[Title 7 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 1998 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
7
Agriculture
PARTS 700 TO 899
Revised as of January 1, 1998
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JANUARY 1, 1998
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1998
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
[[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............................. 451
Finding Aids:
Material Approved for Incorporation by Reference.......... 603
Table of CFR Titles and Chapters.......................... 605
Alphabetical List of Agencies Appearing in the CFR........ 621
List of CFR Sections Affected............................. 631
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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
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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
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[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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INCORPORATION BY REFERENCE
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What is a proper incorporation by reference? The Director of the
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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
the Finding Aids of this volume as an approved incorporation by
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The Federal Register Index is issued monthly in cumulative form.
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the daily Federal Register.
[[Page vii]]
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
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January 1, 1998.
[[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, 1998.
The Food and Consumer 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. Part 900--General Regulations is carried as a note in the
volume containing parts 1000-1199, as a convenience to the user.
Redesignation tables appear in the Finding Aids section of the
volumes containing parts 210-299 and parts 1600-1899.
For this volume, Gwendolyn J. Henderson was Chief Editor. The Code
of Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Alomha S. Morris.
[[Page x]]
[[Page 1]]
TITLE 7--AGRICULTURE
(This book contains parts 700 to 899)
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Part
SUBTITLE B--Regulations of the Department of Agriculture-- Continued:
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
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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.
2. Nomenclature changes to chapter VII appear at 60 FR 64297, Dec. 15,
1995.
SUBCHAPTER A--AGRICULTURAL CONSERVATION PROGRAM
Part Page
700 Experimental Rural Clean Water Program...... 7
701 Conservation and environmental programs..... 21
702 Colorado River Basin Salinity (CRSC) Control
Program................................. 40
707 Payments due persons who have died,
disappeared, or have been declared
incompetent............................. 49
708 Record retention requirements--all programs. 51
SUBCHAPTER B--FARM MARKETING QUOTAS, ACREAGE ALLOTMENTS, AND PRODUCTION
ADJUSTMENT
711 Marketing quota review regulations.......... 53
714 Refunds of penalties erroneously, illegally,
or wrongfully collected................. 62
717 Holding of referenda........................ 65
718 Provisions applicable to multiple programs.. 78
723 Tobacco..................................... 100
729 Peanuts..................................... 183
SUBCHAPTER C--REGULATIONS FOR WAREHOUSES
735 Cotton warehouses........................... 215
736 Grain warehouses............................ 242
737 Tobacco warehouses.......................... 270
738 Wool warehouses............................. 289
739 Dry bean warehouses......................... 305
740 Nut warehouses.............................. 322
741 Sirup warehouses............................ 341
742 Cottonseed warehouses....................... 358
[[Page 6]]
743
[Reserved]
SUBCHAPTER D--SPECIAL PROGRAMS
750 Soil Bank [Note]............................ 379
752 Water Bank Program.......................... 379
755 Regional programs........................... 386
760 Indemnity payment programs.................. 394
777 Disaster payment program for 1990 crop of
sugarcane, sugar beets, soybeans and
peanuts................................. 401
780 Appeal regulations.......................... 405
781 Disclosure of foreign investment in
agricultural land....................... 408
782 End-Use Certificate Program................. 414
783 1997 Tree Assistance Program................ 419
SUBCHAPTER E--PROVISIONS COMMON TO MORE THAN ONE PROGRAM
792 Debt settlement policies and procedures..... 426
795 Payment limitation.......................... 435
SUBCHAPTER F--PUBLIC RECORDS
798 Availability of information to the public... 442
SUBCHAPTER G--ENVIRONMENTAL PROTECTION
799 Environmental quality and related
environmental concerns--compliance with
the National Environmental Policy Act... 444
[[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 proggram 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
project 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 proj-
ects.
(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
project 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 project.
(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
project 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.
(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]
[[Page 14]]
Sec. 700.6 Officials not precluded from excercising 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.
(ii) Population benefited by improved water quality.
(iii) Effects on the natural environment.
[[Page 15]]
(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 project.
(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.
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
[[Page 16]]
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.
(4) Structural measures authorized for installation under Pub. L.
83-566,
[[Page 17]]
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 project 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. Setoffs 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 project 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--CONSERVATION AND ENVIRONMENTAL PROGRAMS--Table of Contents
Sec.
701.1 Background.
701.2 Definitions.
Subpart--Agricultural Conservation Program
701.3 Program objective.
701.4 State funds.
701.5 County funds.
701.6 Availability of funds.
[[Page 22]]
701.7 Eligible person.
701.8 Eligible land.
701.9 Conservation practices.
701.10 County programs.
701.11 State programs.
701.12 Selection of practices.
701.13 Levels and rates of cost-sharing.
701.14 Starting of practices.
701.15 Method of approval.
701.16 Long-term agreements.
701.17 Replacement, enlargement, or restoration.
701.18 Pooling agreements.
701.19 Special provisions for low-income farmers and ranchers.
701.20 Encumbering land.
701.21--701.22 [Reserved]
701.23 Maximum cost-share limitation.
701.24 Completion of practices.
701.25 Time of filing payment application.
701.26 Other program provisions.
Subpart--Forestry Incentives Program
701.27 Program objective.
701.28 [Reserved]
701.29 Designated counties.
701.30 Eligible person, land, and ownerships.
701.31 Program funds.
701.32 Eligible practices and cost-share requirements.
701.33 The National program.
701.34 Development of State programs.
701.35 Development of county programs.
701.36 Adaptation of practices.
701.37 Levels and rates of cost-sharing.
701.38 Prior approval for cost-sharing.
701.39 Methods of approval.
701.40 Long-term agreements.
701.41 Restoration of practices.
701.42 Maximum cost-share limitations.
701.43 Completion of practice.
701.44 Time of filing payment application.
701.45 Other program provisions.
Subpart--Emergency Conservation Program
701.46 Program objective.
701.47 Program availability.
701.48 Eligibility of person and land.
701.49 Emergency conservation program practices.
701.50 Practice approval.
701.51 Extent of cost-sharing.
701.52 Eligible costs.
701.53 Filing requests.
701.54 Approving requests.
701.55 Pooling agreements.
701.56 Payment approval.
701.57 Other program provisions.
Subpart--General Provisions
701.58 Restriction on program eligibility.
701.59 Delegation of authority.
701.60 Practice specifications.
701.61 Responsibility for technical phases of practices.
701.62 Items of costs on which rates of cost-sharing may be based.
701.63 Handbooks, bulletins, instructions, and forms.
701.64 Opportunity for requesting cost-shares.
701.65 Repair, upkeep and maintenance of practices.
701.66 Public benefits when installing practices.
701.67 Payments for uncompleted practices.
701.68 Practices involving the establishment or improvement of
vegetative cover.
701.69 Failure to meet minimum requirements or failure to comply fully
with program provisions.
701.70 Practices carried out with aid from ineligible persons.
701.71 Division of cost-shares.
701.72 Death, incompetency, or disappearance.
701.73 Applying cost-share limitations.
701.74 Persons eligible to file application for payment of cost-shares.
701.75 Time and manner of filing application and required information.
701.76 Appeals.
701.77 Performance based on advice or action of county or State
committee.
701.78 Compliance with regulatory measures.
701.79 Maintenance and use of practice.
701.80 Actions defeating purpose of program.
701.81 Depriving others of cost-shares.
701.82 Filing of false claims.
701.83 Cost-shares not subject to claims.
701.84 Assignments.
701.85 Environmental considerations.
701.86 Information collection requirements.
Authority: 16 U.S.C. 590d, 590g-590o, 590p(a), 590q, 1501-1510,
1606, 2101-2111, 2201-2205; 48 U.S.C. 1469d(c).
Source: 45 FR 49522, July 25, 1980, unless otherwise noted.
Sec. 701.1 Background.
(a) Through the conservation and environmental programs administered
by the Department of Agriculture, the Federal Government will share with
farmers, ranchers, and other eligible private landowners in the United
States and the applicable territories and possessions of the United
States, the cost of carrying out:
(1) Approved soil and water conservation and pollution abatement
practices, including related wildlife conservation practices.
(2) Approved forestry practices.
[[Page 23]]
(3) Emergency conservation measures, in accordance with the
provisions of this part and such modifications there of as may hereafter
be made.
(b) Cost-sharing may be made available to eligible program
participants by the Farm Service Agency for:
(1) Soil and water conservation and pollution abatement practices
under the Agricultural Conservation Program.
(2) Forestry practices under the Agricultural Conservation Program
or Forestry Incentives Program.
(3) Practices to correct damage to land or conservation practices
caused by natural disaster under the Emergency Conservation Program.
(4) Installation of water conservation measures under the Emergency
Conservation Program during periods of severe drought.
(c) Information on the practices for which costs will be shared, the
exact specifications and rates of cost-sharing for such practices, and
the eligibility requirements for participating in the programs, may be
obtained from the Agricultural Stabilization and Conservation county
committee (hereinafter referred to as ``county committee'') for the
county in which the farm, ranch or other eligible land is located or
from the Agricultural Stabilization and Conservation State committee
(hereinafter referred to as ``State committee''), for the State in which
such county is located.
Sec. 701.2 Definitions.
(a) County conservation review group consists of the county
committee; the county extension agent; a representative of the Soil
Conservation Service; a representative of the U.S. Forest Service; a
representative of the Farmers Home Administration; a representative of
the State forestry agency or its equivalent, when the representative
accepts an invitation to be a member of the group; and a representative
of the conservation district in the county, where the governing board of
the district accepts an invitation to designate a representative (if
there is more than one district in the county, the governing boards of
the districts may jointly designate only one person to represent all of
the districts). The county conservation review group shall have the
responsibilities as provided for in Secs. 701.10 and 701.35.
(b) Farm or ranch means that area of land considered as a farm under
the regulations governing reconstitution of farms, allotments, and
bases, part 719 of this chapter, as amended, and, for the forestry
incentives program, ``farm'' or ``ranch'' means eligible land (or
ownership tracts) as provided in Sec. 701.30.
(c) National conservation review group consists of representatives
of the Farm Service Agency; Soil Conservation Service; U.S. Forest
Service; Science and Education Administration; Economics, Statistics,
and Cooperatives Service; Farmers Home Administration; Office of the
General Counsel, U.S. Department of Agriculture; Office of Budget
Planning and Evaluation, U.S. Department of Agriculture; Environmental
Protection Agency; and Office of Management and Budget. The national
conservation review group is responsible for recommending changes in
program administrative procedures and policy guidelines, and evaluations
of program effectiveness and operating arrangements.
(d) Program year means the Federal fiscal year for accounting
purposes.
(e) State means any one of the United States, Puerto Rico, the
Virgin Islands, and (1) In the case of the Agricultural Conservation
Program and the Emergency Conservation Program, Guam and the
Commonwealth of the Northern Mariana Islands; and (2) In the case of the
Forestry Incentives Program, Guam, American Samoa, the Commonwealth of
the Northern Mariana Islands, the Trust Territory of the Pacific Islands
and the Territories and possessions of the United States.
(f) State conservation review group consists of the State committee,
the State Director of Extension; the State Conservationist of the Soil
Conservation Service; a representative of the U.S. Forest Service; a
representative of the Farmers Home Administration; a representative of
the State forestry agency, or its equivalent, when the representative
accepts an invitation to be a member of the group; a representative of
the State Soil Conservation Committee, or its equivalent, when the
[[Page 24]]
representative accepts an invitation to be a member of the group; and a
representative of the State Water Quality Agency, or its equivalent when
it accepts an invitation to be a member of the group. The State
conservation review group has the responsibility provided for in
Sec. 701.11.
(g) State forestry committee, or its equivalent, consists of the
State forester or equivalent State official, who serves as chairperson;
and a head or representative at the State level of the following USDA
agencies: Farm Service Agency; U.S. Forest Service; Science and
Education Administration; Farmers Home Administration; Soil Conservation
Service. At the discretion of the committee, State and local interests
may also be involved. The function of the State forestry committee is to
coordinate forestry budget proposals, agency roles in education,
technical assistance, technology transfers, and forestry incentives.
(h) In the regulations in this part and in all instructions, forms,
and documents in connection therewith, all other words and phrases
specifically relating to FSA operations shall, unless the context or
subject matter otherwise requires, have the meanings assigned to them in
the regulations governing reconstitution of farms, allotments and bases,
part 719 of this chapter, as amended.
[45 FR 49522, July 25, 1980, as amended at 47 FR 46998, Oct. 22, 1982;
53 FR 15657, May 3, 1988]
Subpart--Agricultural Conservation Program
Sec. 701.3 Program objective.
(a) The objective of the Agricultural Conservation Program
(hereinafter referred to in this subpart as the ``program'') is to
assure the continued supply of food and fiber necessary for the
maintenance of a strong and healthy people and economy, and to provide
for environmental conservation or enhancement.
(b) This will be accomplished through a program that has been
formulated and is to be carried out, taking into consideration:
(1) The need to control erosion and sedimentation from agricultural
land and conserve the water resources on such land.
(2) The need to control pollution from animal wastes.
(3) The need to facilitate sound resource management systems through
soil and water conservation.
(4) The need to encourage voluntary compliance by agricultural
producers with Federal and State requirements to solve point and non-
point sources of pollution.
(5) National priorities reflected in the National Environmental
Policy Act of 1969 and other congressional and administrative actions.
(6) The degrees to which the measures contribute to the national
objective of assuring a continuous supply of food and fiber necessary
for the maintenance of a strong and healthy people and economy.
(7) The type of conservation measures needed to improve water
quality in rural America.
(8) The types of conservation measures needed that have significant
energy conserving benefits.
[45 FR 49522, July 25, 1980, as amended at 47 FR 939, Jan. 8, 1982]
Sec. 701.4 State funds.
Funds available for practices to be performed under the program will
be distributed among the States in accordance with conservation needs as
determined by the Secretary.
Sec. 701.5 County funds.
The State committee will allocate the funds available for practices
among the counties within the State consistent with the program
objective, and will give particular consideration to the furtherance of
special projects, watershed conservation projects, resources
conservation development projects, approved State water quality plans,
and other conservation and pollution abatement projects sponsored by
local people and organizations.
Sec. 701.6 Availability of funds.
(a) The provisions of the program are subject to such legislation as
the Congress of the United States may hereafter enact; the paying of the
cost-shares provided herein is contingent
[[Page 25]]
upon such appropriation as the Congress may provide for such purpose;
and the amounts of such cost-shares will be within the limits finally
determined by such appropriation.
(b) Funds available for the Agricultural Conservation Program may be
made available as needed for practices to be performed under the Naval
Stores Conservation Program, in accordance with instructions issued by
the Deputy Administrator, State and County Operations.
Sec. 701.7 Eligible person.
An eligible person is a farmer or rancher who as an individual,
partnership, association, corporation, estate, trust, or other business
enterprise, or other legal entity (excluding districts which have taxing
authority, Federal agencies, States and State agencies, but not
excluding political subdivisions of a State) and, as an owner, landlord,
tenant, or sharecropper, participates in the operation of a farm or
ranch.
Sec. 701.8 Eligible land.
(a) The program is applicable to:
(1) Privately-owned lands;
(2) Land owned by a State or political subdivision of a State;
(3) Lands owned by corporations which are partly owned by the United
States;
(4) Lands temporarily owned by the United States or a corporation
wholly owned by it, which were not acquired or reserved for conservation
purposes, including lands administered by the Farmers Home
Administration, the U.S. Department of Defense, or by any other
government agency designated by the Deputy Administrator, State and
County Operations;
(5) Any cropland farmed by private persons which is owned by the
United States or a corporation wholly owned by it;
(6) Indian lands, except that where grazing operations are carried
out on Indian lands administered by the Department of the Interior, such
lands are within the scope of the program only if covered by a written
agreement approved by the Department of the Interior giving the operator
an interest in the grazing and forage growing on the land and a right to
occupy the land in order to carry out the grazing operations; and
(7) Noncropland owned by the United States on which practices are
performed by private persons where such practices directly conserve or
benefit nearby or adjoining privately-owned lands of the persons
performing the practices and such persons maintain and use such
federally-owned noncropland under agreement with the Federal agency
having jurisdiction thereof.
(b) The program is not applicable to:
(1) Noncropland owned by the United States which was acquired or
reserved for conservation purposes, or which is to be retained
permanently under Government ownership, including, but not limited to,
grazing lands administered by the Forest Service of the U.S. Department
of Agriculture, or by the Bureau of Land Management (including lands
administered under the Taylor Grazing Act), or the Fish and Wildlife
Service of the U.S. Department of the Interior, except as indicated in
paragraph (a)(7) of this section.
(2) Nonprivate persons for performance of practices on any land
owned by the United States or a corporation wholly owned by it.
Sec. 701.9 Conservation practices.
Conservation practices as specified by the Deputy Administrator,
State and County Operations, FSA, are made available nationally under
the Agricultural Conservation Program and may be included in the State
and county programs. Practices shall not be primarily production
oriented or have little or no conservation or pollution abatement
benefits. The practices are designed to be consistent with the
agricultural conservation policy stated in section 7 of the Soil
Conservation and Domestic Allotment Act, as amended, and national
program policy, and are developed primarily to meet a definite need to
accomplish one or more of the following:
(a) Establish long-lasting protective cover.
(b) Improve or sustain existing protective cover.
(c) Conserve or safely dispose of water.
(d) Benefit wildlife.
[[Page 26]]
(e) Establish or improve stands of forest trees.
(f) Give protection against soil erosion.
(g) Prevent or abate agricultural-related pollution of water, land,
and air.
(h) Meet special State or county conservation needs.
(i) Encourage energy conservation practices.
[45 FR 49522, July 25, 1980, as amended at 47 FR 939, Jan. 8, 1982]
Sec. 701.10 County programs.
(a) A program shall be developed in each county by the county
committee, in consultation with the county conservation review group, in
accordance with the National and State development guidelines and
policies provided. At least one public meeting per year shall be held
for this purpose.
(b) The county program shall be that approved by the State committee
and the Secretary or designee.
[45 FR 49522, July 25, 1980, as amended at 47 FR 46998, Oct. 22, 1982]
Sec. 701.11 State programs.
(a) The State committee, in consultation with the State conservation
review group, shall develop recommendations for the State program. The
chairperson of the State conservation review group may also invite
others with conservation or water quality interests to participate in
such deliberations. At least one public meeting per year shall be held
for this purpose.
(b) The State program shall consist of the guidelines and practices
selected by the State committee after considering the recommendations
submitted by the county committee to the State review group and approved
by the Secretary or designee.
[45 FR 49522, July 25, 1980, as amended at 47 FR 46999, Oct. 22, 1982]
Sec. 701.12 Selection of practices.
The practices to be included in the State or county program shall be
only those practices for which cost-sharing is essential to permit
accomplishment of the program objective.
Sec. 701.13 Levels and rates of cost-sharing.
(a) The maximum level of cost-sharing for each practice shall be the
percentage of the average cost of performing the practice considered
necessary to obtain the needed performance of the practice, but at a
level such that the participant will make a significant contribution to
the cost of performing the practice.
(b) Levels of cost-sharing under annual agreements for each practice
shall not be in excess of 75 percent of the average cost of carrying out
the practice as determined by the county committee. However, where the
Deputy Administrator, State and County Operations, determines a higher
level of cost-sharing is necessary to provide adequate incentive for
producer to carry out a conservation practice, the Deputy Administrator,
State and County Operations, may specifically authorize a higher level.
(See Sec. 701.19 for special provision for low-income farmers.)
(c) Levels of cost-sharing under long term agreements shall not be
in excess of 75 percent nor less than 50 percent of the average cost for
each practice as determined by the county committee.
(d) For the purpose of establishing rates of cost-sharing, the
average cost of performing a practice may be the average cost for a
county or a part of a county, as determined by the county committee.
[45 FR 49522, July 25, 1980, as amended at 47 FR 939, Jan. 8, 1982]
Sec. 701.14 Starting of practices.
Costs will not be shared for practices or components of practices
that are started before a formal approval is given by the county
committee.
[47 FR 939, Jan. 8, 1982]
Sec. 701.15 Method of approval.
The county committee will determine the extent to which Federal
funds will be made available to share the cost of each approved
practice, taking into consideration the county allocation, the
conservation and environmental problems in the county, the land
involved, and the practices for
[[Page 27]]
which requested cost-sharing is considered by the county committee as
most needed. The method approved shall provide for the issuance of
notices of approval showing for each approved practice the number of
units of the practice for which the Federal Government will share in the
cost and the amount of the cost-share for the performance of that number
of units of the practice. To the extent practicable, notices of approved
practices shall be issued before performance of the practice is started.
No practice may be approved for cost-sharing except as authorized by the
county program, or in accordance with procedures incorporated therein.
Available funds for cost-sharing shall not be allocated on a pro-rata
basis, but shall be directed to the accomplishment of the most enduring
benefits attainable.
(a) Cost-sharing may be approved under annual agreements or long-
term agreements.
(b) Annual agreements may be approved in all counties. Long-term
agreements are limited to farms or ranches which are within Soil
Conservation Districts (or comparable districts) through which the Soil
Conservation Service provides planning and technical services, except:
(1) Farms and ranches located within a county designated for the
Great Plains Conservation Program are only eligible for long-term
agreements that cover part of a farm. Long-term agreements that cover
whole farms shall not be approved in these counties.
(2) Farms and ranches not located within a Soil Conservation
District (or comparable district) may be eligible for a long-term
agreement, provided conservation plans of operations are developed by
the farmer or rancher in cooperation with the Soil Conservation Service
and approved by an appropriate State official or, in cases where an
appropriate State official is not available, approved by the Soil
Conservation Service.
Sec. 701.16 Long-term agreements.
(a) The period of a long-term agreement will be for not less than
three (3) program years nor more than ten (10) program years. The county
committee and the signatories to the agreement in consultation with the
Soil Conservation Service representative, will mutually determine the
period of the agreement.
(b) The long-term agreement will be based on a conservation plan of
operations for the farm or ranch or portion thereof which has been
approved by the Soil Conservation District (or comparable district) or,
for farms or ranches not located in a Soil Conservation District (or
comparable district), by an appropriate State Official or the Soil
Conservation Service, as applicable.
(c) The long-term agreement will provide that the farmer or rancher
will carry out those measures in the conservation plan of operations
which are determined to be essential to meeting the basic conservation
needs of the farm or ranch, or portion thereof, whether or not cost-
sharing is approved for such measures.
(d) The owner of the farm or ranch will be required to be a
signatory to a long-term agreement, whether or not that person
contributes to the cost of approved practices thereon.
(e) Any signatory to a long-term agreement who is not an owner of
the farm or ranch must provide assurance of control of the land for the
duration of the period of the agreement.
(f) The level of cost-sharing, as provided in Sec. 701.13, in effect
for practices in all years of a long-term agreement shall be the level
in effect for the beginning year of the agreement. The rate of cost-
sharing for payment purposes for such practice will be based on the
average cost of performing the practice at the time the practice is
performed.
(g) A long-term agreement may be cancelled for failure to comply
with the terms of the agreement if, after consulting with the Soil
Conservation District (or comparable district) board or, if none exists,
with a representative of the Soil Conservation Service, the county
committee and State committee find that the seriousness of the
irregularities warrant such action. If the agreement is cancelled, the
signatories to the agreement are jointly and severally responsible for
refunding all cost-shares paid and will forfeit all rights to further
payments under the
[[Page 28]]
agreement. In such a case, no other refund or forfeiture provisions of
these regulations apply.
(h) A long-term agreement may be revised in accordance with
instructions issued by the Deputy Administrator, State and County
Operations, by mutual agreement between the signatories to the agreement
and the county committee based on approved changes in the Conservation
plan of operations for the farm or ranch.
(i) An eligible person who acquires control of land under an
approved agreement may elect to become a successor in interest under
such agreement.
(j) An agreement will be terminated with respect to land for which
loss of control has occurred and where the person acquiring control of
such land elects not to become a successor in interest under the
agreement. If the loss of control is for reasons beyond the control of
the signatories to the agreement, the county committee will determine
whether or not any cost-shares previously paid shall be refunded, but in
no event shall the refund be greater than would be required in cases
where loss of control is voluntary. If the loss of control is voluntary
on the part of the signatories to the agreement, the signatories will be
jointly and severally responsible for refunding all cost-shares paid and
will forfeit all rights to further payments, with respect to the land
for which control is lost. However, a refund will not be required for
cost-shares where, the county committee and the State committee
determine, after consulting with a representative of the Soil
Conservation Service, that failure to perform the remaining practices in
the agreement will not impair the effectiveness of the practices which
have been performed and that the completed practices have provided
conservation benefits consistent with the cost-shares which have been
paid.
(k) An agreement may be terminated by the county committee, after
considering the recommendation of the Soil Conservation District (or
comparable district) board or, if none exists, with a representative of
the Soil Conservation Service, if such action is in the public interest.
The county committee will determine the amount of cost-shares previously
paid that shall be refunded.
(l) An agreement may be terminated by the county committee upon the
written request of the participant(s) to an agreement where no cost-
shares have been paid for any of the scheduled practices and where the
participant(s) does(do) not intend to perform any of the scheduled
practices.
Sec. 701.17 Replacement, enlargement, or restoration.
The establishment or installation of a practice, for the purposes of
the program shall be deemed to include the replacement, enlargement, or
restoration of a practice for which cost-sharing has been allowed if the
practice has served for its normal lifespan, or if all of the following
conditions exist:
(a) Replacement, enlargement, or restoration of the practice is
needed to solve the problem.
(b) The failure of the original practice was not due to the lack of
proper maintenance by the current operator.
(c) The county committee believes that the replacement, enlargement
or restoration of the practice merits consideration under the program to
an equal extent with other practices.
Sec. 701.18 Pooling agreements.
Farmers, ranchers, or eligible landowners in any local area may
agree in writing, with the approval of the county committee, to perform
designated practices which, by conserving or improving resources of the
community, will solve a mutual conservation, pollution, or other
environmental problem on the land of the participants. For purposes of
eligibility for cost-sharing, practices carried out under such an
approved written agreement shall be regarded as having been carried out
on the land of the persons who performed the practices.
Sec. 701.19 Special provisions for low-income farmers and ranchers.
(a) Except as otherwise provided in Sec. 701.13(c), the county
committee may approve, in the case of low-income farmers and ranchers as
defined in this section, level of cost-sharing of up to 80 percent of
the average cost of performing practices.
[[Page 29]]
(b) A low-income farmer or rancher is one who, as determined by the
county committee, is a small producer whose livelihood is largely
dependent on the farm or ranch and whose prospective income and
financial resources for the current year are such that the farmer or
rancher could not reasonably be expected to perform needed conservation
practices at levels of cost-sharing applicable to other persons in the
county.
(c) In approving requests for cost-sharing the county committee
shall give special consideration to requests filed by low-income farmers
and ranchers.
[45 FR 49522, July 25, 1980, as amended at 47 FR 939, Jan. 8, 1982]
Sec. 701.20 Encumbering land.
In order to receive cost-share assistance for a conservation
practice in a Salinity Control Project area, a person participating in
the program shall agree, as a condition of eligibility to receive such
assistance, that a recordable encumbrance may be filed by FSA with
respect to the land on which the conservation practice is installed.
Such encumbrance shall reflect the amount of the cost-share assistance
which is received by the program participant for the practice and shall
continue until such time as the established lifespan for the practice
has expired. Notwithstanding the foregoing, this requirement may be
waived by the county committee if such committee determines, with the
concurrence of the State committee and after consultation with
appropriate Federal, State and local authorities, that the land will not
likely be converted to a nonagricultural use within the next five years.
[48 FR 33847, July 26, 1983]
Secs. 701.21--701.22 [Reserved]
Sec. 701.23 Maximum cost-share limitation.
For each program year the total amount which may be received by any
person under this subpart for approved practices shall not exceed $3,500
except that (a) the total amount received for approved practices,
including those carried out under pooling agreements, shall not exceed
$10,000 and (b) the total amount received under an ACP long-term
agreement (LTA) shall not exceed the annual payment limitation ($3,500)
multiplied by the number of years of the LTA.
[52 FR 19716, May 27, 1987]
Sec. 701.24 Completion of practices.
Cost-sharing for the practices contained in this part is conditioned
upon the performance of the practice in accordance with all applicable
specifications and program provisions.
Sec. 701.25 Time of filing payment application.
Payment of cost-shares will be made only upon application submitted
on the prescribed form to the county office by a date established by the
county committee. Any application for payment may be rejected if any
form or information required of the applicant is not submitted to county
office within the applicable time limit.
Sec. 701.26 Other program provisions.
Other provisions as contained in Secs. 701.1 and 701.2 and in the
subpart, General Provisions, apply to the Agricultural Conservation
Program.
Subpart--Forestry Incentives Program
Sec. 701.27 Program objective.
The objective of the Forestry Incentives Program (hereinafter
referred to in this subpart as the ``program'') is to help assure a
future supply of timber. This will be accomplished by encouraging
landowners to apply forestry practices for the following:
(a) Production of softwood and hardwood timber and other forest-
resources associated therewith to increase afforestation of suitable
open lands.
(b) Reforestation of cutover and understocked forest lands.
(c) Timber stand improvement.
(d) Intensive multipurpose management.
(e) Protection of forest resources.
[[Page 30]]
Sec. 701.28 [Reserved]
Sec. 701.29 Designated counties.
The State committee in consultation with the State Forester, will
designate the counties or parts of counties in which the program will be
operated. The following will be considered in making the selections:
(a) The total acreage in the county devoted to desirable types of
softwood and hardwood timber.
(b) The estimated area in the county that is under eligible
ownership.
(c) The estimated acreage suitable for the production of forest
products.
(d) The availability of funds.
(e) The enhancement of other forest resources.
Sec. 701.30 Eligible person, land, and ownerships.
(a) An eligible person is a private individual, group, Indian Tribe
or other native group, association, corporation excluding corporations
whose stocks are publicly traded, or other legal entity which owns
eligible land. Firms principally engaged in the manufacture of wood
products are not eligible. However, forest landowners who manufacture
forest products on a part-time or irregular basis, are eligible.
(b) Eligible land is ``nonindustrial'' private forest land capable
of producing at least 50 cubic feet of wood per acre per year.
(c) Eligible farms are those not exceeding a total of 1,000 acres of
eligible private nonindustrial forest land in the United States or any
commonwealth, territory or possession of the United States. The State
Committee with the concurrence of the State Forester may approve cost-
sharing with landowners owning more than 1,000 but not more than 5,000
acres of eligible forest land where it is deemed to be to the public's
significant benefit.
(d) Significant public benefits are primarily those resulting from
cost-effective timber production, with related benefits to aesthetics,
recreation, other resource values, watershed protection and erosion
reduction.
Sec. 701.31 Program funds.
(a) State and counties. Each designated State and county will
receive a share of the funds provided nationally for the program. Funds
will be distributed on the basis of the forest production opportunities
in each State, considering the acreage of private nonindustrial forest
lands, the number of eligible owners, the potential productivity of such
lands and the need for reforestation, timber stand improvement, other
forestry management needs, and the enhancement of other forest
resources. The Director, Conservation and Environmental Protection
Division, FSA, will allocate funds after consultation with
representatives of the U.S. Forest Service and a committee of not less
than five State foresters or equivalent State officials selected by a
majority of the State foresters or equivalent State officials. The State
committee will consult with the State forester when determining the
allocation of such funds to the designated counties.
(b) A limitation on the amount of funds which may be obligated under
long-term agreements shall be established by the State committee in
accordance with guidelines provided by the Deputy Administrator, State
and County Operations.
Sec. 701.32 Eligible practices and cost-share requirements.
(a) Cost-sharing may be available for the following National
practices and authority:
(1) Practice FP1. Planting Trees.
(2) Practice FP2. Improving a Stand of Forest Trees.
(3) Practice authority--SF Practice. Special Forestry Practices. The
Director, Conservation and Environmental Protection Division, FSA, after
consultation with the Forest Service, may approve special forestry
practices needed to solve a significant and unique local condition for
which the National practices are not adequate. Such practices may be
approved for inclusion in a county program after consultation with the
program development group, and the recommendation of the county
committee, the service forester, the State committee and the State
forester.
(b) A forest management plan is required as a condition of cost-
sharing.
[[Page 31]]
The plan will be developed in consultation with the landowner, approved
by the service forester, and will contain information for accurate
evaluation of practice effectiveness. The participant will be required
to perform those measures in the plan which are essential to the
effectiveness of the practice for which costs are shared. In the
development of the plan, consideration will be given to wildlife,
watershed protection, recreation, erosion control, aesthetics, and other
associated forest resources values as well as cost-effective timber
production.
Sec. 701.33 The National program.
The National program is based on recommendations developed by the
Director, Conservation and Environmental Protection Division, FSA, in
consultation with representatives of the U.S. Forest Service and the
committee of State foresters provided for in Sec. 701.31.
Sec. 701.34 Development of State programs.
(a) A State program shall be developed in each State in accordance
with the provisions contained in this part and in the National program
and such modifications thereof as may thereafter be made. The program
shall be developed by the State forestry committee as provided in
Sec. 701.2.
(b) The program for the State shall be that recommended by the State
committee and State forester and approved by the Director, Conservation
and Environmental Protection Division, FSA, after consulting the U.S.
Forest Service.
Sec. 701.35 Development of county programs.
(a) A county program shall be developed in each designated county in
accordance with the provisions of the State program and such
modifications thereof as may be made. The county program shall be
developed by the county conservation review group. The county
conservation review group, working with the governing body of the
conservation district, the State forestry agency representatives, the
county supervisor of the Farmers Home Administration, and others with
conservation and environmental interest, shall develop recommendations
for the county program.
(b) The program for the county shall be that recommended by the
county committee and service forester and approved by the State
committee and State forester.
[45 FR 49522, July 25, 1980, as amended at 47 FR 46999, Oct. 22, 1982]
Sec. 701.36 Adaptation of practices.
(a) The practices included in the State program meet the conditions
and requirements of the National program. National program provisions
may be modified or deleted to make practices more restrictive where such
changes meet the objectives of the program.
(b) The practices included in the county program must meet the
conditions and requirements of the State program. State program
provisions may be modified or deleted to make practices more restrictive
where such changes will still result in the practices effectively
meeting the objectives of the program.
Sec. 701.37 Levels and rates of cost-sharing.
(a) The maximum cost-share for each practice shall be the percentage
of the actual cost of performing the practice considered necessary to
obtain the needed performance of the practice, but which will be such
that the participant will make a significant contribution to the cost of
performing the practice.
(b) Levels of cost-sharing shall be approved by the State ASC
committee and shall not be in excess of 65 percent of actual costs
incurred by the landowners.
(c) For the purpose of establishing rates of cost-sharing, the
average cost of performing a practice may be the average cost for a
State, a county or a part of a county, as determined by the State
committee.
(d) The rates of cost-sharing for practices included in the county
program may be lower than the rates approved for general use in the
State.
[45 FR 49522, July 25, 1980, as amended at 47 FR 20109, May 11, 1982]
[[Page 32]]
Sec. 701.38 Prior approval for cost-sharing.
Costs will be shared only for those practices, or components of
practices, for which cost-sharing is requested and approval issued
before performance thereof is started.
Sec. 701.39 Methods of approval.
The county committee will determine the extent to which Federal
funds will be made available to share the cost of each approved
practice. Approvals shall be made based on consideration of the county
allocation, cost-effective opportunities for increasing timber
production, potential for enhancing other forest resources, the forestry
needs in the county, and the practices for which requested cost-sharing
is considered by the county committee as most needed. The method
approved shall provide for the issuance of notices of approval showing
for each approved practice the number of units of the practice for which
the Federal Government will share in the cost and the amount of the
cost-share for the performance of that number of units of the practice.
Notices of appeared practices shall be issued before performance of the
practice may be started. No practice may be approved for cost-sharing
except as authorized by the National, State or county program, or in
accordance with procedures incorporated therein. Available funds for
cost-sharing shall not be allocated on a pro-rata basis, but shall be
directed to the accomplishment of the most production attainable.
(a) Cost-sharing may be approved under annual agreements or long-
term agreements.
(b) Land covered by a Great Plains Conservation Program contract is
not excluded from an annual or long-term agreement if otherwise eligible
and is approved by both the Forest Service and the Soil Conservation
Service.
(c) The same practices, cost-share levels and general program
provisions apply to both annual agreements and long-term agreements.
Sec. 701.40 Long-term agreements.
(a) The period of a long-term agreement will be for not less than
three (3) years nor more than 10 (10) years. The county committee and
the signatories to the agreement in consultation with the State forestry
representative, will mutually determine the scheduling of essential
practices and practice cost-sharing over the period of the agreement.
(b) The long-term agreement will be based on a forest management
plan for the land which has been developed by the service forester.
(c) The long-term agreement will provide that the owner will carry
out those measures in the forest management plan which are determined to
be essential whether or not cost-sharing is approved for such measures.
(d) The level of cost-sharing in effect for practices in all years
of a long-term agreement shall be the level in effect for the beginning
year of the agreement. The rate of cost-sharing for payment purposes for
such practice will be based on the average cost of performing the
practice at the time the practice is performed.
(e) A long-term agreement may be canceled for failure to comply with
the terms of the agreement if, after consulting with the service
forester, the county committee and State committee find that the
seriousness of the irregularities warrant such action. If the agreement
is canceled, the signatories to the agreement are jointly and severally
responsible for refunding all cost-shares paid and will forfeit all
rights to further payments under the agreement. In such a case no other
refund or forfeiture provisions of these regulations apply.
(f) A long-term agreement may be revised in accordance with
instructions issued by the Deputy Administrator, State and County
Operations, where there is a change in status of the participants or the
land under agreement.
(g) An eligible person who acquires control of land under an
approved agreement may elect to become a successor in interest under
such agreement.
(h) An agreement will be terminated with respect to land for which
loss of control has occurred and where the person acquiring control of
such land elects not to become a successor in interest under the
agreement. If the loss of control is for reasons beyond the
[[Page 33]]
control of the signatories to the agreement, the county committee will
determine whether or not any cost-shares previously paid shall be
refunded, but in no event shall the refund be greater than would be
required in cases where loss of control is voluntary. If the loss of
control is voluntary on the part of the signatories, they will be
jointly and severally responsible for refunding all cost-shares paid and
will forfeit all rights to further payments, with respect to the land
for which control is lost. A refund will not be required for cost-shares
where, the county committee and the State committee determine, after
consulting with the service forester, that failure to perform the
remaining practices in the agreement will not impair the effectiveness
of the practices which have been performed and that the completed
practices will provide forestry benefits consistent with the cost-shares
which have been paid.
(i) An agreement may be terminated if, after considering the
recommendation of the service forester, the county committee recommends
and the State committee concurs that such action is in the public
interest.
Sec. 701.41 Restoration of practices.
(a) Cost-sharing may be authorized under the program only for the
establishment or installation of the practices contained in this part.
Cost-sharing may not be authorized for repeating any of the practices in
this part with the same owner on the same acreage, except as provided in
paragraph (b) or (c) of this section.
(b) Cost-sharing may be authorized for the replacement, enlargement,
or restoration of practices for which cost-sharing has been allowed
under the program only if all of the following conditions exist:
(1) Replacement or restoration of the practice is needed to solve
the problem.
(2) The failure of the original practice was not due to the lack of
proper maintenance by the current operator.
(3) The county committee believes that the replacement or
restoration of the practice merits consideration under the program to an
equal extent with other practices cost-shared.
(c) Cost-sharing may be authorized for timber stand improvement
measures carried out in repetitive steps where, in the judgment of the
service forester, the stand treatment warrants such silvicultural
practice.
Sec. 701.42 Maximum cost-share limitations.
For each fiscal year the total of all cost-shares paid to any
eligible person shall not exceed the sum of $10,000 with respect to
eligible ownerships (Sec. 701.30(b)) in the United States or any
commonwealth, territory or possessions of the United States for approved
practices carried out under annual and/or long-term agreements.
Sec. 701.43 Completion of practice.
Cost-sharing for the practices contained in this subpart is
conditioned upon the performance of the practices in accordance with all
applicable specifications and program provisions.
Sec. 701.44 Time of filing payment application.
Payment of cost-shares will be made only upon application submitted
on the prescribed form to the county office by the prescribed time limit
or any authorized extension thereof. Any application for payment may be
rejected if any form or information required of the applicant is not
submitted to the county office within the applicable time limit.
Sec. 701.45 Other program provisions.
Other provisions as contained in Secs. 701.1 and 701.2 and in the
subpart, General Provisions, apply to the Forestry Incentives Program.
st
Subpart--Emergency Conservation Program
Sec. 701.46 Program objective.
The objective of the Emergency Conservation Program is to cost-share
with eligible persons to rehabilitate farmlands damaged by wind and
water erosion, floods, hurricanes, or other natural disasters and to
provide water conservation or water enhancement measures during periods
of severe drought.
[[Page 34]]
Sec. 701.47 Program availability.
(a) The county committee may implement the program subject to the
availability of funds where new conservation problems have been created
on farmland by a natural disaster or wind erosion which, if not treated;
will:
(1) Impair or endanger the land or water resource.
(2) Materially affects the productive capacity of the land or water
resource.
(3) Represent damage which is unusual in character and, except for
wind erosion, shall not be the type that would recur frequently in the
same area.
(4) Be so costly to rehabilitate that Federal assistance is or will
be required to return the land to productive agricultural use.
(b) Subject to the availability of funds, the county committee with
the concurrence of the State committee and approval of the Deputy
Administrator, State and County Operations may implement the program to
carry out emergency water conservation and water enhancement measures
during periods of severe drought.
Sec. 701.48 Eligibility of person and land.
Eligibility of person and land is the same as for the Agricultural
Conservation Program as provided in Secs. 701.7 and 701.8.
Sec. 701.49 Emergency conservation program practices.
(a) Except for severe drought and wind erosion, cost-sharing may be
offered for emergency conservation practices only to replace or restore
farmland to a condition similar to that existing prior to the natural
disaster. Cost-sharing may not be offered for the solution of
conservation problems existing prior to the disaster.
(b) Emergency Conservation Program practices for which cost-sharing
may be authorized are generally:
(1) Removing debris from farmland.
(2) Grading, shaping, releveling or similar measures.
(3) Restoring permanent fences.
(4) Restoring structures and other installations.
(5) Emergency wind control measures.
(6) Drought emergency measures.
(7) Other emergency conservation measures.
Sec. 701.50 Practice approval.
Practices listed in Sec. 701.49(b)(1) through (5) may be approved by
the county committees. Practices (6) and (7) of Sec. 701.49(b) must be
approved by the Deputy Administrator, State and County Operations.
Sec. 701.51 Extent of cost-sharing.
(a) The maximum payment under this subpart per person, per disaster,
is limited to $200,000, including the amount of any payment received by
such person as the result of a disaster under a pooling agreement.
(b) The cost-share payments which may be made by FSA for a practice
under the program shall, subject to the maximum payment amount specified
in paragraph (a) of this section and any other limitation as may apply,
be further limited to the level of cost-share assistance established by
the county committee not to exceed the following amounts:
(1) 64 percent of the first $62,500 of eligible reimbursable costs;
plus
(2) 40 percent of the second $62,500 of eligible reimbursable costs;
plus
(3) 20 percent of the remaining eligible reimbursable costs up to
such amount as would produce a cost-share not in excess of the
limitation in paragraph (a) of this section.
Sec. 701.52 Eligible costs.
Upon determination that a person is eligible for Emergency
Conservation Program assistance, cost-sharing shall be granted for all
reasonable costs incurred in the completion of the practice. Such costs
may include personal labor, equipment, and other such costs which are
determined by the county committee to be related to the costs of
carrying out the practice. County committees shall limit costs for the
use of personal equipment to an amount that reflects out-of-pocket
expenses. Expenses for personal labor and personal equipment should be
less than rates charged by contractors who expect to make a profit for
their efforts.
[[Page 35]]
Sec. 701.53 Filing requests.
The county committee shall establish a sign up period for filing
cost-sharing requests immediately after the county committee's decision
has been made (by the Deputy Administrator, State and County Operations,
in cases of drought) to implement the Emergency Conservation Program in
the county. Such periods should be at least 30 days in length. Late
filed requests may be accepted by the county committee in justifiable
cases.
Sec. 701.54 Approving requests.
County committees will issue practice approvals only when the
requested practice has been determined eligible for cost-sharing
assistance and the eligible person has indicated he/she is ready to
start the practice.
Sec. 701.55 Pooling agreements.
Pooling agreements may be used on the same basis as provided for in
the Agricultural Conservation Program in Sec. 701.18.
Sec. 701.56 Payment approval.
The county committee is authorized to approve payments not to exceed
$10,000 per person, per disaster. Cost-share assistance in excess of
$10,000 must be approved by the Deputy Administrator, State and County
Operations, or designee.
Sec. 701.57 Other program provisions.
Other provisions of this part as provided for in Secs. 701.1 and
701.2 and in the subpart, General Provisions, apply to the Emergency
Conservation Program.
Subpart--General Provisions
Sec. 701.58 Restriction on program eligibility.
The regulations in part 796 of this chapter prohibiting the making
of payments to program participants who harvest or knowingly permit to
be harvested for illegal use, marijuana or other such prohibited drug-
producing plants on any part of the land owned or controlled by them are
applicable to these programs.
Sec. 701.59 Delegation of authority.
No delegation of authority contained in these programs to a State or
county committee shall preclude the Deputy Administrator, State and
County Operations or designee, from determining any question arising
under these programs or from reversing or modifying any determination
made by a State or county committee.
Sec. 701.60 Practice specifications.
(a) Minimum specifications that practices must meet to be eligible
for cost-sharing shall be set forth in the county program, or
incorporated therein by specific reference to a standard publication or
other written document containing such specifications.
(b) Practice specifications shall represent those levels of
performance which are needed in order for the practice to be effective
in meeting the program objective and which are not in excess of levels
for which cost-sharing can be justified.
Sec. 701.61 Responsibility for technical phases of practices.
The Soil Conservation Service and the U.S. Forest Service are
responsible for technical phases of the practice as assigned and such
assignment will be specified in State and county programs.
(a) The State conservationist of the Soil Conservation Service may
utilize assistance from private, State or Federal agencies in carrying
out the assigned responsibilities. No responsibilities will be assigned
for counties when the Deputy Administrator, State and County Operations
and the Administrator, SCS, determines that it would not be
administratively practicable for the Soil Conservation Service to
discharge such responsibilities. In such counties, these
responsibilities shall be assumed by the county committees. The Soil
Conservation Service may utilize to the fullest extent available
resources of the State forestry agencies in carrying out assigned
responsibilities for practices involving the establishment of wind-
breaks or shelterbelts on farmland to prevent wind erosion.
[[Page 36]]
(b) The U.S. Forest Service is responsible for the technical phases
of practices or components of practices involving the planting of trees
for forestry purposes and those involving the improving or protecting of
a stand of forest trees, as specified in State and county programs. The
U.S. Forest Service may utilize the assistance of private, State or
Federal agencies in carrying out these assigned responsibilities, but
services of State forestry agencies will be utilized to the extent that
such services are available.
(c) The technical assistance to be furnished in servicing assigned
practices will include, where appropriate, the following technical
phases:
(1) Determining whether the practice is needed and practicable;
(2) Selecting the site (if necessary), complying with environmental
and cultural regulations, determining the specific measures needed, and
performing any required layout work for the practice;
(3) Supervising the installation of the practice if needed to assure
conformity with specifications; and
(4) Certifying the extent performed and whether the specifications
for the practice have been met. The technical agency shall perform all
four phases for all assigned practices in State and county programs,
except as may be provided in instructions issued by the Deputy
Administrator, State and County Operations.
Sec. 701.62 Items of cost on which rates of cost-sharing may be based.
Except as otherwise provided by the specific FSA procedural
handbooks, notices, and regulations, the cost of any direct and
significant factor in the performance of a practice may be considered in
establishing the rate of cost-sharing for the practice. y
Sec. 701.63 Handbook, bulletins, instructions, and forms.
The Deputy Administrator, State and County Operations is authorized
to prepare and issue handbooks, bulletins, instructions, and forms,
required in administering these programs. Copies of handbooks,
bulletins, instructions and =forms, containing detailed information on
these programs as they apply to specific States, counties, areas, farms,
ranches and other eligible ownerships, will be available in the office
of the State committee and the office of the county committee.
Sec. 701.64 Opportunity for requesting cost-shares.
Farmers, ranchers, eligible landowners, or eligible persons,
regardless of race, sex, religion, color, or national origin, shall be
given an opportunity to request that the Federal Government share in the
cost of those practices they consider to be needed on their farm, ranch,
or other eligible land. The county committee shall direct the available
funds for cost-sharing to those practices where cost-sharing is
considered most essential to the accomplishment of the program
objective.
Sec. 701.65 Repair, upkeep and maintenance of practices.
Cost-sharing is not authorized for repairs or for normal upkeep or
maintenance of any practice.
Sec. 701.66 Public benefits when installing practices.
Persons responsible for any aspect of performing practices are to be
encouraged to install the practices in such a way to promote public
benefits by improving or preserving environmental quality and ecological
balance by preventing or abating pollution and other environmental
degradation; benefiting the community by such means as preserving open
space, or enhancing the appearance of the area; benefiting wildlife and
other desirable life forms; preserving historic, archeological, or
scenic sites, wetlands, ecologically critical areas and prime farmlands;
avoiding the creation of hazards to persons or animals and avoiding
actions that may adversely affect an endangered or threatened species
and flood plains.
Sec. 701.67 Payments for uncompleted practices.
Cost-shares approved under these programs will not be considered as
earned until all components of the approved practice are completed in
accordance with applicable specifications and program provisions. Cost-
shares
[[Page 37]]
for completed components may be paid only on the condition that the
farmers, ranchers, or eligible landowners, will complete the remaining
components of the practice within the time prescribed by the county
committee regardless of whether cost-sharing is offered for them, unless
they are prevented from doing so because of reasons beyond their
control.
Sec. 701.68 Practices involving the establishment or improvement of vegetative cover.
(a) Costs for practices involving the establishment or improvement
of vegetative cover, including trees may be shared even though a good
stand is not established, if the country committee determines, in
accordance with standards approved by the State committee, that the
practice was carried out in a manner which could normally result in the
establishment of a good stand, and that failure to establish a good
stand was due to weather or other conditions beyond the control of the
operator. The county committee may require as a condition of cost-
sharing in such cases that the area be reseeded or replanted or that
other needed protective measures be carried out. Cost-sharing in such
cases may be approved also for repeat applications of measures
previously carried out or for additional eligible measures. Cost-sharing
for such measures shall be approved to the extent such measures are
needed to assure a good stand even though less than that required by the
applicable practice wording for initial approvals.
(b) In the case of Foresty Incentives Program, replanting of trees
is required where the landowner received cost-sharing for site
preparation.
Sec. 701.69 Failure to meet minimum requirements or failure to comply fully with program provisions.
(a) Notwithstanding other provisions of these programs, costs may be
shared for performance actually rendered even though the minimum
requirements for a practice are not met, if the farmer, rancher,
eligible landowner, or eligible person establishes to the satisfaction
of the county committee and the county representative of any other
agency having responsibility for technical phases of the practice that a
reasonable effort was made to meet the minimum requirements and that the
practice as performed adequately solves the problem.
(b) Notwithstanding the provisions in paragraph (a) of this section,
the terms and conditions of contracts entered into pursuant to programs
in this part may be modified to grant relief when the Deputy
Administrator, State and County Operations, determines that a person
acting in good faith failed to fully comply with the program provisions.
Sec. 701.70 Practices carried out with aid from ineligible persons.
(a) Except as provided in paragraph (b) of this section, financial
assistance which is made available, or will be made available, to a
program participant from a person ineligible for cost-share assistance
under this part for the practice, including aid from a State or Federal
agency other than assistance made available under this part, shall be
deducted from the program participant's total costs incurred for the
practice for purposes of determining the applicant's eligible
reimbursable costs under this part.
(b) Third party contributions need not be deducted under paragraph
(a) of this section where it is determined by the State ASC Committee,
in accordance with instructions of the Deputy Administrator, State and
County Operations (DASCO), FSA, that an exception would be in
furtherance of program objectives. However, the total cost-share paid
may not, in any case, exceed the net contribution (exclusive of any
contribution by ineligible persons) otherwise made by the applicant to
the cost of carrying out the practice.
[56 FR 46368, Sept. 12, 1991]
Sec. 701.71 Division of cost-shares.
(a) The cost-share for a practice shall be credited to the person
who carried out the practice. If more than one person contributed to the
carrying out of the practice, the cost-share for the practice shall be
divided among those persons in the proportion that the county committee
determines they contributed to the carrying out of the
[[Page 38]]
practice. In making this determination, the county committee shall take
into consideration the value of the labor, equipment, or material
contributed by each person toward the carrying out of the practice, and
shall assume that each contributed equally unless the county committee
is satisfied that their respective contributions were not in equal
proportion. Any advances made by FSA toward the cost of materials or
services under Sec. 701.21, the furnishing of land, and the furnishing
of the right to use water, will not be considered as a contribution to
the carrying out of any practice.
(b) The allowance by an eligible person of a credit to another
eligible person in the form of an adjustment in rental, an exchange of
cash, or other consideration, will not be considered as a contribution
to the carrying out of any practice, unless the county committee is
satisfied that such credit is directly related to the cost or cost-share
of the practice. A person will not be considered as having contributed
to the carrying out of a practice if the county committee determines
that a person has been, or is to be, fully reimbursed for contributions
made to the performance of the practice, through an adjustment in
rental, an exchange of cash, or other consideration.
Sec. 701.72 Death, incompetency, or disappearance.
In case of death, incompetency, or disappearance of any person, any
cost-shares due shall be paid to the successor, determined in accordance
with provisions of the regulations in part 707 of this chapter, as
amended.
Sec. 701.73 Applying cost-share limitations.
(a) All or any part of cost-share which otherwise would be due any
person for a program year may be withheld, or required to be refunded,
if, with respect to that program year, the person has adopted, or
participated in adopting, any scheme or device, including the
dissolution, reorganization, revival, formation, or use of any
corporation, partnership, estate, trust, or any other means, designed to
evade a maximum cost-share limitation.
(b) The rules set forth in 7 CFR 795.3 through 795.22 shall apply in
determining whether certain individuals or other entities are to be
considered as separate persons for the purpose of applying any maximum
payment limitations provided for in this part. In cases where more than
one rule would appear to be applicable, the rule which is most
restrictive as to number of persons shall apply.
[45 FR 49522, July 25, 1980, as amended at 51 FR 12985, Apr. 17, 1986]
Sec. 701.74 Persons eligible to file application for payment of cost-shares.
Any eligible person who bore a part of the cost of an approved
practice is eligible to file an application for payment of cost-shares
due.
Sec. 701.75 Time and manner of filing application and required information.
It shall be the responsibility of persons participating in these
programs to submit to the county office forms and information needed to
establish the extent of the performance of approved practices and
compliance with applicable program provisions. The time limits for
submission of such forms and information shall be established where
necessary for efficient administration of the programs. Such time limits
shall afford a full and fair opportunity to those eligible to file the
forms and information within the period prescribed. At least 2 weeks
notice of any general time limits prescribed shall be given to the
public. The notice shall be given by mailing notice to the office of
each county committee and making copies available to the press. Other
means of notification; including radio announcements and individual
notices to person(s) affected, shall be used to the extent practicable.
Notice of such time limits which are applicable to individual persons,
such as time limits for reporting performance of approved practices,
shall be issued in writing to the person(s) affected. Exceptions to the
time limits may be made in cases where failure to submit required forms
and information within the applicable time limits is due to reasons
beyond the control of the farmer or rancher.
[[Page 39]]
Sec. 701.76 Appeals.
Any person may obtain review of determinations affecting
participation in:
(a) The Forestry Incentive Program, in accordance with part 614 of
this title; and
(b) All other programs within this part, in accordance with part 780
of this title.
[60 FR 67316, Dec. 29, 1995]
Sec. 701.77 Performance based on advice or action of county or State committee.
Cases involving performance rendered in good faith in reliance upon
action or advice of an authorized representative of a county or State
committee shall be handled in accordance with part 790 of this chapter.
Sec. 701.78 Compliance with regulatory measures.
Persons who carry out practices under these programs shall be
responsible for obtaining the authorities, rights, easements, or other
approvals necessary to the performance and maintenance of the practices
in keeping with applicable laws and regulations. The person with whom
the cost of the practice is shared shall be responsible to the Federal
Government for any losses it may sustain because such persons infringe
on the rights of others or fail to comply with applicable laws or
regulations.
Sec. 701.79 Maintenance and use of practice.
Each person receiving cost-share assistance under these programs is
responsible for the maintenance and proper use of the practice. Each
practice shall have an established lifespan or minimum period of time
that it is expected to function as a conservation practice with proper
maintenance. If it is determined that a practice has not been properly
maintained for the established lifespan, the person receiving the cost-
share assistance shall refund all or any part of such cost-share
assistance as determined to be appropriate by the county committee.
Further, any agreement providing for cost-share assistance will be
terminated with respect to the land on which the practice is located if
there is voluntary loss of control of the land by the person receiving
the cost-share assistance and the person acquiring control of such land
elects not to become a successor in interest to the agreement. If the
agreement providing for cost-share assistance is terminated as a result
of the voluntary loss of control of the land, each person receiving
cost-share assistance under that agreement shall be liable for refunding
to FSA any cost-share assistance which has been received with respect to
the practice. In addition, such person shall forfeit any right to
receive any further cost-share assistance with respect to the land on
which the practice is located.
[48 FR 33848, July 26, 1983]
Sec. 701.80 Actions defeating purpose of program.
If the county committee finds with the concurrence of the State
committee, or if the State committee finds, that a person has taken any
action which tends to defeat the purposes of these programs, it may
withhold or require a refund of all or part of any of these program
payments otherwise due or paid that person during the program year.
These actions include, but are not limited to, failure to properly
maintain or deliberately destroying a practice carried out under a
previous program year.
Sec. 701.81 Depriving others of cost-shares.
If the State committee finds that any person has employed any scheme
or device to deprive any other person of cost-shares, it may impose a
penalty. The State committee may withhold or require a refund of all or
part of any of these program payments otherwise due or paid that person
during the program year. A scheme or device includes, but is not limited
to, coercion, fraud or misrepresentation.
Sec. 701.82 Filing of false claims.
If the State committee finds that any person has knowingly supplied
false information or has knowingly filed a false claim, that person is
ineligible for cost-sharing under the program year with respect to which
information or
[[Page 40]]
claim is filed. False information or false claims include a claim for
payment for a practice not carried out or for practices which do not
meet the required specifications. Any amounts paid under these
circumstances shall be refunded and any amounts otherwise due the person
shall be withheld. The withholding or refunding of cost-shares will be
in addition to any other penalty or liability otherwise imposed by law.
Sec. 701.83 Cost-shares not subject to claims.
Any cost-share or portion thereof due any person shall be allowed
without regard to questions of title under State law, and without regard
to any claim or lien against the crop, or proceeds thereof, in favor of
the owner or any other creditor except agencies of the U.S. Government.
The regulations issued by the Secretary governing set-offs and
withholdings, part 13 of this title, as amended, shall be applicable to
these programs.
Sec. 701.84 Assignments.
Any person who may be entitled to any cost-share under these
programs may assign the right thereto, in whole or in part, in
accordance with the regulations governing the assignment of payments at
7 CFR part 709.
Sec. 701.85 Environmental considerations.
All actions implemented under the programs in this part shall be in
compliance with regulations issued as part 799--Environmental Quality
and Related Environmental concerns which includes the procedures for
complying with the National Environmental Policy Act, for Floodplain
Management and Wetland Protection and for other environmental concerns.
Sec. 701.86 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 Numbers 0560-0078, 0560-
0079, and 0560-0082.
[54 FR 41819, Oct. 12, 1989]
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.
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
[[Page 41]]
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 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
[[Page 42]]
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 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]
[[Page 43]]
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) 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]
[[Page 44]]
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 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.
[[Page 45]]
(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 a 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 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
[[Page 46]]
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.
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
[[Page 47]]
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:
(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
[[Page 48]]
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 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
[[Page 49]]
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, 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
[[Page 50]]
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 precedence 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.
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.
[[Page 51]]
(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.
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
[[Page 52]]
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 53]]
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 Secs. 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 to
[[Page 54]]
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.
Sec. 711.8 Oath of office.
Each farmer appointed to serve as a member of a review committee
panel
[[Page 55]]
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 only one review committee member is
[[Page 56]]
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 Secs. 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,
[[Page 57]]
and filed with, the county executive director for the county from which
the 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
[[Page 58]]
States and counties and the establishment of reserve acreages and quotas
at 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 59]]
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 Secs. 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 60]]
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 61]]
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 Secs. 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 62]]
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 Secs. 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 63]]
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 64]]
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 65]]
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 political township, a local voting precinct for purposes
of general elections,
[[Page 66]]
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 whether such
farmers favor the establishment of marketing quotas on an acreage-
poundage basis for the next 3
[[Page 67]]
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 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
[[Page 68]]
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 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
[[Page 69]]
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 pursuant to the regulations in the
subpart--Selection and Functions of Agricultural Stabilization and
Conservation County and Community committees (part 7 of this title).
[[Page 70]]
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 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
[[Page 71]]
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 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
[[Page 72]]
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 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
[[Page 73]]
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 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
[[Page 74]]
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 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]
[[Page 75]]
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 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
[[Page 76]]
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 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
[[Page 77]]
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.
Sec. 717.25 Disposition of ballots and records.
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
[[Page 78]]
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 Delegations of authority.
718.6 Signature requirements and time limitations.
718.7 Failure to fully comply.
718.8 Incomplete performance based upon action or advice of an
authorized representative of the Secretary.
718.9 Finality rule.
718.10 Rule of fractions.
718.11 Denial of benefits.
718.12 Furnishing maps.
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 Tolerance, variances, and adjustments for tobacco.
718.106 Acreages.
718.107 Skip rows and strip crops.
718.108 Deductions.
718.109 Adjustments.
718.110 Notice of measured acreage.
718.111 Redetermination.
Subpart C--Reconstitution of Farms, Allotments, Quotas, and Acreages
718.201 Farm constitution.
718.202 Guides for determining the land constituting a farm.
718.203 County committee action to reconstitute a farm.
718.204 Reconstitutions of allotments, quotas, and acreages.
718.205 Rules for determining farms, allotments, quotas, and acreages
when reconstitution is made by division.
718.206 Rules for determining allotments, quotas, and acreages when
reconstitution is made by combination.
718.207 Eminent domain acquisitions.
718.208 Exempting Federal prison farms and Federal wildlife refuges.
718.209 Transfer of allotments and quotas--State public lands.
Authority: 7 U.S.C. 1373, 1374, 7201 et seq.; 15 U.S.C. 714b and
714c; and 21 U.S.C. 889.
Source: 61 FR 37552, July 18, 1996, unless otherwise noted.