prompt handling of applications for review,
transportation problems and the limit of 30-day service by review
committeemen in any one year.
(b) Jurisdiction. A review committee shall have jurisdiction within
the area of venue for which it is established to hear applications
respecting quotas established or denied by written notice issued by the
county committee or other authorized official for farms within its area
of venue, in accordance with this part.
(c) A listing of the areas of venue within a State shall be
available from the State FSA office and the Deputy Administrator.
[35 FR 15355, Oct. 2, 1970, as amended at 49 FR 38240, Sept. 28, 1984]
Application for Review of Quota
Sec. 711.14 Application for review.
(a) Manner and time of filing. Any farmer who is dissatisfied with
his quota may, within 15 days after the date of mailing to him of notice
of such quota, file a written application for review thereof by the
review committee. Such 15-day period is prescribed in accordance with
section 363 of the Act. Unless application for review is timely filed,
as determined under this section, the quota established by the notice
shall not be subject to review by the review committee. Notice of quota
subject to review under this part includes an official written notice as
to the land constituting the farm. For example, a notice denying a
request for farm reconstitution would be such a reviewable notice of
quota. An application shall be in writing and addressed to, and filed
with, the county executive director for the county from which the
[[Page 46]]
notice of quota was received. Any application (Form MQ-53 available on
request) whether made on Form MQ-53 or not, shall contain the following:
(1) Date of application and commodity (including type where
applicable, e.g. Upland cotton, Flue-cured tobacco).
(2) Correct full name and address of applicant.
(3) Brief statement of each ground upon which the application is
based.
(4) A statement of the amount of quota which it is claimed should
have been established.
(5) Signature of applicant.
In any case where an application is timely filed for review of a quota
on a farm which was reconstituted by division of a parent farm into two
or more farms, such application shall be considered an application for
review of the reconstitution of the parent farm. In any such case the
farm operator of each farm resulting from such reconstitution shall be
considered an applicant for purposes of this part with all the rights
and privileges provided in this part. If an action may be taken by an
applicant which affects the rights of any other applicant in the case,
the other applicants shall be given the opportunity to concur in such
action or to oppose such action.
(b) Procedure where application is not timely filed. The county
committee shall examine each application for review. If the application
is not filed within the prescribed 15-day period, the county executive
director shall send a notice of untimely filing on Form MQ-54 by
certified mail to the applicant at the address shown on the application.
The applicant may file a request in writing with the county executive
director within 15 days after the date of mailing such notice to him
requesting a review committee hearing on the sole issue of whether the
application was filed within the prescribed 15-day period. In the
absence of timely request in writing for such review committee hearing,
the application shall be deemed withdrawn by the applicant. If timely
request in writing for such review committee hearing is filed, a copy of
the application and request shall be forwarded by the county executive
director to the State executive director with a request that a hearing
on the sole issue of timely filing be scheduled before the review
committee. In cases involving the sole issue of timely filing of an
application, the review committee shall determine whether the date the
application was filed, or the postmark date in case of mailing by the
applicant, was within the 15-day period. If the review committee
determines that the application was timely filed, a hearing on the
merits of the application shall be held. In addition, a hearing on the
merits shall be conducted and the application treated as timely filed in
any case where the review committee determines that the applicant in
good faith requested review of his quota by the county or State
committee under the regulations in part 780 of this chapter in reliance
upon action or advice of any authorized representative of a county or
State committee and subsequently filed application for review under this
part within a reasonable time after he learns that the quota is subject
to review committee jurisdiction.
(c) Withdrawal of application. An application may be withdrawn upon
the written request of the applicant. Any application so withdrawn or
deemed withdrawn under paragraph (b) of this section shall be endorsed
by the clerk ``Dismissed by the applicant''.
(d) Procedure where application is timely filed. The county
committee shall examine each application for review and where an
application is found to be timely filed, the county executive director
shall forward a copy of the application to the State executive director
with a request that a hearing on the merits be scheduled before the
review committee.
Sec. 711.15 Matters subject to review.
In all cases, the review committee shall consider only such factors
as, under applicable provisions of law and regulations, are required or
permitted to be considered by the county committee in the establishment
of the quota being reviewed. The establishment of national marketing
quotas and apportionment of national acreage allotments and marketing
quotas among States and counties and the establishment of reserve
acreages and quotas at
[[Page 47]]
the national level and apportionment of such reserves among States and
counties are not subject to review by a review committee. Review of a
quota may include any of the factors which enter into the establishment
of such quota for the farm and crop year as set forth in Sec. 711.3(f):
Provided, however, That any factor of such quota considered by a review
committee in a prior determination for the farm and crop year shall not
be considered in a subsequent review proceeding. For example, a
determination of the farm acreage allotment by the review committee
would not be reconsidered upon any application for review of the farm
marketing excess for the same farm and crop year.
[49 FR 38240, Sept. 28, 1984]
Sec. 711.16 County committee answer.
(a) The county committee shall prepare a written answer to each
application scheduled for hearing setting forth the pertinent facts, the
applicable regulations, the data used in establishing the quota and any
other matters deemed pertinent:
(b) Provided, That the answer may be limited to the issue of timely
filing where the hearing is limited to that issue. If the county
committee determines that the increase, adjustment or other
determination requested in the application is proper in whole or in
part, the written answer shall set forth the proposed determination and
in such cases, the applicant shall be notified by the county committee
of such proposed determination prior to the scheduled review hearing if
practicable to do so. In the event the applicant is satisfied with the
proposed determination, the county committee shall, upon the withdrawal
of the application, take the necessary action to revise the quota within
the limits of the Act and applicable commodity regulations if the
required amount of acreage allotment or marketing quota is available in
the county. The State executive director may perform the functions of
the county committee under this section and the functions of the county
committee and county executive director under Sec. 711.14 (b) and (d)
in any case where the application for review involves a notice of farm
marketing quota issued by officials other than the county committee.
[35 FR 15355, Oct. 2, 1970, as amended at 49 FR 38240, Sept. 28, 1984]
Sec. 711.17 Amendments.
Upon due request, and within the discretion of the review committee,
the right to amend the application and all procedural documents in
connection with any hearing, shall be granted upon such reasonable terms
as the review committee may deem right and proper.
Hearing and Determination
Sec. 711.18 Place and schedule of hearing.
The place of hearing shall be in the office of the county committee
through which the quota sought to be reviewed was established, or such
other appropriate place in the county as may be designated by the State
executive director or by the review committee in cases arising under
Sec. 711.21: Provided, however, That the place of hearing may be in
some other county if agreed to in writing by the applicant. The State
executive director shall schedule applications for hearings and forward
such schedule to the clerk.
Sec. 711.19 Notice of hearing.
The clerk shall give written notice on Form MQ-56 to the applicant
by depositing such notice in the U.S. mail, certified and addressed to
the last known address of the applicant at least 10 days prior to the
time appointed for the hearing and copies of such notice shall also be
sent to the county committee and the State office. If the applicant
requests waiver of such 10-day period, the hearing may be scheduled
earlier upon consent of the other interested parties. The notice of the
hearing shall specify the time and place of the hearing, contain a
statement of the statutory authority for the hearing, state that the
application will be heard by the review committee duly appointed for the
area of venue in which the applicant's farm is located, and that a
verbatim transcript may be obtained by the applicant if he makes
arrangement therefor before the hearing and pays the expense thereof.
[[Page 48]]
Sec. 711.20 Continuances.
Hearings shall be held at the time and place set forth in the notice
of hearing or in any subsequent notice amending or superseding the prior
notice, but may without notice other than an announcement at the hearing
by the chairman of the review committee, be continued from day to day or
adjourned to a different place in the county or to a later date or to a
date and place to be fixed in a subsequent notice to be issued pursuant
to Sec. 711.19. In the event a full committee of three is not present,
those members present, or in the absence of the entire committee, the
clerk, shall postpone the hearing unless the hearing is held pursuant to
Sec. 711.9 (b) or (c). There shall not be a continuance for lack of a
full committee in the case of a reopened or remanded hearing where the
hearing was initially held pursuant to Sec. 711.9 (b) or (c) and the
two review committeemen who previously held the hearing are present and
eligible to serve.
Sec. 711.21 Conduct of hearing.
(a) Open to public. Except as otherwise provided in Sec. Sec. 711.1
to 711.50, each hearing shall take place before the entire review
committee and shall be presided over by the chairman of such committee.
The hearing shall be open to the public and shall be conducted in a fair
and impartial manner and in such a way as to afford the applicant,
members of the appropriate county and community committees, and
appropriate officers and agents of the Department of Agriculture, and
all persons appearing on behalf of such parties, reasonable opportunity
to give and produce evidence relevant to the quota being reviewed.
(b) Consolidation of hearings. Wherever practicable, two or more
applications relating to the same commodity and the same farm shall be
consolidated by the review committee on its own motion or at the request
of the State executive director and heard at the same time on the same
record. In any case involving two or more farms resulting from
reconstitution by division of a parent farm, the hearing shall be
consolidated.
(c) Representation. The applicant and the Secretary may be
represented at the hearing. The county committee shall be present or
represented at the hearing.
(d) Order of procedure. At the commencement of the hearing, the
chairman of the review committee shall read or cause to be read the
pertinent portions of the application for review. The written answer of
the county committee shall be submitted and shall be made a part of the
record of the hearing. If the applicant asserts and shows to the
satisfaction of the review committee that he has not been informed of
the county committee's position in time to afford him adequate
opportunity to prepare and present his case, the review committee shall
continue the hearing, without notice other than announcement thereof at
the hearing, for such period of time as will afford the applicant
reasonable opportunity to meet the issues of fact and law involved.
After answer by the county committee and following such continuance, if
any, as may be granted by the review committee, evidence shall be
received with respect to the matters relevant to the quota under review
in such order as the chairman of the review committee shall prescribe.
The review committee may take official notice of relevant publications
of the Department of Agriculture and regulations of the Secretary.
(e) Submission of evidence. The burden of proof shall be upon the
applicant as to all issues of fact raised by him. Each witness shall
testify under oath or affirmation administered by the member of the
review committee who is presiding at the hearing. The review committee
shall confine the evidence to pertinent matters and shall exclude
irrelevant, immaterial, or unduly repetitious evidence. Interested
persons shall be permitted to present oral and documentary evidence, to
submit rebuttal evidence and to conduct such cross-examination as may be
required for a full and true disclosure of the facts. The hearing shall
be concluded within such reasonable time as may be determined by the
review committee.
(f) Transcript of testimony. The review committee shall provide for
the taking of such notes including but not limited to stenographic
reports or recordings at the hearing as will enable it to make
[[Page 49]]
a summary of the proceedings and the testimony received at the hearing.
The testimony received at the hearing shall be reported verbatim by a
representative of a private firm under an existing Departmental contract
for such services if the review committee, the State Executive Director,
or the applicant, requests such transcript be made. If such transcript
is so requested, the State Executive Director shall advise the Deputy
Administrator, State and County Operations, prior to the hearing date
who will then arrange for the service. A copy of such transcript shall
be furnished to each of the following: The review committee, the State
Executive Director, and the Regional Attorney, Office of the General
Counsel, United States Department of Agriculture. The applicant or his
representative may obtain a copy from the firm at his own expense.
(g) Written arguments and proposed findings. The review committee
shall permit the applicant, the members of the appropriate county and
community committees, and appropriate officers and agents of the
Department of Agriculture to file written arguments and proposed
findings of fact and conclusions, based on the evidence adduced at the
hearing, for the consideration of the review committee within such
reasonable time after the conclusion of the hearing as may be prescribed
by the review committee. Such written arguments and proposed findings
shall be filed in triplicate with the clerk and an additional copy
thereof shall be provided to the other party.
[35 FR 15355, Oct. 2, 1970, as amended by Amdt. 5, 38 FR 16989, June 28,
1973]
Sec. 711.22 Nonappearance of applicant.
(a) Original hearing. If, at the time of the hearing, the applicant
is absent and no appearance is made on his behalf, the review committee
shall, after a lapse of such period of time as it may consider proper
and reasonable, have the name of the absent applicant called in the
hearing room. If, upon such call, there is no response, and no
appearance on behalf of such applicant and no continuance has been
requested by the applicant, the review committee shall thereupon close
the hearing, as to such applicant, and, without further proceedings in
the case, make a determination dismissing the application.
(b) Reopened or remanded hearing. If, at a hearing which is reopened
pursuant to Sec. 711.25 or remanded by a court, the applicant is absent
and no appearance is made on his behalf, the review committee shall
continue the hearing for a reasonable period of time and if the
applicant does not appear at such continued hearing, the review
committee shall make a determination.
Sec. 711.23 Determination by review committee.
As soon as practicable after hearing on an application, including a
hearing on the sole issue of timely filing, the review committee shall
make a determination upon the application. If it is determined by the
review committee that the application should be dismissed for untimely
filing or denied, the review committee shall so indicate. If it is
determined that the application should be granted in whole or in part,
the review committee shall establish the quota which it finds to be
proper. Each determination made by the review committee shall be in
writing, shall contain specific findings of fact and conclusions
together with the reasons or basis therefor, and shall be based upon and
made in accordance with reliable, probative, and substantial evidence
adduced at the hearing. The concurrence of two members of the review
committee shall be sufficient to make a determination. The written
determination shall contain such subscription by each member of the
review committee as will indicate his concurrence therein or his dissent
therefrom. In case of an increase in the quota, the review committee
shall specifically state in the determination in what respect, if any,
the county committee has failed properly to apply the act and
regulations thereunder. If such increase is based upon evidence not
available to the county committee, the findings of the review committee
shall so indicate. The appropriate county executive director shall make
available to the review committee such clerical and stenographic
assistance as may be required.
[[Page 50]]
Sec. 711.24 Service of determination.
A copy of the determination, certified by the clerk as a true and
correct copy of the signed original, shall be served upon the applicant
by sending the same by certified mail addressed to the applicant at his
last known address. The copy of the determination shall contain at the
top thereof substantially the following statement: ``To all persons who,
as operator, landlord, tenant, or sharecropper, are or will be
interested in the above-named commodity on the farm identified below in
the year for which the marketing quota being reviewed is established''
and such statement shall constitute notice to all such persons. The
clerk shall make a notation on the original determination of the date
and place of such mailing. The clerk forthwith shall forward two copies
of such determination to the State office, and one copy to the county
committee. The determination of the review committee does not become
final until the period for reopening of hearing under Sec. 711.25 has
expired without any reopening; or if reopened thereunder, such
determination becomes final upon issuance of a new determination
pursuant to the reopened hearing, subject to further appeal to a court
by the applicant.
Sec. 711.25 Reopening of hearing.
(a) Upon motion of review committee. Upon its own motion within 15
days from the date of mailing to the applicant of a copy of the
determination of the review committee, the review committee may reopen a
hearing for the purpose of taking additional evidence or of adding any
relevant matter or document.
(b) Upon written request based on new evidence. Upon written request
by the applicant, the county committee, the State executive director, or
other interested parties, to the review committee within 15 days from
the date of mailing to the applicant of a copy of the determination of
the review committee, the review committee shall reopen the hearing for
the purpose of taking additional evidence or of adding any relevant
matter or document if the review committee finds that such evidence or
documents constitute new evidence not available to the parties at the
time of the hearing.
(c) Upon written notice by the Secretary. Upon written notice by the
Secretary or on his behalf by the Deputy Administrator to the review
committee within 45 days from the date of mailing to the applicant of a
copy of the determination of the review committee on Form MQ-58, the
hearing shall be deemed reopened and the State executive director shall
schedule the reopened hearing.
(d) Schedule of reopened hearing. Schedule of and notice of any
reopened hearing shall follow the requirements of Sec. Sec. 711.18 and
711.19 insofar as practicable. Notwithstanding the provisions of
paragraphs (a), (b), and (c) of this section, no hearing shall be
reopened after an appeal to a court pursuant to section 365 of the act
has been timely filed by the applicant. No special hearing to contest a
reopening of a hearing shall be scheduled; however, the applicant may
present evidence and arguments to contest the reopening when the
reopened hearing is held.
Sec. 711.26 Record of hearing.
The record of the proceedings shall be prepared by the clerk and
shall consist of the following:
(a) All procedural documents in the case under review, including the
application and written notices of quota and hearing and any other
written notice in connection with the application.
(b) Copies of regulations presented at the hearing.
(c) The answer of the county committee or the State executive
director.
(d) The summary of the proceedings and the testimony prepared by the
review committee if a verbatim transcript is not made, or a transcript
of the testimony where a verbatim transcript is made, in accordance with
Sec. 711.21(f), to which shall be annexed any documentary evidence
received at the hearing.
(e) Any written arguments or proposed findings of fact and
conclusions filed in connection with the hearing.
(f) The written determination of the review committee.
(g) A list of all papers included in the record and a certificate by
the clerk
[[Page 51]]
stating that such record is true, correct and complete.
Court Proceedings
Sec. 711.27 Procedure in the case of court proceedings.
Upon the institution of any suit against the review committee for
the purpose of reviewing its determination upon any application for
review, the review committee is required by section 365 of the Act to
certify and file in court a transcript of the record upon which the
determination was made, together with the findings of fact made by the
review committee. Any suit for review is required to be instituted by
the applicant within 15 days after a notice of the review committee's
determination is mailed to him. Such suit may be instituted in the U.S.
District Court or in any court of record of the State having general
jurisdiction, sitting in the county of the district in which the
applicant's farm is located. The bill of complaint in such proceeding
may be served by delivering a copy thereof to any member of the review
committee. Any member of the review committee served with papers in such
suit shall immediately forward such papers to the clerk. No member of
the review committee shall appear or permit any appearance in his behalf
or in behalf of the review committee, or take any action in respect to
the defense of such suit, except in accordance with the instructions
from the Deputy Administrator.
Puerto Rico
Sec. 711.28 Special provisions applicable to Puerto Rico.
Notwithstanding the provisions of Sec. Sec. 711.1 to 711.50, the
Caribbean Area Agricultural Stabilization and Conservation Committee
(hereinafter referred to as the ``ASC Committee'') shall perform,
insofar as applicable, the duties and assume such responsibilities and
be subject to the limitations as are otherwise required of State and
county committees except as provided herein. The Director, Caribbean
Area FSA office, shall recommend members of the review committee panel,
the areas of venue, and perform the functions of the State executive
director. Any farmer who is eligible to vote in a referendum for which a
quota has been proclaimed shall be eligible for appointment as a member
of a review committee panel. The clerk shall be the ASC district
supervisor of the district in which the review committee will hold its
hearings. Where it is impractical or impossible to use the United States
mail to serve the applicant with notice of hearing or determination, use
shall be made of such other method of service as is available. However,
when such other method is used, the ASC Committee shall make provision
for keeping an accurate record of the date and method of delivery to the
applicant.
OMB Control Numbers
Sec. 711.29 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
The information collection requirements contained in these
regulations (7 CFR part 711) have been approved by the Office of
Management and Budget (OMB) in accordance with the provisions of the 44
U.S.C. Chapter 35 and have been assigned OMB control number 0560-0068.
[49 FR 38240, Sept. 28, 1984]
PART 714_REFUNDS OF PENALTIES ERRONEOUSLY, ILLEGALLY, OR WRONGFULLY
COLLECTED--Table of Contents
Sec.
714.35 Basis, purpose, and applicability.
714.36 Definitions.
714.37 Instructions and forms.
714.38 Who may claim refund.
714.39 Manner of filing.
714.40 Time of filing.
714.41 Statement of claim.
714.42 Designation of trustee.
714.43 Recommendation by county committee.
714.44 Recommendation by State committee.
714.45 Approval by Deputy Administrator.
714.46 Certification for payment.
Authority: Secs. 372, 375, 52 Stat. 65, as amended, 66, as amended;
7 U.S.C. 1372, 1375.
Source: 35 FR 12098, July 29, 1970, unless otherwise noted.
[[Page 52]]
Sec. 714.35 Basis, purpose, and applicability.
(a) Basis and purpose. The regulations set forth in this part are
issued pursuant to the Agricultural Adjustment Act of 1938, as amended,
for the purpose of prescribing the provisions governing refunds of
marketing quota penalties erroneously, illegally, or wrongfully
collected with respect to all commodities subject to marketing quotas
under the Act.
(b) Applicability. This part shall apply to claims submitted for
refunds of marketing quota penalties erroneously, illegally, or
wrongfully collected on all commodities subject to marketing quotas
under the Act. It shall not apply to the refund of penalties which are
deposited in a special deposit account pursuant to sections 314(b),
346(b), 356(b), or 359 of the Agricultural Adjustment Act of 1938, as
amended, or paragraph (3) of Pub. L. 74, 77th Congress, available for
the refund of penalties initially collected which are subsequently
adjusted downward by action of the county committee, review committee,
or appropriate court, until such penalties have been deposited in the
general fund of the Treasury of the United States after determination
that no downward adjustment in the amount of penalty is warranted. All
prior regulations dealing with refunds of penalties which were contained
in this part are superseded upon the effective date of the regulations
in this part.
Sec. 714.36 Definitions.
(a) General terms. In determining the meaning of the provisions of
this part, unless the context indicates otherwise, words imparting the
singular include and apply to several persons or things, words imparting
the plural include the singular, words imparting the masculine gender
include the feminine as well, and words used in the present tense
include the future as well as the present. The definitions in part 719
of this chapter shall apply to this part. The provisions of part 720 of
this chapter concerning the expiration of time limitations shall apply
to this part.
(b) Other terms applicable to this part. The following terms shall
have the following meanings:
(1) ``Act'' means the Agricultural Adjustment Act of 1938, and any
amendments or supplements thereto.
(2) ``Claim'' means a written request for refund of penalty.
(3) ``Claimant'' means a person who makes a claim for refund of
penalty as provided in this part.
(4) ``County Office'' means the office of the Agricultural
Stabilization and Conservation County Committee.
(5) ``Penalty'' means an amount of money collected, including
setoff, from or on account of any person with respect to any commodity
to which this part is applicable, which has been covered into the
general fund of the Treasury of the United States, as provided in
section 372(b) of the Act.
(6) ``State office'' means the office of the Agricultural
Stabilization and Conservation State Committee.
Sec. 714.37 Instructions and forms.
The Deputy Administrator shall cause to be prepared and issued such
instructions and forms as are necessary for carrying out the regulations
in the part.
Sec. 714.38 Who may claim refund.
Claim for refund may be made by:
(a) Any person who was entitled to share in the price or
consideration received by the producer with respect to the marketing of
a commodity from which a deduction was made for the penalty and bore the
burden of such deduction in whole or in part.
(b) Any person who was entitled to share in the commodity or the
proceeds thereof, paid the penalty thereon in whole or in part and has
not been reimbursed therefor.
(c) Any person who was entitled to share in the commodity or the
proceeds thereof and bore the burden of the penalty because he has
reimbursed the person who paid such penalty.
(d) Any person who, as buyer, paid the penalty in whole or in part
in connection with the purchase of a commodity, was not required to
collect or pay such penalty, did not deduct the amount of such penalty
from the price paid the producer, and has not been reimbursed therefor.
(e) Any person who paid the penalty in whole or in part as a surety
on a
[[Page 53]]
bond given to secure the payment of penalties and has not been
reimbursed therefor.
(f) Any person who paid the whole or any part of the sum paid as a
penalty with respect to a commodity included in a transaction which in
fact was not a marketing of such commodity and has not been reimbursed
therefor.
Sec. 714.39 Manner of filing.
Claim for refund shall be filed in the county office on a form
prescribed by the Deputy Administrator. If more than one person is
entitled to file a claim, a joint claim may be filed by all such
persons. If a separate claim is filed by a person who is a party to a
joint claim, such separate claim shall not be approved until the
interest of each person involved in the joint claim has been determined.
Sec. 714.40 Time of filing.
Claim shall be filed within 2 years after the date payment was made
to the Secretary. The date payment was made shall be deemed to be the
date such payment was deposited in the general fund of the Treasury as
shown on the certificate of deposit on which such payment was scheduled.
Sec. 714.41 Statement of claim.
The claim shall show fully the facts constituting the basis of the
claim; the name and address of and the amount claimed by every person
who bore or bears any part or all of the burden of such penalty; and the
reasons why such penalty is claimed to have been erroneously, illegally,
or wrongfully collected. It shall be the responsibility of the county
committee to determine that any person who executes a claim as agent or
fiduciary is properly authorized to act in such capacity. There should
be attached to the claim all pertinent documents with respect to the
claim or duly authenticated copies thereof.
Sec. 714.42 Designation of trustee.
Where there is more than one claimant and all the claimants desire
to appoint a trustee to receive and disburse any payment to be made to
them with respect to the claim, they shall be permitted to appoint a
trustee. The person designated as trustee shall execute the declaration
of trust.
Sec. 714.43 Recommendation by county committee.
Immediately upon receipt of a claim, the date of receipt shall be
recorded on the face thereof. The county committee shall determine, on
the basis of all available information, if the data and representations
on the claim are correct. The county committee shall recommend approval
or disapproval of the claim, and attach a statement to the claim, signed
by a member of the committee, giving the reasons for their action. After
the recommendation of approval or disapproval is made by the county
committee, the claim shall be promptly sent to the State committee.
Sec. 714.44 Recommendation by State committee.
A representative of the State committee shall review each claim
referred by the county committee. If a claim is sent initially to the
State committee, it shall be referred to the appropriate county
committee for recommendation as provided in Sec. 714.43 prior to action
being taken by the State committee. Any necessary investigation shall be
made. The State committee shall recommend approval or disapproval of the
claim, attaching a statement giving the reasons for their action, which
shall be signed by a representative of the State committee. After
recommending approval or disapproval, the claim shall be promptly sent
to the Deputy Administrator.
Sec. 714.45 Approval by Deputy Administrator.
The Deputy Administrator shall review each claim forwarded to him by
the State committee to determine whether, (a) the penalty was
erroneously, illegally, or wrongfully collected, (b) the claimant bore
the burden of the payment of the penalty, (c) the claim was timely
filed, and (d) under the applicable law and regulations the claimant is
entitled to a refund. If a claim is filed initially with the Deputy
Administrator, he shall obtain the recommendations of the county
committee and the State committee if he deems such action necessary in
[[Page 54]]
arriving at a proper determination of the claim. The claimant shall be
advised in writing of the action taken by the Deputy Administrator. If
disapproved, the claimant shall be notified with an explanation of the
reasons for such disapproval.
Sec. 714.46 Certification for payment.
An officer or employee of the Department of Agriculture authorized
to certify public vouchers for payment shall, for and on behalf of the
Secretary of Agriculture, certify to the Secretary of the Treasury of
the United States for payment all claims for refund which have been
approved.
PART 717_HOLDING OF REFERENDA--Table of Contents
General
Sec.
717.1 Definitions.
717.2 Supervision of referenda and prescribed method of balloting.
717.3 Voting eligibility.
717.4 Register of eligible voters.
Holding Referenda at Polling Places
717.5 Community referendum committees.
717.6 Place for balloting.
717.7 Time of voting.
717.8 Notice of referendum.
717.9 Manner of voting.
717.10 Local arrangements for holding the referendum.
717.11 Issuing ballots.
717.12 Community referendum committee's canvass of ballots.
717.13 Community committee's reporting and record of results of
referendum.
717.14 County committee's canvass of ballots.
717.15 County committee's reporting and record of results of the
referendum.
717.16 Investigation as to correctness of summary of the referendum.
717.17 State committee's reporting and record of result of the
referendum.
Holding Referenda by Mail Ballot
717.18 Issuing ballots.
717.19 Manner of voting.
717.20 Receiving and tabulating voted ballots.
717.21 Canvassing voted ballots.
717.22 Reporting and record of result of the referendum.
Miscellaneous
717.23 Applicability of this part to Puerto Rico.
717.24 Result of referendum.
717.25 Disposition of ballots and records.
717.26 Applicability.
Authority: Secs. 312, 317, 336, 343, 344a, 358, 376, 52 Stat. 46, as
amended; 79 Stat. 66, as amended; 52 Stat. 55, as amended, 56, as
amended; 79 Stat. 1197, as amended; 55 Stat. 88 as amended; 52 Stat. 66,
as amended; 7 U.S.C. 1312, 1314c, 1336, 1343, 1344b, 1358, 1376.
Source: 33 FR 18345, Dec. 11, 1968, unless otherwise noted.
General
Sec. 717.1 Definitions.
In determining the meaning of the provisions in this part, unless
the context indicates otherwise, words importing the singular include
and apply to several persons or things, words importing the plural
include the singular, words importing the masculine gender include the
feminine as well, and words used in the present tense include the future
as well as the present.
(a) General terms. The definitions in part 719 of this chapter shall
apply to this part. The provisions of part 720 of this chapter
concerning the expiration of time limitations shall apply to this part.
(b) Act. The Agricultural Adjustment Act of 1938 and any amendments
or supplements thereto.
(c) Referendum community. For referenda conducted by mail ballot,
the entire county shall be the referendum community. For referenda
conducted at polling places, the referendum community shall conform with
the community established by the State committee for purposes of
elective areas under the regulations in the subpart--Selection and
Functions of Agricultural Stabilization and Conservation County and
Community Committees in part 7, subtitle A, of this title (Sec. 7.7, 33
FR 12955), as amended from time to time: Provided, That a referendum
community may be composed of an area differing from the community so
established in the following cases:
(1) A referendum community may be established by the county
committee, with the approval of a representative of the State committee,
to conform to a
[[Page 55]]
political township, a local voting precinct for purposes of general
elections, or a combination of such townships or precincts;
(2) A referendum community may be established by the county
committee, if it determines eligible producers will be given a
convenient place to vote, which consists of a combination of a community
with less than 25 farms on which there are producers eligible to vote,
with one or more communities; and
(3) The entire county shall be the referendum community in counties
with less than 100 farms on which there are producers eligible to vote
unless the county committee, with the approval of the State committee,
determines that more than one referendum community is needed in the
county.
The county committee shall maintain in the county office, and make
available for public inspection, a descriptive list of the referendum
communities established for the county for referenda conducted at
polling places.
[33 FR 18345, Dec. 11, 1968, as amended by Amdt. 1, 34 FR 12940, Aug. 9,
1969]
Sec. 717.2 Supervision of referenda and prescribed method of balloting.
(a) Supervision of referenda. The Deputy Administrator shall be in
charge of and responsible for conducting each referendum required by the
Act. Each State committee shall be in charge of and responsible for
conducting such referendum in its State. Each county committee shall be
responsible for the proper holding of such referendum in its county. It
shall be the duty of the Deputy Administrator and of each committee to
conduct each referendum by secret ballot in a fair, unbiased, and
impartial manner in accordance with this part.
(b) Prescribed method of balloting. Each referendum held under this
part shall be by mail ballot unless the Administrator, FSA, or the
Deputy Administrator prescribes that a particular referendum shall be
held at polling places.
Sec. 717.3 Voting eligibility.
(a) Statutory requirements--(1) Tobacco quotas proclaimed on an
acreage basis under section 312(a) of the Act. Within 30 days after the
proclamation under section 312(a) of the Act of national marketing
quotas on an acreage basis for any kind of tobacco for the next 3
succeeding marketing years, there shall be a referendum under section
312(c) of the Act of farmers engaged in the production of the crop of
such tobacco harvested immediately prior to the holding of the
referendum to determine whether such farmers are in favor of or opposed
to such quotas for the 3-year period. If more than one-third of the
farmers voting oppose such quotas, the quotas so proclaimed for the 3-
year period shall not be in effect: Provided, That such referendum
result shall not preclude the proclamation of national marketing quotas
for such kind of tobacco for the next 3 succeeding marketing years
subject to a referendum as required under this paragraph. If the
referendum results in approval of quotas for the 3-year period, no
further referendum applicable to such quotas shall be held (i) unless a
new proclamation during the 3-year period is made pursuant to
subdivision (3) of section 312(a) of the Act in which case a referendum
shall be held as provided in this paragraph (a)(1)(i) of this section,
or (ii) unless quotas on an acreage-poundage basis are established
pursuant to section 317(c) of the Act, in which case a special
referendum shall be held as provided in paragraph (a)(2) of this
section.
(2) Tobacco quotas proclaimed on an acreage-poundage basis under
section 317(c) of the Act. During the first or second marketing year of
the 3-year period for which marketing quotas for any kind of tobacco are
in effect on an acreage basis, if the Secretary, under section 317(c) of
the Act, determines that marketing quotas on an acreage-poundage basis
would result in a more effective program, at the time of the next
announcement of the amount of the marketing quota on an acreage basis,
the Secretary shall also announce the national acreage allotment and
national average yield goal. Within 45 days after such announcement of
acreage-poundage quotas there shall be a special referendum under
section 317(c) of the Act of farmers engaged in the production of the
kind of tobacco of the most recent crop to determine
[[Page 56]]
whether such farmers favor the establishment of marketing quotas on an
acreage-poundage basis for the next 3 marketing years. If more than two-
thirds of the farmers voting in the special referendum favor marketing
quotas on an acreage-poundage basis, such quotas shall be in effect for
the next 3 marketing years and the marketing quotas on an acreage basis
shall cease to be in effect at the beginning of such 3-year period and
no further special referendum applicable to such 3-year period shall be
held. If marketing quotas on an acreage-poundage basis are not favored
by more than two-thirds of the farmers voting in the special referendum,
marketing quotas on an acreage basis as previously proclaimed shall
continue in effect.
(3) Tobacco quotas proclaimed on an acreage-poundage basis under
section 317(d) of the Act. If marketing quotas on an acreage-poundage
basis have been made effective for a kind of tobacco, the Secretary
shall proclaim a national marketing quota for such kind of tobacco for
the next 3 succeeding marketing years if the marketing year is the last
year of 3 consecutive years for which marketing quotas previously
proclaimed will be in effect. Such proclamation may be on an acreage-
poundage basis or on an acreage basis. Within 30 days after such
proclamation, there shall be a referendum under section 312(c) of the
Act of farmers engaged in the production of the crop of such kind of
tobacco harvested immediately prior to the holding of the referendum to
determine whether such farmers are in favor of or opposed to such quotas
for the next 3 succeeding marketing years. If more than one-third of the
farmers voting oppose such quotas, the quotas so proclaimed for the 3-
year period shall not be in effect: Provided, That such referendum
result shall not preclude the proclamation of national marketing quotas
for such kind of tobacco for the next 3 succeeding marketing years under
section 312(a) of the Act subject to a referendum thereon as provided in
paragraph (a)(1) of this section. If a referendum results in approval of
quotas for 3 marketing years on an acreage basis, no further referendum
applicable to such 3 marketing years shall be held except as may be
required under section 317(c) of the Act. If a referendum results in
approval of quotas for 3 marketing years on an acreage-poundage basis,
no further referendum applicable to such 3 marketing years shall be
held.
(4) Tobacco quotas proclaimed but disapproved in 3 successive years.
Under section 312(a)(4) of the Act, if producers have disapproved
national marketing quotas for a kind of tobacco in referenda held in 3
successive years subsequent to 1952, a national marketing quota shall
not be proclaimed for any marketing year within the 3-year period for
which quotas were disapproved unless prior to November 10 of the
marketing year, one-fourth or more of the farmers engaged in the
production of the crop of tobacco harvested in the calendar year in
which such marketing year begins petition the Secretary to proclaim a
national marketing quota for each of the next 3 succeeding marketing
years.
(5) [Reserved]
(6) Extra long staple cotton quotas. Not later than December 15
following the proclamation of a national quota for extra long staple
cotton there shall be a referendum under section 343 of the Act, of
farmers engaged in the production of extra long staple cotton in the
calendar year in which the referendum is held to determine whether such
farmers are in favor of or opposed to the quota for the next marketing
year. If more than one-third of the farmers voting in the referendum
oppose the quota, such quota shall not be in effect.
(7) [Reserved]
(8) Rice quotas. Within 30 days after the proclamation of a national
marketing quota for rice there shall be a referendum under section
354(b) of the Act of farmers engaged in the production of the
immediately preceding crop of rice to determine whether such farmers are
in favor of or opposed to the quota for the next marketing year. If more
than one-third of the farmers voting in the referendum oppose the quota,
such quota shall not be in effect.
(9) Peanut quotas. Not later than December 15 of each calendar year
there shall be a referendum under section 358(b) of the Act of farmers
engaged in
[[Page 57]]
the production of peanuts in the calendar year in which the referendum
is held to determine whether such farmers are in favor of or opposed to
marketing quotas with respect to the crops of peanuts produced in the 3
calendar years immediately following the year in which the referendum is
held. If more than one-third of the farmers voting in the referendum
oppose such quotas, the quotas so proclaimed shall not be in effect:
Provided, That such referendum result shall not preclude the
proclamation of quotas in the next calendar year for a 3-year period
subject to a referendum as required under this paragraph. If quotas are
favored, no further referendum with respect to the 3-year period shall
be held.
(b) Farmers engaged in the production of a commodity. For purposes
of referenda with respect to marketing quotas for tobacco, extra long
staple cotton, rice and peanuts the phrase ``farmers engaged in the
production of a commodity'' includes any person who is entitled to share
in a crop of the commodity, or the proceeds thereof because he shares in
the risks of production of the crop as an owner, landlord, tenant, or
sharecropper (landlord whose return from the crop is fixed regardless of
the amount of the crop produced is excluded) on a farm on which such
crop is planted in a workmanlike manner for harvest: Provided, That any
failure to harvest the crop because of conditions beyond the control of
such person shall not affect his status as a farmer engaged in the
production of the crop. In addition, the phrase ``farmers engaged in the
production of a commodity'' also includes each person who it is
determined would have had an interest as a producer in the commodity on
a farm for which a farm allotment for the crop of the commodity was
established and no acreage of the crop was planted but an acreage of the
crop was regarded as planted for history acreage purposes under the
applicable commodity regulations.
(c) Special conditions applicable to peanuts and rice--(1) Peanuts.
In the case of a referendum for marketing quotas for peanuts, farmers
engaged in the production of peanuts as determined under paragraph (b)
of this section shall not be eligible to vote in the referendum if the
farm does not have any production of peanuts subject to marketing
quotas. Under section 359(b) of the Act, marketing quotas are not
applicable to peanuts produced on any farm on which the acreage
harvested for nuts is 1 acre or less provided the producers who share in
the peanuts produced on such farm do not share in the peanuts produced
on any other farm. Under section 359(b) of the Act, marketing quotas are
not applicable to peanuts which it is established (i) were not picked or
threshed either before or after marketing from the farm, or (ii) were
marketed by the producer before drying or removal of moisture from such
peanuts either by natural or artificial means for consumption
exclusively as boiled peanuts.
(2) Rice. In the case of a referendum for a marketing quota for
rice, farmers engaged in the production of rice as determined under
paragraph (b) of this section shall not be eligible to vote in the
referendum if the farm is not subject to marketing quotas. Under section
353(d) of the Act, marketing quotas are not applicable (i) to
nonirrigated rice produced on any farm on which the acreage planted to
nonirrigated rice does not exceed 3 acres, or (ii) to rice produced
outside the continental United States.
(d) [Reserved]
(e) One vote limitation. Each person eligible to vote in a
particular marketing quota referendum shall be entitled to only one vote
in such referendum regardless of the number of farms in which such
person is interested or the number of communities, counties, or States
in which farms are located in which farms such person is interested:
Provided, That:
(1) The individual members of a partnership shall each be entitled
to one vote, but the partnership as an entity shall not be entitled to
vote;
(2) An individual eligible voter shall be entitled to one vote even
though he is interested in an entity (including but not limited to a
corporation) which entity is also eligible to vote;
(3) A person shall also be entitled to vote in each instance of his
capacity as a fiduciary (including but not limited to a guardian,
administrator, executor or trustee) if in such fiduciary capacity
[[Page 58]]
he is eligible to vote but the person for whom he acts as a fiduciary
shall not be eligible to vote.
(f) Joint and family interest. Where several persons, such as
members of a family, have participated or will participate in the
production of a commodity under the same lease or cropping agreement,
only the person or persons who signed the lease or agreement, or agreed
to an oral lease or agreement, shall be eligible to vote. Where two or
more persons have produced or will produce a commodity as joint tenants,
tenants in common, or owners of community property, each such person
shall be entitled to one vote if otherwise eligible. The eligibility of
one spouse does not affect the eligibility of the other spouse.
(g) Minors. A minor shall be entitled to one vote if he is otherwise
eligible and is 18 years of age or older when he votes.
(h) [Reserved]
(i) Interpretation. In the case of any commodity on a farm where no
acreage of the commodity is actually planted but an acreage of the
commodity is regarded as planted under applicable regulations of the
Department, persons on the farm who it is determined would have had an
interest in the commodity as a producer if an acreage of the commodity
had been actually planted shall be eligible to vote in the referendum.
[33 FR 18345, Dec. 11, 1968, as amended by Amdt. 2, 36 FR 12730, July 7,
1971]
Sec. 717.4 Register of eligible voters.
Prior to the date of the referendum a register shall be prepared by
the county office manager listing the name and address of each known
eligible voter. For referenda conducted at polling places a register
shall be prepared for each referendum community. For referenda conducted
by mail ballot the entire county is considered to be the referendum
community and one register shall be prepared for the county.
Holding Referenda at Polling Places
Sec. 717.5 Community referendum committees.
(a) Where one referendum is to be conducted. Except where the entire
county is to be considered a referendum community, the county committee
shall designate a community referendum committee for each referendum
community. Each referendum committee shall consist of at least three
regular members and one alternate. The membership of the referendum
committee shall be chosen from among the farmers who reside in the
community and who are eligible to vote in the referendum or who are
community committeemen elected pursuant to the regulations in the
subpart--Selection and Functions of Agricultural Stabilization and
Conservation County and Community committees (part 7 of this title). The
county committee shall name one member of the community referendum
committee as chairman and another member thereof as vice chairman. The
vice chairman shall act as the chairman in the event of the absence or
incapacity of the chairman and the alternate shall serve on the
committee in the place of any regular member who cannot serve. The
community referendum committee shall be responsible for the proper
holding of the referendum in its community in a fair, unbiased and
impartial manner in accordance with this part. In counties where the
entire county is treated as one referendum community, the county
committee shall perform, in addition to its other duties, the duties of
the community referendum committee.
(b) Where two or more referenda are to be conducted. Where two or
more referenda are to be held in the county on the same day, the
provisions of paragraph (a) of this section shall be applicable except
that (1) the total number of farms on which there are producers eligible
to vote in any one or more of such referenda shall be used to determine
whether there are 100 or more farms on which there are producers who are
eligible to vote in the referenda, and (2) each community referendum
committee shall be chosen from among the farmers who reside in the
community and who are eligible to vote in any of such referenda or who
are community committeemen elected
[[Page 59]]
pursuant to the regulations in the subpart--Selection and Functions of
Agricultural Stabilization and Conservation County and Community
committees (part 7 of this title).
Sec. 717.6 Place for balloting.
The county committee shall designate only one polling place for
balloting in each referendum community. The polling place shall be one
well known to and readily accessible to the persons in the community and
shall be equipped and arranged so that each voter can mark and cast his
ballot in secret and without coercion, duress, or interference of any
sort whatsoever. Subject to the provisions of Sec. 717.9(c) for
absentee ballots, a farmer or producer eligible to vote, shall vote only
at a polling place designated for the referendum community in which he
was engaged in the production of the commodity for which the referendum
is held.
[33 FR 18345, Dec. 11, 1968, as amended by Amdt. 2, 36 FR 12730, July 7,
1971]
Sec. 717.7 Time of voting.
There shall be no voting except on the day fixed for the holding of
the referendum (except as provided in Sec. 717.9(c) in the case of
absentee ballots) and the day fixed for the holding of the referendum
shall be the same in all neighborhoods, communities, counties, and
States. The date for holding the referendum shall be determined by the
Secretary in accordance with the provisions of law applicable thereto
and stated in the notice of the referendum prescribed by him. The time
that polls shall be opened and closed on the date fixed for holding the
referendum in the States and Puerto Rico is as follows:
------------------------------------------------------------------------
Polls to
State Polls to close
open a.m. p.m.
------------------------------------------------------------------------
Alabama........................................... 7:00 7:00
Alaska............................................ 8:00 6:00
Arizona........................................... 8:00 6:00
Arkansas.......................................... 8:00 6:30
California........................................ 8:00 6:00
Colorado.......................................... 7:00 7:00
Connecticut....................................... 8:00 6:00
Delaware.......................................... 8:00 6:00
Florida........................................... 7:00 7:00
Georgia........................................... 7:00 7:00
Idaho............................................. 8:00 8:00
Illinois.......................................... 8:00 6:00
Indiana........................................... 8:00 6:00
Iowa.............................................. 8:00 8:00
Kansas............................................ 8:00 8:00
Kentucky.......................................... 8:00 6:00
Louisiana......................................... 8:00 6:00
Maine............................................. 8:00 6:00
Maryland.......................................... 8:00 6:00
Massachusetts..................................... 8:00 6:00
Michigan.......................................... 8:00 8:00
Minnesota......................................... 8:00 8:00
Mississippi....................................... 8:00 6:00
Missouri.......................................... 8:00 6:00
Montana........................................... 8:00 7:00
Nebraska.......................................... 8:00 8:00
Nevada............................................ 8:00 6:00
New Hampshire..................................... 8:00 6:00
New Jersey........................................ 8:00 6:00
New Mexico........................................ 8:00 6:00
New York.......................................... 8:00 6:00
North Carolina.................................... 7:00 7:00
North Dakota...................................... 8:00 9:00
Ohio.............................................. 8:00 6:00
Oklahoma.......................................... 8:00 6:00
Oregon............................................ 8:00 8:00
Pennsylvania...................................... 8:00 9:00
Rhode Island...................................... 8:00 6:00
South Carolina.................................... 7:00 7:00
South Dakota...................................... 8:00 8:00
Tennessee......................................... 8:00 7:00
Texas............................................. 8:00 7:00
Utah.............................................. 8:00 6:00
Vermont........................................... 8:00 6:00
Virginia.......................................... 7:00 7:00
Washington........................................ 8:00 8:00
West Virginia..................................... 8:00 8:00
Wisconsin......................................... 8:00 8:00
Wyoming........................................... 8:00 8:00
Puerto Rico....................................... 8:00 6:00
------------------------------------------------------------------------
The times listed in this section shall be the local time in effect for
the area in which the polling place is located.
Sec. 717.8 Notice of referendum.
(a) Posting a notice. The county committee shall give public notice
of the referendum in each referendum community by posting a notice at
one or more places open to the public within such community prior to the
date of the referendum. Such notice shall be on a form prescribed by the
Deputy Administrator and shall state the commodity or commodities and
marketing year, or years, or crops for which the referendum is to be
held, the location of the polling place in the community, the date of
the referendum, and the hours when the polls will be opened and closed.
The county executive director is authorized to sign such notice on
behalf of the county committee.
(b) Use of agencies of public information. The county committee and
community referendum committees shall
[[Page 60]]
utilize, to the extent practicable (without advertising expense), all
available agencies of public information, including newspapers, radio,
television and other means, to give persons in the county public notice
of the day and hours of voting, the location of polling places, and the
rules governing eligibility to vote. Such notice should be given as soon
as practicable after the arrangements for holding the referendum in the
county have been made.
Sec. 717.9 Manner of voting.
(a) Secret ballot. The voting in the referendum shall be by secret
ballot. Each voter shall, at the time he is handed the form on which to
cast his ballot, be instructed to mark his ballot form so as to indicate
clearly how he votes and in such manner that no one else shall see how
he votes and then to fold his ballot and place it in the ballot box
without allowing anyone else to see how he voted. A suitable place where
each voter may mark and cast his ballot in secret and without coercion,
duress, or interference of any sort whatever, shall be provided in each
polling place. Every unchallenged ballot shall be placed in the ballot
box by the person who voted it. The fact that a voter fails to fold a
ballot placed in the ballot box shall not invalidate it. It shall be the
duty of each community referendum committee to see that no device of any
sort whatever is used whereby any voter's ballot may be identified
except as provided in this part in the case of a challenged ballot or an
absentee ballot.
(b) Voting by proxy prohibited. There shall be no voting by proxy or
agent, or in any manner except by the eligible voter (or the challenged
voter under paragraph (d) of this section) personally depositing in the
ballot box his ballot as marked by him (except as provided in the case
of an absentee ballot), but a duly authorized officer of a corporation,
association, or other legal entity, may cast its vote.
(c) Absentee ballots. Any person who will not be present on the day
of the referendum in the county in which he is eligible to vote or who
will be prevented from voting in person on the day of the referendum
because of physical incapacity, or whose religious belief forbids him
from voting on the day of the referendum, may obtain prior to the date
of the referendum, one ballot from a State or county FSA office
conveniently situated for him, or from the Commodity Programs Division,
FSA, Department of Agriculture, Washington, D.C., and cast an absentee
ballot. The office so issuing the ballot form shall endorse on the
reverse side thereof a statement in substantially the following form
identifying the place in which it was issued and the county to which it
will be mailed or delivered, initialed and dated by the person issuing
such form.
Issued in -------- County -------- State, or by ----------------
State FSA Office, or by ---------------- Division, FSA, Washington,
D.C., for use in -------- County, -------- State.
The issuing office shall keep a register showing for each ballot form so
issued by it to be voted absentee, the name and address to whom issued,
the date of issuance, and the county and State in which the ballot is to
be voted, and the name and title of the person who issued the ballot.
The person to whom the ballot is issued shall mark the ballot so as to
indicate clearly how he votes and place the ballot in a plain envelope
which shall be marked clearly with the words ``Absentee Ballot,'' sealed
and inserted in another envelope which shall be marked clearly with the
voter's name and return address, sealed and delivered, or mailed,
postage paid, to the county committee for the county in which he is
eligible to vote. All absentee ballots must, in order to be accepted,
reach the county office for the county in which the voter is eligible to
vote by not later than the hour for closing the polls in the county on
the day of the referendum. No such ballot shall be counted unless the
voter's name and address appear on the envelope and it is determined
that he is eligible to vote.
(d) Challenged ballots. The community referendum committee or any
member thereof shall challenge the eligibility of any person to vote in
the referendum where (1) the community referendum committee or any
member thereof is unable to determine that the person is eligible to
vote in the referendum in
[[Page 61]]
the community, or (2) the community referendum committee or any member
thereof has reason to believe that such person has previously voted in
the referendum in another community in the same or another county in
person or by mail, or (3) the person's name and address have not been
entered on the register of eligible voters, prior to its delivery to the
referendum committee, unless the referendum committee is satisfied that
the person is eligible to vote. In every case where the eligibility of
the voter is challenged, his ballot form, after being marked by the
challenged person so as to show how he votes, but in such manner that no
one else sees how he votes, shall be folded and placed by him (or by a
member of the committee if he refuses) in an envelope, which shall then
be sealed and placed in another envelope, identified with his name and
address, the word ``Challenged'' and a statement of the reason for the
challenge, and shall then be placed in the ballot box. The county
committee shall make an investigation in each case of controversy or
dispute regarding the eligibility of a voter to vote in the referendum.
In each case of a challenged ballot the eligibility of the person to
vote in the referendum shall be determined by the county committee as
soon as may be possible after the polls are closed and before the time
for forwarding to the State committee the county summary of ballots. If
it is determined that the person whose vote was challenged is eligible
to vote, the sealed envelope containing the ballot shall be placed with
the challenged ballot of every other person found to be eligible to vote
until all challenged ballots have been passed upon by the county
committee. If it is determined that the person whose vote was challenged
is not eligible, the sealed envelope shall be marked ``Not eligible''
and signed by a member of the county committee and shall not be opened.
When all of the challenged ballots have been passed upon by the county
committee, the challenged ballots which were cast by eligible voters
shall be opened and tabulated on the county summary of ballots, but no
disclosure shall be made as to how any particular person voted.
(e) Ballot box. Each polling place shall be furnished with a
suitable ballot box. Any container of sufficient size so arranged that
no ballot can be read or removed without breaking seals on the container
will be suitable. When strip adhesive paper or corresponding seals are
used on the ballot box, such seals shall be signed or initialed by the
chairman or a member of the community referendum committee so that
breaking or replacing the seal will so destroy or affect the identifying
marks as to show that the seal has been tampered with.
[33 FR 18345, Dec. 11, 1968, as amended by Amdt. 1, 34 FR 12940, Aug. 9,
1969]
Sec. 717.10 Local arrangements for holding the referendum.
The county committee shall make all arrangements for the proper
holding of the referendum in accordance with this part prior to the date
of the referendum. The county committee shall instruct each community
referendum committee concerning its duties so that each member of the
committee understands his duties and the duties of the committee in all
respects, with particular emphasis as to (a) issuing ballot forms, (b)
challenged ballots, (c) recording votes, (d) tabulating ballots, and (e)
certifying results of the referendum in the referendum community. The
county executive director shall furnish each community referendum
committee an adequate supply of forms prior to the time the polls in the
county are opened for the acceptance of ballots, by delivering the
ballot forms and the forms for the community summary of ballots to each
chairman of the several community referendum committees.
Sec. 717.11 Issuing ballots.
The community referendum committee shall open the polling place for
the issuance of ballot forms and the casting of ballots at the time
designated and shall thereafter until the time when the polls are
required to be closed and the casting of ballots discontinued issue a
ballot to each person who is eligible to vote and applies for a ballot
and to each person who claims to be eligible to vote and insists upon
voting even though his eligibility to
[[Page 62]]
vote is challenged by a member of the committee. The community
referendum committeeman who issued the ballot form shall immediately
enter on the register of voters opposite the name and address of the
person voting, a record of the issuance of the ballot, the casting of
the ballot, and any challenge of the eligibility of the person casting
the ballot. Ballot forms shall be issued and ballots placed in the
ballot box while at least two members serving on the community
referendum committee are physically present in the polling place and in
position to see each ballot form as it is issued and each ballot as it
is placed in the ballot box.
Sec. 717.12 Community referendum committee's canvass of ballots.
Immediately after the polls are closed, the community referendum
committee shall open the ballot box and canvass the ballots cast. The
canvass of the ballots shall be kept open to the public. A ballot shall
be considered as a spoiled ballot if it is mutilated or marked in such a
way that it is not possible to determine with certainty how the ballot
was intended to be counted on a particular question. The envelope
containing the challenged ballots shall not be opened. The total number
of ballots issued as shown on the register of voters shall be determined
and the total number of ballots cast, including the spoiled and
challenged ballots, shall be determined. The number of ballots cast in
favor of and the number of ballots cast in opposition to the question on
which the referendum was held shall be determined. The spoiled ballots
and challenged ballots shall not be considered in favor of or against
the question. If any member of the community referendum committee should
see or learn how any person besides himself voted, whether or not the
ballot was challenged, spoiled, or otherwise, he shall not disclose such
knowledge to a fellow committeeman or any other person except in an
investigation conducted under this part.
Sec. 717.13 Community committee's reporting and record of results of
referendum.
The community referendum committee shall notify the county committee
by telephone, telegraph, messenger, or in person of the preliminary
count of the votes on each question and of the number of spoiled and
challenged ballots, as soon as may be possible. All the spoiled ballots
shall be placed in an envelope and sealed and marked with the initials
of the chairman (or vice chairman) of the community referendum committee
and the designation ``Spoiled Ballots'' followed by the number of
spoiled ballots and the names of the community, the county and the
State. The community referendum committee shall execute the
certification as to the accuracy of the register of eligible voters and
ballots cast. The community referendum committee shall then prepare and
execute the community summary of ballots and post one copy thereof, as
soon as it is executed, in a conspicuous place at the polling place, so
that it will remain posted and accessible to the public for at least 3
calendar days after the holding of the referendum. The community
referendum committee shall seal the voted ballots, including those
challenged and spoiled, the register of eligible voters and ballots
cast, and the community summary of ballots, in one or more envelopes
appropriately identified by the names of the community, the county, and
the State, and the nature of the referendum and the date on which it was
held, and deliver them to the county committee not later than 9 a.m.,
local time, on the second calendar day after the date of the referendum,
together with the unused ballot and other forms. The chairman (or vice
chairman) of the community referendum committee shall be responsible for
the safe delivery of such reports, ballots, and forms to the county
committee.
Sec. 717.14 County committee's canvass of ballots.
The county committee, after the closing of the polls, shall open and
canvass the absentee ballots received and determine the eligibility of
each voter. If any person voting absentee is found
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to be ineligible to vote, or the ballot is so mutilated or marked that
it is not possible to determine with certainty how the person intended
to vote, such ballot shall not be counted as for or against the question
in the referendum. The county committee shall meet and pass upon the
challenged ballots as soon as may be reasonably possible after the
challenged ballots are received from the community referendum
committees, but not later than 4 calendar days after the day of the
referendum. The result of the referendum in each community shall be
reviewed and summarized as soon as may be reasonably possible after the
records, ballots, and forms are received from the several community
referendum committees. Every meeting of the county committee for the
purpose of canvassing the ballots cast and reviewing and tabulating the
results of the referendum shall be open to the public. No member of the
county committee who learns how any person besides himself voted,
whether the ballot was an absentee ballot, challenged, spoiled, or
otherwise, shall disclose such knowledge to any fellow committeeman or
other person except in an investigation conducted under this part.
Sec. 717.15 County committee's reporting and record of results of the
referendum.
The county committee shall notify the State committee by telephone,
telegraph, or messenger (who may be a member of the county committee),
as to the preliminary count of the votes on each question and the number
of challenged ballots by the several community referendum committees as
soon as possible. The county committee shall, as soon as may be
reasonably possible, but in no event later than 4 calendar days after
the date of the referendum, have prepared and certified the county
summary of ballots. Such summary shall be prepared and certified in
triplicate, one copy of which shall be sent to the State committee, one
copy posted for 30 calendar days in a conspicuous place accessible to
the public in or near the office of the county committee, and one copy
filed in the office of the county committee and kept available for
public inspection. One copy of each community summary shall likewise be
posted for 30 calendar days in a conspicuous place accessible to the
public in or near the office of the county committee.
Sec. 717.16 Investigation as to correctness of summary of the referendum.
The county committee shall make an investigation in each case of a
dispute or challenge regarding the correctness of the summary of the
referendum in a community. No dispute or challenge shall be investigated
by the county committee unless it is brought to its attention within 3
calendar days after the date on which the referendum was held. The
county committee shall promptly decide the dispute or the challenge and
report its findings to the State committee within 5 calendar days after
the holding of the referendum and send by certified mail, or deliver in
person, to the office of the State committee all voted ballots, register
forms, and community summary sheets involved in the dispute or
challenge.
Sec. 717.17 State committee's reporting and record of result of the
referendum.
The State committee for each State shall notify the Deputy
Administrator by telegraph or telephone as to the preliminary count of
the votes in the State as soon as the preliminary results of the
referendum are made known to the State committee. The county summaries
of ballots shall be summarized on the State summary of ballots as soon
as possible, but in no event later than 7 calendar days after the date
of the referendum, unless there is a dispute or challenge regarding the
correctness of the summary for any county, in which case the State
committee shall complete its investigation thereof, decide the dispute
or challenge, and prepare the State summary accordingly within 14
calendar days after the date of the referendum. The State summary shall
be prepared in triplicate and certified to by the State executive
director. The original and one copy of the State summary shall be
forwarded to the Director of
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the FSA Division having the responsibility for the commodity for which
the referendum was held. One copy of the State summary shall be filed
for a period of 5 years in the office of the State committee available
for public inspection.
[33 FR 18345, Dec. 11, 1968, as amended by Amdt. 1, 34 FR 12940, Aug. 9,
1969]
Holding Referenda by Mail Ballot
Sec. 717.18 Issuing ballots.
The county committee shall furnish each person who is eligible to
vote in a particular referendum a ballot suitable for mailing back to
the office of the county committee. If a person who is eligible to vote
in a particular referendum is not furnished a ballot, he may obtain one
during the referendum period from the office of the county committee for
the county in which he is eligible to vote or from any other FSA office
where ballots are available, including the Commodity Programs Division,
FSA, Department of Agriculture, Washington, D.C. When a ballot is issued
from an FSA office other than the FSA office in the county in which the
producer is eligible to vote in a particular referendum, the issuing
office shall keep a register showing to whom it was issued, the person's
address, the county and State in which the ballot is to be voted, and
the name and title of the person who issued the ballot.
[33 FR 18345, Dec. 11, 1968, as amended by Amdt. 1, 34 FR 12940, Aug. 9,
1969]
Sec. 717.19 Manner of voting.
(a) Voting procedure. Each person to whom a ballot is issued by mail
or in person may vote in the referendum by marking the ballot so as to
indicate clearly how the vote is cast, placing the ballot in a plain
envelope, sealing the envelope provided by FSA which is marked clearly
with the voter's name and return address, signing the certification on
such envelope or making his mark thereto (which mark shall be
witnessed), sealing such envelope, and delivering or mailing the
envelope to the offfice of the county committee for the county in which
the person is eligible to vote.
(b) Voting by proxy prohibited. There shall be no voting by proxy or
agent except as provided in Sec. 717.3.
(Secs. 312, 317, 336, 343, 344, 354, 358, 375, 52 Stat. 46, as amended,
79 Stat. 66, 52 Stat. 55, as amended, 56, as amended, 79 Stat. 1197, 52
Stat. 61, as amended, 55 Stat. 88, as amended, 52 Stat. 66, as amended;
7 U.S.C. 1312, 1314c, 1336, 1343, 1344b, 1354, 1356, 1375)
[Amdt. 2, 36 FR 12730, July 7, 1971, as amended by Amdt. 4, 49 FR 24371,
June 13, 1984]
Sec. 717.20 Receiving and tabulating voted ballots.
Ballots received at the county FSA office during the referendum
period shall be placed immediately in a ballot box provided by the
county executive director and so arranged that ballots cannot be read or
removed without breaking the seal on the container. Voted ballots
received by the county committee of the county in which the voter is
eligible to vote during the period established for holding a particular
referendum, shall be tabulated by the county committee. A ballot shall
be considered to have been received during the referendum period if (a)
in the case of a ballot delivered to the county committee, it was
received in the office prior to the close of the work day on the final
day of the referendum period, or (b) in the case of a mailed ballot, it
was postmarked not later than midnight of the final day of the
referendum period and was received in the county office prior to the
start of canvassing the ballots. However, no such ballot shall be
counted unless the voter signs the certification or his mark is
witnessed on the returned envelope, and it is determined that he is
eligible to vote in the particular referendum.
(Secs. 312, 317, 336, 343, 344, 354, 358, 375, 52 Stat. 46, as amended,
79 Stat. 66, 52 Stat. 55, as amended, 56, as amended, 79 Stat. 1197, 52
Stat. 61, as amended, 55 Stat. 88, as amended, 52 Stat. 66, as amended;
7 U.S.C. 1312, 1314c, 1336, 1343, 1344b, 1354, 1356, 1375)
[33 FR 18345, Dec. 11, 1968, as amended by Amdt. 4, 49 FR 24371, June
13, 1984]
Sec. 717.21 Canvassing voted ballots.
(a) Time of canvassing. The canvassing of voted ballots shall take
place at the opening of the county office on the
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fifth day after the close of the referendum period. Ballots received
after the start of tabulation, even though contained in envelopes that
were post-marked prior to midnight of the final day of the referendum
period, shall not be counted.
(b) Canvassing by county committee. The canvassing shall be in the
presence of at least two members of the county committee and open to the
public: Provided, That if two or more counties have been combined and
are served by one county office, the canvassing of ballots shall be
conducted by at least one member of the county committee from each
county served by the county office: Provided further, That the State
committee, or the State executive director if authorized by the State
committee, may (1) designate the county executive director and a county
or State FSA office employee to canvass the ballots and report the
results, as provided in paragraph (c) and Sec. 717.22, instead of two
members of the county committee, when it is determined that the number
of eligible voters for the commodity for which the referendum is being
conducted is so limited that having two members of the county committee
present for this function is impractical and (2) designate the county
Executive Director and/or another county or State FSA office employee to
canvass ballots in any emergency situation precluding at least two
members of the county committee from being present to carry out the
functions required in this section.
(c) Manner of canvassing. The canvassing of ballots shall follow the
following procedure:
(1) The ballot box shall be opened;
(2) The envelopes from the ballot box shall be separated into three
groups consisting of (i) unopened certification envelopes which do not
have a proper signed certification, (ii) unopened certification
envelopes from ineligible voters, and (iii) unopened certification
envelopes from eligible voters;
(3) The unopened certification envelopes from eligible voters shall
be opened and plain envelopes removed and then shuffled to preserve the
secrecy of the ballots contained in such plain envelopes;
(4) The ballots shall be removed from such plain envelopes and
tabulated. A ballot shall be considered as a spoiled ballot if it is
mutilated or marked in such a way that it is not possible to determine
with certainty how the ballot was intended to be counted on a particular
question. The spoiled ballots shall not be considered in favor of or
against the question.
(5) The unopened certification envelopes which do not have a proper
signed certification shall not be opened and shall not be considered in
favor of or against the question.
(6) The unopened certification envelopes from ineligible voters
shall be considered as challenged ballots. The county committee shall
determine the eligibility of the person to vote in the referendum. If
determined to be eligible such envelopes shall be handled as provided
under paragraphs (c)(3) and (4) of this section. If determined not to be
eligible, such envelopes shall not be opened and shall not be considered
in favor of or against the question.
(d) Dispute or challenge. A dispute or challenge with respect to any
referendum held by mail ballot shall not be considered unless
notification of such dispute or challenge is filed in writing with the
county executive director of the county in which the alleged
irregularity occurred within 3 days after the date of the canvassing of
voted ballots. Such written notification of a dispute or challenge must
identify each alleged instance in which the county committee erred when
canvassing the ballots or tabulating the referendum results. The county
committee shall determine the validity of the dispute or challenge and
report its findings to the State committee within 3 working days after
the final date for filing a dispute or challenge.
[33 FR 18345, Dec. 11, 1968, as amended by Amdt. 2, 36 FR 12730, July 7,
1971; Amdt. 3, 38 FR 12891, May 17, 1973; 51 FR 10609, Mar. 28, 1986; 52
FR 10727, Apr. 3, 1987]
Sec. 717.22 Reporting and record of result of the referendum.
(a) County committee. The county committee shall notify the State
committee by telephone, telegraph, or messenger (who may be a member of
the
[[Page 66]]
county committee), as to the preliminary count of the votes on each
question and the number of challenged ballots as soon as possible. The
county committee shall, as soon as may be reasonably possible, but in no
event later than 4 calendar days after canvassing of the ballots, have
prepared and certified the county summary of ballots. Such summary shall
be prepared and certified in triplicate, one copy of which shall be sent
to the State committee, one copy posted for 30 calendar days in a
conspicuous place accessible to the public in or near the office of the
county committee, and one copy filed in the office of the county
committee and kept available for public inspection.
(b) State committee. The State committee for each State shall notify
the Deputy Administrator by telephone or telegraph as to the preliminary
count of the votes in the State as soon as the preliminary results of
the referendum are made known to the State committee. The county
summaries of ballots shall be summarized on the State summary of ballots
as soon as possible, but in no event later than 7 calendar days after
canvassing of the ballots, unless there is a dispute or challenge
regarding the correctness of the summary for any county, in which case
the State committee shall complete its investigation thereof, decide the
dispute or challenge, and prepare the State summary accordingly within
14 calendar days after canvassing of the ballots. The State summary
shall be prepared in triplicate and certified to by the State executive
director. The original and one copy of the State summary shall be
forwarded to the Director of the FSA Division having the responsibility
for the commodity for which the referendum was held. One copy of the
State summary shall be filed for a period of 5 years in the office of
State committee available for public inspection.
[Amdt. 1, 34 FR 12940, Aug. 9, 1969]
Miscellaneous
Sec. 717.23 Applicability of this part to Puerto Rico.
The Caribbean Area Agricultural Stabilization and Conservation
Committee shall be in charge of and responsible for conducting in Puerto
Rico each referendum required by the Act. Insofar as applicable, the
Caribbean Area ASC Committee shall perform all the duties and assume all
the responsibilities otherwise required of State and county committees
as provided in this part, except that (a) the Director, Agricultural
Stabilization and Conservation Caribbean Area Office shall nominate for
appointment by the Caribbean Area ASC Committee the members and
alternates to serve on community referendum committees and shall
establish the boundaries of referendum communities in such a manner that
polling places therein will be conveniently located for the farmers
eligible to vote in the referendum, and (b) following the canvass of the
ballots, results of the referendum shall be reported to the Caribbean
Area ASC Committee.
Sec. 717.24 Result of referendum.
(a) Proclamation of result. The final and official tabulation of the
votes cast in the referendum shall be made by the Deputy Administrator
and the result of the referendum will be publicly proclaimed and
published in the Federal Register. The State summaries and related
papers shall be filed with such tabulation for a period of 5 years
available for public inspection in the Department of Agriculture.
(b) Unofficial announcements of result. Each county committee is
authorized to issue unofficial reports of the total ``Yes'' and ``No''
votes in its county to the press and the public. Each State committee is
authorized to issue to the press and the public the unofficial result of
the referendum in its State by counties as rapidly as the votes in the
various counties are reported to it.
(c) Investigations. If the Deputy Administrator or the Secretary
deems it necessary, the report of any community referendum committee,
county committee, or State committee shall be reexamined and checked by
such persons or agents as may be designated.
[[Page 67]]
Sec. 717.25 Disposition of ballots and rec ords.
The county committee shall seal the voted ballots, challenged
ballots found to be ineligible, spoiled ballots, unopened certification
envelopes, register sheets, and community summaries for the county in
one or more envelopes or packages, plainly marked with the
identification of the referendum, the date, and the names of the county
and State, and place them under lock in a safe place under the custody
of the county office manager for a period of 30 calendar days after the
date of the referendum. If no notice to the contrary is received by the
end of such time, the voted ballots, challenged ballots, spoiled
ballots, and unopened certification envelopes shall be destroyed, but
the registers and community and county summary sheets and the register
of absentee ballots shall be filed for a period of 5 years in the office
of the county committee.
Sec. 717.26 Applicability.
The regulations contained in this part shall be applicable to all
referenda held pursuant to the Agricultural Adjustment Act of 1938, as
amended.
PART 718_PROVISIONS APPLICABLE TO MULTIPLE PROGRAMS--Table of Contents
Subpart A_General Provisions
Sec.
718.1 Applicability.
718.2 Definitions.
718.3 State committee responsibilities.
718.4 Authority for farm entry and providing information.
718.5 Rule of fractions.
718.6 Controlled substance.
718.7 Furnishing maps.
718.8 Administrative county.
718.9 Signature requirements.
718.10 Time limitations.
718.11 Disqualification due to federal crop insurance fraud.
Subpart B_Determination of Acreage and Compliance
718.101 Measurements.
718.102 Acreage reports.
718.103 Late-filed reports.
718.104 Revised reports.
718.105 Tolerances, variances, and adjustments.
718.106 Non-compliance and fraudulent acreage reports.
718.107 Acreages.
718.108 Measuring acreage including skip row acreage
718.109 Deductions.
718.110 Adjustments.
718.111 Notice of measured acreage.
718.112 Redetermination.
Subpart C_Reconstitution of Farms, Allotments, Quotas, and Bases
718.201 Farm constitution.
718.202 Determining the land constituting a farm.
718.203 County committee action to reconstitute a farm.
718.204 Reconstitution of allotments, quotas, and bases.
718.205 Substantive change in farming operation, and changes in related
legal entities.
718.206 Determining farms, tracts, allotments, quotas, and bases when
reconstitution is made by division.
718.207 Determining allotments, quotas, and bases when reconstitution is
made by combination.
Subpart D_Equitable Relief From Ineligibility
718.301 Applicability.
718.302 Definitions and abbreviations.
718.303 Reliance on incorrect actions or information.
718.304 Failure to fully comply.
718.305 Forms of relief.
718.306 Finality.
718.307 Special relief approval authority for State Executive Directors.
Authority: 7 U.S.C. 1311 et seq., 1501 et seq., 1921 et seq., 7201
et seq., 15 U.S.C. 714b.
Source: 61 FR 37552, July 18, 1996, unless otherwise noted.
Subpart A_General Provisions
Source: 68 FR 16172, Apr. 3, 2003, unless otherwise noted.
Sec. 718.1 Applicability.
(a) This part is applicable to all programs set forth in chapters
VII and XIV of this title which are administered by the Farm Service
Agency (FSA). This rule governs how FSA monitors marketing quotas,
allotments, base acres and acreage reports. The regulations affected are
those that
[[Page 68]]
establish procedures for measuring allotments and program eligible
acreage, and determining program compliance.
(b) The provisions of this part will be administered under the
general supervision of the Administrator, FSA, and shall be carried out
in the field by State and county FSA committees (State and county
committees).
(c) State and county committees, and representatives and employees
thereof, do not have authority to modify or waive any regulations in
this part.
(d) No provisions or delegation herein to a State or county
committee shall preclude the Administrator, FSA, or a designee, from
determining any question arising under the program or from reversing or
modifying any determination made by a State or county committee.
(e) The Deputy Administrator may authorize State and county
committees to waive or modify deadlines and other requirements in cases
where lateness or failure to meet such other requirements does not
adversely affect the operation of the program.
Sec. 718.2 Definitions.
Except as provided in individual parts of chapters VII and XIV of
this title, the following terms shall be as defined herein:
Administrative variance (AV) means the amount by which the
determined acreage of tobacco may exceed the effective allotment and be
considered in compliance with program regulations.
Allotment means an acreage for a commodity allocated to a farm in
accordance with the Agricultural Adjustment Act of 1938, as amended.
Allotment crop means any tobacco crop for which acreage allotments
are established pursuant to part 723 of this chapter.
Barley means barley that follows the standard planting and
harvesting practice of barley for the area in which the barley is grown.
Base acres means the quantity of acres established according to part
1413 of this title.
CCC means the Commodity Credit Corporation.
Combination means consolidation of two or more farms or parts of
farms, having the same operator, into one farm.
Common ownership unit means a distinguishable parcel of land
consisting of one or more tracts of land with the same owners, as
determined by FSA.
Constitution means the make-up of the farm before any change is made
because of change in ownership or operation.
Controlled substances means the term set forth in 21 CFR part 1308.
Corn means field corn or sterile high-sugar corn that follows the
standard planting and harvesting practices for corn for the area in
which the corn is grown. Popcorn, corn nuts, blue corn, sweet corn, and
corn varieties grown for decoration uses are not corn.
County means the county or parish of a state. For Alaska, Puerto
Rico and the Virgin Islands, a county shall be an area designated by the
State committee with the concurrence of the Deputy Administrator.
County committee means the FSA county committee.
Crop reporting date means the latest date the Administrator, FSA
will allow the farm operator, owner, or their agent to submit a crop
acreage report in order for the report to be considered timely.
Cropland. (a) Means land which the county committee determines meets
any of the following conditions:
(1) Is currently being tilled for the production of a crop for
harvest. Land which is seeded by drilling, broadcast or other no-till
planting practices shall be considered tilled for cropland definition
purposes;
(2) Is not currently tilled, but it can be established that such
land has been tilled in a prior year and is suitable for crop
production;
(3) Is currently devoted to a one-row or two-row shelter belt
planting, orchard, or vineyard;
(4) Is in terraces that, were cropped in the past, even though they
are no longer capable of being cropped;
(5) Is in sod waterways or filter strips planted to a perennial
cover;
(6) Is preserved as cropland in accordance with part 1410 of this
title; or
(7) Is land that has newly been broken out for purposes of being
planted to a crop that the producer intends to,
[[Page 69]]
and is capable of, carrying through to harvest, using tillage and
cultural practices that are consistent with normal practices in the
area; provided further that, in the event that such practices are not
utilized other than for reasons beyond the producer's control, the
cropland determination shall be void retroactive to the time at which
the land was broken out.
(b) Land classified as cropland shall be removed from such
classification upon a determination by the county committee that the
land is:
(1) No longer used for agricultural production;
(2) No longer suitable for production of crops;
(3) Subject to a restrictive easement or contract that prohibits its
use for the production of crops unless otherwise authorized by the
regulation of this chapter;
(4) No longer preserved as cropland in accordance with the
provisions of part 1410 of this title and does not meet the conditions
in paragraphs (a)(1) through (a)(6) of this definition; or
(5) Converted to ponds, tanks or trees other than those trees
planted in compliance with a Conservation Reserve Program contract
executed pursuant to part 1410 of this title, or trees that are used in
one-or two-row shelterbelt plantings, or are part of an orchard or
vineyard.
Current year means the year for which allotments, quotas, acreages,
and bases, or other program determinations are established for that
program. For controlled substance violations, the current year is the
year of the actual conviction.
Deputy Administrator means Deputy Administrator for Farm Programs,
Farm Service Agency, U.S. Department of Agriculture or their designee.
Determination means a decision issued by a State, county or area FSA
committee or its employees that affects a participant's status in a
program administered by FSA.
Determined acreage means that acreage established by a
representative of the Farm Service Agency by use of official acreage,
digitizing or planimetering areas on the photograph or other
photographic image, or computations from scaled dimensions or ground
measurements.
Direct and counter-cyclical program (DCP) cropland means land that
currently meets the definition of cropland, land that was devoted to
cropland at the time it was enrolled in a production flexibility
contract in accordance with part 1413 of this title and continues to be
used for agricultural purposes, or land that met the definition of
cropland on or after April, 4, 1996, and continues to be used for
agricultural purposes and not for nonagricultural commercial or
industrial use.
Division means the division of a farm into two or more farms or
parts of farms.
Entity means a corporation, joint stock company, association limited
partnership, irrevocable trust, estate, charitable organization, or
other similar organization including any such organization participating
in the farming operation as a partner in a general partnership, a
participant in a joint venture, a grantor of a revocable trust, or as a
participant in a similar organization.
Extra Long Staple (ELS) Cotton means cotton that follows the
standard planting and harvesting practices of the area in which the
cotton is grown, and meets all of the following conditions:
(1) American-Pima, Sea Island, Sealand, all other varieties of the
Barbandense species of cotton and any hybrid thereof, and any other
variety of cotton in which 1 or more of these varieties is predominant;
and,
(2) The acreage is grown in a county designated as an ELS county by
the Secretary; and,
(3) The production from the acreage is ginned on a roller-type gin.
Family member means an individual to whom a person is related as
spouse, lineal ancestor, lineal descendant, or sibling, including:
(1) Great grandparent;
(2) Grandparent;
(3) Parent;
(4) Child, including a legally adopted child;
(5) Grandchild
(6) Great grandchildren;
(7) Sibling of the family member in the farming operation; and
[[Page 70]]
(8) Spouse of a person listed in paragraphs (1) through (7) of this
definition.
Farm means a tract, or tracts, of land that are considered to be a
separate operation under the terms of this part provided further that
where multiple tracts are to be treated as one farm, the tracts must
have the same operator and must also have the same owner except that
tracts of land having different owners may be combined if all owners
agree to the treatment of the multiple tracts as one farm for these
purposes.
Farm inspection means an inspection by an authorized FSA
representative using aerial or ground compliance to determine the extent
of producer adherence to program requirements.
Farm number means a number assigned to a farm by the county
committee for the purpose of identification.
Farmland means the sum of the DCP cropland, forest, acreage planted
to an eligible crop acreage as specified in 1437.3 of this title and
other land on the farm.
Field means a part of a farm which is separated from the balance of
the farm by permanent boundaries such as fences, permanent waterways,
woodlands, and croplines in cases where farming practices make it
probable that such cropline is not subject to change, or other similar
features.
GIS means Geographic Information System or a system that stores,
analyzes, and manipulates spatial or geographically referenced data. GIS
computes distances and acres using stored data and calculations.
GPS means Global Positioning System or a positioning system using
satellites that continuously transmit coded information. The information
transmitted from the satellites is interpreted by GPS receivers to
precisely identify locations on earth by measuring distance from the
satellites.
Grain sorghum means grain sorghum of a feed grain or dual purpose
variety (including any cross that, at all stages of growth, having
characteristics of a feed grain or dual purpose variety) that follows
the standard planting and harvesting practice for grain sorghum for the
area in which the grain sorghum was planted. Sweet sorghum is not
considered a grain sorghum.
Ground measurement means the distance between 2 points on the
ground, obtained by actual use of a chain tape, GPS with a minimum
accuracy level as determined by the Deputy Administrator, or other
measuring device.
Joint operation means a general partnership, joint venture, or other
similar business organization.
Landlord means one who rents or leases farmland to another.
Measurement service means a measurement of acreage or farm-stored
commodities performed by a representative of FSA and paid for by the
producer requesting the measurement.
Measurement service after planting means determining a crop or
designated acreage after planting but before the farm operator files a
report of acreage for the crop.
Measurement service guarantee means a guarantee provided when a
producer requests and pays for an authorized FSA representative to
measure acreage for FSA and CCC program participation unless the
producer takes action to adjust the measured acreage. If the producer
has taken no such action, and the measured acreage is later discovered
to be incorrect, the acreage determined pursuant to the measurement
service will be used for program purposes for that program year.
Minor child means an individual who is under 18 years of age. State
court proceedings conferring majority on an individual under 18 years of
age will not change such an individual's status as a minor.
Nonagricultural commercial or industrial use means land that is no
longer suitable for producing annual or perennial crops, including
conserving uses, or forestry products.
Normal planting period means that period during which the crop is
normally planted in the county, or area within the county, with the
expectation of producing a normal crop.
Normal row width means the normal distance between rows of the crop
in the field, but not less than 30 inches for all crops.
[[Page 71]]
Oats means oats that follows the standard planting and harvesting
practice of oats for the area in which the oats are grown.
Operator means an individual, entity, or joint operation who is
determined by the FSA county committee to be in control of the farming
operations on the farm.
Owner means one who has legal ownership of farmland, including:
(1) Any agency of the Federal Government, however, such agency shall
not be eligible to receive any payment pursuant to such contract;
(2) One who is buying farmland under a contract for deed;
(3) One who has a life-estate in the property; or
(4) For purposes of enrolling a farm in a program authorized by
chapters VII and XIV of this title:
(i) One who has purchased a farm in a foreclosure proceeding; and
(A) The redemption period has not passed; and
(B) The original owner has not redeemed the property.
(ii) One who meets the provisions of paragraph (d)(1)(i) of this
definition shall be entitled to receive benefits in accordance with an
agency program only to the extent the owner complies with all program
requirements.
(5) One who is an heir to property but cannot provide legal
documentation to confirm ownership of the property, if such heir
certifies to the ownership of the property and the certification is
considered acceptable, as determined by the Deputy Administrator. Upon a
false or inaccurate certification the Deputy Administrator may impose
liability on the certifying party for additional cost that results--
however such a certification may be taken by the Deputy Administrator as
a bar to other claims where there has been a failure of other persons
claiming an interest in the property to act promptly to protect or
declare their interest or where the current public records do not
accurately set out the current ownership of the farm.
Partial reconstitution means a reconstitution that is made effective
in the current year for some crops, but is not made effective in the
current year for other crops. This results in the same farm having two
or more farm numbers in one crop year.
Participant means one who participates in, or receives payments or
benefits in accordance with any of the programs administered by FSA.
Pasture means land that is used to, or has the potential to, produce
food for grazing animals.
Person means an individual, or an individual participating as a
member of a joint operation or similar operation, a corporation, joint
stock company, association, limited stock company, limited partnership,
irrevocable trust, revocable trust together with the grantor of the
trust, estate, or charitable organization including any entity
participating in the farming operation as a partner in a general
partnership, a participant in a joint venture, a grantor of a revocable
trust, or a participant in a similar entity, or a State, political
subdivision or agency thereof. To be considered a separate person for
the purpose of this part, the individual or other legal entity must:
(1) Have a separate and distinct interest in the land or the crop
involved;
(2) Exercise separate responsibility for such interest; and
(3) Be responsible for the cost of farming related to such interest
from a fund or account separate from that of any other individual or
entity.
Producer means an owner, operator, landlord, tenant, or
sharecropper, who shares in the risk of producing a crop and who is
entitled to share in the crop available for marketing from the farm, or
would have shared had the crop been produced. A producer includes a
grower of hybrid seed.
Quota means the pounds allocated to a farm for a commodity in
accordance with the Agricultural Adjustment Act of 1938, as amended.
Random inspection means an examination of a farm by an authorized
representative of FSA selected as a part of an impartial sample to
determine the adherence to program requirements.
Reconstitution means a change in the land constituting a farm as a
result of combination or division.
Reported acreage means the acreage reported by the farm operator,
farm owner, farm producer, or their agent on a Form prescribed by the
FSA.
[[Page 72]]
Required inspection means an examination by an authorized
representative of FSA of a farm specifically selected by application of
prescribed rules to determine adherence to program requirements or to
verify the farm operator's, farm owner's, farm producer, or agent's
report.
Rice means rice that follows the standard planting and harvesting
practices of the area excluding sweet, glutinous, or candy rice such as
Mochi Gomi.
Secretary means the Secretary of Agriculture of the United States,
or a designee.
Sharecropper means one who performs work in connection with the
production of a crop under the supervision of the operator and who
receives a share of such crop for its labor.
Skip-row or strip-crop planting means a cultural practice in which
strips or rows of the crop are alternated with strips of idle land or
another crop.
Staking and referencing means determining an acreage before planting
by:
(1) Measuring or computing a delineated area from ground
measurements and documenting the area measured; and, (2) Staking and
referencing the area on the ground.
Standard deduction means an acreage that is excluded from the gross
acreage in a field because such acreage is considered as being used for
farm equipment turn-areas. Such acreage is established by application of
a prescribed percentage of the area planted to the crop in lieu of
measuring the turn area.
State means each of the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, the Virgin Islands of the United
States, American Samoa, the Commonwealth of the Northern Mariana
Islands, or the Trust Territory of the Pacific Islands.
Subdivision means a part of a field that is separated from the
balance of the field by temporary boundary, such as a cropline which
could be easily moved or will likely disappear.
Tenant means:
(1) One who rents land from another in consideration of the payment
of a specified amount of cash or amount of a commodity; or
(2) One (other than a sharecropper) who rents land from another
person in consideration of the payment of a share of the crops or
proceeds therefrom.
Tolerance means a prescribed amount within which the reported
acreage and/or production may differ from the determined acreage and/or
production and still be considered as correctly reported.
Tract means a unit of contiguous land under one ownership, which is
operated as a farm, or part of a farm.
Tract combination means the combining of two or more tracts if the
tracts have common ownership and are contiguous.
Tract division means the dividing of a tract into two or more tracts
because of a change in ownership or operation.
Turn-area means the area across the ends of crop rows which is used
for operating equipment necessary to the production of a row crop (also
called turn row, headland, or end row).
Upland cotton means planted and stub cotton that is not considered
extra long staple cotton, and that follows the standard planting and
harvesting practices of the area and is produced from other than pure
strain varieties of the Barbadense species, any hybrid thereof, or any
other variety of cotton in which one or more of these varieties
predominate. For program purposes, brown lint cotton is considered
upland cotton.
Wheat means wheat for feed or dual purpose variety that follows the
standard planting and harvesting practice of wheat for the area in which
the wheat is grown.
[68 FR 16172, Apr. 3, 2003; 69 FR 250, Jan. 5, 2004]
Sec. 718.3 State committee responsibilities.
(a) The State committee shall, with respect to county committees:
(1) Take any action required of the county committee, which the
county committee fails to take in accordance with this part;
(2) Correct or require the county committee to correct any action
taken by such committee, which is not in accordance with this part;
(3) Require the county committee to withhold taking any action which
is not in accordance with this part;
[[Page 73]]
(4) Review county office rates for producer services to determine
equity between counties;
(5) Determine, based on cost effectiveness, which counties will use
aerial compliance methods and which counties will use ground measurement
compliance methods; or
(6) Adjust the per acre rate for acreage in excess of 25 acres to
reflect the actual cost involved when performing measurement service
from aerial slides or digital images.
(b) The State committee shall submit to the Deputy Administrator
requests to deviate from deductions prescribed in Sec. 718.108, or the
error amount or percentage for refunds of redetermination costs as
prescribed in Sec. 718.111.
Sec. 718.4 Authority for farm entry and providing information.
(a) This section applies to all farms that have a tobacco allotment
or quota under part 723 of this chapter and all farms that are currently
participating in programs administered by FSA.
(b) A representative of FSA may enter any farm that participates in
an FSA or CCC program in order to conduct a farm inspection as defined
in this part. A program participant may request that the FSA
representative present written authorization for the farm inspection
before granting access to the farm. If a farm inspection is not allowed
within 30 days of written authorization:
(1) All FSA and CCC program benefits for that farm shall be denied;
(2) The person preventing the farm inspection shall pay all costs
associated with the farm inspection;
(3) The entire crop production on the farm will be considered to be
in excess of the quota established for the farm; and
(4) For tobacco, the farm operator must furnish proof of disposition
of:
(i) All tobacco which is in addition to the production shown on the
marketing card issued with respect to such farm; and
(ii) No credit will be given for disposing of excess tobacco other
than that identified by a marketing card unless disposed of in the
presence of FSA in accordance with Sec. 718.109 of this part.
(c) If a program participant refuses to furnish reports or data
necessary to determine benefits in accordance with paragraph (a) of this
section, or FSA determines that the report or data was erroneously
provided through the lack of good faith, all program benefits relating
to the report or data requested will be denied.
Sec. 718.5 Rule of fractions.
(a) Fractions shall be rounded after completion of the entire
associated computation. All mathematical calculations shall be carried
to two decimal places beyond the number of decimal places required by
the regulations governing each program. In rounding, fractional digits
of 49 or less beyond the required number of decimal places shall be
dropped; if the fractional digits beyond the required number of decimal
places are 50 or more, the figure at the last required decimal place
shall be increased by ``1'' as follows:
------------------------------------------------------------------------
Required decimal Computation Result
------------------------------------------------------------------------
Whole numbers...................... 6.49 (or less)........ 6
6.50 (or more)........ 7
Tenths............................. 7.649 (or less)....... 7.6
7.650 (or more)....... 7.7
Hundredths......................... 8.8449 (or less)...... 8.84
8.8450 (or more)...... 8.85
Thousandths........................ 9.63449 (or less)..... 9.634
9.63450 (or more)..... 9.635
0 thousandths...................... 10.993149 (or less)... 10.9931
10.993150 (or more)... 10.9932
------------------------------------------------------------------------
(b) The acreage of each field or subdivision computed for tobacco
and CCC disaster assistance programs shall be recorded in acres and
hundredths of an acre, dropping all thousandths of an acre. The acreage
of each field or subdivision computed for crops, except tobacco, shall
be recorded in acres and tenths of an acre, rounding all hundredths of
an acre to the nearest tenth.
Sec. 718.6 Controlled substance.
(a) The following terms apply to this section:
(1) USDA benefit means the issuance of any grant, contract, loan, or
payment by appropriated funds of the United States.
(2) Person means an individual.
(b) Notwithstanding any other provision of law, any person convicted
under Federal or State law of:
[[Page 74]]
(1) Planting, cultivating, growing, producing, harvesting, or
storing a controlled substance in any crop year shall be ineligible for
any payment made under any Act, with respect to any commodity produced
during the crop year of conviction and the four succeeding crop years,
by such person.
(2) Possession of a controlled substance, or trafficking in a
controlled substance, shall, in addition to any ineligibility under
paragraph (b)(1) of this section, be ineligible for any or all USDA
benefits, to the extent that a court shall determine to impose such
ineligibility pursuant to applicable Federal law, in which case the
ineligibility shall be for such period of time as is imposed by the
court, pursuant to such law, at the discretion of the court.
(c) USDA benefits subject to paragraph (b) of this section include:
(1) Any payments or benefits under the Direct and Counter Cyclical
Program (DCP) in accordance with part 1413 of this title;
(2) Any payments or benefits for losses to trees, crops, or
livestock covered under disaster programs administered by FSA;
(3) Any price support loan available in accordance with part 1464 of
this title;
(4) Any price support or payment made under the Commodity Credit
Corporation Charter Act;
(5) A farm storage facility loan made under section 4(h) of the
Commodity Credit Corporation Charter Act or any other Act;
(6) Crop Insurance under the Federal Crop Insurance Act;
(7) A loan made or guaranteed under the Consolidated Farm and Rural
Development Act or any other law formerly administered by the Farmers
Home Administration; or
(d) If a person denied benefits under this section is a shareholder,
beneficiary, or member of an entity or joint operation, benefits for
which the entity or joint operation is eligible shall be reduced, for
the appropriate period, by a percentage equal to the total interest of
the shareholder, beneficiary, or member.
[68 FR 16172, Apr. 3, 2003; 69 FR 250, Jan. 5, 2004]
Sec. 718.7 Furnishing maps.
A reasonable number, as determined by FSA, of reproductions of
photographs, mosaics and maps shall be available to the owner of a farm
insurance companies reinsured by the Federal Crop Insurance Corporation
(FCIC), private party contractors performing their official duties on
behalf of FSA, CCC, and other USDA agencies. To all others,
reproductions shall be made available at the rate FSA determines will
cover the cost of making such items available.
Sec. 718.8 Administrative county.
(a) If all land on the farm is physically located in one county, the
farm shall be administratively located in such county. If there is no
FSA office in the county or the county offices have been consolidated,
the farm shall be administratively located in the contiguous county most
convenient for the farm operator.
(b) If the land on the farm is located in more than one county, the
farm shall be administratively located in either of such counties as the
county committees and the farm operator agree. If no agreement can be
reached, the farm shall be administratively located in the county where
the principal dwelling is situated, or where the major portion of the
farm is located if there is no dwelling.
(c) The State committee shall submit all requests to deviate from
regulations specified in this section to the Deputy Administrator.
Sec. 718.9 Signature requirements.
(a) When a program authorized by this chapter or Chapter XIV of this
title requires the signature of a producer; landowner; landlord; or
tenant, a husband or wife may sign all such FSA or CCC documents on
behalf of the other spouse, unless such other spouse has provided
written notification to FSA and CCC that such action is not authorized.
The notification must be provided to FSA with respect to each farm.
(b) Except a husband or wife may not sign a document on behalf of a
spouse with respect to:
[[Page 75]]
(1) Program document required to be executed in accordance with part
3 of this title;
(2) Easements entered into under part 1410 of this title;
(3) Power of attorney;
(4) Such other program documents as determined by FSA or CCC.
(c) An individual; duly authorized officer of a corporation; duly
authorized partner of a partnership; executor or administrator of an
estate; trustee of a trust; guardian; or conservator may delegate to
another the authority to act on their behalf with respect to FSA and CCC
programs administered by USDA service center agencies by execution of a
Power of Attorney, or such other form as approved by the Deputy
Administrator. FSA and CCC may, at their discretion, allow the
delegations of authority by other individuals through use of the Power
of Attorney or such other form as approved by the Deputy Administrator.
(d) Notwithstanding another provision of this regulation or any
other FSA or CCC regulation in this title, a parent may execute
documents on behalf of a minor child unless prohibited by a statute or
court order.
(e) Notwithstanding any other provision in this title, an authorized
agent of the Bureau of Indian Affairs (BIA) of the United States
Department of Interior may sign as agent for landowners with properties
affiliated with or under the management or trust of the BIA. For
collection purposes, such payments will be considered as being made to
the persons who are the beneficiaries of the payment or may,
alternatively, be considered as an obligation of all persons on the farm
in general. In the event of a need for a refund or other claim may be
collected, among other means, by other monies due such persons or the
farm.
[68 FR 16172, Apr. 3, 2003; 69 FR 250, Jan. 5, 2004]
Sec. 718.10 Time limitations.
Whenever the final date prescribed in any of the regulations in this
title for the performance of any act falls on a Saturday, Sunday,
national holiday, State holiday on which the office of the county or
State Farm Service Agency committee having primary cognizance of the
action required to be taken is closed, or any other day on which the
cognizant office is not open for the transaction of business during
normal working hours, the time for taking required action shall be
extended to the close of business on the next working day. Or in case
the action required to be taken may be performed by mailing, the action
shall be considered to be taken within the prescribed period if the
mailing is postmarked by midnight of such next working day. Where the
action required to be taken is with a prescribed number of days after
the mailing of notice, the day of mailing shall be excluded in computing
such period of time.
Sec. 718.11 Disqualification due to federal crop insurance fraud.
(a) Section 515(h) of the Federal Crop Insurance Act (FCIA) provides
that a person who willfully and intentionally provides any false or
inaccurate information to the Federal Crop Insurance Corporation (FCIC)
or to an approved insurance provider with respect to a policy or plan of
FCIC insurance after notice and an opportunity for a hearing on the
record, will be subject to one or more of the sanctions described in
section 515(h)(3). In section 515(h)(3), the FCIA specifies that in the
case of a violation committed by a producer, the producer may be
disqualified for a period of up to 5 years from receiving any monetary
or non-monetary benefit under a number of programs. The list includes,
but is not limited to, benefits under:
(1) Title V of the FCIA.
(2) The Agricultural Market Transition Act (7 U.S.C. 7201 et seq.),
including the Noninsured Crop Disaster Assistance Program under section
196 of that Act (7 U.S.C. 7333).
(3) The Agricultural Act of 1949 (7 U.S.C. 1421 et seq.).
(4) The Commodity Credit Corporation Charter Act (15 U.S.C. 714 et
seq).
(5) The Agricultural Adjustment Act of 1938 (7 U.S.C. 1281 et seq.).
(6) Title XII of the Food Security Act of 1985 (16 U.S.C. 3801 et
seq.).
[[Page 76]]
(7) Any law that provides assistance to a producer of an
agricultural commodity affected by a crop loss or a decline in prices of
agricultural commodities.
(b) Violation determinations are made by FCIC. However, upon notice
from FCIC to FSA that a producer has been found to have committed a
violation to which paragraph (a) of this section applies, that person
shall be considered ineligible for payments under the programs specified
in paragraph (a) of this section that are funded by FSA for the same
period of time for which, as determined by FCIC, the producer will be
ineligible for crop insurance benefits of the kind referred to in
paragraph (a)(1) of this section. Appeals of the determination of
ineligibility will be administered under the rules set by FCIC.
(c) Other sanctions may also apply.
[68 FR 39448, July 2, 2003]
Subpart B_Determination of Acreage and Compliance
Source: 68 FR 16176, Apr. 3, 2003, unless otherwise noted.
Sec. 718.101 Measurements.
(a) Measurement services include, but are not limited to, measuring
land and crop areas, quantities of farm-stored commodities, and
appraising the yields of crops in the field when required for program
administration purposes. The county committee shall provide measurement
service if the producer requests such service and pays the cost, except
that service shall not be provided to determine total acreage or
production of a crop when the request is made:
(1) After the established final reporting date for the applicable
crop, unless a late filed report is accepted as provided in Sec.
718.103;
(2) After the farm operator has furnished production evidence when
required for program administration purposes except as provided in this
subpart; or
(3) In connection with a late-filed report of acreage, unless there
is evidence of the crop's existence in the field and use made of the
crop, or the lack of the crop due to a disaster condition affecting the
crop.
(b) The acreage requested to be measured by staking and referencing
shall not exceed the effective farm allotment for marketing quota crops
or acreage of a crop that is limited to a specific number of acres to
meet any program requirement.
(c) When a producer requests, pays for, and receives written notice
that measurement services have been furnished, the measured acreage
shall be guaranteed to be correct and used for all program purposes for
the current year even though an error is later discovered in the
measurement thereof, if the producer has taken action with an economic
significance based on the measurement service, and the entire crop
required for the farm was measured. If the producer has not taken action
with an economic significance based on the measurement service, the
producer shall be notified in writing that an error was discovered and
the nature and extent of such error. In such cases, the corrected
acreage will be used for determining program compliance for the current
year.
(d) When a measurement service reveals acreage in excess of the
permitted acreage and the allowable tolerance as defined in this part,
the producer must destroy the excess acreage and pay for FSA to verify
destruction, in order to keep the measurement service guarantee.
Sec. 718.102 Acreage reports.
(a) In order to be eligible for benefits, participants in the
programs specified in paragraphs (b)(1) through (b)(6) of this section
must annually submit accurate information as required by these
provisions.
(b)(1) Participants in the programs governed by part 1412 of this
title must report the acreage of fruits and vegetables planted for
harvest on a farm enrolled in such program;
(2) Participants in the programs governed by parts 1421 and 1427 of
this title must report the acreage planted to a commodity for harvest
for which a marketing assistance loan or loan deficiency payment is
requested;
[[Page 77]]
(3) Participants in the programs governed by part 1410 of this title
must report the use of land enrolled in such programs;
(4) All participants in the programs governed by part 1437 of this
title must report all acreage in the county of the eligible crop in
which the producer has a share;
(5) Participants in the programs governed by part 723 of this
chapter and part 1464 of this title must report the acreage planted to
tobacco by kind on all farms that have an effective allotment or quota
greater than zero;
(6) All participants in the programs governed by parts 1412, 1421,
and 1427 of this title must report the use of all cropland on the farm.
(c) The reports required under paragraph (a) of this section shall
be timely filed by the farm operator, farm owner, producer of the crop
on the farm, or a duly authorized representative with the county
committee by the final reporting date applicable to the crop as
established by the county committee and State committee.
Sec. 718.103 Late-filed reports.
(a) A report may be accepted after the required date if the crop or
identifiable crop residue is in the field.
(b) The farm operator shall pay the cost of a farm inspection unless
the County Committee determines that failure to report in a timely
manner was beyond the producer's control.
Sec. 718.104 Revised reports.
(a) The farm operator may revise a report of acreage with respect to
2002 and subsequent years to change the acreage reported if:
(1) The county committee determines that the revision does not have
an adverse impact on the program;
(2) The acreage has not already been determined by FSA; and
(3) Actual crop or residue is present in the field.
(b) Revised reports shall be filed and accepted:
(1) At any time for all crops if the crop or residue still exists in
the field for inspection to verify its existence and use made of the
crop, the lack of the crop, or a disaster condition affecting the crop;
and
(2) If the requirements of paragraph (a) of this section have been
met and the producer was in compliance with all other program
requirements at the reporting date.
Sec. 718.105 Tolerances, variances, and adjustments.
(a) Tolerance is the amount by which the determined acreage for a
crop may differ from the reported acreage or allotment for the crop and
still be considered in compliance with program requirements under
Sec. Sec. 718.102(b)(1), (b)(3) and (b)(5).
(b) Tolerance rules apply to those fields for which a staking and
referencing was performed but such acreage was not planted according to
those measurements or when a measurement service is not requested for
acreage destroyed to meet program requirements.
(c) Tolerance rules do not apply to:
(1) Program requirements of Sec. Sec. 718.102(b)(2), (b)(4) and
(b)(6);
(2) Official fields when the entire field is devoted to one crop;
(3) Those fields for which staking and referencing was performed and
such acreage was planted according to those measurements; or
(4) The adjusted acreage for farms using measurement after planting
which have a determined acreage greater than the marketing quota crop
allotment.
(d) An administrative variance is applicable to all allotment crop
acreages. Allotment crop acreages as determined in accordance with this
part shall be deemed in compliance with the effective farm allotment or
program requirement when the determined acreage does not exceed the
effective farm allotment by more than an administrative variance
determined as follows:
(1) For all kinds of tobacco subject to marketing quotas, except
dark air-cured and fire-cured the larger of 0.1 acre or 2 percent of the
allotment; and
(2) For dark air-cured and fire-cured tobacco, an acreage based on
the effective acreage allotment as provided in the table as follows:
------------------------------------------------------------------------
Administrative
Effective acreage allotment is within this range variance
------------------------------------------------------------------------
0.01 to 0.99......................................... 0.01
1.00 to 1.49......................................... 0.02
1.50 to 1.99......................................... 0.03
[[Page 78]]
2.00 to 2.49......................................... 0.04
2.50 to 2.99......................................... 0.05
3.00 to 3.49......................................... 0.06
3.50 to 3.99......................................... 0.07
4.00 to 4.49......................................... 0.08
4.50 and up.......................................... 0.09
------------------------------------------------------------------------
(e) A tolerance applies to tobacco, other than flue-cured or burley,
if the measured acreage exceeds the allotment by more than the
administrative variance but by not more than the tolerance. Such excess
acreage of tobacco may be adjusted to the effective farm acreage
allotment to avoid marketing quota penalties or receive price support.
(f) If the acreage report for a crop is outside the tolerance for
that crop:
(1) FSA may consider the requirements of Sec. Sec. 718.102 (b)(1),
(b)(3) and (b)(5) not to have been met, and;
(2) Participants may be ineligible for all or a portion of payments
or benefits subject to the requirements of Sec. Sec. 718.102 (b)(1),
(b)(3) and (b)(5).
Sec. 718.106 Non-compliance and fraudulent acreage reports.
Participants that knowingly and willfully provide false or
inaccurate acreage reports may be ineligible for some or all payments or
benefits subject to the requirements of Sec. Sec. 718.102 (b)(1),
(b)(3) and (b)(5):
(a) The county committee determines that the acreage report filed
according to Sec. Sec. 718.102 (b)(1), (b)(3) and (b)(5) is inaccurate,
and;
(b) A good-faith effort to accurately report the acreage was not
made because the report was knowingly and willfully falsified.
Sec. 718.107 Acreages.
(a) If an acreage has been established by FSA for an area delineated
on an aerial photograph or within a GIS, such acreage will be recognized
by the county committee as the acreage for the area until such time as
the boundaries of such area are changed. When boundaries not visible on
the aerial photograph are established from data furnished by the
producer, such acreage shall not be recognized as official acreage until
an authorized representative of FSA verifies the boundaries.
(b) Measurements of any row crop shall extend beyond the planted
area by the larger of 15 inches or one-half the distance between the
rows.
(c) The entire acreage of a field or subdivision of a field devoted
to a crop shall be considered as devoted to the crop subject to a
deduction or adjustment except as otherwise provided in this part.
Sec. 718.108 Measuring acreage including skip row acreage.
(a) When one crop is alternating with another crop, whether or not
both crops have the same growing season, only the acreage that is
actually planted to the crop being measured will be considered to be
acreage devoted to the measured crop.
(b) Subject to the provisions of this paragraph and section, whether
planted in a skip row pattern or without a pattern of skipped rows, the
entire acreage of the field or subdivision may be considered as devoted
to the crop only where the distance between the rows, for all rows, is
40 inches or less. If there is a skip that creates idle land wider than
40 inches, or if the distance between any rows is more than 40 inches,
then the area planted to the crop shall be considered to be that area
which would represent the smaller of; a 40 inch width between rows, or
the normal row spacing in the field for all other rows in the field--
those that are not more than 40 inches apart. The allowance for
individual rows would be made based on the smaller of actual spacing
between those rows or the normal spacing in the field. For example, if
the crop is planted in single, wide rows that are 48 inches apart, only
20 inches to either side of each row (for a total of 40 inches between
the two rows) could, at a maximum, be considered as devoted as the crop
and normal spacing in the field would control. Half the normal distance
between rows will also be allowed beyond the outside planted rows not to
exceed 20 inches and will reflect normal spacing in the field.
(c) In making calculations under this section, further reductions
may be made in the acreage considered planted if it is determined that
the acreage is more sparsely planted than normal
[[Page 79]]
using reasonable and customary full production planting techniques.
(d) The Deputy Administrator has the discretionary authority to
allow row allowances other than those specified in this section in those
instances in which crops are normally planted with spacings greater or
less than 40 inches, such as in case of tobacco, or where other
circumstances are present which the Deputy Administrator finds justifies
that allowance.
(e) Paragraphs (a) through (d) of this section shall apply with
respect to the 2003 and subsequent crops. For preceding crops, the rules
in effect on January 1, 2002, shall apply.
Sec. 718.109 Deductions.
(a) Any contiguous area which is not devoted to the crop being
measured and which is not part of a skip-row pattern under Sec. 718.108
shall be deducted from the acreage of the crop if such area meets the
following minimum national standards or requirements:
(1) A minimum width of 30 inches;
(2) For tobacco--three-hundredths (.03) acre. Turn areas, terraces,
permanent irrigation and drainage ditches, sod waterways, non-cropland,
and subdivision boundaries each of which is at least 30 inches in width
may be combined to meet the 0.03-acre minimum requirement; or
(3) For all other crops and land uses--one-tenth (.10) acre. Turn
areas, terraces, permanent irrigation and drainage ditches, sod
waterways, non-cropland, and subdivision boundaries each of which is at
least 30 inches in width and each of which contain 0.1 acre or more may
be combined to meet any larger minimum prescribed for a State in
accordance with this subpart.
(b) If the area not devoted to the crop is located within the
planted area, the part of any perimeter area that is more than 217.8
feet (33 links) in width will be considered to be an internal deduction
if the standard deduction is used.
(c) A standard deduction of 3 percent of the area devoted to a row
crop and zero percent of the area devoted to a close-sown crop may be
used in lieu of measuring the acreage of turn areas.
Sec. 718.110 Adjustments.
(a) The farm operator or other interested producer having excess
tobacco acreage (other than flue-cured or burley) may adjust an acreage
of the crop in order to avoid a marketing quota penalty if such person:
(1) Notifies the county committee of such election within 15
calendar days after the date of mailing of notice of excess acreage by
the county committee; and
(2) Pays the cost of a farm inspection to determine the adjusted
acreage prior to the date the farm visit is made.
(b) The farm operator may adjust an acreage of tobacco (except flue-
cured and burley) by disposing of such excess tobacco prior to the
marketing of any of the same kind of tobacco from the farm. The
disposition shall be witnessed by a representative of FSA and may take
place before, during, or after the harvesting of the same kind of
tobacco grown on the farm. However, no credit will be allowed toward the
disposition of excess acreage after the tobacco is harvested but prior
to marketing, unless the county committee determines that such tobacco
is representative of the entire crop from the farm of the kind of
tobacco involved.
Sec. 718.111 Notice of measured acreage.
Notice of measured acreage shall be provided by FSA and mailed to
the farm operator. This notice shall constitute notice to all parties
who have ownership, leasehold interest, or other, in such farm.
Sec. 718.112 Redetermination.
(a) A redetermination of crop acreage, appraised yield, or farm-
stored production for a farm may be initiated by the county committee,
State committee, or Deputy Administrator at any time. Redetermination
may be requested by a producer with an interest in the farm if they pay
the cost of the redetermination. The request must be submitted to FSA
within 15 calendar days after the date of the notice described in
Sec. Sec. 718.110 or 718.111, or within 5 calendar days after the
initial appraisal of the yield of a crop, or before the farm-stored
production is removed from storage. A redetermination shall
[[Page 80]]
be undertaken in the manner prescribed by the Deputy Administrator. A
redetermination shall be used in lieu of any prior determination.
(b) The county committee shall refund the payment of the cost for a
redetermination when, because of an error in the initial determination:
(1) The appraised yield is changed by at least the larger of:
(i) Five percent or 5 pounds for cotton;
(ii) Five percent or 1 bushel for wheat, barley, oats, and rye; or
(iii) Five percent or 2 bushels for corn and grain sorghum; or
(2) The farm stored production is changed by at least the smaller of
3 percent or 600 bushels; or
(3) The acreage of the crop is:
(i) Changed by at least the larger of 3 percent or 0.5 acre; or
(ii) Considered to be within program requirements.
Subpart C_Reconstitution of Farms, Allotments, Quotas, and Bases
Source: 68 FR 16178, Apr. 3, 2003, unless otherwise noted.
Sec. 718.201 Farm constitution.
(a) In order to implement agency programs and monitor farmer
compliance with regulations, the agency must have records on what land
is being farmed by a particular producer. This is accomplished by a
determination of what land or groups of land `constitute' an individual
unit or farm. Land, which has been properly constituted under prior
regulations, shall remain so constituted until a reconstitution is
required under paragraph (c) of this section. The constitution and
identification of land as a farm for the first time and the subsequent
reconstitution of a farm made hereafter, shall include all land operated
by an individual entity or joint operation as a single farming unit
except that it shall not include:
(1) Land under separate ownership unless the owners agree in writing
and the labor, equipment, accounting system, and management are operated
in common by the operator but separate from other tracts;
(2) Land under a lease agreement of less than 1 year duration;
(3) Land in different counties when the tobacco allotments or quotas
established for the land involved cannot be transferred from one county
to another county by lease, sale, or owner. However, this paragraph
shall not apply if:
(i) All of the land is contiguous;
(ii) The land is located in counties that are contiguous in the same
State if:
(A) A burley or flue-cured tobacco quota is established for one or
more of the tracts; and
(B) The county committee determines that the tracts will be operated
as a single farming unit as set forth in Sec. 718.202; or
(iii) Because of a change in operation, tracts or parts of tracts
will be divided from the parent farm that currently has land in more
than one county, and there is no change in operation and ownership of
the remainder of the farm, or if there is a change in ownership, the new
owner agrees in writing to the constitution of the farm.
(4) Federally-owned land;
(5) State-owned wildlife lands unless the former owner has
possession of the land under a leasing agreement; and
(6) Land constituting a farm which is declared ineligible to be
enrolled in a program under the regulations governing the program; and
(7) For acreage base crops, land located in counties that are not
contiguous. However, this paragraph shall not apply if:
(i) Counties are divided by a river;
(ii) Counties do not touch because of a correction line adjustment;
or
(iii) The land is within 20 miles, by road, of other land that will
be a part of the farming unit.
(b)(1) If all land on the farm is physically located in one county,
the farm shall be administratively located in such county. If there is
no FSA office in the county or the county offices have been
consolidated, the farm shall be administratively located in the
contiguous county most convenient for the farm operator.
(2) If the land on the farm is located in more than one county, the
farm
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shall be administratively located in either of such counties as the
county committees and the farm operator agree. If no agreement can be
reached, the farm shall be administratively located in the county where
the principal dwelling is situated, or where the major portion of the
farm is located if there is no dwelling.
(c) A reconstitution of a farm either by division or by combination
shall be required whenever:
(1) A change has occurred in the operation of the land after the
last constitution or reconstitution and as a result of such change the
farm does not meet the conditions for constitution of a farm as set
forth in paragraph (a) of this section except that no reconstitution
shall be made if the county committee determines that the primary
purpose of the change in operation is to establish eligibility to
transfer allotments subject to sale or lease, or increase amount of
program benefits received;
(2) The farm was not properly constituted the previous time;
(3) An owner requests in writing that the land no longer be included
in a farm composed of tracts under separate ownership;
(4) The county committee determines that the farm was reconstituted
on the basis of false information;
(5) The county committee determines that tracts included in a farm
are not being operated as a single farming unit.
(d) Reconstitution shall not be approved if the county committee
determines that the primary purpose of the reconstitution is to:
(1) Circumvent the provisions of part 12 of this title; or
(2) Circumvent any other chapter of this title.
Sec. 718.202 Determining the land constituting a farm.
(a) In determining the constitution of a farm, consideration shall
be given to provisions such as ownership and operation. For purposes of
this part, the following rules shall be applicable to determining what
land is to be included in a farm.
(b) A minor shall be considered to be the same owner or operator as
the parent, court-appointed guardian, or other person responsible for
the minor child, unless the parent or guardian has no interest in the
minor's farm or production from the farm, and the minor:
(1) Is a producer on a farm;
(2) Maintains a separate household from the parent or guardian;
(3) Personally carries out the farming activities; and
(4) Maintains a separate accounting for the farming operation.
(c) A minor shall not be considered to be the same owner or operator
as the parent or court-appointed guardian if the minor's interest in the
farming operation results from being the beneficiary of an irrevocable
trust and ownership of the property is vested in the trust or the minor.
(d) A life estate tenant shall be considered to be the owner of the
property for their life.
(e) A trust shall be considered to be an owner with the beneficiary
of the trust; except a trust can be considered a separate owner or
operator from the beneficiary, if the trust:
(1) Has a separate and distinct interest in the land or crop
involved;
(2) Exercises separate responsibility for the separate and distinct
interest; and
(3) Maintains funds and accounts separate from that of any other
individual or entity for the interest.
(f) The county committee shall require specific proof of ownership.
(g) Land owned by different persons of an immediate family living in
the same household and operated as a single farming unit shall be
considered as being under the same ownership in determining a farm.
(h) All land operated as a single unit and owned and operated by a
parent corporation and subsidiary corporations of which the parent
corporation owns more than 50 percent of the value of the outstanding
stock, or where the parent is owned and operated by subsidiary
corporations, shall be constituted as one farm.
Sec. 718.203 County committee action to reconstitute a farm.
Action to reconstitute a farm may be initiated by the county
committee, the farm owner, or the operator with the
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concurrence of the owner of the farm. Any request for a farm
reconstitution shall be filed with the county committee.
Sec. 718.204 Reconstitution of allotments, quotas, and bases.
(a) Farms shall be reconstituted in accordance with this subpart
when it is determined that the land areas are not properly constituted
and, to the extent practicable, shall be based on the facts and
conditions existing at the time the change requiring the reconstitution
occurred.
(b) Reconstitutions of farms subject to a direct and counter-
cyclical program contract in accordance with part 1413 of this title
will be effective for the current year if initiated on or before August
1 or prior to the issuance of DCP payments for the farm or farms being
reconstituted.
(c) For tobacco farms, a reconstitution will be effective for the
current year for each crop for which the reconstitution is initiated
before the planting of such crop begins or would have begun.
(d) Notwithstanding the provisions of paragraph (c) of this section,
a reconstitution may be effective for the current year if the county
committee determines, and the State committee concurs, that the purpose
of the request for reconstitution is not to perpetrate a scheme or
device designed to evade the requirements governing programs found in
this title.
Sec. 718.205 Substantive change in farming operation, and changes in
related legal entities.
(a) Land that is properly constituted as a farm shall not be
reconstituted if:
(1) The reconstitution request is based upon the formation of a
newly established legal entity which owns or operates the farm or any
part of the farm and the county committee determines there is not a
substantive change in the farming operation;
(2) The county committee determines that the primary purpose of the
request for reconstitution is to:
(i) Obtain additional benefits under one or more commodity programs;
(ii) Avoid damages or penalties under a contract or statute;
(iii) Correct an erroneous acreage report; or
(iv) Circumvent any other program provisions. In addition, no farm
shall remain as constituted when the county committee determines that a
substantive change in the farming operation has occurred which would
require a reconstitution, except as otherwise approved by the State
committee with the concurrence of the Deputy Administrator.
(b) In determining whether a substantive change has occurred with
respect to a farming operation, the county committee shall consider
factors such as the composition of the legal entities having an interest
in the farming operation with respect to management, financing, and
accounting. The county committee shall also consider the use of land,
labor, and equipment available to the farming operations and any other
relevant factors that bear on the determination.
(c) Unless otherwise approved by the State committee with the
concurrence of the Deputy Administrator, when the county committee
determines that a corporation, trust, or other legal entity is formed
primarily for the purpose of obtaining additional benefits under the
commodity programs of this title, the farm shall remain as constituted,
or shall be reconstituted, as applicable, when the farm is owned or
operated by:
(1) A corporation having more than 50 percent of the stock owned by
members of the same family living in the same household;
(2) Corporations having more than 50 percent of the stock owned by
stockholders common to more than one corporation; or
(3) Trusts in which the beneficiaries and trustees are family
members living in the same household.
(d) Application of the provisions of paragraph (c) of this section
shall not limit or affect the application of paragraphs (a) and (b) of
this section.
Sec. 718.206 Determining farms, tracts, allotments, quotas, and bases
when reconstitution is made by division.
(a) The methods for dividing farms, tracts, allotments, quotas, and
bases in order of precedence, when applicable, are estate, designation
by landowner,
[[Page 83]]
contribution, cropland, DCP cropland, default, and history. The proper
method shall be determined on a crop by crop basis.
(b)(1) The estate method is the pro-rata distribution of allotments,
quotas, and bases for a parent farm among the heirs in settling an
estate. If the estate sells a tract of land before the farm is divided
among the heirs, the allotments, quotas, and bases for that tract shall
be determined according to paragraphs (c) through (h) of this section.
(2) Allotments, quotas, and bases shall be divided in accordance
with a will, but only if the county committee determines that the terms
of the will are such that a division can reasonably be made by the
estate method.
(3) If there is no will or the county committee determines that the
terms of a will are not clear as to the division of allotments, quotas,
and bases, such allotments, quotas, and bases shall be apportioned in
the manner agreed to in writing by all interested heirs or devisees who
acquire an interest in the property for which such allotments, quotas,
and bases have been established. An agreement by the administrator or
executor shall not be accepted in lieu of an agreement by the heirs or
devisees.
(4) If allotments, quotas, and bases are not apportioned in
accordance with the provisions of paragraphs (b)(2) or (b)(3) of this
section, the allotments, quotas, and bases shall be divided pursuant to
paragraphs (d) through (h) of this section, as applicable.
(c)(1) If the ownership of a tract of land is transferred from a
parent farm, the transferring owner may request that the county
committee divide the allotments, quotas, and bases, including historical
acreage that has been double cropped, between the parent farm and the
transferred tract, or between the various tracts if the entire farm is
sold to two or more purchasers, in a manner designated by the owner of
the parent farm subject to the conditions set forth in paragraph (c)(3)
of this section.
(2) If the county committee determines that allotments, quotas, and
bases cannot be divided in the manner designated by the owner because of
the conditions set forth in paragraph (c)(3) of this section, the owner
shall be notified and permitted to revise the designation so as to meet
the conditions in paragraph (c)(3) of this section. If the owner does
not furnish a revised designation of allotments, quotas, and bases
within a reasonable time after such notification, or if the revised
designation does not meet the conditions of paragraph (c)(3) of this
section, the county committee will divide the allotments, quotas, and
bases in a pro-rata manner in accordance with paragraphs (d) through (h)
of this section.
(3) A landowner may designate a manner in which allotments, quotas,
and bases are divided according to this paragraph.
(i) The transferring owner and transferee shall file a signed
written memorandum of understanding of the designation with the county
committee before any CCC or FSA prescribed form, letter or contract
providing an allotment, base or quota is issued and before a subsequent
transfer of ownership of the land. The landowner shall designate the
allotments, quotas, and bases that shall be permanently reduced when the
sum of the allotments, quotas, and bases exceeds the cropland for the
farm.
(ii) Where the part of the farm from which the ownership is being
transferred was owned for a period of less than 3 years, the designation
by landowner method shall not be available with respect to the transfer
unless the county committee determines that the primary purpose of the
ownership transfer was other than to retain or to sell allotments,
quotas, or bases. In the absence of such a determination, and if the
farm contains land which has been owned for less than 3 years, that part
of the farm which has been owned for less than 3 years shall be
considered as a separate farm and the allotments, quotas, or bases,
shall be assigned to that part in accordance with paragraphs (d) through
(h) of this section. Such apportionment shall be made prior to any
designation of allotments, quotas, and bases with respect to the part
that has been owned for 3 years or more.
(4) The designation by landowner method is not applicable to crop
allotments or quotas which are restricted to
[[Page 84]]
transfer within the county by lease, sale, or by owner, when the land on
which the farm is located is in two or more counties.
(5) The designation by landowner method may be applied at the
owner's request to land owned by any Indian Tribal Council which is
leased to two or more producers for the production of any crop of a
commodity for which an allotment, quota, or base has been established.
If the land is leased to two or more producers, an Indian Tribal Council
may request that the county committee divide the allotments, quotas, and
bases between the applicable tracts in the manner designated by the
Council. The use of this method shall not be subject to the conditions
of paragraph (c)(3) of this section.
(d)(1) The contribution method is the pro-rata distribution of a
parent farm's allotments and quotas to each tract as the tract
contributed to the allotments and quotas at the time of combination and
may be used when the provisions of paragraphs (b) and (c) of this
section do not apply.
(2) The county committee determines and the State committee or a
representative thereof concurs, that the use of the contribution method
would not result in an equitable distribution of allotments and quotas,
considering available land, cultural operations, and changes in type of
farming.
(e) The cropland method is the pro-rata distribution of allotments
and quotas to separate tracts proportionately to the tract's
contribution to the cropland for the parent tract. This method shall be
used if paragraphs (b) through (d) of this section do not apply unless
the county committee determines that division by the history method
would result in more representative allotments and quotas than the
cropland method, taking into consideration the operation normally
carried out on each tract for the commodities produced on the farm.
(f)(1) The history method is the pro-rata distribution of allotments
and quotas to separate tracts on the basis of the operation normally
carried out on each tract of the parent farm. The county committee may
use the history method of dividing allotments and quotas when it:
(i) Determines that this method would result in a more accurate pro-
rata distribution of allotments and quotas based on actual contribution
of the tract to the totals of the parent farm than the cropland method
would; and
(ii) Obtains written consent of all owners to use the history
method.
(2) The county committee may waive the requirement for written
consent of the owners for dividing allotments and quotas if the county
committee determines that the use of the cropland method would result in
an inequitable division of the parent farm's allotments and quotas and
the use of the history method would provide more favorable results for
all owners.
(g) The DCP cropland method is the pro-rata distribution of bases to
the resulting tracts in the same proportion to the DCP cropland that
each resulting tract bears to the DCP cropland for the parent tract.
This method of division shall be used if paragraphs (b) and (c) of this
section do not apply.
(h) The default method is the separation of tracts from a farm with
each tract maintaining the bases attributed to the tract when the
reconstitution is initiated.
(i)(1) Allotments, quotas, and bases apportioned among the resulting
farms pursuant to paragraphs (d) through (h) of this section may be
increased or decreased with respect to a farm by as much as 10 percent
of the parent farm's allotment, quota, or base determined under such
subsections for the parent farm if:
(i) The owners agree in writing; and
(ii) The county committee determines the method used did not provide
an equitable distribution considering available land, cultural
operations, and changes in the type of farming conducted on the farm.
Any increase in an allotment, quota, or base with respect to a tract
pursuant to this paragraph shall be offset by a corresponding decrease
for such allotments, quotas or bases established with respect to the
other tracts which constitute the farm.
(2) Farm program payment yields calculated for the resulting farms
of a division may be increased or decreased if the county committee
determines
[[Page 85]]
the method used did not provide an equitable distribution considering
available land, cultural operations, and changes in the type of farming
conducted on the farm. Any increase in a farm program payment yield on a
resulting farm shall be offset by a corresponding decrease on another
resulting farm of the division.
(j) If a farm with burley tobacco quota is divided through
reconstitution and one or more of the farms resulting from the division
are apportioned less than 1,000 pounds of burley tobacco quota, the
owners of such farms shall take action as provided in part 723 of this
chapter to comply with the 1,000 pound minimum by July 1 of the current
year or the quota shall be dropped. Exceptions to this are farms
divided:
(1) Among family members;
(2) By the estate method; and
(3) When no sale or change in ownership of land occurs; or
(4) With one resulting farm receiving all of the quota.
Sec. 718.207 Determining allotments, quotas, and bases when
reconstitution is made by combination.
When two or more farms or tracts are combined for a year, that
year's allotments, quotas, and bases, with respect to the combined farm
or tract, as required by applicable commodity regulations, shall not be
greater than the sum of the allotments, quotas, and bases for each of
the farms or tracts comprising the combination, subject to the
provisions of Sec. 718.204.
Subpart D_Equitable Relief From Ineligibility
Source: 67 FR 66307, Oct. 31, 2002, unless otherwise noted.
Sec. 718.301 Applicability.
(a) This subpart is applicable to programs administered by the Farm
Service Agency under chapters VII and XIV of this title, except for an
agricultural credit program carried out under the Consolidated Farm and
Rural Development Act (7 U.S.C. 1921 et seq.). Administration of this
subpart shall be under the supervision of the Deputy Administrator,
except that such authority shall not limit the exercise of authority
allowed State Executive Directors of the Farm Service agency as provided
for in Sec. 718.307.
(b) Sections 718.303, 718.304, and 718.307 do not apply where the
action for which relief is requested occurred before May 13, 2002. In
such cases, authority that was effective prior to May 13, 2002, may be
applied.
(c) Section 718.306 does not apply to a function performed under
either section 376 of the Consolidated Farm and Rural Development Act (7
U.S.C. 1921 et seq.), or a conservation program administered by the
Natural Resources Conservation Service of the United States Department
of Agriculture.
Sec. 718.302 Definitions and abbreviations.
In addition to the definitions provided in Sec. 718.2 of this part,
the following terms apply to this subpart:
Agricultural commodity means any agricultural commodity, food, feed,
fiber, or livestock that is subject to a covered program.
Covered program means a program specified in Sec. 718.301 of this
subpart.
FSA means the Farm Service Agency of the United States Department of
Agriculture.
OGC means the Office of the General Counsel of the United States
Department of Agriculture.
SED means, for activities within a particular state, the State
Executive Director of the United States Department of Agriculture, FSA,
for that state.
Sec. 718.303 Reliance on incorrect actions or information.
(a) Notwithstanding any other law, action or inaction by a
participant in a covered program that is to the detriment of the
participant, and that is based upon good faith reliance on the action or
advice of an authorized representative of a County or State FSA
Committee, may be approved by the Administrator, FSA or the Executive
Vice President, CCC, as applicable, or their designee, as meeting the
requirements of the program, and benefits may be extended or payments
made in accordance with Sec. 718.305.
(b) This section applies only to a participant who relied upon the
action of,
[[Page 86]]
or information provided by, a county or State FSA committee or an
authorized representative of such committee and the participant acted,
or failed to act, as a result of the Agency action or information. This
part does not apply to cases where the participant had sufficient reason
to know that the action or information upon which they relied was
improper or erroneous or where the participant acted in reliance on
their own misunderstanding or misinterpretation of program provisions,
notices or information.
Sec. 718.304 Failure to fully comply.
(a) Under a covered program, when the failure of a participant to
fully comply with the terms and conditions of a program authorized by
this chapter precludes the providing of payments or benefits, relief may
be authorized in accordance with Sec. 718.305 if the participant made a
good faith effort to comply fully with the requirements of the covered
program.
(b) This section only applies to participants who are determined by
the FSA approval official to have made a good faith effort to comply
fully with the terms and conditions of the program and rendered
substantial performance.
Sec. 718.305 Forms of relief.
(a) The Administrator of FSA, Executive Vice President of CCC, or
their designee, may authorize a participant in a covered program to:
(1) Retain loans, payments, or other benefits received under the
covered program;
(2) Continue to receive loans, payments, and other benefits under
the covered program;
(3) Continue to participate, in whole or in part, under any contract
executed under the covered program;
(4) In the case of a conservation program, re-enroll all or part of
the land covered by the program; and
(5) Receive such other equitable relief as determined to be
appropriate.
(b) As a condition of receiving relief under this subpart, the
participant may be required to remedy their failure to meet the program
requirement, or mitigate its affects.
Sec. 718.306 Finality.
(a) A determination by a State or county FSA committee made on or
after October 13, 1994, becomes final and binding 90 days from the date
the application for benefits has been filed, and supporting
documentation required to be supplied by the producer as a condition for
eligibility for the particular program has been filed, unless one of the
following conditions exist:
(1) The participant has requested an administrative review of the
determination in accordance with part 780 of this chapter;
(2) The determination was based on misrepresentation, false
statement, fraud, or willful misconduct by or on behalf of the
participant;
(3) The determination was modified by the Administrator, FSA, or in
the case of CCC programs conducted under Chapter XIV of this title, the
Executive Vice President, CCC; or
(4) The participant had reason to know that the determination was
erroneous.
(b) Should an erroneous determination become final under the
provisions of this section, it shall only be effective through the year
in which the error was found and communicated to the participant.
Sec. 718.307 Special relief approval authority for State Executive
Directors.
(a) General nature of the special authority. Notwithstanding
provisions in this subpart providing supervision and relief authority to
other officials, an SED without further review by other officials (other
than the Secretary) may grant relief to a participant under the
provisions of Sec. Sec. 718.303 and 718.304 as if the SED were the
final arbiter within the agency of such matters so long as:
(1) The program matter with respect to which the relief is sought is
a program matter in a covered program which is operated within the State
under the control of the SED;
(2) The total amount of relief which will be provided to the person
(that is, to the individual or entity that applies for the relief) by
that SED under this special authority for errors during that year is
less than $20,000 (including in that calculation, any loan amount or
[[Page 87]]
other benefit of any kind payable for that year and any other year);
(3) The total amount of such relief which has been previously
provided to the participant using this special authority for errors in
that year, as calculated above, is not more than $5,000;
(4) The total amount of loans, payments, and benefits of any kind
for which relief is provided to similarly situated participants by the
SED (or the SED's predecessor) for errors for any year under the
authority provided in this section, as calculated above, is not more
than $1,000,000.
(b) Report of the exercise of the power. A grant of relief shall be
considered to be under this section and subject to the special finality
provided in this section only if the SED grants the relief in writing
when granting the relief to the party who will receive the benefit of
such relief and only if, in that document, the SED declares that they
are exercising that power. The SED must report the exercise of that
power to the Deputy Administrator so that a full accounting may be made
in keeping with the limitations of this section. Absent such a report,
relief will not be considered to have been made under this section.
(c) Additional limits on the authority. The authority provided under
this section does not extend to:
(1) The administration of payment limitations under part 1400 of
this chapter (Sec. Sec. 1001 to 1001F of 7 U.S.C. 1308 et seq.);
(2) The administration of payment limitations under a conservation
program administered by the Secretary; or
(3) Highly erodible land and wetland conservation requirements under
subtitles B or C of Title XII of the Food Security Act of 1985 (16
U.S.C. 3811 et seq.) as administered under 7 CFR part 12.
(d) Relief may not be provided by the SED under this section until a
written opinion or written acknowledgment is obtained from OGC that
grounds exist for determination that the program participant has, in
good faith, detrimentally relied on the guidance or actions of an
authorized FSA representative in accordance with the provisions of this
subpart, or that the producer otherwise failed, in good faith, to fully
comply with the requirements of the program and that the granting of the
relief is within the lawful authority of the SED.
(e) Relation to other authorities. The authority provided under this
section is in addition to any other applicable authority that may allow
relief. Generally, the SED may, without consultation other than with
OGC, decide all matters under $20,000 but those decisions shall not be
subject to modification within the Farm Service Agency to the extent
provided for under the rules of this section.
PART 729_PEANUT MARKETING QUOTAS--Table of Contents
Authority: 7 U.S.C. 7271; 15 U.S.C. 714b-c; 7 U.S.C. 7959.
Source: 62872, Oct. 9, 2002, unless otherwise noted.
Sec. 729.1 Applicablity to 1996 through 2001 crops of peanuts.
Sections 1309 and 1310 of the Farm Security Rural Investment Act of
2002 terminated, beginning with the 2002 crop, the marketing quota and
price support program for peanuts. However, 7 CFR part 729, revised as
of January 1, 2002 continues to apply to the 1996 through 2001 crops of
peanuts.
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SUBCHAPTER C_REGULATIONS FOR WAREHOUSES
PART 735_REGULATIONS FOR THE UNITED STATES WAREHOUSE ACT--Table of
Contents
Subpart A_General Provisions
Sec.
735.1 Applicability.
735.2 Administration.
735.3 Definitions.
735.4 Fees.
735.5 Penalties.
735.6 Suspension, revocation and liquidation.
735.7 Return of suspended or revoked certificates of licensing or
certificates of authorization.
735.8 Appeals.
735.9 Dispute resolution and arbitration of private parties.
735.10 Posting of certificates of licensing, certificates of
authorization or other USWA documents.
735.11 Lost or destroyed certificates of licensing, authorization or
agreements.
735.12 Safe keeping of records.
735.13 Information of violations.
735.14 Bonding and other financial assurance requirements.
Subpart B_Warehouse Licensing
735.100 Application.
735.101 Financial records and reporting requirements.
735.102 Financial assurance requirements.
735.103 Amendments to license.
735.104 Insurance requirements.
735.105 Care of agricultural products.
735.106 Excess storage and transferring of agricultural products.
735.107 Warehouse charges and tariffs.
735.108 Inspections and examinations of warehouses.
735.109 Disaster loss to be reported.
735.110 Conditions for delivery of agricultural products.
735.111 Fair treatment.
735.112 Terminal and futures contract markets
Subpart C_Inspectors, Samplers, Classifiers, and Weighers
735.200 Service licenses.
735.201 Agricultural product certificates; format.
735.202 Standards of grades for other agricultural products.
Subpart D_Warehouse Receipts
735.300 Warehouse receipt requirements.
735.301 Notification requirements.
735.302 Paper warehouse receipts.
735.303 Electronic warehouse receipts.
Subpart E_Electronic Providers
735.400 Administration.
735.401 Electronic warehouse receipt and USWA electronic document
providers.
735.402 Providers of other electronic documents.
735.403 Audits.
735.404 Schedule of charges and rates.
Authority: 7 U.S.C. 241 et seq.
Source: 67 FR 50763, Aug. 5, 2002, unless otherwise noted.
Subpart A_General Provisions
Sec. 735.1 Applicability.
(a) The regulations of this part set forth the terms and conditions
under which the Secretary of Agriculture through the Farm Service Agency
(FSA) will administer the United States Warehouse Act (USWA or the Act)
and sets forth the standards and the terms and conditions a participant
must meet for eligibility to act under the USWA. The extent the
provisions of this part are more restrictive, or more lenient, with
respect to the same activities governed by State law, the provisions of
this part shall prevail.
(b) Additional terms and conditions may be set forth in applicable
licensing agreements, provider agreements and other documents.
(c) Compliance with State laws relating to the warehousing, grading,
weighing, storing, merchandising or other similar activities is not
required with respect to activities engaged in by a warehouse operator
in a warehouse subject to a license issued in accordance with this part.
Sec. 735.2 Administration.
(a) FSA will administer all provisions and activities regulated
under the Act under the general direction and supervision of the FSA's
Deputy Administrator, Commodity Operations (DACO), or a designee.
(b) DACO may waive or modify the licensing or authorization
requirements or deadlines in cases where lateness or
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failure to meet such requirements does not adversely affect the
licensing or authorizations operated under the Act.
(c) DACO will provide affected licensees or authorized providers
with changes to their licensing or provider agreements before the
effective date.
(d) Licensing and authorization agreement updates will be available
at:
(1) DACO's USWA website, and
(2) The following address: Deputy Administrator, Commodity
Operations, Farm Service Agency, United States Department of
Agriculture, STOP 0550, 1400 Independence Avenue, SW, Washington, DC
20250-0550.
Sec. 735.3 Definitions.
Words used in this part will be applicable to the activities
authorized by this part and will be used in all aspects of administering
the Act.
Access means the ability, when authorized, to read, change, and
transfer warehouse receipts or other applicable document information
retained in a central filing system.
Agricultural product means an agriculturally-produced product stored
or handled for the purposes of interstate or foreign commerce, including
a processed product of such agricultural product, as determined by DACO.
Central filing system (CFS) means an electronic system operated and
maintained by a provider, as a disinterested third party, authorized by
DACO where information relating to warehouse receipts, USWA documents
and other electronic documents is recorded and maintained in a
confidential and secure fashion independent of any outside influence or
bias in action or appearance.
Certificate means a USWA document that bears specific assurances
under the Act or warrants a person to operate or perform in a certain
manner and sets forth specific responsibilities, rights, and privileges
granted to the person under the Act.
Control of the facility means ultimate responsibility for the
operation and integrity of a facility by ownership, lease, or operating
agreement.
Department means the Department of Agriculture.
Electronic document means any document that is generated, sent,
received, or stored by electronic, optical, or similar means, including,
but not limited to, electronic data interchange, advanced communication
methods, electronic mail, telegram, telex, or telecopy.
Electronic warehouse receipt (EWR) means a warehouse receipt that is
authorized by DACO to be issued or transmitted under the Act in the form
of an electronic document.
Examiner means an individual designated by DACO for the purpose of
examining warehouses or for any other activities authorized under the
Act.
Financial assurance means the surety or other financial obligation
authorized by DACO that is a condition of receiving a license or
authorization under the Act.
Force majeure means severe weather conditions, fire, explosion,
flood, earthquake, insurrection, riot, strike, labor dispute, act of
civil or military, non-availability of transportation facilities, or any
other cause beyond the control of the warehouse operator or provider
that renders performance impossible.
Holder means a person that has possession in fact or by operation of
law of a warehouse receipt, USWA electronic document, or any electronic
document.
License means a license issued under the Act by DACO.
Licensing agreement means the document and any amendment or addenda
to such agreement executed by the warehouse operator and FSA specifying
licensing terms and conditions specific to the warehouse operator and
the agricultural product licensed to be stored.
Non-storage agricultural product means an agricultural product
received temporarily into a warehouse for conditioning, transferring or
assembling for shipment, or lots of an agricultural product moving
through a warehouse for current merchandising or milling use, against
which no warehouse receipts are issued and no storage charges assessed.
Official Standards of the United States means the standards of the
quality or condition for an agricultural product, fixed and established
under (7 U.S.C. 51) the United States Cotton Standards Act, (7 U.S.C.
71) the United States
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Grain Standards Act, (7 U.S.C. 1622) the Agricultural Marketing Act of
1946, or other applicable official United States Standards.
Other electronic documents (OED) means those electronic documents,
other than an EWR or USWA electronic document, that may be issued or
transferred, related to the shipment, payment or financing of
agricultural products that DACO has authorized for inclusion in a
provider's CFS.
Person means a person as set forth in 1 U.S.C. 1, a State; or a
political subdivision of a State.
Provider means a person authorized by DACO, as a disinterested third
party, which maintains one or more confidential and secure electronic
systems independent of any outside influence or bias in action or
appearance.
Provider agreement means the document and any amendment or addenda
to such agreement executed by the provider and FSA that sets forth the
provider's responsibilities concerning the provider's operation or
maintenance of a CFS.
Receipt means a warehouse receipt issued in accordance with the Act,
including an electronic warehouse receipt.
Schedule of charges means the tariff or uniform rate or amount
charged by an authorized person for specific services offered or
rendered under the Act.
Schedule of fees means the fees charged and assessed by FSA for
licensing, provider agreements or services furnished under the Act to
help defray the costs of administering the Act, and as such are shown in
a schedule of fees attached to the licensing or provider agreement.
Service license means the document and any amendment to such
document, issued under the Act by DACO to individuals certified
competent by the licensed warehouse operator to perform inspection,
sampling, grading classifying, or weighing services according to
established standards and procedures, set forth in Sec. 735.202, at the
specific warehouse license.
Stored agricultural products means all agricultural products
received into, stored within, or delivered out of the warehouse that are
not classified as a non-storage agricultural product under this part.
User means a person that uses a provider's CFS.
USWA electronic document means a USWA electronic document initiated
by DACO to be issued, transferred or transmitted that is not identified
as an EWR or OED in the appropriate licensing or provider agreement or
as determined by DACO.
Warehouse means a structure or other authorized storage facility, as
determined by DACO, in which any agricultural product may be stored or
handled for the purpose of interstate or foreign commerce.
Warehouse capacity means the maximum quantity of an agricultural
product that the warehouse will accommodate when stored in a manner
customary to the warehouse as determined by DACO.
Warehouse operator means a person lawfully engaged in the business
of storing or handling agricultural products.
Warehousing activities and practices means any legal, operational,
managerial or financial duty that a warehouse operator has regarding an
agricultural product.
Sec. 735.4 Fees.
(a) FSA will assess persons covered by the Act fees to cover the
costs of administering the Act.
(b) Warehouse operators, licensees, applicants, or providers must
pay:
(1) An annual fee as provided in the applicable licensing or
provider agreement; and
(2) Fees that FSA assesses for specific services, examinations and
audits, or as provided in the applicable licensing or provider
agreement.
(c) The schedule of fees showing the current fees or any annual fee
changes will be provided as an addendum to the applicable licensing or
provider agreement or/and:
(1) Will be available at DACO's USWA Web site, or
(2) May be requested at the following address: Deputy Administrator,
Commodity Operations, Farm Service Agency, United States Department of
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Agriculture, STOP 0550, 1400 Independence Avenue, SW., Washington, DC
20250-0550.
(d) At the sole discretion of DACO, these fees may be waived.
Sec. 735.5 Penalties.
If a person fails to comply with any requirement of the Act, the
regulations set forth in this part or any applicable licensing or
provider agreement, DACO may assess, after an opportunity for a hearing
as provided in Sec. 735.8, a civil penalty:
(a) Of not more than $25,000 per violation, if an agricultural
product is not involved in the violation; or
(b) Of not more than 100 percent of the value of the agricultural
product, if an agricultural product is involved in the violation.
Sec. 735.6 Suspension, revocation and liquidation.
(a) DACO may, after an opportunity for a hearing as provided in
Sec. 735.8, suspend, revoke or liquidate any license or agreement
issued under the Act, for any violation of or failure to comply with any
provision of the Act, regulations or any applicable licensing or
provider agreement.
(b) The reasons for a suspension, revocation or liquidation under
this part include, but are not limited to:
(1) Failure to perform licensed or authorized services as provided
in this part or in the applicable licensing or provider agreement;
(2) Failure to maintain minimum financial requirements as provided
in the applicable licensing or provider agreement;
(3) Failure to submit a proper annual financial statement within the
established time period as provided in the applicable licensing or
provider agreement.
(4) Failure to maintain control of the warehouse or provider system.
(5) The warehouse operator or provider requests closure,
cancellation or liquidation. and
(6) Commission of fraud against FSA, any depositor, EWR or OED
holder or user, or any other function or operation under this part.
(c) FSA retains USWA's full authority over a warehouse operator or
provider for one year after such license revocation or provider
agreement termination or until satisfaction of any claims filed against
such warehouse operator or provider are resolved, whichever is later.
(d) Upon DACO's determination that continued operation of a
warehouse by a warehouse operator or an electronic provider system by a
provider is likely to result in probable loss of assets to storage
depositors, or loss of data integrity to EWR or OED holders and users.
DACO may immediately suspend, close, or take control and begin an
orderly liquidation of such warehouse inventory or provider system data
as provided in this part or in the applicable licensing or provider
agreement.
(e) Any disputes involving probable loss of assets to storage
depositors, or loss of data integrity to EWR or OED holders and users
will be determined by DACO for the benefit of the depositors, or EWR or
OED holders and users and such determinations shall be final.
Sec. 735.7 Return of suspended or revoked certificates of licensing or
certificates of authorization.
(a) When a license issued to a warehouse operator or service license
ends or is suspended or revoked by DACO, such certificates of licensing
and applicable licensing agreement and certificates of authorization
must be immediately surrendered and returned to DACO.
(b) When an agreement with a provider ends or is suspended or
revoked by DACO, such certificates of authorization and applicable
provider agreement must be immediately surrendered to DACO
Sec. 735.8 Appeals.
(a) Any person who is subject to an adverse determination made under
the Act may appeal the determination by filing a written request with
DACO at the following address: Deputy Administrator, Commodity
Operations, Farm Service Agency, United States Department of
Agriculture, STOP 0550, 1400 Independence Avenue, SW., Washington, DC
20250-0550.
(b) Any person who believes that they have been adversely affected
by a
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determination under this part must seek review by DACO within twenty-
eight calendar days of such determination, unless provided with notice
by DACO of a different deadline.
(c) The appeal process set forth in this part is applicable to all
licensees and providers under any provision of the Act, regulations or
any applicable licensing agreement as follows:
(1) DACO will notify the person in writing of the nature of the
suspension, revocation or liquidation action;
(2) The person must notify DACO of any appeal of its action within
twenty-eight calendar days;
(3) The appeal and request must state whether:
(i) A hearing is requested,
(ii) The person will appear in person at such hearing, or
(iii) Such hearing will be held by telephone;
(4) DACO will provide the person a written acknowledgment of their
request to pursue an appeal;
(5) When a person requests an appeal and does not request a hearing
DACO will allow that person:
(i) To submit in writing the reasons why they believe DACO's
determination to be in error,
(ii) Twenty-eight calendar days from the receipt of the
acknowledgment to file any statements and documents in support of their
appeal, unless provided with notice by DACO of a different deadline, and
(iii) An additional fourteen calendar days to respond to any new
issues raised by DACO in response to the person's initial submission,
unless provided with notice by DACO of a different deadline;
(6) If the person requests to pursue an appeal and requests a
hearing, DACO will:
(i) Notify the person of the date of the hearing,
(ii) Determine the location of the hearing, when the person asks to
appear in person,
(iii) Notify the person of the location of the hearing,
(iv) Afford the person twenty-eight calendar days from the receipt
of the notification of the scheduling of the hearing to submit any
statements and documents in support of the appeal, unless provided with
notice by DACO of a different deadline, and
(v) Allow the person an additional fourteen calendar days from the
date of the hearing to submit any additional material, unless provided
with notice by DACO of a different deadline;
(7) Determinations of DACO will be final and no further appeal
within USDA will be available except as may be specified in the final
determination of DACO; and
(8) A person may not initiate an action in any court of competent
jurisdiction concerning a determination made under the Act prior to the
exhaustion of the appeal process set forth in this section.
Sec. 735.9 Dispute resolution and arbitration of private parties.
(a) A person may initiate legal action in any court of competent
jurisdiction concerning a claim for noncompliance or an unresolved
dispute with respect to activities authorized under the Act.
(b) Any claim for noncompliance or an unresolved dispute between a
warehouse operator or provider and another party with respect to
activities authorized under the Act may be resolved by the parties
through mutually agreed-upon arbitration procedures or as may be
prescribed in the applicable licensing or provider agreement. No
arbitration determination or award will affect DACO's authority under
the Act.
(c) In no case will USDA provide assistance or representation to
parties involved in an arbitration proceeding arising with respect to
activities authorized under the Act.
Sec. 735.10 Posting of certificates of licensing, certificates of
authorization or other USWA documents.
(a) The warehouse operator must post, in a conspicuous place in the
principal place where warehouse receipts are issued, any applicable
certificate furnished by DACO that the warehouse operator is an
authorized licensee under the Act.
(b) Immediately upon receipt of their certificate of service
licensing or any modification or extension thereof under the Act, the
licensee and warehouse operator must jointly post the
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same, and thereafter, except as otherwise provided in the regulations in
this part or as prescribed in the applicable licensing agreement, keep
such certificate of licensing conspicuously posted in the office where
all or most of the services are done, or in such place as may be
designated by DACO.
(c) The provider must post, in a conspicuous place in the principal
place of business, any applicable certificate of authorization furnished
by DACO that the provider is authorized to offer and provide specific
services under the Act.
Sec. 735.11 Lost or destroyed certificates of licensing, authorization
or agreements.
FSA will replace lost or destroyed certificates of licensing,
certificate of authorization or applicable agreement upon satisfactory
proof of loss or destruction. FSA will mark such certificates or
agreements as duplicates.
Sec. 735.12 Safe keeping of records.
Each warehouse operator or provider must take necessary precautions
to safeguard all records, either paper or electronic format, from
destruction.
Sec. 735.13 Information of violations.
Every person licensed or authorized under the Act must immediately
furnish DACO any information they may have indicating that any provision
of the Act or the regulations in this part has been violated.
Sec. 735.14 Bonding and other financial assurance requirements.
(a) As a condition of receiving a license or authorization under the
Act, the person applying for the license or authorization must execute
and file with DACO a bond or provide such other financial assurance as
DACO determines appropriate to secure the person's compliance with the
Act.
(b) Such bond or assurance must be for a period of not less than one
year and in such amount as required by DACO.
(c) Failure to provide for, or renew, a bond or a financial
assurance instrument will result in the immediate and automatic
revocation of the warehouse operator's license or provider's agreement.
(d) If DACO determines that a previously accepted bond or other
financial assurance is insufficient, DACO may immediately suspend or
revoke the license or authorization covered by the bond or other
financial assurance if the person that filed the bond or other financial
assurance does not provide such additional bond or other financial
assurance as DACO determines appropriate.
(e) To qualify as a suitable bond or other financial assurance, the
entity issuing the bond or other financial assurance must be subject to
service of process in lawsuits or legal actions on the bond or other
financial assurance in the State in which the warehouse is located.
Subpart B_Warehouse Licensing
Sec. 735.100 Application.
(a) An applicant for a license must submit to DACO information and
documents determined by DACO to be sufficient to conclude that the
applicant can comply with the provisions of the Act. Such documents must
include a current review or an audit-level financial statement prepared
according to generally accepted accounting standards as defined by the
American Institute of Certified Public Accountants. For any entity that
is not an individual, a document that establishes proof of the existence
of the entity, such as:
(1) For a partnership, an executed partnership agreement; and
(2) For a corporation:
(i) Articles of incorporation certified by the Secretary of State of
the applicable State of incorporation;
(ii) Bylaws; and
(iii) Permits to do business; and
(3) For a limited partnership, an executed limited partnership
agreement; and
(4) For a limited liability company:
(i) Articles of organization or similar documents; and
(ii) Operating agreement or similar agreement.
(b) The warehouse facilities of an operator licensed under the Act
must, as determined by DACO, be:
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(1) Physically and operationally suitable for proper storage of the
applicable agricultural product or agricultural products specified in
the license;
(2) Operated according to generally accepted warehousing activities
and practices in the industry for the applicable agricultural product or
agricultural products stored in the facility; and
(3) Subject to the warehouse operator's control of the facility
including all contiguous storage space with respect to such facilities.
(c) As specified in individual licensing agreements, a warehouse
operator must:
(1) Meet the basic financial requirements determined by DACO; and
(2) Meet the net worth requirements determined by DACO;
(d) In order to obtain a license, the warehouse operator must
correct any exceptions made by the warehouse examiner at the time of the
original warehouse examination.
(e) DACO may issue a license for the storage of two or more
agricultural products in a single warehouse as provided in the
applicable licensing agreements. The amount of the bond or financial
assurance, net worth, and inspection and license fees will be determined
by DACO in accordance with the licensing agreements applicable to the
specific agricultural product, based upon the warehouses' total capacity
for storing such product, that would require:
(1) The largest bond or financial assurance;
(2) The greatest amount of net worth; and
(3) The greatest amount of fees.
Sec. 735.101 Financial records and reporting requirements.
(a) Warehouse operators must maintain complete, accurate, and
current financial records that must be available to DACO for review or
audit at DACO's request as may be prescribed in the applicable licensing
agreement.
(b) Warehouse operators must, annually, present a financial
statement as may be prescribed in the applicable licensing agreement to
DACO.
Sec. 735.102 Financial assurance requirements.
(a) Warehouse operators must file with DACO financial assurances
approved by DACO consisting of:
(1) A warehouse operator's bond; or
(2) Obligations that are unconditionally guaranteed as to both
interest and principal by the United States, in a sum equal at their par
value to the amount of the bond otherwise required to be furnished,
together with an irrevocable power of attorney authorizing DACO to
collect, sell, assign and transfer such obligations in case of any
default in the performance of any of the conditions required in the
licensing agreement; or
(3) An irrevocable letter of credit issued in the favor of DACO with
a term of not less than two years; or
(4) A certificate of participation in, and coverage by, an indemnity
or insurance fund as approved by DACO, established and maintained by a
State, backed by the full faith and credit of the applicable State,
which guarantees depositors of the licensed warehouse full
indemnification for the breach of any obligation of the licensed
warehouse operator under the terms of the Act. If a warehouse operator
files a bond or financial assurance in the form of a certification of
participation in an indemnity or insurance fund, the certification may
only be used to satisfy any deficiencies in assets above the minimum net
worth requirement as prescribed in the applicable licensing agreement. A
certificate of participation and coverage in this fund must be furnished
to DACO annually; or
(5) Other alternative instruments and forms of financial assurance
approved by DACO as may be prescribed in the applicable licensing
agreement.
(b) The warehouse operator may not withdraw obligations required
under this section until one year after license termination or until
satisfaction of any claims against the obligations, whichever is later.
Sec. 735.103 Amendments to license.
FSA will issue an amended license upon:
(a) Receipt of forms prescribed and furnished by DACO outlining the
requested changes to the license;
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(b) Payment of applicable licensing and examination fees;
(c) Receipt of bonding or other financial assurance if required in
the applicable licensing agreement; and
(d) Receipt of a report on the examination of the proposed
facilities pending inclusion or exclusion, if determined necessary by
DACO.