Conservation and Environmental Programs

DEPARTMENT OF AGRICULTURE

Agricultural Stabilization and Conservation Service

7 CFR Part 701

RIN 0560-AD08

Conservation and Environmental Programs

AGENCY: Agricultural Stabilization and Conservation Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule revises the Agricultural Stabilization and

Conservation Service (ASCS) regulations governing the Agricultural

Conservation Program (ACP), Emergency Conservation Program (ECP), and

the Forestry Incentives Program (FIP). This proposed rule incorporates

amendments made to the ACP, ECP, and FIP; revises procedures to reflect

current policies; and incorporates the Water Quality Incentive Projects

(WQIP) into the ACP.

DATES: Comments must be received on or before February 9, 1994 in order

to be assured of consideration.

ADDRESSES: Send comments on this proposed rule to Director,

Conservation and Environmental Protection Division, United States

Department of Agriculture (USDA), P.O. Box 2415, Washington, DC 20013-

2415. All written submissions made pursuant to this rule will be

available for further inspection in room 4714, South Building, USDA,

between the hours of 8:15 a.m. and 4:45 p.m., Monday through Friday,

except holidays.

FOR FURTHER INFORMATION CONTACT: Chief, Conservation and Environmental

Activities Branch, Conservation and Environmental Protection Division,

ASCS, USDA, P.O. Box 2415, Washington, DC 20013-2415, telephone 202-

720-7333.

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

Information collection requirements contained in the current

regulation at 7 CFR part 701 have been approved by the Office of

Management and Budget under the provisions of 44 U.S.C. chapter 35 and

have been assigned OMB Number 0560-0082. ASCS will resubmit these

requirements to OMB for review in light of the amendments set forth in

this proposed rule.

Executive Order 12866

This proposed rule is issued in conformance with Executive Order

12866. Based on information compiled by the Department, it has been

determined that this proposed rule:

(1) Would have an annual effect on the economy of less than $100

million;

(2) Would not adversely affect in a material way the economy, a

sector of the economy, productivity, competition, jobs, the

environment, public health or safety, or State, local, or tribal

governments or communities;

(3) Would not create a serious inconsistency or otherwise interfere

with an action taken or planned by another agency;

(4) Would not alter the budgetary impact of entitlements, grants,

user fees, or loan programs or rights and obligations of recipients

thereof; and

(5) Would not raise novel legal or policy issues arising out of

legal mandates, the Presidents's priorities, or principles set forth in

Executive Order 12866.

Federal Assistance Program

The titles and numbers of the Federal Assistance Programs, as found

in the Catalog of Federal Domestic Assistance, to which this rule

applies are: Agricultural Conservation Program (ACP)--10.063; Emergency

Conservation Program (ECP)--10.054; and Forestry Incentives Program

(FIP)--10.064.

Regulatory Flexibility Act

It has been determined that the Regulatory Flexibility Act is not

applicable to this rule since ASCS is not required by 5 U.S.C. 553 or

any other provision of law to publish a notice of proposed rulemaking

with respect to the subject matter of this rule.

Environmental Evaluation

It has been determined by an environmental evaluation that this

action will have no significant impact on the quality of the human

environment, health, and safety. Therefore, neither an Environmental

Assessment nor an Environmental Impact Statement is needed.

Executive Order 12372

This program is not subject to the provisions of Executive Order

12372 which requires intergovernmental consultation with State and

local officials. See the Notice related to 7 CFR part 3015, subpart V,

published at 48 FR 29115 (June 24, 1983).

Executive Order 12778

This proposed rule has been reviewed in accordance with Executive

Order 12778. The provisions of this proposed rule are not retroactive

and preempt State laws to the extent they are not consistent with the

provisions of this proposed rule. Before any judicial action may be

brought regarding the provisions of this proposed rule, the

administrative appeal provisions of 7 CFR part 780 must be exhausted.

Background

The ACP is authorized generally by Sections 7-17 of the Soil

Conservation and Domestic Allotment Act as amended (the Act) (16 U.S.C.

22590g et seq.). The program provides financial and technical

assistance to encourage agricultural producers to voluntarily perform

enduring soil and water conservation, water quality, and pollution

abatement measures, including practices or programs which are deemed

essential to maintain soil productivity, prevent soil depletion,

maintain water quality, or prevent increased cost of production.

A WQIP is authorized by the Food, Agriculture, Conservation, and

Trade Act of 1990 (16 U.S.C. 3831 et seq.). However, Congress funded

WQIP as a part of the ACP. Accordingly, the WQIP is a voluntary

incentive program conducted pursuant to the Act to develop and

implement agricultural water quality protection plans on up to 10

million acres.

The ECP is authorized by the Agricultural Credit Act of 1978 (16

U.S.C. 2201 et seq.). This program is designed to provide cost-share

assistance for emergency restoration work to meet only the critical

needs of agricultural producers due to drought or other natural

disaster.

The FIP is authorized by section 4 of the Cooperative Forestry

Assistance Act of 1978 (16 U.S.C. 2103) and is designed to increase the

nation's supply of timber products from private nonindustrial forest

lands. The purpose of FIP is to encourage private landowners to apply

forestry practices that will provide for afforestation of suitable open

lands and reforestation of cut-over or other nonstocked forest lands

and to encourage intensive multi-purpose forest resource management and

protection so as to provide for cost-effective timber production and

other related forest resources needs.

The regulation governing these programs is being restructured and

simplified to provide an easier and more effective structure for the

use of this regulation. The ACP is being revised to:

(1) Incorporate several amendments that have been published in the

Federal Register;

(2) Incorporate the WQIP;

(3) Clarify that producers wanting to participate with practice

WP4, Agricultural Waste Control Facilities, must have been in operation

for at least 5 years;

(4) Adjust the LTA payment limitation to reflect that the payment

limitation shall be based on the number of years remaining on the LTA;

and

(5) reflect that payments shall be based on attribution. The ECP is

being revised to:

(1) Reflect that the Disaster Assistance Act of 1989 (16 U.S.C.

2202) authorized assistance for confined livestock operations; and

(2) Define land subject to frequent damage which is ineligible for

cost-share assistance.

The FIP is being restructured for clarity.

Currently, ACP practices are prioritized locally by county

Agricultural Stabilization and Conservation committees to ensure that

the most severe conservation and environmental problems are addressed.

However, this county committee prioritization process has been

criticized as not addressing the most severe conservation and

environmental problems. Therefore, comments are requested regarding the

manner in which ACP practices and allocation of funds could be

prioritized to achieve greater conservation and environmental benefits

at the least Federal cost. Although not exclusive, such considerations

for prioritization may be based on temporary versus longer-term

practices or type of conservation or environmental benefit. Further,

consideration should be given to whether priorities should be

established by the National, State, or county Agricultural

Stabilization and Conservation Service offices. Moreover, for ACP, ECP

and FIP, comments are requested on ways in which the programs can best

be targeted in order to ensure that public benefits, rather than

private benefits are maximized with Federal expenditures. For example,

the use of ACP for temporary practices may not provide large public

benefits.

Comments are requested as to whether funds should be targeted

toward designated areas with impaired water quality. Similarly, cost-

share practices could be selected for a region where they will

contribute to an identified problem. Thus, nutrient management

practices would be designated as a cost-share option in areas where

nutrients have been identified as a water quality problem.

List of Subjects in 7 CFR Part 701

Disaster assistance, Forest and forest products, Grant programs--

agriculture, Grant programs--natural resources, Reporting and

recordkeeping requirements, Rural areas, Soil conservation, Water

resources, Wildlife.

For the reasons set forth in the preamble, 7 CFR Part 701 is

proposed to be revised to read as follows:

PART 701--CONSERVATION AND ENVIRONMENTAL PROGRAMS

Subpart A--General Provisions

Sec.

701.1 Background.

701.2 Administration.

701.3 Definitions.

701.4 Restriction on program eligibility.

701.5 Practice specifications.

701.6 Responsibility for referred technical phases of practices.

701.7 Items of costs on which rates of cost-share assistance may be

based.

701.8 Repair, upkeep, and maintenance of practices.

701.9 Public benefits when installing practices.

701.10 Payments for uncompleted practices.

701.11 Practices involving the establishment or improvement of

vegetative cover.

701.12 Failure to meet minimum requirements or failure to comply

fully with program provisions.

701.13 Practices carried out with aid from ineligible persons.

701.14 Division of cost-share assistance.

701.15 Applying cost-share assistance limitations.

701.16 Persons eligible to file application for payment of cost-

share assistance.

701.17 Time and manner of filing application and required

information.

701.18 Death, incompetency, or disappearance.

701.19 Appeals.

701.20 Performance based on advice or action of COC or STC.

701.21 Compliance with regulatory measures.

701.22 Maintenance and use of practice.

701.23 Actions defeating purpose of program.

701.24 Depriving others of cost-share assistance.

701.25 Filing false claims.

701.26 Cost-share assistance not subject to claims.

701.27 Assignments.

701.28 Environmental considerations.

701.29 Information collection requirements.

701.30-701.99 [Reserved]

Subpart B--Agricultural Conservation Program

701.100 Program objective.

701.101 State funds.

701.102 County funds.

701.103 Availability of funds.

701.104 Eligible person.

701.105 Eligible land.

701.106 Conservation practices.

701.107 County programs.

701.108 State programs.

701.109 Selection of practices.

701.110 Levels and rates of cost-share assistance.

701.111 Starting practices.

701.112 Method of approval.

701.113 Long-term agreements.

701.114 Replacement, enlargement, or restoration.

701.115 Pooling agreements.

701.116 Special provisions for low-income farmers and ranchers.

701.117 Maximum cost-share assistance limitation.

701.118 Completion of practices.

701.119 Time of filing payment application.

701.120 Water Quality Incentive Projects.

701.121-701.199 [Reserved]

Subpart C--Emergency Conservation Program

701.200 Program objective.

701.201 Program availability.

701.202 Eligibility of person and land.

701.203 Emergency Conservation Program practices.

701.204 Practice approval.

701.205 Extent of cost-share assistance.

701.206 Eligible costs.

701.207 Filing requests.

701.208 Approving requests.

701.209 Pooling agreements.

701.210 Payment approval.

701.211-701.299 [Reserved]

Subpart D--Forestry Incentives Program

701.300 Program objective.

701.301 Designated counties.

701.302 Eligible person, land, and ownerships.

701.303 Program funds.

701.304 Eligible practices and cost-share assistance requirements.

701.305 The national FIP.

701.306 Development of State FIP.

701.307 Development of county FIP.

701.308 Adaptation of practices.

701.309 Levels and rates of cost-share assistance.

701.310 Prior approval for cost-share assistance.

701.311 Methods of approval.

701.312 Long-term agreements.

701.313 Restoration of practices.

701.314 FIP maximum cost-share assistance limitations.

701.315 Completion of practice.

701.316 Time of filing payment application.

701.317-701.399 [Reserved]

Authority: 16 U.S.C. 590d, 590g-590o, 590p(a), 590q, 1501-1510,

1606, 2101-2111, 2201-2205, 3831; 48 U.S.C. 1469d(c).

Subpart A--General Provisions

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 performing:

(1) Approved soil and water conservation, water quality, and

pollution abatement practices including related wildlife conservation

practices.

(2) Emergency conservation measures.

(3) Approved forestry practices.

(b) The Federal Government will provide incentive payments to

farmers, ranchers, and other private landowners in applicable areas of

the United States to establish Water Quality Incentive Projects (WQIP)

practices.

(c) Cost-share assistance or incentive payments may be made

available to eligible program participants by the Agricultural

Stabilization and Conservation Service (ASCS) for:

(1) Soil and water conservation, water quality, and pollution

abatement practices under the Agricultural Conservation Program (ACP)

which includes WQIP.

(2) Practices to correct damage to land or conservation practices

caused by natural disaster under the Emergency Conservation Program

(ECP).

(3) Installation of water conservation measures under the ECP

during periods of severe drought.

(4) Forestry practices under the ACP and the Forestry Incentives

Program (FIP).

(d) Information on the practices for which costs will be shared,

the exact specifications and rates of cost-share assistance for such

practices, and the eligibility requirements for participating in the

programs, may be obtained from the County Agricultural Stabilization

and Conservation (ASC) Committee (county committee) for the county in

which the farm, ranch, or other eligible land is administered or from

the State ASC committee (State committee) for the State in which such

county is located.

(e) The provisions at subpart A apply to the programs specified in

subparts B through D.

Sec. 701.2 Administration.

(a) The regulations in this part will be administered under the

general supervision of the Administrator, ASCS and shall be carried out

in the field by State and county Agricultural Stabilization and

Conservation committees (State and county ASC committees).

(b) State and county ASC committees, and representatives and

employees thereof do not have the authority to modify or waive any of

the provisions of the regulations of this part.

(c) The State ASC committee shall take any action required by these

regulations which has not been taken by the county ASC committee. The

State ASC committee shall also:

(1) Correct, or require a county ASC committee to correct any

action taken by such county ASC committee which is not in accordance

with the regulations of this part, or

(2) Require a county ASC committee to withhold taking any action

which is not in accordance with the regulations of this part.

(d) No provision or delegation herein to a State or county ASC

committee shall preclude the Administrator, ASCS, or a designee, from

determining any question arising under the regulations of this part or

from reversing or modifying any determination made by a State or county

ASC committee.

Sec. 701.3 Definitions.

(a) The terms defined in part 719 of this chapter shall be

applicable to this part and all documents issued in accordance with

this part, except as otherwise provided in this section.

(b) The following definitions shall apply to this part:

ACP means the Agricultural Conservation Program.

Applicant means a person who submits to ASCS an intention to

participate in a cost-share program.

ASCS means the Agricultural Stabilization and Conservation Service

of the United States Department of Agriculture.

Conservation District (CD) means a subdivision of a State organized

pursuant to an applicable State Conservation District law or in

instances where a CD does not exist, the State Conservationist of the

Soil Conservation Service.

Cost-share payment means the payment made by ASCS to producers who

complete an approved program practice.

County committee (COC) means the Agricultural Stabilization and

Conservation county committee of the ASCS.

County Conservation Review Group (CCRG) consists of the county ASC

committee; the county extension agent; a Soil Conservation Service

(SCS) representative; a Forest Service (FS) representative; a Farmers

Home Administration representative; 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 CD

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 one person to represent all the districts). The CCRG

shall have the responsibilities as provided for in Secs. 701.107 and

701.307.

CPO means the conservation plan of operations developed for the

participant by the SCS.

Deputy Administrator means the Deputy Administrator, State and

County Operations, or designee, of the ASCS.

ECP means the Emergency Conservation Program.

Eligible person means a person who meets all program eligibility

requirements and is eligible to participate and receive assistance.

Farm or ranch means that area of land considered as a farm under

the regulations governing reconstitution of farms, allotments, and

bases, at part 719 of this chapter, as amended, for ACP, ECP, and WQIP,

and, for the FIP, farm or ranch means eligible land (or ownership

tracts) as provided in Sec. 701.302.

FIP means the Forestry Incentives Program.

FS means the Forest Service of the United States Department of

Agriculture.

Incentive payment means, unless the context indicates otherwise,

the incentive payment specified in the WQIP agreement which, subject to

the availability of funds, is made to a participant to compensate such

participant who implemented conservation practices or management

changes that reduce agricultural pollutants.

National Conservation Review Group (NCRG) consists of

representatives of the ASCS; SCS; U.S. Forest Service; Extension

Service; Economic Research Service; Farmers Home Administration;

Agricultural Research Service; Office of General Counsel, U.S.

Department of Agriculture; Office of Budget, Planning and Analysis,

U.S. Department of Agriculture; Environmental Protection Agency; Office

of Management and Budget; and Fish and Wildlife Service, U.S.

Department of the Interior (DOI). The NCRG is responsible for

recommending changes to the Administrator, ASCS, in program

administrative procedures and policy guidelines, and evaluations of

program effectiveness and operating arrangements.

Participant means an owner, operator, landlord, tenant, or

sharecropper of a farm or ranch who shares in the cost of the practice

and who will receive cost-share or incentive assistance.

Program year means the Federal fiscal year for accounting purposes.

SCS means the Soil Conservation Service of the United States

Department of Agriculture.

State means any one State of the United States, Puerto Rico, the

Virgin Islands, and:

(1) In the case of the ACP and ECP, Guam, the American Samoa, and

the Commonwealth of the Northern Mariana Islands; and

(2) In the case of the FIP, Guam, the 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.

State committee (STC) means the ASCS State Agricultural

Stabilization and Conservation Committee.

State Conservation Review Group (SCRG) consists of the STC, the

State Director of Extension; the State Conservationist of the SCS; 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 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 SCRG has the responsibility

provided for in Sec. 701.108.

State Forestry Committee, or its equivalent, consists of the State

forester or equivalent State official, who serves as chairperson; and a

representative at the State level of the following USDA agencies: ASCS;

FS; Extension Service; Farmers Home Administration; and SCS. At the

discretion of the State Forestry 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.

WQIP means the Water Quality Incentive Projects authorized under

the ACP.

WQIP Agreement means the program agreement including the applicable

water quality resource management plan entered into between ASCS and

the participant. Such agreement shall set forth the terms and

conditions for participation in the WQIP pursuant to this part.

Sec. 701.4 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 such

program participants are applicable to these programs.

Sec. 701.5 Practice specifications.

(a) Minimum specifications that practices must satisfy to be

eligible for cost-share assistance shall be set forth in the county

program within the authority established by the STC and Deputy

Administrator, State and County Operations (DASCO) or incorporated by

specific reference to a standard publication or other written document

containing such specifications.

(b) Practice specifications shall represent the minimum levels of

performance needed in order for the practice to be effective in meeting

the program objective. Cost-share assistance shall be limited to these

minimum levels.

Sec. 701.6 Responsibility for referred technical phases of practices.

The SCS and the FS are responsible for technical phases of

practices as assigned and such assignment will be specified in State

and county programs.

(a) The SCS State Conservationist may use the expertise from

private consultants, State, or Federal agencies in performing the

assigned responsibilities if SCS certifies that assigned practices are

completed properly. No responsibilities will be assigned for counties

when DASCO and the Chief, SCS, determine that it would not be

administratively practicable for the SCS to discharge such

responsibilities. In such counties, these responsibilities shall be

assumed by COC's. The SCS may utilize resources of the State forestry

agencies in performing assigned responsibilities for practices

involving the establishment of windbreaks or shelterbelts on farmland

to prevent wind erosion.

(b) The FS 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 FS may use

the assistance of private consultants, State, or Federal agencies in

performing these assigned responsibilities if FS certifies that

assigned practices are completed properly; however, services of State

forestry agencies will be used to the extent that such services are

available.

Sec. 701.7 Items of cost on which rates of cost-share assistance may

be based.

Except as otherwise provided by ASCS, the cost of any direct and

significant factor in the performance of a practice may be considered

in establishing the rate of cost-share assistance for the practice.

Sec. 701.8 Repair, upkeep, and maintenance of practices.

Cost-share assistance shall not be authorized for repairs or for

normal upkeep or maintenance of any practice.

Sec. 701.9 Public benefits when installing practices.

Persons responsible for any aspect of performing practices shall

install the practices to promote public benefits by:

(a) Improving or preserving environmental quality and ecological

balance by preventing or abating pollution and other environmental

degradation;

(b) Benefiting the community by such means as preserving open space

or enhancing the appearance of the area;

(c) Benefiting wildlife and other desirable life forms;

(d) Preserving historic, archeological, or scenic sites, wetlands,

ecologically critical areas, and prime farmlands;

(e) Avoiding the creation of hazards to persons or animals; and

(f) Avoiding actions that may adversely affect an endangered or

threatened species or flood plains.

Sec. 701.10 Payments for uncompleted practices.

Cost-share assistance approved under these programs shall not be

considered earned until all components of the approved practice are

completed according to applicable specifications and program

provisions. Cost-share assistance for completed components of an

approved practice may be paid only on the condition that the eligible

participant will complete the remaining components of the practice

within the time prescribed by the COC regardless of whether cost-share

assistance is offered for them unless the COC subsequently determines

they are prevented from doing so because of reasons beyond their

control.

Sec. 701.11 Practices involving the establishment or improvement of

vegetative cover.

(a) Costs may be shared even though an adequate stand is not

established, for practices involving the establishment or improvement

of vegetative cover, including trees, if the COC determines, according

to standards approved by the STC, that the practice was carried out in

a manner which could normally result in the establishment of an

adequate stand and that failure to establish an adequate stand was due

to weather or other conditions beyond the control of the participant.

The COC may require, as a condition of cost-share assistance in such

cases, that the area be reseeded or replanted or that other needed

protective measures be performed. Cost-share assistance in such cases

may also be approved for repeat applications of measures previously

performed or for additional eligible measures. Cost-share assistance

for such measures may be approved to the extent such measures are

needed to ensure an adequate stand even though the measures may be less

than that required by the applicable practice wording for initial

approvals.

(b) In the case of FIP, replanting of trees is required where the

landowner received cost-share assistance for site preparation.

Sec. 701.12 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 satisfied, if the participant

establishes to the satisfaction of the COC and the county

representative of any other agency having responsibility for technical

phases of the practice that a reasonable effort was made to satisfy the

minimum requirements and that the practice as performed adequately

solves the need for the practice.

(b) Notwithstanding the provisions in paragraph (a) of this

section, the Deputy Administrator may in accordance with part 791 of

this chapter authorize relief when a participant acting in good faith

failed to fully comply with the program provisions.

Sec. 701.13 Practices carried out with aid from ineligible persons.

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 aid 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.

Sec. 701.14 Division of cost-share assistance.

(a) The cost-share assistance shall be credited to the participant

who performed the practice. If more than one person contributed to the

performance of the practice, the cost-share assistance for the practice

shall be divided among those persons in the proportion that the COC

determines they contributed to the performance of the practice. In

making this determination, the COC shall consider the value of the

labor, equipment, or material contributed by each person toward

performance.

(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 shall not be considered as a contribution

to the performance of any practice, unless ASCS is satisfied that such

credit is directly related to the cost of the practice. A person fully

reimbursed through an adjustment in rental, an exchange of cash, or

other consideration shall not be considered as having contributed to

the practice performance.

Sec. 701.15 Applying cost-share assistance limitations.

(a) All or any part of cost-share assistance which otherwise would

be due any participant for a program year may be withheld, or required

to be refunded, if, with respect to that program year, the participant

has adopted, or participated in adopting, any scheme or device designed

to evade a maximum cost-share limitation.

(b) The provisions of 7 CFR 1497.109(a), which provide that

payments shall be attributed to each member of an entity, 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.

Sec. 701.16 Persons eligible to file application for payment of cost-

share assistance.

Any eligible person as defined in Secs. 701.104, 701.202, and

701.302, who bore a part of the cost of an approved practice, is

eligible to file an application for cost-share assistance. For ACP

practice WP4, Agricultural Waste Control Facilities, an eligible person

is one who has been in an operation from which the agricultural waste

is produced for at least 5 years.

Sec. 701.17 Time and manner of filing application and required

information.

(a) Participants shall submit to the county office the 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 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 submit the information

within the period prescribed. At least 2 weeks notice of any general

time limit prescribed shall be provided to the public.

(b) Other means of notification of program availability including

radio announcements and individual notices to the person 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 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.

Sec. 701.18 Death, incompetency, or disappearance.

In case of death, incompetency, or disappearance of any

participant, any cost shares due shall be paid to the successor,

determined in accordance with provisions of the regulations in part 707

of this chapter.

Sec. 701.19 Appeals.

Any person may obtain reconsideration and review of determinations

affecting participation in these programs, in accordance with part 780

of this chapter.

Sec. 701.20 Performance based on advice or action of COC or STC.

Cases involving performance rendered in good faith in reliance upon

action or advice of an authorized representative of a STC or COC shall

be considered according to part 790 of this chapter.

Sec. 701.21 Compliance with regulatory measures.

Participants who perform practices shall be responsible for

obtaining the authorities, rights, easements, or other approvals

necessary to the performance and maintenance of the practices according

to applicable laws and regulations. The participant with whom the cost

of the practice is shared shall be responsible to the Federal

Government for any losses it may sustain because such participant

infringes on the rights of others or fails to comply with applicable

laws or regulations.

Sec. 701.22 Maintenance and use of practice.

Each participant receiving cost-share assistance is responsible for

the required 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 ASCS determines that a practice has not been properly

maintained for the established lifespan, the participant receiving the

cost-share assistance shall refund all or any part of such cost-share

assistance as determined appropriate by the ASC COC. 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 participant 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 participant

receiving cost-share assistance under that agreement shall be liable

for refunding to ASCS 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.

Sec. 701.23 Actions defeating purpose of program.

If the STC or COC determines that a participant has taken any

action which tends to defeat the purposes of these programs, the

participant may be required to refund all or part of any of these

program payments otherwise due or paid that participant 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 prior program year.

Sec. 701.24 Depriving others of cost-share assistance.

If the STC or COC determines that any participant has employed any

scheme or device to deprive any other person of cost-share assistance,

the participant may be required to refund 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. 701.25 Filing false claims.

If the STC or COC determines that any person has knowingly supplied

false information or filed a false claim, that person is ineligible for

cost-share assistance under the program year with respect to which

information or claim was filed. False information or a false claim

includes, but is not limited to, a request 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 participant 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. 701.26 Cost-share assistance not subject to claims.

Any cost-share assistance or portion thereof due any participant

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

offsets and withholdings at part 1403 of this title shall be applicable

to these programs.

Sec. 701.27 Assignments.

Any participant who may be entitled to any cost-share assistance

under these programs may assign the right thereto, in whole or in part,

according to the regulations governing the assignment of payments at 7

CFR part 1404.

Sec. 701.28 Environmental considerations.

All actions implemented under the programs in this part shall be in

compliance with regulations issued at part 799 of this chapter, which

includes the procedures for complying with the National Environmental

Policy Act, Floodplain Management and Wetland Protection and other

environmental concerns.

Sec. 701.29 Information collection requirements.

Information collection requirements contained in this part have

been approved by the Office of Management and Budget under the

provisions at 44 U.S.C. Chapter 35 and have been assigned OMB Number

0560-0082.

Secs. 701.30-701.99 [Reserved]

Subpart B--Agricultural Conservation Program

Sec. 701.100 Program objective.

(a) The objective of the ACP is to restore and protect the Nation's

land and water resources. This objective will be accomplished through a

program that considers:

(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

nonpoint sources of pollution.

(5) National priorities reflected in the National Environmental

Policy Act of 1969, the Resource Conservation Act of 1977, and other

congressional and administrative actions.

(6) The degrees to which the measures contribute to the national

objective of ensuring 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.

(8) The need to improve water quality.

(b) These objectives will ensure the continued supply of food and

fiber necessary for the maintenance of a strong and healthy people and

economy and provide for environmental conservation or enhancement.

Sec. 701.101 State funds.

Funds available for practices to be performed under the ACP will be

distributed among the States as determined by the Deputy Administrator.

Sec. 701.102 County funds.

The STC will allocate the funds available for practices among the

counties within the State consistent with the ACP's objective, and will

give particular consideration to the furtherance of special projects,

watershed conservation projects, resource conservation development

projects, approved State water quality plans, and other conservation

and pollution abatement projects sponsored locally.

Sec. 701.103 Availability of funds.

(a) The paying of the cost-share assistance provided herein is

contingent upon such appropriation as the Congress may provide for such

purpose; and the amounts of such cost shares shall be within the limits

authorized by such appropriation.

(b) Funds available for the ACP may be made available as needed for

practices to be performed under the Naval Stores Conservation Program,

according to instructions issued by the Deputy Administrator.

Sec. 701.104 Eligible person.

An eligible person is a farmer or rancher who as an individual,

partnership, association, corporation, estate, trust, other business

enterprise, or other legal entity (excluding districts which have

taxing authority, Federal agencies, States and State agencies,

including political subdivisions of a State) and, as an owner,

landlord, tenant, or sharecropper, participates or has an interest in

the operation of a farm or ranch for which cost share assistance has

been requested.

Sec. 701.105 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.

(5) Any cropland operated by private persons which is owned by the

United States or a corporation wholly owned by it;

(6) Native American lands, except that where grazing operations are

carried out on Native American lands administered by the DOI, such

lands are within the scope of the program only if covered by a written

agreement approved by the DOI 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 FS, or by the Bureau of Land

Management, DOI (including lands administered under the Taylor Grazing

Act), or the Fish and Wildlife Service, DOI, 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. A

nonprivate person is anyone except 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, including political

subdivisions of a State).

Sec. 701.106 Conservation practices.

Conservation practices as specified by the Deputy Administrator are

made available nationally under the ACP and may be included in the

State and county programs. Practices shall not be primarily production-

oriented and shall have primarily conservation, environmental, 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.

(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.

(j) Improve water quality.

Sec. 701.107 County programs.

(a) ACP shall be developed in each county by the COC, in

consultation with the CCRG in accordance with the National and State

development guidelines and policies provided. Subject to the

availability of funds, at least one public meeting per year shall be

held for this purpose.

(b) The county ACP shall be effective after approval by the STC.

Sec. 701.108 State programs.

(a) The SCRG shall develop recommendations for the State ACP. The

chairperson of the SCRG may also invite others with conservation or

water quality interests to participate in such deliberations. Subject

to the availability of funds, at least one public meeting per year

shall be held for this purpose.

(b) The State ACP shall consist of the guidelines and practices

authorized by the STC and approved by the Deputy Administrator after

considering the recommendations submitted by COC's.

Sec. 701.109 Selection of practices.

The practices to be included in the State or county ACP shall be

only those practices authorized by Deputy Administrator for which cost-

share assistance is essential to permit accomplishment of the ACP

objective.

Sec. 701.110 Levels and rates of cost-share assistance.

(a) The maximum level of cost-share assistance 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

and established at a level such that the participant will make a

significant contribution to the cost of performing the practice.

(b) Levels of cost-share assistance under annual agreements for

each practice shall not be in excess of seventy-five (75) percent of

the average cost of performing the practice as determined by the COC.

Where the Deputy Administrator determines a higher level of cost-share

assistance is necessary to provide adequate incentive for a participant

to perform a conservation practice, the Deputy Administrator may

specifically authorize a higher level. See Sec. 701.116 for special

provision for low-income farmers.

(c) Levels of cost-share assistance under long-term agreements

shall not be in excess of seventy-five (75) percent nor less than 50

percent of the average cost for each practice as determined by the COC.

(d) For the purpose of establishing rates of cost-share assistance,

the average cost of performing a practice may be the average cost for

either a county or a part of a county as determined by the COC.

Sec. 701.111 Starting practices.

Costs will not be shared for practices or components of practices

that are started before COC approval.

Sec. 701.112 Method of approval.

(a) The COC shall determine the extent to which Federal funds may

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 which requested cost-share assistance is considered by

the COC 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 assistance 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-share assistance except as authorized by the county program, or

according to procedures incorporated therein. Available funds for cost-

share assistance shall not be allocated on a proportionate share basis;

however, cost-share funds shall be directed to the accomplishment of

the most enduring benefits attainable.

(b) Cost-share assistance may be approved under annual agreements

or long-term agreements.

(c) 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 SCS

provides planning and technical services, except:

(1) Farms and ranches located within a county designated for the

Great Plains Conservation Program (GPCP) are only eligible if not

covered by GPCP contract.

(2) Farms and ranches not located within a Soil Conservation

District or comparable district may be eligible for a long-term

agreement provided CPO's are developed by the farmer or rancher in

cooperation with the SCS and approved by an appropriate State official

or, in cases where an appropriate State official is not available,

approved by the SCS.

Sec. 701.113 Long-term agreements.

(a) The period of a long-term agreement shall be for not less than

three (3) program years nor more than ten (10) program years. The COC

and the signors to the long-term agreement in consultation with the SCS

representative shall mutually determine the period of the agreement.

(b) The long-term agreement will be based on a CPO 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 SCS, as applicable.

(c) The long-term agreement will provide that the farmer or rancher

will perform those measures in the CPO's which are determined to be

essential to meeting the basic conservation needs of the farm or ranch,

or portion thereof, regardless of whether cost-share assistance is

approved for such measures.

(d) The owner of the farm or ranch will be required to sign a long-

term agreement regardless of whether that person contributes to the

cost of approved practices thereon except in cases where the long-term

agreement consists wholly of integrated crop management practices.

(e) Any party to a long-term agreement who is not an owner of the

farm or ranch shall provide assurance of control of the land for the

duration of the period of the agreement.

(f) The level of cost-share assistance as provided in Sec. 701.110,

in effect for practices in all years of a long-term agreement shall be

the level in effect at the beginning year of the agreement. The rate of

cost-share assistance for payment purposes for such practice shall be

based on the average cost of performing the practice at the time the

practice is performed.

(g) A long-term agreement may be canceled for failure to fully

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 SCS, the State or COC determines

that the seriousness of the irregularities warrant such action. If the

agreement is canceled, the parties 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.

(h) A long-term agreement may be revised according to instructions

issued by the Deputy Administrator by mutual agreement between the

parties to the agreement and the COC based on approved changes in the

CPO's for the farm or ranch.

(i) An otherwise 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 parties to the agreement, the COC will determine whether any cost-

share assistance previously paid shall be refunded; however, 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 COC or the STC determine, after consulting

with a representative of the SCS, 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 COC, after considering

the recommendation of the Soil Conservation District or comparable

district board or if none exists with a representative of the SCS if

such action is in the public interest. The COC will determine the

amount of cost shares previously paid that shall be refunded.

(l) An agreement may be terminated by the COC upon the written

request of the participant to a long-term agreement where no cost-share

assistance has been paid for any of the scheduled practices and where

the participant does not intend to perform any of the scheduled

practices.

Sec. 701.114 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-share assistance has been

allowed if the practice has served its normal lifespan or if all of the

following conditions exist:

(a) Replacement, enlargement, or restoration of the practice is

needed to solve the related conservation or environmental problem.

(b) The failure of the original practice was not due to the lack of

proper maintenance by the current operator.

(c) The COC believes that the replacement, enlargement, or

restoration of the practice merits consideration to an equal extent

with other practices.

(d) The replacement, enlargement, or restoration of the practice is

not being performed because the producer has increased his operation to

where these measures are needed to solve the increased conservation or

environmental problem.

Sec. 701.115 Pooling agreements.

Eligible persons in any local area may agree in writing with the

approval of the COC to perform designated practices which will solve a

mutual conservation, pollution, or other environmental problem on the

land of the participants. For purposes of eligibility for cost-share

assistance, 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. 701.116 Special provisions for low-income farmers and ranchers.

(a) Except as otherwise provided in Sec. 701.110(c), the COC may

approve in the case of low-income farmers and ranchers as defined in

this section a level of cost-share assistance of up to eighty (80)

percent of the average cost of performing practices.

(b) A low-income farmer or rancher is one who as determined by the

COC 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 low-income farmer or rancher could

not reasonably be expected to perform needed conservation practices at

levels of cost-share assistance applicable to other persons in the

county.

Sec. 701.117 Maximum cost-share assistance 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 remaining in the LTA. The payment

limitation in effect after the first year of LTA or after an LTA

payment has been made shall be equal to the lessor of the following:

(1) The number of years remaining in the LTA times the annual

payment limitation; or

(2) The difference between the LTA's maximum payment limitation and

the ACP cost-share assistance previously earned during the contract

period.

Sec. 701.118 Completion of practices.

Cost-share assistance for the practices contained in this part is

conditioned upon the performance of the practice according to all

applicable specifications and program provisions.

Sec. 701.119 Time of filing payment application.

Payment of cost-share assistance will be made only upon application

submitted on the prescribed form to the county office by a date

established by the COC. Any application for payment may be denied if

any form or information required of the applicant is not submitted to

the county office within the applicable time limit.

Sec. 701.120 Water Quality Incentive Projects.

(a) The WQIP administered through the ACP provides both financial

and technical assistance to achieve the source reduction of pollutants

in an environmentally and economically sound manner in order to assist

in compliance with State and Federal environmental laws to enhance the

environment.

(b) Other provisions as contained in subpart A and this subpart

apply to WQIP.

(c) Any representative of USDA, or designee thereof, shall have the

right of access to land which is the subject of a WQIP application, or

land which is under a WQIP agreement; and shall have the right to

examine records, with respect to crop management systems, use of

agricultural inputs, recordkeeping, land use decisions, resource

inventory, and impacts on water quality for the purpose of determining

whether there is compliance with the terms and conditions of the WQIP

agreement.

(d) A participant may, in addition to any payment earned under

WQIP, receive other financial assistance, rental payments, or tax

benefits from a State or subdivision of such State for enrolling lands

in WQIP.

(e) Eligible land areas must be:

(1) Wellhead areas included by the Secretary or designee in

consultation with Environmental Protection Agency (EPA) and the State

agency responsible for the State's operations under the Safe Drinking

Water Act (42 U.S.C. 300 h-7);

(2) Critical nonpoint agricultural areas identified in Clean Water

Act 319 plans;

(3) Karst topography areas with sinkholes;

(4) Agricultural nonpoint source areas that may adversely impact

threatened or endangered species habitat;

(5) Areas recommended by State environmental agencies and approved

by the Secretary;

(6) Areas recommended by EPA and DOI in consultation with the

Secretary;

(7) Lands not located within approved or designated areas but that

are in proximity and if allowed to continue to operate under the

existing management practices would defeat the purpose of the program;

and

(8) Areas contributing to identified water quality problems in

Secretarial designated areas.

(f) WQIP agreements shall be administered through long-term

agreements. These agreements shall be a minimum of three (3) years to a

maximum of five (5) years in duration as determined by the Deputy

Administrator.

(g) The applicant, in consultation with the SCS or other designated

technical agency, shall develop a Water Quality Resource Management

Plan which will:

(1) Include an assessment of the resources and management measures

needed to achieve the source reduction of agricultural pollutants;

(2) Cover the entire tract or tracts owned or operated by the

applicant within the WQIP area;

(3) Be reviewed and approved by SCS;

(4) Be reviewed and approved by the local Conservation District;

and

(5) Be consistent with conservation compliance goals.

(h) Technical assistance will be provided by the SCS as the lead

agency with assistance from the Cooperative Extension Service,

Agricultural Research Service, and other Federal agencies and private

consultants as deemed necessary by the Secretary.

Secs. 701.121-701.199 [Reserved]

Subpart C--Emergency Conservation Program

Sec. 701.200 Program objective.

The objective of the ECP 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.

Sec. 701.201 Program availability.

(a) The COC 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;

(2) Materially affect the productive capacity of the land;

(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; and

(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 COC with the

concurrence of the STC and approval of the Deputy Administrator may

implement the program to carry out emergency water conservation and

water enhancement measures during periods of severe drought.

(c) Land normally used for farming or ranching which is protected

by levees or dikes is eligible for enrollment in the ECP, except as

follows:

(1) Land adjacent to water impoundment reservoirs subject to

inundation when the reservoir is filled to capacity;

(2) Land that is subject to frequent damage which is any of the

following:

(i) Land has been severely damaged 3 or more times in the last 25

years, including the current disaster. Also land protected by levees or

dikes that have physically failed and severely damaged adjoining land 3

or more times in the last 25 years, including the current disaster.

(ii) Land that is susceptible to severe damage because of its

location, regardless of whether it has been severely damaged in the

last 25 years.

(iii) Flowage or flood easements acquired by the U.S. Army Corps of

Engineers or other authorities that are subject to inundation when

water is released under the course of normal operations.

(3) Land located in old or new channels of a stream, creek, river,

or other similar body of water or on any of the inside banks unless

approved by DASCO. Facilities in irrigation canals or on their inside

banks may be approved if the canal is not a channel subject to

flooding;

(4) Land in greenhouses or other confined areas; and (5) Land on

which poor farming practices, such as failure to farm on the contour,

have materially contributed to damaging the land.

Sec. 701.202 Eligibility of person and land.

Person and land eligibility requirements are the same as for the

ACP as provided in Secs. 701.104 and 701.105 except in cases of severe

drought conditions then cost-share assistance is limited to supplying:

(a) Emergency livestock water, including measures to assist

confined livestock operations, and

(b) Water for existing irrigation systems serving orchards and

vineyards.

Sec. 701.203 Emergency Conservation Program practices.

(a) Except for severe drought and wind erosion, cost-share

assistance may be offered for emergency conservation practices only to

replace or restore farmland to a condition similar to that existing

before the natural disaster. Cost-share assistance may not be offered

for the solution of conservation problems existing before the disaster.

(b) ECP practices for which cost-share assistance may be authorized

are:

(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. 701.204 Practice approval.

Practices listed in Sec. 701.203 (b)(1) through (b)(5) may be

approved by COC's. Authorization to offer practices at Sec. 701.203

(b)(6) and (b)(7) shall be approved by the Deputy Administrator.

Sec. 701.205 Extent of cost-share assistance.

(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 the disaster under a pooling

agreement.

(b) The cost-share payments which may be made by ASCS 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 COC not to exceed:

(1) Sixty four (64) percent of the first $62,500 of the eligible

cost of restoring the loss;

(2) Forty (40) percent of the second $62,500 of the eligible cost

of restoring the loss; and

(3) Twenty (20) percent of the eligible cost above $125,000 to

restore the loss.

Sec. 701.206 Eligible costs.

Upon determination that a person is eligible for ECP assistance,

cost-share assistance may be authorized 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 COC to be related to the costs of performing the practice. COC's

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 shall be less than rates charged by contractors who

expect to make a profit for their efforts.

Sec. 701.207 Filing requests.

(a) The COC shall establish an enrollment period for filing cost-

sharing requests immediately after the COC's authorization or the

Deputy Administrator's authorization in cases of drought to implement

the ECP in the county. Such periods shall be at least 30 days in

length. Late-filed requests may be accepted by the COC in justifiable

cases.

(b) Costs will not be shared for practices or components of

practices that are started before a request is filed with the county

office.

Sec. 701.208 Approving requests.

COC's shall issue practice approvals only when:

(a) Funds are available;

(b) The requested practice has been determined eligible for cost-

share assistance; and

(c) The eligible person has indicated a readiness to start the

practice.

Sec. 701.209 Pooling agreements.

Pooling agreements may be used on the same basis as provided for at

Sec. 701.115.

Sec. 701.210 Payment approval.

The COC is authorized to approve payments not to exceed $10,000 per

person per disaster. The STC is authorized to approve payments not to

exceed $20,000 per person per disaster. Cost-share assistance in excess

of $20,000 must be approved by the Deputy Administrator.

Secs. 701.211-701.299 [Reserved]

Subpart D--Forestry Incentives Program

Sec. 701.300 Program objective.

The objective of the FIP is to help ensure a future supply of

timber will be accomplished by encouraging landowners to apply forestry

practices for:

(a) Production of softwood and hardwood timber and other associated

forest resources 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.

Sec. 701.301 Designated counties.

The STC in consultation with the State Forester will designate the

counties or parts of counties in which FIP will be operated. The

following will be considered in making the designations:

(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. 701.302 Eligible person, land, and ownerships.

(a) An eligible person is a private individual, group, Native

American 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 fifty (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

STC with the concurrence of the State Forester may approve cost-share

assistance with landowners owning more than 1,000 acres 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, wildlife habitat, watershed protection, erosion reduction,

and other resource values.

Sec. 701.303 Program funds.

(a) Each designated State and county will receive a share of the

funds provided 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 Deputy

Administrator will allocate funds after consultation with

representatives of the FS 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 STC 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 STC according to

guidelines provided by the Deputy Administrator.

Sec. 701.304 Eligible practices and cost-share assistance

requirements.

(a)(1) Cost-share assistance may be available for the following

National practices and authority:

(i) Planting Trees.

(ii) Improving a Stand of Forest Trees.

(iii) Special Forestry Practices.

(2) The Deputy Administrator after consultation with the FS, 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 COC, the service forester, the STC, and the State

forester.

(b) A forest management plan is required as a condition for cost-

share assistance. The Forest Management 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 Forest Management plan which are essential to the

effectiveness of the practice for which costs are shared. In the

development of the Forest Management 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. 701.305 The National FIP.

The National FIP is jointly developed by ASCS, the FS and the

committee of State foresters provided for in Sec. 701.303.

Sec. 701.306 Development of State FIP.

(a) A State FIP shall be developed in each applicable State or

territory according to the provisions contained in this part and in the

National FIP. The State FIP shall be developed by the State forestry

committee as provided in Sec. 701.303.

(b) The State FIP shall be:

(1) Recommended by the STC and State forester; and

(2) Approved by the Deputy Administrator after consulting with the

FS.

Sec. 701.307 Development of county FIP.

(a) A county FIP shall be developed in each designated county

according to the provisions of the State FIP. The county FIP shall be

developed by the CCRG. The CCRG, 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 county FIP shall be recommended by the COC and service

forester and approved by the STC and State forester.

Sec. 701.308 Adaptation of practices.

(a) The practices included in the State FIP shall satisfy the

conditions and requirements of the National FIP. The STC and State

Forester may modify or delete National FIP provisions to make practices

more restrictive where such changes satisfy the objectives of the

program.

(b) The practices included in the county FIP must meet the

conditions and requirements of the State FIP. The COC in consultation

with State Forestry representative or Service Forester may modify or

delete State FIP provisions to make practices more restrictive where

such changes satisfy the objectives of the program.

Sec. 701.309 Levels and rates of cost-share assistance.

(a) The maximum cost-share assistance for each practice shall be

the percentage of the actual cost of performing the practice considered

necessary by ASCS to ensure completion of the practice by the

participants.

(b) Levels of cost-share assistance shall be approved by the STC

and shall not be in excess of sixty-five (65) percent of actual costs

incurred by the landowners.

(c) For the purpose of establishing rates of cost-share assistance,

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 STC.

(d) The rates of cost-share assistance for practices included in

the county FIP may be lower than the rates approved for general use in

the State, as determined by the COC.

Sec. 701.310 Prior approval for cost-share assistance.

Costs will be shared only for those practices, or components of

practices, for which cost-share assistance is requested and approval

issued before performance is started.

Sec. 701.311 Methods of approval.

The COC shall determine the extent to which Federal funds may 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-share assistance is considered

by the COC 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 approved requests

shall be issued before the practice may be started. No practice may be

approved for cost-share assistance except as authorized by the county

FIP. Available funds for cost-share assistance shall not be allocated

on a pro-rata basis, but shall be directed to the accomplishment of the

most production attainable.

(a) Cost-share assistance may be approved under annual agreements

or long-term agreements.

(b) Land covered by a GPCP contract is not excluded from an annual

or long-term agreement if the land is otherwise eligible.

(c) The same practices, cost-share levels, and general program

provisions apply to both annual agreements and long-term agreements.

Sec. 701.312 Long-term agreements.

(a) The period of a long-term agreement shall be for not less than

three (3) years nor more than ten (10) years. The COC and the parties

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 shall be based on a forest management

plan for the land which shall be developed by the service forester.

(c) The long-term agreement shall provide that the owner shall

perform those measures in the forest management plan which are

determined to be essential regardless of whether cost-share assistance

is approved for such measures.

(d) The level of cost-share assistance 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 practices 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 fully

comply with the terms of the agreement if, after consulting with the

service forester, the STC or COC determines that the seriousness of the

irregularities warrant such action. If the agreement is canceled, the

signors 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 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 control of

the signatories to the agreement, the COC will determine whether or not

any cost-share assistance previously paid shall be refunded; however,

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-share assistance where

the COC or the STC determines, 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-share assistance which have been

paid.

(i) An agreement may be terminated if, after considering the

recommendation of the service forester, the STC or COC recommends that

such action is in the public interest.

Sec. 701.313 Restoration of practices.

(a) Cost-share assistance may be authorized under FIP for the

establishment or installation of the practices contained in this part.

Cost-share assistance 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-share assistance may be authorized for the replacement,

enlargement, or restoration of practices for which such assistance 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 a

conservation or environmental problem.

(2) The failure of the original practice was not due to the lack of

proper maintenance by the current operator.

(3) The COC 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-share assistance may be authorized for timber stand

improvement measures carried out in repetitive steps where the stand

treatment warrants such silvicultural practice in the judgment of the

service forester.

Sec. 701.314 FIP maximum cost-share assistance limitations.

For each program year, the total amount which may be received by

any person under this subpart shall not exceed $10,000 with respect to

eligible owners (Sec. 701.302) in the United States or any

commonwealth, territory, or possessions of the United States for

approved practices performed under annual or long-term agreements.

Sec. 701.315 Completion of practice.

Cost-share assistance for the practices contained in this subpart

is conditioned upon the performance of the practices according to all

applicable specifications and program provisions.

Sec. 701.316 Time of filing payment application.

Cost-share assistance will be made only upon an application

submitted to the county office by the prescribed time limit or any

authorized extension. Any application for payment may be rejected if

any information required of the applicant is not submitted to the

county office within the applicable time limit.

Secs. 701.317-701.399 [Reserved]

Signed at Washington, DC, on December 30, 1993.

Bruce R. Weber,

Acting Administrator, Agricultural Stabilization and Conservation

Service.

[FR Doc. 94-415 Filed 1-7-94; 8:45 am]

BILLING CODE 3410-05-P