[Federal Register Volume 76, Number 251 (Friday, December 30, 2011)]
[Rules and Regulations]
[Pages 82075-82077]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-33547]



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 Rules and Regulations
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  Federal Register / Vol. 76, No. 251 / Friday, December 30, 2011 / 
Rules and Regulations  

[[Page 82075]]



DEPARTMENT OF AGRICULTURE

Office of the Secretary

7 CFR Part 12

RIN 0560-AH97


Highly Erodible Land and Wetland Conservation

AGENCY: Office of the Secretary and Farm Service Agency, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: Existing Department of Agriculture (USDA) regulations specify 
the conditions that may make a producer ineligible for certain USDA 
benefits, such as disaster assistance payments from the Farm Service 
Agency (FSA), in certain cases in which agricultural commodities are 
planted on highly erodible land or a converted wetland, or the 
production of agricultural commodities on acreage is made possible by 
the conversion of a wetland. Those regulations also specify the 
authorized exemptions, which include an exemption based on a ``good 
faith'' determination. The ``good faith'' provisions in the USDA 
regulations allow violators of highly erodible land conservation (HELC) 
or wetland conservation (WC) provisions to retain eligibility for USDA 
program benefits if certain conditions are met. This rule revises the 
``good faith'' provisions in two ways, first, by requiring higher level 
concurrence within USDA with the good faith determination and second, 
by reducing the amount of the benefit to be received in an amount 
commensurate with the seriousness of a HELC violation. These changes to 
the regulations are made to implement provisions specified in the Food, 
Conservation, and Energy Act of 2008 (the 2008 Farm Bill).

DATES: Effective Date: December 30, 2011.

FOR FURTHER INFORMATION CONTACT: Candace Thompson, Production, 
Emergencies and Compliance Division, Farm Service Agency, United States 
Department of Agriculture (USDA); telephone: (202) 720-3463. Persons 
with disabilities who require alternative means for communication 
(Braille, large print, audiotape, etc.) should contact the USDA Target 
Center at (202) 720-2600 (voice and TDD).

SUPPLEMENTARY INFORMATION: 

Background

    USDA regulations specifying the conditions that may make a producer 
ineligible for certain USDA benefits, such as disaster assistance 
payments from FSA, in certain cases in which agricultural commodities 
are planted on highly erodible land or a converted wetland, or 
production of agricultural commodities on acreage is made possible by 
the conversion of a wetland, are in 7 CFR part 12, ``Highly Erodible 
Land and Wetland Conservation.'' The regulations have been in place 
since the implementation of the requirements in the Food Security Act 
of 1985 (Pub. L. 99-198, commonly known as the 1985 Farm Bill). The 
1985 Farm Bill provides restrictions applicable to participants in 
certain USDA programs on the use of highly erodible land and wetlands. 
Participants are ineligible for certain loans, payments, and benefits 
for the production of an agricultural commodity on highly erodible land 
unless the land is farmed according to a conservation system approved 
by USDA's Natural Resources Conservation Service (NRCS). Participants 
are similarly ineligible for benefits if they convert a wetland to make 
possible the production of an agricultural commodity or plant an 
agricultural commodity on a converted wetland. Under the HELC and WC 
provisions of the 1985 Farm Bill, persons determined to be in violation 
of HELC or WC provisions are ineligible for certain loans, payments, 
and benefits in the year that the violation occurred. Persons who 
violate HELC or WC provisions remain ineligible for certain loans, 
payments, and benefits until corrective actions have been implemented 
on the highly erodible land or the converted wetland has been restored. 
This rule is not changing these HELC and WC provisions.
    The 1985 Farm Bill and the current regulations provide some 
exemptions to the requirements of the HELC and WC provisions and allow 
USDA flexibility in helping producers achieve compliance. Eligibility 
for loans, payments, and benefits may be reinstated if one of the 
exemptions authorized by the 1985 Farm Bill and implemented in the 
current regulations applies. One of those exemptions applies to persons 
who failed to apply a conservation system on highly erodible land, or 
who converted wetlands or planted an agricultural commodity on a 
converted wetland but who acted in good faith and without intent to 
violate HELC or WC provisions. These exemptions are specified in Sec.  
12.5, ``Exemptions.''
    Prior to the 2008 Farm Bill, the HELC and WC provisions in 16 
U.S.C. 3812 and 3822 allow for a good faith exemption to the program 
ineligibility that would otherwise apply in the case of a violation. 
Section 2002 of the 2008 Farm Bill amends the ``good faith'' provisions 
by requiring additional review for determinations for both HELC and WC 
matters and by changing the HELC provisions to provide that in all 
cases the Secretary can impose a payment reduction commensurate with 
the seriousness of the violation. Under prior law in some cases the 
Secretary was required to automatically fully allow program benefits. 
With respect to review, the 2008 Farm Bill specifies that local HELC 
and WC good faith determinations must be reviewed within the agency. 
Specifically, under the new process, the good faith determinations made 
by a local FSA county committee must be reviewed at the FSA State or 
district level, with the technical concurrence of the NRCS State or 
area level conservationist, before benefits are restored.
    These new provisions have been implemented administratively to be 
in compliance with the 2008 Farm Bill requirements, and this rule 
changes the regulations accordingly.
    In addition to making these changes, this rule revises several 
paragraphs in the regulation to simplify the structure and to clarify 
the language, without changing the substantive provisions. 
Additionally, this rule makes a minor, technical change by adding the 
word ``acreage'' in the paragraphs on wetland mitigation, so that the 
rule will now

[[Page 82076]]

require that wetland values, acreage, and functions are adequately 
mitigated. (Note: The remaining uses of the term ``functions and 
values'' in 7 CFR part 12 are correct and do not need to be changed.) 
That change is made to be consistent with section 1222(f)(2) of the 
1985 Farm Bill, (16 U.S.C. 3822(f)). The change is being made in the 
following paragraphs:
     Section 12.1(b)(4),
     Section 12.4(c),
     Section 12.5(b)(1)(iii)(D), (b)(1)(vi)(A), (b)(1)(vi)(B), 
and (b)(4)(i), (b)(4)(i)(E), (b)(4)(i)(F), (b)(4)(ii), and(b)(4)(iii),
     Section 12.31(d) (in the final sentence only), and
     Section 12.33(a).

Notice and Comment

    These regulations are exempt from the notice and comment 
requirements of the Administrative Procedures Act (5 U.S.C. 553) as 
specified in section 2904 of the 2008 Farm Bill, which requires that 
the regulations be promulgated and administered without regard to the 
Statement of Policy of the Secretary of Agriculture effective July 24, 
1971 (36 FR 13804), relating to notices of proposed rulemaking and 
public participation in rulemaking.

Executive Orders 12866 and 13563

    Executive Order 12866, ``Regulatory Planning and Review,'' and 
Executive Order 13563, ``Improving Regulation and Regulatory Review,'' 
direct agencies to assess all costs and benefits of available 
regulatory alternatives, and, if regulation is necessary, to select 
regulatory approaches that maximize net benefits (including potential 
economic, environmental, public health and safety effects, distributive 
impacts, and equity). Executive Order 13563 emphasized the importance 
of quantifying both costs and benefits, of reducing costs, of 
harmonizing rules, and of promoting flexibility.
    The Office of Management and Budget (OMB) designated this rule as 
not significant according to Executive Order 12866, and, therefore, 
this rule has not been reviewed by OMB.

Regulatory Flexibility Act

    It has been determined that the Regulatory Flexibility Act is not 
applicable to this rule because the Secretary of Agriculture, FSA, and 
CCC are not required to publish a notice of proposed rulemaking for 
this rule.

Environmental Review

    The environmental impacts of this rule have been considered in a 
manner consistent with the provisions of the National Environmental 
Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council 
on Environmental Quality (40 CFR parts 1500-1508), and FSA regulations 
for compliance with NEPA (7 CFR part 799). The specific changes 
required by the 2008 Farm Bill that are identified in this rule are 
considered administrative in nature, solely amending those provisions 
in the USDA regulations dealing with HELC and WC violators and the 
retention of USDA program benefits. Therefore, FSA has determined that 
NEPA does not apply to this final rule, and no environmental assessment 
or environmental impact statement will be prepared.

Executive Order 12372

    This program is not subject to Executive Order 12372, which 
requires consultation with State and local officials. See the notice 
related to 7 CFR part 3015, subpart V, published in the Federal 
Register on June 24, 1983 (48 FR 29115).

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is not retroactive and does not preempt State 
or local laws, regulations, or policies unless they present an 
irreconcilable conflict with this rule. Before any judicial action may 
be brought regarding the provisions of this rule, appeal provisions of 
7 CFR parts 11 and 780 must be exhausted.

Executive Order 13132

    The policies contained in this rule do not have any substantial 
direct effect on States, on the relationship between the Federal 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. This rule does 
not impose substantial direct compliance costs on State and local 
governments. Therefore, consultation with the States is not required.

Executive Order 13175

    This rule has been reviewed for compliance with Executive Order 
13175, ``Consultation and Coordination with Indian Tribal 
Governments.'' The Executive Order imposes requirements on the 
development of regulatory policies that have Tribal implications or 
preempt Tribal laws. The policies contained in this rule do not preempt 
Tribal law. This rule was included in the October through December, 
2010, Joint Regional Consultation Strategy facilitated by USDA that 
consolidated consultation efforts of 70 rules from the 2008 Farm Bill. 
USDA sent senior level agency staff to seven regional locations and 
consulted with Tribal leadership in each region on the rules. When the 
consultation process is complete, USDA will analyze the feedback and 
then incorporate any required changes into the regulations.

Unfunded Mandates

    This rule contains no Federal mandates under the regulatory 
provisions of Title II of the Unfunded Mandates Reform Act of 1995 
(UMRA, Pub. L. 104-4). In addition, the Secretary of Agriculture is not 
required to publish a notice of proposed rulemaking for this rule. 
Therefore, this rule is not subject to the requirements of sections 202 
and 205 of UMRA.

Federal Assistance Programs

    This rule has a potential impact on participants in most programs 
listed in the Catalog of Federal Domestic Assistance in the Agency 
Program Index under the Department of Agriculture.

Paperwork Reduction Act

    The regulations in this rule are exempt from the requirements of 
the Paperwork Reduction Act (44 U.S.C. Chapter 35), as specified in 
section 2904 of the 2008 Farm Bill, which provides that these 
regulations be promulgated and the programs administered without regard 
to the Paperwork Reduction Act.

E-Government Act Compliance

    FSA is committed to complying with the E-Government Act, to promote 
the use of the Internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.

List of Subjects in 7 CFR Part 12

    Administrative practice and procedure, Loan programs--Agriculture, 
Price support programs, Reporting and recordkeeping requirements, Soil 
conservation.

    For the reasons explained above, 7 CFR part 12 is amended as 
follows:

PART 12--HIGHLY ERODIBLE LAND AND WETLAND CONSERVATION

0
1. The authority citation for 7 CFR part 12 is revised to read as 
follows:

    Authority: 16 U.S.C. 3801, 3812, and 3822(h).


Sec.  12.3  [Amended]

0
2. Amend Sec.  12.3, in paragraph (a), by removing the words ``Virgin 
Island'' and adding, in their place, the words ``Virgin Islands.''

[[Page 82077]]

Sec.  12.4  [Amended]

0
3. Amend Sec.  12.4, in paragraph (d)(2), by removing the words ``or 
highly erodible land'' and adding, in their place, the words ``on 
highly erodible land.''

0
4. Amend Sec.  12.5 as follows:
0
a. Revise paragraph (a)(5) to read as set forth below,
0
b. Add paragraph (a)(7) to read as set forth below,
0
c. Revise paragraph (b)(5)(i) to read as set forth below.


Sec.  12.5  Exemption.

    (a) * * *
    (5) Good faith. (i) No person will become ineligible under Sec.  
12.4 as a result of the failure of such person to apply a conservation 
system on highly erodible land if all of the following apply:
    (A) FSA determines such person has acted in good faith and without 
the intent to violate the provisions of this part;
    (B) NRCS determines that the person complies with paragraph 
(a)(5)(ii) of this section; and
    (C) The good faith determination of the FSA county or State 
committee has been reviewed and approved by the applicable State 
Executive Director, with the technical concurrence of the State 
Conservationist; or district director, with the technical concurrence 
of the area conservationist.
    (ii) A person who otherwise meets the requirements of paragraphs 
(a)(5)(i)(A) and (a)(5)(i)(C) of this section will be allowed a 
reasonable period of time, as determined by NRCS, but not to exceed one 
year, during which to implement the measures and practices necessary to 
be considered actively applying the person's conservation plan, as 
determined by USDA. If a person does not take the required corrective 
actions, the person may be determined to be ineligible for the crop 
year during which such actions were to be taken, as well as any 
subsequent crop year.
    (iii) Notwithstanding the good-faith requirements of paragraph 
(a)(5)(i) of this section, if NRCS observes a possible compliance 
deficiency while providing on-site technical assistance, NRCS will 
provide to the responsible person, not later than 45 days after 
observing the possible violation, information regarding actions needed 
to comply with the plan and this subtitle. NRCS will provide this 
information in lieu of reporting the observation as a violation, if the 
responsible person attempts to correct the deficiencies as soon as 
practicable, as determined by NRCS, after receiving the information, 
but not later than one year after receiving the information. If a 
person does not take the required corrective actions, the person may be 
determined to be ineligible for the crop year during which the 
compliance deficiencies occurred, as well as any subsequent crop year.
    (iv) A person who meets the requirements of paragraphs (a)(5)(i) 
and (a)(5)(ii) of this section will, in lieu of the loss of all 
benefits specified under Sec.  12.4(d) and (e) for such crop year, be 
subject to a reduction in benefits by an amount commensurate with the 
seriousness of the violation, as determined by FSA. The dollar amount 
of the reduction will be determined by FSA and may be based on the 
number of acres and the degree of erosion hazard for the area in 
violation, as determined by NRCS, or upon such other factors as FSA 
determines appropriate.
    (v) Any person whose benefits are reduced in a crop year under 
paragraph (a)(5) of this section may be eligible for all of the 
benefits specified under Sec.  12.4(d) and (e) for any subsequent crop 
year if, prior to the beginning of the subsequent crop year, NRCS 
determines that such person is actively applying a conservation plan 
according to the schedule specified in the plan on all highly erodible 
land planted to an agricultural commodity or designated as conservation 
use.
* * * * *
    (7) Technical and minor violations. Notwithstanding any other 
provisions of this part, a reduction in benefits in an amount 
commensurate with the seriousness of the violation, as determined by 
FSA, and consistent with paragraph (a)(5)(iv) of this section, will be 
applied if NRCS determines that a violation involving highly erodible 
land that would otherwise lead to a loss of benefits is both of the 
following:
    (i) Technical and minor in nature; and
    (ii) Has a minimal effect on the erosion control purposes of the 
conservation plan applicable to the land on which the violation 
occurred.
    (b) * * *
    (5) Good faith violations. (i) A person who is determined under 
Sec.  12.4 of this part to be ineligible for benefits as the result of 
the production of an agricultural commodity on a wetland converted 
after December 23, 1985, or as the result of the conversion of a 
wetland after November 28, 1990, may regain eligibility for benefits if 
all of the following apply:
    (A) FSA determines that such person acted in good faith and without 
the intent to violate the wetland provisions of this part; and
    (B) NRCS determines that the person is implementing all practices 
in a mitigation plan within an agreed-to period, not to exceed one 
year; and
    (C) The good faith determination of the FSA county or State 
committee has been reviewed and approved by the applicable State 
Executive Director, with the technical concurrence of the State 
Conservationist; or district director, with the technical concurrence 
of the area conservationist.
* * * * *


0
5. In addition to the amendments set forth above, in the following 
places in part 12 remove the words ``functions and values'' and add in 
their place the words ``values, acreage, and functions'':
0
a. Sec.  12.1(b)(4),
0
b. Sec.  12.4(c) each time it appears,
0
c. Sec.  12.5(b)(1)(iii)(D), (b)(1)(vi)(A), (b)(1)(vi)(B), and 
(b)(4)(i) introductory text, (b)(4)(i)(E), (b)(4)(i)(F), (b)(4)(ii), 
and(b)(4)(iii).
0
d. Sec.  12.31(d) in the final sentence only, and
0
e. Sec.  12.33(a).

    Dated: December 16, 2011.
Thomas J. Vilsack,
Secretary.
[FR Doc. 2011-33547 Filed 12-29-11; 8:45 am]
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