[Federal Register Volume 59, Number 116 (Friday, June 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14548]
[[Page Unknown]]
[Federal Register: June 17, 1994]
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DEPARTMENT OF AGRICULTURE
Soil Conservation Service
7 CFR Part 658
Farmland Protection Policy
AGENCY: Soil Conservation Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule amends part 658 of title 7 of the Code of Federal
Regulations which implements the Farmland Protection Policy Act (FPPA).
The amendments contained in this rule are necessary to enable the
Department of Agriculture to effectively implement the FPPA, as
amended. They request reports by federal agencies, recognize the
statutory authority of a governor of a state to bring legal actions to
enforce the FPPA, provide policy direction regarding federal assistance
and federal programs, and they restore a subsection of the existing
rule that was omitted from publication by clerical error.
EFFECTIVE DATE: This rule becomes effective June 17, 1994.
FOR FURTHER INFORMATION CONTACT:
Lloyd E. Wright, Director, Basin and Area Planning, Soil Conservation
Service, PO Box 2890, Washington, DC 20013, telephone 202-720-2847.
SUPPLEMENTARY INFORMATION: The regulations of the United States
Department of Agriculture (the Department) implementing the Farmland
Protection Policy Act (FPPA) are contained in 7 CFR part 658. A
proposed rule, setting forth several amendments to these regulations,
was published for public comment on January 14, 1987, at 52 FR 1465.
The comment period closed February 27, 1987, during which time nineteen
sets of comments were received from five federal agencies; four state
agencies; seven national organizations in the agricultural, resource
conservation, and planning fields; one county board of supervisors; and
two individuals.
The proposed rule, as discussed below, contained six amendments to
the Department's existing regulations. Of these six amendments, three
were being proposed as a result of the specific changes in the FPPA
that Congress had enacted in section 1255 of the Food Security Act of
1985, Public Law 99-198, 99 Stat. 1518. Another amendment to the
existing rule was to correct a clerical mistake. These four amendments,
with minor changes, are made final by this rule.
The two remaining amendments, of the six included in the proposed
rule, were not responses to any new direction enacted by Congress, but
were the Department's proposals to change its policy in the
interpretation of FPPA provisions. These two amendments were a
departure from the policy that the Department had announced when the
existing regulations were promulgated on July 5, 1984, 49 FR 27716. The
existing sections of part 658 that would be changed by these two
amendments are Secs. 658.2(a) and 658.3(c). The rationale underlying
the provisions of the existing regulations is set forth in the preamble
of the final rule publication, which is found at 49 FR 27716-27724. The
rationale for the proposed changes is set forth in the preamble of the
proposed rule at 52 FR 1465-1468. After reviewing the policy
considerations that led to the adoption of the existing regulations in
1984, as well as considering the proposed changes and the public
comments to the proposed rule, the Department has concluded that the
proposed amendments to Sec. 658.2(a) should be adopted with some
additional interpretive clarification, as discussed below.
In addition, the Department has concluded that Sec. 658.3(c) should
be amended as proposed to comport with the authority of a governor of a
state to take action to enforce the provisions of the FPPA with regard
to a policy or program of the affected state for the protection of
farmland.
I. Background
The FPPA was enacted as Subtitle I, sections 1539-1549, of Title XV
of the Agriculture and Food Act of 1981, Public Law 98-98, 7 U.S.C.
4201-4209. In enacting the FPPA, Congress found that the Nation's
farmland was ``a unique natural resource'' and that each year, ``a
large among of the Nation's farmland'' was being ``irrevocably
converted from actual or potential agricultural use to nonagricultural
use,'' in many cases as a result of action taken or assisted by the
federal government. The FPPA directs federal agencies to identify and
take into account the adverse effects of federal programs on the
preservation of farmland; consider alternative actions, as appropriate,
that could lessen such adverse effects; and assure that such federal
programs, to the extent practicable, are compatible with state
government, local government, and private programs and policies to
protect farmland.
In order to guide the federal agencies in implementing the FPPA,
section 1541(a) of the Act, 7 U.S.C. 4202(a), directs the Department of
Agriculture, in cooperation with other departments, agencies,
independent commissions, and other units of the federal government, to
``develop criteria for identifying the effects of Federal programs on
the conversion of farmland to nonagricultural uses.'' The Department
issued these criteria in its current rule implementing the FPPA at 7
CFR 658.4 and 658.5. The FPPA also authorizes the Department to provide
technical assistance to federal, state, and local government agencies
to develop programs or policies to limit the conversion of productive
farmland to nonagricultural uses, and this is covered in the current
rule at 7 CFR 658.7.
In addition, section 1542 of the FPPA, 7 U.S.C. 4203, requires
``each department, agency, independent commission, or other unit of the
Federal Government'' to review its laws, administrative rules, policies
and procedures ``to determine whether any provision thereof will
prevent'' the federal entity ``from taking appropriate action to comply
fully'' with the FPPA, and to ``develop proposals for action to bring
its programs, authorities, and administrative activities into
conformity with the purpose and policy'' of the FPPA.
The Act does not expressly require a federal agency to modify any
project solely to avoid or minimize the effects of conversion of
farmland to nonagricultural uses. The Act merely requires that, before
taking or approving any action that would result in conversion of
farmland as defined by the FPPA, the federal agency examine the effects
of that action using the criteria which the Department of Agriculture
has supplied and, if there are adverse effects, to consider
alternatives to lessen those effects. Once the agency has completed
this examination, it may proceed with a project that would convert
farmland to nonagricultural uses.
As originally enacted, the FPPA contained a prohibition against the
use of the Act as a basis for litigation. Section 1548 states that the
FPPA ``shall not be deemed to provide a basis'' for any litigation
'`challenging a Federal project, program or other activity that may
affect farmland.'' 7 U.S.C. 4209. In the 1985 amendments to the FPPA,
Congress amended this section to allow the governor of a state to bring
a suit to enforce compliance with section 1542 (7 U.S.C. 4202) and
related regulations.
II. Discussion of the Existing Regulations to Implement the FPPA
The current regulations were promulgated principally to enable
federal agencies, with the help of the Soil Conservation Service (SCS),
to measure the adverse effects, if any, of their programs and projects
on farmland. The SCS has developed a Farmland Conversion Impact Rating
Form, Form AD-1006, for this purpose. A federal agency considering a
project on or affecting farmland completes and submits a Form AD-1006
to a local SCS office. The SCS determines if the proposed site or sites
contain farmland subject to the FPPA, i.e., farmland that is ``prime,''
``unique,'' or of ``statewide or local importance,'' as defined by the
FPPA. If SCS determines that the site or sites are not subject to the
Act, SCS returns the form to the agency with that determination noted.
However, if SCS determines that the FPPA applies, SCS measures the
``relative value'' of the site or sites as farmland on a scale of 0 to
100, enters this score on the Form AD-1006 and returns the form to the
federal agency. At this stage, the agency prepares a site assessment
using twelve criteria set forth in the rule. After scoring each of the
criteria and arriving at a total site assessment score, up to a maximum
of 160 points, the agency adds this site assessment score to the
``relative value'' score that was supplied by the SCS on the Form AD-
1006. The higher the combined score, the more suitable the site would
be for protection as farmland. On the other hand, if a site receives a
combined score of less than 160 points, the regulation recommends that
it be given only ``a minimal level of consideration for protection''
and that additional sites do not need to be evaluated as alternatives.
Although the primary purpose of the Department's regulations
implementing the FPPA was to impart these criteria and the guidelines
for their use by agencies, the rule, in addition, established the
Department's policy as to the farmlands that are subject to the FPPA,
and as to the effect that the FPPA could have on private parties and
nonFederal units of government applying for federal assistance to
convert farmland to nonagricultural uses.
With regard to the first matter, the FPPA's definition of ``prime
farmland,'' excludes ``land already in or committed to urban
development or water storage.'' Section 1540(c)(1)(A), 7 U.S.C.
4201(c)(1)(A). The current regulation, Sec. 658.2(a), provides that
prime farmland is ``committed to urban development or water storage''
if a local zoning code or ordinance or current local comprehensive land
use plan designated this land for commercial or industrial use or for
residential use that is not intended at the same time to protect
farmland.
With regard to the second issue, the current regulation,
Sec. 658.3(c), sets forth the Department's determination that the FPPA
does not authorize a federal agency to withhold assistance to a project
solely because that project was going to convert farmland to
nonagricultural uses.
III. Discussion of the Amendments to the Existing Regulations
A. The Two Amendments Necessary for the Annual FPPA Report to Congress
Section 1546 of the FPPA, as enacted in 1981 (99 Stat. 1343-1344),
required the Secretary of Agriculture to report to Congress on the
progress made in implementing the FPPA. Only one report was required;
and it was due within one year after the date of enactment, December
22, 1981. Section 1546 provided that the report should include
information on:
(1) The effects, if any, of federal programs, authorities, and
administrative activities with respect to the protection of United
States farmland; and
(2) The results of the reviews of existing policies and procedures
required under section 1542(a) of the Act.
As amended by section 1255 of the Food Security Act of 1985,
section 1546 (7 U.S.C. 4207) now requires an annual report due at the
beginning of each calendar year. The existing regulation, which was
published prior to the amendment of section 1546, does not include any
provisions for an annual report to Congress. Further, under the
existing regulation, once agencies have completed their site
assessments on the Farmland Conversion Impact Rating Form (Form AD-
1006), they retain these forms and proceed to make their own decisions
regarding the use of the site for the project in question. They do not
make a regular practice of returning the form or a copy of it to SCS.
Thus, SCS receives no record of the agency's use of the form or the
agency's ultimate decision on the project.
Similarly, the existing regulation does not require a federal
agency to report regularly to the Department on the progress made with
the review of current provisions of law, administrative rules and
regulations, and policies and procedures applicable to the federal
agency to determine whether any provision thereof will prevent such
unit of the federal government from taking appropriate action to comply
fully with the provisions of the FPPA. This review is required by
section 1502(a) of the Act, 7 U.S.C. 4203(a).
Now that the Act requires an annual report that includes both the
effects of federal activities on the protection of farmland and the
reviews undertaken by agencies, it is necessary for the Department to
modify its existing regulations. Accordingly, the proposed rule in 1987
included two amendments to the existing regulations to enable the
Department to carry out its reporting obligations.
The first of these amendments would have added a new Sec. 658.4(g)
to request federal agencies to return a copy of their completed Form
AD-1006 to SCS after a final decision on a project has been made. This
amendment received support in comments from all nongovernmental
organizations and individuals, from the State of Rhode Island Statewide
Planning Program, and from the Clarke County (Virginia) Board of
Supervisors. However, the response was different from federal and state
agencies that work with Form AD-1006 and would be responsible for
returning it to the SCS.
Two federal agencies, the Federal Highway Administration (FHWA) and
the Department of Housing and Urban Development (HUD), and the Michigan
Department of Transportation and that of Oklahoma expressed concern
that this requirement would generate additional, burdensome paperwork.
The FHWA suggested that only those forms in which the selected site had
a score of more than 160 be returned to SCS. HUD proposed to advise SCS
of any tracts of farmland for which financing of housing subdivisions
was being approved, but said it would be hard-pressed to return a Form
AD-1006 for each action taken by HUD, especially those involving
individual mortgage insurance.
The Michigan Department of Transportation and that of Oklahoma made
comments that were almost identical to one another. On federally
supported highway projects requiring environmental assessments or
impact statements, the Form AD-1006 is included in such documentation
and SCS receives a copy of the final document. Lesser projects, on the
other hand, do not require an environmental assessment or impact
statement, because they are often categorically excluded from review by
regulations implementing the National Environmental Policy Act. These
projects ``usually require only minor amounts of right-of-way and thus
have a very minimal impact on prime farmland,'' the Oklahoma Department
of Transportation stated. Both Michigan and Oklahoma objected to having
to submit Form AD-1006 on these types of projects.
The Department recognizes that this change in its regulation may
increase the paperwork requirement on federal public works and other
federally, assisted programs that are already burdened with reporting
requirements. Congress, however, directed that each year the Department
is to report on the effects federal programs and actions are having on
farmland, and the Department believes that collecting the Form AD-1006
data generated by the affected federal agencies is the best way to
compile this information.
The Department has made changes in the final rule to reduce
reporting burdens. Under the current rule, SCS determines whether the
site or sites in question are of the type of farmland subject to the
FPPA. Even in cases where SCS determines the FPPA does not apply and
SCS returns a Form AD-1006 to the referring agency, further tracking of
agency decisionmaking is carried out with a report back to SCS on the
final decision regarding the initial referral. New procedures set forth
in Sec. 658.4(g), give agencies the option of referring questions of
FPPA applicability to SCS or of making these determinations themselves,
and in cases where SCS makes a negative determination, there is no
further tracking of matters in which none of the alternatives involve
farmland subject to the FPPA.
The second amendment to the existing regulations related to the
annual reporting function is a new Sec. 658.7(d). This new paragraph
(d) will require each federal agency to report to the Chief of SCS the
agency's progress during the prior fiscal year in reviewing its
authorities, internal rules, policies and procedures, and the agency's
development of proposals to bring its programs, authorities, and
administrative activities into conformity with the FPPA, pursuant to
section 1542 of the FPPA, 7 U.S.C. 4203.
This second amendment drew a pattern of comments similar to those
offered for amendment one. The organizations and individuals who
generally supported the amendments in the proposed rule were in support
of this subsection. However, three of the federal agencies that would
be required to make these yearly reports to SCS were critical.
The Farmers Home Administration (FmHA) proposed that once an agency
has demonstrated that its programs, authorities, and administrative
activities are in compliance with the FPPA, it should not be required
to make an annual report. Rather, The FmHA asserted, such an agency
should be requested to report only in a year in which it either plans
to change its FPPA compliance process or undertakes a new program that
may be subject to the FPPA.
The FHWA commented that a single report from an agency should be
sufficient until any future revisions to the FPPA or the SCS
regulations are made.
The Tennessee Valley Authority (TVA) asked for additional guidance
concerning the type of information in the report, and recommended that
the annual report be an assessment of the progress made in implementing
the FPPA, without excessive and burdensome documentation of specific
farmland conversion or protection activities.
The Department has incorporated the suggestion offered by the FmHA
in the final rule. Although the request for an annual report will
remain, once the agency has completed the review of its policies and
procedures and revised them as needed to comply with the Act, no
additional reports are requested. In years in which the agency has
changed its FPPA compliance process, a report is requested.
As for the concern expressed by the TVA, the scope of the agencies'
reports to SCS under the new Sec. 658.7(d) is that which is established
in section 1542 of the FPPA and which is set forth in the unchanged
sections of the existing regulations, 7 CFR 658.7(a) and (b). In other
words, the annual reports the agencies are to submit to SCS are to be
limited to the reviews of laws, regulations, policies, and procedures
that the agencies have conducted under section 1542(a) of the FPPA and
the proposals for action, if any, that the agency has developed
pursuant to section 1542(b). In addition, SCS will be receiving data
from the agencies on their individual project decisions involving
farmland, but this data will come from the various AD-1006 forms that
the agencies are to return to SCS after making their action decisions.
B. Amendment to Recognize Change in Limitation on Litigation
Section 1255(b) of the Food Security Act of 1985, 99 Stat. 1518,
amended section 1548 of the FPPA, 7 U.S.C. 4209, which originally
prohibited states, local governments, and private parties using the
FPPA as a basis to bring actions challenging Federal activities. Prior
to the amendment, the language of section 1548 was as follows:
This subtitle shall not be deemed to provide a basis for any action,
either legal or equitable, by any State, local unit of government,
or any persons challenging a Federal project, program, or other
activity that may affect farmland. 95 Stat. 1344.
As amended, section 1548 (7 U.S.C. 4209) now reads as follows:
This subtitle shall not be deemed to provide a basis for any action,
either legal or equitable, by any state, local unit of government,
or any persons challenging a Federal project, program, or other
activity that may affect farmland. 95 Stat. 1344.
This subtitle shall not be deemed to provide a basis for any action,
either legal or equitable, by any person or class of persons
challenging a Federal project, program, or other activity that may
affect farmland: Provided, that the Governor of an affected State
where a State policy or program exists to protect farmland may bring
an action in the Federal district court of the district where a
Federal program is proposed to enforce the requirements of section
1541 of this subtitle and regulations issued pursuant thereto.
Accordingly, Sec. 658.3(d) of the existing regulation, which is simply
a restatement of section 1548 in its original form, needs to be amended
to conform with section 1548, as amended. None of the commenting
parties expressed opposition to the proposal for this change in the
regulation, and it is incorporated in this rule.
C. Amendment to restore Sec. 658.7(b)
When 7 CFR part 658 was published as a final rule in 1984, it was
intended to include Sec. 658.7(b), which simply incorporates the
provision of section 1542(b) of the Act requiring the federal agencies
to develop proposals for action to bring their programs, authorities,
and administrative activities into conformity with the FPPA. However,
in the draft of the rule submitted to the Federal Register, paragraph
(b) was inadvertently omitted, leaving a gap between Sec. 658.7(a) and
Sec. 658.7(c) as they appeared in the published rule at 49 FR 27727.
The proposed rule of January 14, 1987 included an amendment to restore
this missing paragraph. None of the commenting parties expressed
opposition to this correction, and it is incorporated in the final
rule.
D. Amendment to Change Definition of ``Prime Farmland Committed to
Urban Development of Water Storage''
The FPPA does not include all farmland under its protection. In
section 1540(c), 7 U.S.C. 4201(c), the specific farmland covered by the
FPPA is defined. This is farmland that is either ``prime farmland,''
``unique farmland,'' or ``farmland, other than prime or unique
farmland, that is of statewide or local importance.'' Each one of these
terms is further defined and qualified in the FPPA and, in the
definition of ``prime farmland, there is an exclusion of ``land already
in or committed to urban development or water storage.'' Federal
agencies are not required to consider the impact of their projects on
prime farmland that is ``already in or committed to urban development
or water storage,'' even if this land would otherwise fall within the
definition of ``prime farmland.''
In developing the existing regulations, the Department adopted
standards for determining if prime farmland is ``already in urban
development'' and whether land, although not ``in urban development,''
was nevertheless ``committed to urban development.'' Under
Sec. 658.2(a) of the current regulation, prime farmland which had been
zoned for nonagricultural use by a state or local government with
jurisdiction over the land, or which was designated in a current state
or local land use plan for nonagricultural use, is regarded as
``committed to urban development.'' This would mean that projects on
prime farmland in those areas would not have to be analyzed by agencies
for their effect on prime farmland.
The Department noted in the preamble to the 1984 final rule, at 49
FR 27720, that land use planning and zoning ``are prerogatives of state
and local government, not the Federal Government,'' and supplied the
following rationale for the conclusion that prime farmland under
nonagricultural zoning or planning was excluded from the FPPA:
If a federal agency were required by the Act to assess the impacts
of a project on prime farmland not yet in urban development but
already designated by the state or local government for urban
development through planning or zoning, the only purpose of the
requirement would be for that agency to weigh alternative sites that
would lessen the impact of the project on farmland. If the agency,
based on its assessment pursuant to the Act, should then decide to
refrain from building its project on the proposed site, it would be
declining itself to use the proposed site for urban development when
local or state planning or zoning had already declared urban uses to
be acceptable on the site. This would be an intrusion by the Federal
Government in the function of land use planning of state and local
governments.
In the proposed rule, the Department offered for public comment a
proposal that would abrogate the Department's previous interpretation
of this question. In the definition of ``prime farmland,'' there would
no longer be an exclusion based solely on the designation of the land
in a land use plan or zoning code or ordinance for nonagricultural
uses. The proposed rule amendment would provide that once a project
site had been analyzed and given a combined score of 160 points or
less, it would be considered ``committed to urban development'' and
thus no longer covered by the FPPA.
The preamble to the 1987 proposed rule, at 52 FR 1466-1467, cited
three reasons for introducing these changes. First, it stated that the
existing definition ``is inconsistent with the definitions of prime
farmland used in almost all other State and Federal programs which use
the definition.'' Second, it noted that the existing definition
requires the SCS district conservationists to review local plans and
land use regulations and that many of them do not have the background
in land use planning to make the proper determinations as to whether a
given project site is truly ``committed to urban development.'' Third,
because land ``committed to urban development'' is excluded in the
FPPA's definition of ``prime farmland'' but not from the FPPA's
definitions of farmland that is ``unique'' or ``of statewide or local
importance,'' it is an anomaly that this type of ``prime farmland'' can
be so easily and categorically put outside the reach of the FPPA while
farmland that is ``unique'' or ``of statewide or local importance'' is
covered by the FPPA despite the existence of zoning designations or
land use plans that would allow urban development of such lands.
The comments on the proposed rule were sharply divided on whether
the Department should change the identification of farmland ``committed
to urban development.'' The American Farmland Trust ``strongly''
supported the proposed change, calling the existing rule ``confusing
and inconsistent with the intent of the legislation.'' The Natural
Resources Defense Council (NRDC) also supported the proposed change
since it did not approve of farmland being excluded from the FPPA's
coverage just because local land-use plans or zoning ordinances would
allow urban development on it. This, the NRDC stated, would be an
``arbitrary `grandfather' exclusion * * * even where there is no
current nonagricultural development and the prospect of future
nonagricultural development is highly speculative.'' The American Land
Resource Association agreed with the proposed change, claiming that the
existing rule worked ``inadequately'' for protection of prime farmland
and caused ``unnecessary confusion among Federal agencies implementing
the FPPA.'' The Farmers Home Administration and the Rhode Island
Statewide Planning Program supported the change. Other commenting
parties agreed with the change as part of their general support of all
the amendments being proposed.
However, the Department of Housing and Urban Development (HUD), the
Federal Highway Administration (FHWA), and the Michigan Department of
Transportation opposed making the change in the Department's
interpretation of farmland ``committed to urban development.'' In
particular, HUD devoted the principal thrust of its comments to this
provision, objecting ``strongly'' to the change and outlining the
importance of retaining the Department's current interpretation that
land under planning or zoning for nonagricultural use was ``committed
to urban development.'' HUD stated:
This procedure ignores and undermines a local government's land use
decisions made through zoning, comprehensive planning, and
subdivision regulations which are adopted to guide and direct urban
development and growth * * * By changing the definition of `farmland
committed to urban development' and requiring a Farmland Conversion
Impact Rating (AD-1006) be prepared, which must result in an
aggregated score of 160 points or less before it is considered
`farmland committed to urban development,' certainly qualified USDA
as taking a ``big brother'' approach to local land use plans and
decisions.
HUD explained that whenever an application for project assistance
is submitted to HUD, it must receive approval of local authorities.
Since 1985, HUD's principal method for issuing mortgage insurance on
single, family homes in housing subdivisions has been to wait until the
local government has approved the subdivision plan and construction of
the necessary streets and water and sewer systems. Under the existing
rule, HUD would not have to analyze this land as ``prime farmland''
under FPPA. HUD argued that under the proposed rule, it would be
required to complete the AD-1006 form on this land, which it termed a
``useless exercise'' at that point.
Aside from the mechanics of the proposed amendment, HUD made these
comments about the general problem of farmland protection measures that
the agency might undertake:
In the single family housing program (which actions are most likely
to be on the fringes of urban areas), preservation of farmland would
require that we would have to either be involved in the local
planning and zoning process at the earliest conceptual stages or by
prohibitive and restrictive regulations which would withhold
assistance for projects which had converted farmland to
nonagricultural uses. Taking either action could easily be
interpreted as an indirect way to regulate the use of private land
or affect the property rights of the owners of such lands. We do not
believe that to be the intent of Congress. Putting a penalty on the
land, either directly or indirectly, could result in creating a
greater housing shortage, especially for low and moderate income
families who are the primary users of HUD mortgage housing programs.
The FHWA, likewise, objected to the proposal on the grounds that it
would require preparation of a site assessment on every project that
requires rights-of-way. This would require ``an enormous amount of time
and resources to be provided by Federal, State and/or local agencies''
and in many cases there would be ``no apparent justification.'' FHWA
suggested that the same exclusion of farmland ``committed to urban
development'' that the Department has applied to ``prime farmland''
should be applied to the other two categories in the FPPA, ``unique''
farmland and farmland ``of local or statewide importance.''
The Michigan Department of Transportation had similar objections.
It explained that the current rule ``screens out many projects and
constitutes a real time savings * * * If the local entities have
designated the land for other uses, it doesn't warrant a high degree of
protection as resource base at the federal level.'' On the other hand,
if the rule were changed, it would require site assessments of ``each
project that required rights-of-way.''
As noted in the preamble to the proposed rule at 52 FR 1467, the
zoning and land use plans that are applicable to a particular site will
be considered in conjunction with other criteria that are designed to
assess the degree to which the site is committed to urban development.
In this way, the prerogatives of state and local government, as
exercised in zoning codes and land use plans, will play a role in
determining whether a site should be given further FPPA review. Because
the amended regulations will neither prohibit the providing of federal
assistance to convert farmland nor preclude the conversion of farmland
through non-federal means, the Department believes that the amended
rule, as proposed, will not interfere with local land use planning, and
will assure that prime farmlands will, to the full extent of the law,
be given appropriate consideration.
Under the current regulation, sites that contain prime farmland
that otherwise would have been exempted due to being ``in or committed
to urban development'' would have still been covered by the FPPA if the
site also contained lands of statewide or local importance. The
exclusion of lands ``in or committed to urban development'' would have
limited effect. After consideration of the comments, the Department is
amending the rule to apply the exemption for farmland ``in or committed
to urban development'' to all four types of farmland. It is clear from
the comments provided by a number of federal agencies that they are
already applying the exemption to all four types of farmland. Section
658.2(a) is being revised to remove the word ``prime'' before the word
``farmland,'' thereby, making the exemption apply to all farmland.
An AD-1006 for a site that is located in urban areas need not be
sent to SCS for evaluation. In addition, some agencies would like to
use available mapped information to make their determinations without
sending a Form AD-1006 to SCS. To facilitate the use of such
information, Sec. 658.2(a) will be revised to clarify that farmland
``already in'' urban development or water storage may be identified by
an area shown as ``urbanized area'' (UA) on the Census Bureau map, or
shown as an urban tint outline or urban area map on U.S.G.S.
topographical maps, or shown as urban-built-up on the USDA Important
Farmland Maps. Areas shown as white on the USDA Important Farmland Maps
are not farmland and, therefore, are not subject to the Act. In
addition, Sec. 658.4(a) is being amended to clarify that federal
agencies may determine whether or not a site contains farmland as
defined in Sec. 658.2(a) without sending a Form AD-1006 to SCS. Where
SCS is asked to complete the land evaluation portion of Form AD-1006
before the Federal agency completes the site assessment portion, and
SCS determines that the site is subject to the FPPA, then when SCS
returns the form to the agency for completion of the site assessment
portion, SCS will at the same time provide the agency with the
requested information and data necessary for the Federal agency to
complete and score the site assessment factor questions, and where the
agency chooses to complete the site assessment portion of the form
first, SCS will cooperate in providing timely information and data to
enable the Federal agency to score the site assessment factor
questions.
E. Amendment to Allow an Agency to Either Provide or Deny Assistance to
a Project to Convert Farmland
The existing regulations, at Sec. 658.3(c), interpret the extent to
which an agency can use the FPPA as a basis for denying assistance to a
project that would convert farmland. The paragraph reads as follows:
The Act and these regulations do not authorize the Federal
Government in any way to regulate the use of private or nonfederal
land, or in any way affect the property rights of owners of such
land. The Act and these regulations do not provide authority for the
withholding of federal assistance to convert farmland to
nonagricultural uses. In case where either a private party or a
nonfederal unit of government applies for federal assistance to
convert farmland to a nonagricultural use, the federal agency should
use the criteria set forth in this part to identify and take into
account any adverse effects on farmland of the assistance requested
and develop alternative actions that could avoid or mitigate such
adverse effects. If, after consideration of the adverse effects and
suggested alternatives, the applicant wants to proceed with the
conversion, the federal agency may not, on the basis of the Act or
these regulations, refuse to provide the requested assistance.
The proposed rule contained an amendment that would change the
Department's interpretation of the effect of the FPPA by revising this
paragraph significantly. This amendment would drop the second sentence.
In the closing sentence, instead of retaining the language that the
federal agency ``may not, on the basis of the Act or these regulations,
refuse to provide the requested assistance,'' the new language would
state that the agency, after doing the required analysis and following
its internal policies or procedures, would be free to deny as well as
provide the assistance. See 52 FR 1467.
The rationale for this proposed change, as stated in the preamble
to the proposed rule at 52 FR 1466, is that the FPPA leaves to the
discretion of each agency ``the determination of whether the providing
or the denial of Federal assistance for farmland conversion will, in a
given situation, comply with the policy and purpose of the FPPA.'' It
was further noted that the rule, as presently written, ``may be misread
as a limitation on the previously described discretion provided by
Congress to Federal agencies,'' and thus the amendment was needed ``to
recognize that discretion and the general process through which it is
exercised.''
Under the current regulation, when private landowners as well as
state and local governments apply for assistance for a project
involving the conversion of farmland subject to the FPPA, the federal
agency is required to examine the effects of the project and
alternatives but may not, based on the FPPA, refuse to provide the
assistance. The amendment in the proposed rule would avoid making this
analysis a pointless exercise by removing the rigid restriction on
agency deliberations and allowing the agency to use the FPPA analysis
as a basis for withholding assistance to the project in order to
achieve the policies and objectives of the Act.
None of the parties who commented raised opposition to this
proposal to change the existing regulation. A number of them supported
it vigorously or proposed that it be made even stronger. The FmHA
suggested the rule should provide that ``if a clear alternative exists
to avoiding a proposed conversion of important farmland and the
applicant for Federal assistance is unwilling to pursue such an
alternative, the Federal agency cannot provide financial assistance.''
FmHA went on to argue that if the FPPA did not impose this
``affirmative duty'' on agencies to deny assistance, ``then other
significant provisions of the Act become meaningless, such as (1) the
ability of a governor to bring action in Federal district court to
enforce the requirements of the FPPA, and (2) the requirement that each
Federal agency identify and report to Congress any provisions of law,
administrative rules, regulations, policies, and procedures applicable
to it which prevent it from complying fully with the FPPA. What can
governors enforce, what possible legislative or regulatory conflicts
can exist, if the FPPA allows a Federal agency total discretion in
deciding whether or not to finance an unnecessary conversion of
important farmland?''
The Natural Resources Defense Council, the American Land Resource
Association, and the American Farmland Trust also supported the change
and, like the FmHA, proposed that it contain requirements that federal
assistance be withheld from nonagricultural development in cases where
alternatives mitigating or avoiding prime farmland conversion are
available.
The Department, after considering the comments, believes that the
proposed rule amendment is necessary to achieve the intent of Congress
under the FPPA and, therefore, adopts that amendment in this rule. The
amended Sec. 658.3(c) allows the various federal agencies to consider
the particular facts relating to their proposed assistance activities
and to decide, in light of the policies of the FPPA and their own
authorities, which reasonable alternative action will best achieve
their mission and comply with the FPPA.
In similar deference to the agency discretion provided by the FPPA,
the Department has determined not to accept the recommendations for a
complete withholding of federal assistance to convert farmland in
situations where alternatives exists to avoid or mitigate the effects
of conversion. There may be, specific situations, compelling reasons of
national, state, or local importance that would outweigh the protective
policies of the Act. The federal agencies, in exercising the
responsibility provided by the FPPA, can best analyze the facts of
those situations, and their discretion to do so should not be
unnecessarily constrained.
The Department notes that the Congress, during deliberations on
proposed amendments to the FPPA as part of the Food Security Act of
1985, Public Law 99-198, considered and rejected a ban on federal
assistance to convert farmland in situations where reasonable
alternatives to conversion exist. See H.R. Conf. Rep. No. 447, 99th
Cong., 1st Sess. 472 (1985), reprinted in 1985 U.S. Code Cong. & Admin.
News 2398. The final rule allows the intentions of Congress, as
expressed in the FPPA and in the 1985 deliberations, to be carried out.
During consideration of the comments received on the proposed rule
and in interagency discussions within the Department, a
misunderstanding of the scope of the analysis required by the FPPA and
the regulations surfaced. This related to the extent to which federal
agencies are required to identify and assess the potential for future
conversion of farmland as a result of present activities and
assistance.
As with other natural resource or environmental evaluations, such
as the analyses required by the National Environmental Policy Act, the
scope of the review must be related to the scope of the activity under
consideration. In complying with the requirements of section 1542 of
the Act (7 U.S.C. 4203) that each federal agency review its programs,
authorities, policies, and procedures and take appropriate measures to
assure that they conform with the purposes of the FPPA, an agency may
properly consider the broader implications that its programs and
policies have toward the potential for future conversions of farmland
to nonagricultural uses. However, in considering whether a specific
project or assistance activity of the agency will result in the
irreversible conversion of farmland, the focus will be on those direct
and indirect effects of the activity that can be reasonably identified
and evaluated. In a review of a specific activity which does not
contain proposals for, nor necessarily lead to, future activities that
may convert farmland, the potential activities may be too general or
speculative to adequately identify and usefully consider. The scope of
each evaluation is determined by the scope of the objectives and facts
of the agency activity under consideration.
It should be noted that the guidance provided in Sec. 658.3(c), as
amended by this rule, regarding the providing of federal assistance to
convert farmland clearly applies beyond situations where a federal
agency has been requested to provide assistance. Federal activities
that are the result of federal initiatives, rather than requests for
federal assistance, necessarily involve the same farmland protection
policy considerations. In a situation where a Federal agency is
contemplating an action that would convert farmland to a
nonagricultural use and which is not the result of a direct request for
federal assistance, the federal agency may decide, after conducting the
analysis required by the FPPA, not to proceed with the action in order
to achieve the objectives of the FPPA.
Implementation of the policy objectives of the FPPA in the manner
discussed above and as contained in this final rule not only respects
the traditional deference to state and local land use decisionmaking
reflected in the FPPA, but also comports with and furthers the
principles of federalism contained in Executive Order No. 12612 of
October 26, 1987, 52 FR 41685. Local zoning and land use plans will be
considered in determining if a site has been committed to urban
development. Further, a federal agency may support state and local
efforts to protect farmland by deciding not to provide federal
assistance that would be used to convert farmland.
The wording of Sec. 658.3(c) has been slightly modified from that
of the proposed rule to clarify that any agency policies or procedures
for implementing the Act may be considered by an agency in deciding how
to proceed with an activity.
F. Additional Considerations
Some federal agencies raised concerns as to actions subject to the
Act. The current regulation, at Sec. 658.2(c), provides an exemption
for federal permitting, licensing, or rate approval programs. Federal
regulatory activities are not considered as federal assistance that
could convert farmland. Therefore, federal regulatory activities are
exempted from the Act. For example, in cases where a Clean Water Act
section 404 permittee is required by the Corps of Engineers to perform
compensatory mitigation on farmed wetland, thereby converting the
wetland actual or potential use of farmland to a nonagricultural use,
that conversion is not subject to FPPA. In complying with Sec. 658.7
(a) and (b), Federal agencies may identify those programs that they
determine are not subject to the Act and provide details on how other
programs will be implemented consistent with the Act.
As further clarification, it should be noted that only those
actions that will or could convert farmland to nonagricultural uses are
subject to the Act. Assistance provided to purchase, maintain,
renovate, or replace a structure that already exists is not subject to
the Act, because any conversion of farmland took place at the time the
structure was constructed. The addition of minor new ancillary
structures, such as garages or sheds, to serve existing structures is
also not included under the Act. Even in cases where loans are made for
new houses, that action is not subject to the FPPA if the request for
assistance and commitment by the federal agency was made after the
house was constructed. Likewise, once one Federal agency has performed
an analysis under the FPPA for the conversion of a site, that agency's
or a second Federal agency's determination with regard to additional
assistance or actions on the same site do not require additional,
redundant FPPA analysis. Section 658.4(h) is being added to the final
rule to reflect this clarification.
Several federal agencies cited concern for the application of the
FPPA to land acquisitions by these agencies, providing temporary,
intermediate ownership by the Federal Government such as through
foreclosure, the acquisition of assets of an insolvent thrift
institution or through forfeiture in criminal law enforcement
proceedings. They expressed concern for potential conflicts between
their statutory responsibilities to obtain prompt, high value disposal
of these assets and the analysis procedures required under the FPPA.
The definition of ``Federal program'' in the FPPA, 7 U.S.C.
4201(c)(4), extends the coverage of the FPPA to ``acquiring, managing,
or disposing of Federal lands and facilities.'' If an agency determines
that its program does not result in a sufficient acquisition of legal
or equitable title by the United States to characterize the property as
``Federal land or facilities,'' then the agency may exclude such land
through its own policies and procedures for implementing the FPPA.
However, the Department has determined that an interpretive
clarification of the term ``Federal land and facilities'' as used in
the definition of ``Federal programs'' covered by the FPPA would be
useful. In that regard, the Department believes that the use of the
word ``Federal'' to modify the words ``land and facilities'' indicates
an intent by Congress to focus the scope of federal programs covered by
the FPPA to lands and facilities acquired or managed by federal
agencies as necessary proprietary elements of federal programs, such as
national forests, national parks, or military bases. The use of the
modifier ``Federal'' is significant; if the intent was to include the
acquisition, management, or disposal of any land or facility by a
federal agency, regardless of the purpose of the use of the land or
facility, Congress could have omitted the modifier and simply stated,
``acquiring, managing, or disposing of lands and facilities.''
Accordingly, the Department has amended the definition of ``Federal
program'' contained in Sec. 658.2(c) to clarify that, for the purposes
of the FPPA and these regulations, the phrase ``acquiring, managing, or
disposing of federal lands and facilities'' refers to lands and
facilities that are acquired, managed, or were used by a federal agency
specifically in support of a federal activity or program. It does not
include lands or facilities that are acquired, managed, or disposed of
by a federal agency as the incidental result of actions by that agency
through which the agency has temporary ownership or custody of the land
or facility, such as acquisition pursuant to a lien for delinquent
taxes, the exercise of conservationship or receivership authority, or
the exercise of civil or criminal law enforcement forfeiture or seizure
authority.
The Department has also incorporated in the definition of ``Federal
program'' interpretive clarification that loan guarantees or loan
insurance of the construction of buildings or other structures is
covered by the phrase ``undertaking, financing, or assisting
construction or improvement projects'' contained in the definition of
``Federal program.'' This interpretation was previously provided in the
preamble of the final rule that promulgated the current regulations.
See 49 FR 27720, July 5, 1984. Further in this regard, the Department
has clarified that the acquisition, management, and disposal of land or
facilities that a federal agency obtains as the result of foreclosure
or other actions taken under a loan, loan guarantee, or other financial
assistance proved by the agency directly and specifically for that
property or facility is likewise within the definition of ``Federal
program.''
A federal agency may develop and use procedures to implement the
FPPA for its loan, loan guarantee, or other financial assistance
programs on either a specific project/loan basis or on the basis of an
entire program. Further, if an agency has conducted a FPPA review of a
loan or other financial assistance for the conversion of farmland and
the agency or any other federal agency subsequently acquires the
property related to that assistance, the previously conducted FPPA
review will be sufficient to constitute compliance with the FPPA for
the management an eventual disposal of the property.
More importantly, an agency may develop and use specific policies
and procedures for the management and disposal of property acquired
through foreclosure, forfeiture, or other such means that taken into
consideration its primary statutory authorities regarding such
properties. Clearly, these determinations can be best made by the
particular agencies involved through their respective FPPA policies and
procedures, in consideration of the statutory requirements under which
they operate. The Department will consult with agencies, pursuant to
section 1542 of the FPPA, 7 U.S.C. 4203, to address these concerns.
Some federal agencies would like to exempt certain sites related to
the expansion of existing linear projects that would convert only a few
acres of farmland but would avoid the conversion of a large number of
acres. Some statewide LESA systems currently include exemptions of 10
acres per bridge and 3 acres per mile on existing highways. The
construction of bridges and widening of existing highways is a farmland
protection method. USDA will consult with Federal Highway
Administration, on actions that are designed to improve existing linear
projects so as to avoid the conversion of land that would occur if a
new linear project were to be constructed.
This rule has been reviewed under USDA procedures established in
accordance with provisions of Departmental Regulations 1512-1 and has
been designated ``non-major.''
It has been determined that this action will not have an economic
impact on the economy of $100 million or more; result in a major
increase in costs or prices for consumers, individual industries,
federal, state, or local government agencies, or geographic regions; or
result in significant adverse effects on competition; employment,
investment, productivity, innovation, or on the ability of U.S.-based
enterprises to compete with foreign, based enterprises in domestic or
export markets.
This rule does not contain information collection requirements that
require approval by the Office of Management and Budget under 44 U.S.C.
3501 et seq.
This document has been prepared in the Office of the Secretary,
USDA, with the assistance of the Basin and Area Planning Division of
the Soil Conservation Service.
List of Subjects in 7 CFR Part 658
Agriculture, Farmland, Soil conservation.
Accordingly, part 658 of title 7 of the Code of Federal Regulations
is amended as follows:
PART 658--[AMENDED]
1. The authority citation for part 658 is revised to read:
Authority: 7 U.S.C. 4201-4209.
2. Section 658.2 is amended by revising paragraphs (a) and (c) to
read as follows:
Sec. 658.2 Definitions.
(a) Farmland means prime or unique farmlands as defined in section
1540(c)(1) of the Act or farmland that is determined by the appropriate
state or unit of local government agency or agencies with concurrence
of the Secretary to be farmland of statewide of local importance.
``Farmland'' does not include land already in or committed to urban
development or water storage. Farmland ``already in'' urban development
or water storage includes all such land with a density of 30 structures
per 40-acre area. Farmland already in urban development also includes
lands identified as ``urbanized area'' (UA) on the Census Bureau Map,
or as urban area mapped with a ``tint overprint'' on the USGS
topographical maps, or as ``urban-built-up'' on the USDA Important
Farmland Maps. Areas shown as white on the USDA Important Farmland Maps
are not ``farmland'' and, therefore, are not subject to the Act.
Farmland ``committed to urban development or water storage'' includes
all such land that receives a combined score of 160 points or less from
the land evaluation and site assessment criteria.
* * * * *
(c) Federal program means those activities or responsibilities of a
Federal agency that involve undertaking, financing, or assisting
construction or improvement projects or acquiring, managing, or
disposing of Federal lands and facilities.
(1) The term ``Federal program'' does not include:
(i) Federal permitting, licensing, or rate approval programs for
activities on private or non-Federal lands; and
(ii) construction or improvement projects that were beyond the
planning stage and were in either the active design or construction
state on August 4, 1984.
(2) For the purposes of this section, a project is considered to be
``beyond the planning stage and in either the active design or
construction state on August 4, 1984'' if, on or before that date,
actual construction of the project had commenced or:
(i) acquisition of land or easements for the project had occurred
or all required Federal agency planning documents and steps were
completed and accepted, endorsed, or approved by the appropriate
agency;
(ii) a final environmental impact statement was filed with the
Environmental Protection Agency or an environmental assessment was
completed and a finding of no significant impact was executed by the
appropriate agency official; and
(iii) the engineering or architectural design had begun or such
services had been secured by contract. The phrase ``undertaking,
financing, or assisting construction or improvement projects'' includes
providing loan guarantees or loan insurance for such projects and
includes the acquisition, management and disposal of land or facilities
that a Federal agency obtains as the result of foreclosure or other
actions taken under a loan or other financial assistance provided by
the agency directly and specifically for that property. For the
purposes of this section, the phrase ``acquiring, managing, or
disposing of Federal lands and facilities'' refers to lands and
facilities that are acquired, managed, or used by a Federal agency
specifically in support of a Federal activity or program, such as
national parks, national forests, or military bases, and does not refer
to lands and facilities that are acquired by a Federal agency as the
incidental result of actions by the agency that give the agency
temporary custody or ownership of the lands or facilities, such as
acquisition pursuant to a lien for delinquent taxes, the exercise of
conservatorship or receivership authority, or the exercise of civil or
criminal law enforcement forfeiture or seizure authority.
* * * * *
3. Section 658.3 is amended by revising paragraphs (c) and (d) to
read as follows:
Sec. 658.3 Applicability and exemptions.
* * * * *
(c) The Act and these regulations do not authorize the Federal
Government in any way to regulate the use of private or nonfederal
land, or in any way affect the property rights of owners of such land.
In cases where either a private party or a nonfederal unit of
government applies for federal assistance to convert farmland to a
nonagricultural use, the federal agency should use the criteria set
forth in this part to identify and take into account any adverse
effects on farmland of the assistance requested and develop alternative
actions that would avoid or mitigate such adverse effects. If, after
consideration of the adverse effects and suggested alternatives, the
landowners want to proceed with conversion, the federal agency, on the
basis of the analysis set forth in Sec. 658.4 and any agency policies
or procedures for implementing the Act, may provide or deny the
requested assistance. Only assistance and actions that would convert
farmland to nonagricultural uses are subject to this Act. Assistance
and actions related to the purchase, maintenance, renovation, or
replacement of existing structures and sites converted prior to the
time of an application for assistance from a federal agency, including
assistance and actions related to the construction of minor new
ancillary structures (such as garages or sheds), are not subject to the
Act.
(d) Section 1548 of the Act, as amended, 7 U.S.C. 4209, states that
the Act shall not be deemed to provide a basis for any action, either
legal or equitable, by any person or class of persons challenging a
federal project, program, or other activity that may affect farmland.
Neither the Act nor this rule, therefore, shall afford any basis for
such an action. However, as further provided in section 1548, the
governor of an affected state, where a state policy or program exists
to protect farmland, may bring an action in the federal district court
of the district where a federal program is proposed to enforce the
requirements of section 1541 of the Act, 7 U.S.C. 4202, and regulations
issued pursuant to that section.
4. Section 658.4 is amended by revising paragraphs (a) and (c)(2),
and by adding two new paragraphs (g) and (h) to read as follows:
Sec. 658.4 Guidelines for use of criteria.
* * * * *
(a) An agency may determine whether or not a site is farmland as
defined in Sec. 658.2(a) or the agency may request that SCS make such a
determination. If an agency elects not to make its own determination,
it should make a request to SCS on Form AD-1006, the Farmland
Conversion Impact Rating Form, available at SCS offices, for
determination of whether the site is farmland subject to the Act. If
neither the entire site nor any part of it are subject to the Act, then
the Act will not apply and SCS will so notify the agency. If the site
is determined by SCS to be subject to the Act, then SCS will measure
the relative value of the site as farmland on a scale of 0 to 100
according to the information sources listed in Sec. 658.5(a). SCS will
respond to these requests within 10 working days of their receipt
except that in cases where a site visit or land evaluation system
design is needed, SCS will respond in 30 working days. In the event
that SCS fails to complete its response within the required period, if
further delay would interfere with construction activities, the agency
should proceed as though the site were not farmland.
* * * * *
(c) * * *
(2) Sites receiving a total score of less than 160 need not be
given further consideration for protection and no additional sites need
to be evaluated.
* * * * *
(g) To meet reporting requirements of section 1546 of the Act, 7
U.S.C. 4207, and for data collection purposes, after the agency has
made a final decision on a project in which one or more of the
alternative sites contain farmland subject to the FPPA, the agency is
requested to return a copy of the Form AD-1006, which indicates the
final decision of the agency, to the SCS field office.
(h) Once a Federal agency has performed an analysis under the FPPA
for the conversion of a site, that agency's, or a second Federal
agency's determination with regard to additional assistance or actions
on the same site do not require additional redundant FPPA analysis.
5. Section 658.7 is amended by redesignating paragraph (b) as
paragraph (c) and adding paragraphs (b) and (d) to read as follows:
Sec. 658.7 USDA assistance with Federal agencies' reviews of policies
and procedures.
* * * * *
(b) Section 1542(b) of the Act, 7 U.S.C. 4203, requires, as
appropriate, each department, agency, independent commission, or other
unit of the Federal Government, with the assistance of the Department
of Agriculture, to develop proposals for action to bring its programs,
authorities, and administrative activities into conformity with the
purpose and policy of the Act.
* * * * *
(d) To meet the reporting requirements of section 1546 of the Act,
7 U.S.C. 4207, and for data collection purposes, each Federal agency is
requested to report to the Chief of the Soil Conservation Service by
November 15th of each year on progress made during the prior fiscal
year to implement sections 1542 (a) and (b) of the Act, 7 U.S.C. 4203
(a) and (b). Until an agency fully implements those sections, the
agency should continue to make the annual report, but may omit the
report upon full implementation. However, an agency is requested to
file an annual report for any future year in which the agency has
substantially changed its process for compliance with the Act.
Dated: June 8, 1994.
Mike Espy,
Secretary of Agriculture.
[FR Doc. 94-14548 Filed 6-16-94; 8:45 am]
BILLING CODE 3410-16-M