ft ^47019
Rules and Regulations
Federal Register
Vol. 61, No. 174
Friday, September 6, 1996
This section- of the FEDERAL.BEGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of ,
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
• the Superintendent of Documents. Prices of-
new books are listed in the first FEDERAL
REGISTER issue of each week.
DEPARTMENT OF AGRICULTURE
Office of the Secretary
7CFRPart12
RIN0578-AA17
Highly Erodible Land and Wetland
Conservation
AGENCY: Office of the Secretary, USDA.
ACTION: Interim finalrule with request
for comments.
SUMMARY: The United States Department
of Agriculture (USDA) is issuing an
interim final rule for the Highly
Erodible Land and Wetland
Conservation provisions of the Food
Security Act of. 1985, as amended. This
interim final rule incorporates specific
changes required by the Federal
Agriculture Improvement and Reform
Act of 1996 and makes other changes to
improve the administration of these
provisions. USDA is seeking comments
from the public which will be
considered prior to issuing a final rule.
' DATES: Effective Dates: September 6,
1996.
Comments must be received by
Novembers, 1996.
ADDRESSES: All comments concerning
this interim final rule should be
addressed to Lloyd E. Wright, Director,
Conservation Ecosystems Assistance
Division, Natural Resources
Conservation service, P.O. Box 2890,
Washington, D..C. 20013-2890.
Attention: HELWC. Fax: 202-720-1838.
This rule may also be accessed, and
comments submitted, via Internet. Users
can access the NRCS Federal Register
homepage and submit comments at
http:/astro.itc.nrcs.usda.gov:6500.
FOR FURTHER INFORMATION CONTACT:
Sandra N. Penn, Conservation
Ecosystems Assistance Division, Natural
Resources Conservation Service, 202-
720-1845. . . '
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This rule has been determined to be
significant and was reviewed by the
Office of Management and Budget
. (OMB) under Executive Order 12866.
Pursuant to § 6 (a) (3) of Executive Order
12866, CCC and NRCS have conducted
an economic analysis of the potential
impacts associated with this interim
final rule.'The economic analysis
.. concluded that the past ten years of .
experience in implementing these
provisions demonstrates that the
provisions are an effective incentive to .-
implementing conservation practices.
Changes in the 1985 Act and the
implementing regulations will help to
increase that incentive by making
compliance achievable by more
producers, providing more liberal
technical assistance, and increasing
flexibility in farm operations that
deterred some producers from
participation in USDA programs in the
past. A copy of this cost-benefit analysis
is available upon request from Sandra
N. Penn, Conservation Ecosystems
Assistance Division, Natural Resources
Conservation Service, P.O. Box 1890,
Washington, D.C. 20013-1890.
Regulatory Flexibility Act
The Regulatory Flexibility Act is not •
applicable to this rule because USDA is -
not required by 5 U.S.C. 533 or any
other provisions of law to publish a -
notice of proposed rulemaking with
respect to the subject matter of this rule.
Environmental Evaluation
It has been determined through an
environmental assessment that the
. issuance of this interim final rule will .
not have a significant impact upon the
human environment. Copies of the
environmental assessment may be
obtained from Sandra N. Penn, •
Conservation, Ecosystems Assistance
' Division, Natural Resources
Conservation Service, P.O. Box 2890,
Washington, D.C. 20013-2890.
Paperwork Reduction Act
No substantive changes have been
made in this interim final rule that
affect the recordkeeping requirements
and estimated burdens previously
reviewed and approved under OMB
control number 0560-0004.
Executive Order 12788
This interim final rule has been
reviewed in accordance with Executive
Order 12778. The provisions of this
interim final rule are not retroactive
except for § 12.5(b)(4)-(8) in relation to
certain actions or determinations that
occurred after December 23, 1985,
relative to the conversion of wetlands or
the production of an agricultural
commodity upon a converted wetland. '
Furthermore, the provisions of this final
interim rule preempt State and local
' laws to the extent such laws are
inconsistent with this interim final rule.
Before an action may be brought in a
Federal court of competent jurisdiction,
the administrative appeal rights.
afforded persons at CFR parts
'11,614,780 and 1900 Subpart B of this
title, as appropriate, must be exercised
and exhausted.
Unfunded Mandates Reform Act of
•1995
Pursuant to Title II of the unfunded
Mandates Reform Act of 1995, Pub. L.
104-4, the effects of this rulemaking
•action on State, local, and tribal
governments, and the public have been
assessed. This action does not compel
the expenditure of $100 million or more
by any State, local, or tribal
governments, or anyone in the private ,
sector; therefore'a statement under <§ 202
of the Unfunded Mandates Reform Act
of 1995 is not required. :
Discussion of Provisions
' Title XE of the Food Security Act of
1985, as amended (the 1985 Act),
encourages participants in United States
Department of Agriculture (USDA)
programs to adopt land management
measures by linking eligibility for USDA
program benefits to farming practices on
highly erodible land and converted •
wetlands. In particular, the highly
erodible land provisions (HEL) of the
1985 Act provide that after December
23, 1985, a program participant is
ineligible for certain USDA program
benefits for the production of an
agricultural commodity on a field in
which highly erodible land is
predominant. Additionally, the wetland
conservation (WC) provisions of the
1985 Act provide that after December
23, 1985, a program participant is
ineligible for certain USDA program
benefits for the production of an
agricultural commodity on a converted
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47020 Federal Register / Vol. 61. No. 174 / Friday, September 6, 1996 / Rules and Regulations
wetland, or after November 28. 1990, for
the conversion of a wetland that makes
the production of an agriculture
commodity possible. The 1985 Act,
however, affords relief to program
participants who meet certain
conditions identified under the 1985
Act by exempting such actions from the
ineligibility provisions.
The USDA issued a final rule
implementing the HEL and WC
provisions of the 1985 Act on
September 17, 1987. These regulations,
found at 7 CFR part 12, provided the
terms of program ineligibility, described
the several exemptions from
ineligibility. outlined the
responsibilities of the several USDA
agencies involved in implementing the
provisions, and generally established
the framework for administration of the
provisions.
The Food, Agriculture, Conservation,
and Trade Act of 1990 (the 1990 Act),
amended the 1985 Act and made some
significant modifications to the HEL and
WC conservation provisions. These
statutory changes were incorporated
into part 12 through amendments issued
April 23, 1991, and May 23, 1991.
The implementing regulations mirror
the 1985 Act's structure by listing the
activities that will cause a person to lose
program benefits, the program benefits
that are at risk, and the conditions
under which these activities can occur
without losing program eligibility. The
current regulations are divided into.
three subparts. Subpart A describes the
terms of ineligibility, USDA programs
encompassed by its terms, the list of
exemptions from ineligibility, the
agency responsibilities, and the appeal
provisions for persons adversely
affected by an agency determination.
Subpart B describes in greater detail the
technical aspects of the highly credible
land provisions, including the criteria
for identification of highly erodible
lands, criteria for highly erodible field
determinations, and requirements for
the development of conservation plans
and conservation systems. Subpart C
describes in greater detail the technical
aspects of the wetland conservation
provisions, including the criteria for
determining a wetland, the criteria for
determining a converted wetland, and
the uses of wetlands and converted
wetlands that can be made without
losing program eligibility.
Since December 23, 1985, program
participants have farmed in a more
sustainable manner, resulting in more
soil remaining on the field and more
wetlands remaining available to wildlife
and migratory fowl. Meeting the
objectives of the HEL and WC
provisions, however, has been difficult
for some producers. Wherever possible,
USDA helps individual program
participants address their unique
resources concerns in a manner that
meets the requirements of the HEL' and
WC provisions. The Federal Agriculture
Improvement and Reform Act (the 1996
Act), enacted April 4, 1996, made
several modifications to the HEL and
WC provisions which will increase
USDA's ability to meet these individual
situations in a more flexible manner.
i
The Federal Agriculture Improvement
and Reform Act
The 1996 Act amendments to the HEL
and WC provisions became effective 90
"days after the date of ejnactment, I.e.,
July 3, 1996. Accordingly, delaying
implementation of this rule would be
contrary to the public interest and it has
been determined that this rule should,
therefore, be effective When issued but
subject to further review based on '
comments submitted in response to this
interim final rule. i
The 1996 Act made the following
changes to the implementation of the
HEL and WC provisions:
• Adds new programs to the list of
USDA program benefits covered.
• Deletes some programs from the list
of USDA program benefits covered.
• Under certain conditions, allows a
person who is determined to be
ineligible for USDA program benefits
because of failure to apply a
conservation system up to 1 year to
implement 'the necessary practices
without loss of benefits.
• Provides for expedited variances
related to weather, pes^, and disease
problems and establishes a time period
to render a decision on whether to grant
those variances. ! .
• Requires a measurement of soil
erosion on a highly erodible field prior
to the implementation [of a conservation
system, based on estiirjated average
annual soil erosion rates.
• Provides for self-certification of
compliance for HEL and authorizes the
Natural Resources Conservation Service
(NRCS) to exclude that person from
status review on the basis of that
certification of compliance.
• Provides for revision or
modification of a conservation plan by
a person if the same level of treatment
is maintained. ;
• Permits a person to use, on a field-
trial basis, conservation practices other
than those currently approved if NRCS
determines in advance that the practices
have a reasonable likelihood of success.
• Provides for a review, and relief to
a person, by the local county committee
if applying a conservation system would.
cause the person undue economic
hardship.
• Requires that an employee of USDA
who notices a conservation compliance
deficiency on a person's farm while
providing technical assistance on other
land inform the person of the deficiency
and actions necessary to come into
compliance, and allow up to 1 year for
the person to fully implement corrective
action before reporting the observation
as a compliance violation.
• Requires that highly erodible land
exiting the Conservation Reserve
Program not be held to a higher .
conservation compliance standard than
similar cropland in the same area.
• Permits a person to cease using
farmed wetlands, or farmed-wetland
pastures, as identified by NRCS, for
cropping or forage production, and
allows the lands to return to wetland
conditions, and subsequently bring
these lands back into agricultural
production after any length of time
without loss of eligibility for USDA
program benefits, given certain
conditions.
• Allows flexibility in determining
the programs for which a person who
violates wetland conservation
provisions will become ineligible.
/ • Ensures that persons the right to
request and appeal a certified wetland
determination.
• Provides that a certified wetland
delineation will remain in effect until
the person requests a new determination
and certification.
• Ensures that wetlands that were
certified as prior-converted cropland
will continue to be considered prior-
converted cropland even if wetland
characteristics return as a result of lack
of maintenance of the land or other
circumstances beyond the person's
control provided the prior-converted
cropland continues to be used for
agricultural purposes.
• • Requires USDA to identify on a
regional basis which categories of
activities constitute a minimal effect on
wetland functions and,values.
• Provides persons who convert a
wetland greater flexibility to mitigate
the loss of wetland functions and values
through restoration, enhancement, or
creation of wetlands.
• Allows the Farm Service Agency
(FSA) to waive a person's ineUgibility
for benefits if FSA believes the person
acted in good faith and without intent
to violate the wetland provisions.
• Provides for a pilot program for
. wetland mitigation banking.
• Repeals the requirements for
consultation with the Fish and Wildlife
Service (FWS).
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Federal Register / Vol. 61, No. 174 / Friday, September 6. 1996 / Rules and Regulations 47021
• Provides that benefits of affiliates of
a business enterprise who violate HEL
or VVC provisions will be reduced in
proportion to the interest held by the
affiliate in the business enterprise.
• Defines "agricultural lands" for the
purpose of implementing the January 6,
1994, interagency memorandum of
agreement on Federal wetland
delineations on agricultural lands.
Public Listing Forums
In April 1996, USD A held nine
forums to provide opportunities for
public comment in advance of this ••'
rulernaking action. These forums were
held at Sacramento, California;
Longmont, Colorado; Columbus,
Georgia; Springfield, Illinois;
Wyomissing, Pennsylvania; Sioux Falls,
South Dakota; Abilene, Texas, Spokane,
Washington; and, Washington, D.C.
More than 850 people, including 206
speakers, attended these forums. In
addition, USDA accepted written
comments. The USDA considered the
public comments provided at these
forums in the preparation of this interim
final rule. The documents,relating .to
these forums are available for public
inspection at Room 6029 South
Building, USDA, 14th and
> Independence Ave. SW, Washington,
D.C. The following discussion is a brief
Ssummary of how USDA responded to
the issues generated by the comments:
USDA received seven comments
related to the granting of variance for
persons who fail to meet the highly
erodible land conservation
requirements. Section 12.5(a)(6)(ii) -•
addresses procedures for granting
. variances for weather, pest, and disease
, problems, and the factors that NRC.S
will consider in granting those
variances.
USDA received three comments
related to procedures for determining
whether a conservation system results
in a substantial reduction in erosion.
Section 12.23 addresses procedures for
evaluating conservation systems for
land with and without cropping history.
USDA received 25 comments related
to policies regarding when a violation is
in good faith. Sections 12.5(a)(5) and
(b) (5) address procedures for • •'
determining when a violation is in good
faith. ' ' .
USDA received 16 comments related
to procedures for conducting status
reviews. Although procedures for
conducting status reviews are not
addressed in the rule, the NRCS will
consider'these comments in preparing
its internal operating procedures.
USDA received 46 comments related
to*procedures on wetland mitigation;
' these included the suggestion that
mitigation always be in the same
watershed; that mitigation should place.
priority on restoration or enhancement
rather than creation of wetlands; that
mitigation should be flexible; and, that
mitigation should meet the
requirements of the WC provision.
Section 12.5(b)(4) sets forth procedures
to be used for wetland mitigation, and
.adds that the State Conservationist may
determine that mitigation for certain
types .or classes of wetlands will not be
considered because it is not possible to
achieve equivalent replacement of
wetland functions and values within a
reasonable time frame, USDA received '
another 28 comments related to
mitigation banking.
. USDA received 68 comments related
to certification of wetland
determinations. Some commenters
favored reviewing all wetland
determinations and correcting errors;
other commenters favored not reviewing
existing wetland determinations. Some,
commenters suggested that landowners
should be formally notified of the
certification of wetland determinations.
Some commenters suggested that NRCS
should be the lead agency for wetland
determinations. Section 12.30(c)
describes the proposed approach to
certification of Wetland determinations.
It also specifies that a certified wetland
determination will remain valid and in
effect until the person affected by the
certification requests review of the
certification by NRCS.
USDA received 17 comments related
to the role of FWS in carrying out the
wetland conservation provisions. Of
these, four commenters expressed
support for FWS involvement and eight
commenters favored decreasing, the role
of the FWS. Five commenters made no
specific recommendation. The 1996 Act
removed the requirement for \
consultation with FWS, and that
requirement has been removed from the
rule. In addition, § 12.30 defines the role
of the FWS in carrying out the wetland •
conservation provisions.
USDA received 36 comments related
to prior-converted cropland issues and
abandonment of wetlands. Of these, 19
commenters expressed support for the
"once a PC, always a PC" change made
by the 1996 Act; three commenters
expressed concern .over that change.
Section 12.33 incorporates changes
made by the 1996 Act amendments.
USDA received four comments stating
that NRCS should withdraw from the
Interagency Memorandum of Agreement
on Wetlands (MOA) with FWS,
Environmental Protection Agency
(EPA), and the U.S. Army Corps of
Engineers (Corps). This comment is
outside the scope of this rule, but as
discussed in greater detail below, NRCS
is dedicated to continued coordination
with the other Federal agencies with
wetland responsibilities. Currently, the
MOA provides a useful and available
framework for this coordination.
Description of Amendments
As the summary of the forum
comments indicates, the statutory
changes affect provisions throughout 7
CFR part 12. Because of these numerous
changes, USDA will republish part 12 in
its entirety to, help the public form
opinio'ns and offer comments.-When
USDA reviews the comments received
from the public, those comments
concerning new regulatory provisions
will receive greater consideration.
. In addition to revisions necessary to
accommodate changes in the Ac.t, USDA
makes several changes tojnterpret,
clarify, or specify procedures followed
in the implementation for the HEL and
WC provisions. USDA invites public
comment on these changes.
Amendments to the HEL Provisions
USDA finds that the following
regulatory changes will improve the . ;.
quality of implementation of the HEL
provisions of the 1985 Act: :
; « Section 12.5(a)(6)(ii),is amended to
list factors that NRCS will consider
when a landowner requests a variance
related to weather, pest, or disease
problems. .
• Section 12.22(cJ"is added to clarify
that when fields are combined, the part
of the new field that was previously a'
highly erodible field shall continue to
be subject to the'highly erodible land .
requirements. '
• .Section 12.23(a) is amended to
clarify that the adequacy of a
conservation system will be evaluated.
according to whether it conforms to the
NRCS field'office technical guide in use
at the time that the plan or system is
developed or revised.
• Section 12.23(b) is added to clarify
procedures to be used to evaluate the
adequacy of conservation systems for
achieving substantial reduction in soil
erosion on land with and without
cropping history.
• Section 12.23(c) is added to specify
that conservation field trials included in
a person's conservation plan must have
prior approval by NRCS arid must.be
documented in the person's
conservation plan specifying the limited
time period during which the field trial
is in effect.
« Section 12.23(j)'sets forth the
factors to be considered by the FSA
State Committee in determining
whether to grant a person's request for
relief based on undue economic
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47022 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations
hardship in implementing a
conservation system. .
Amendments to the WC Provisions
USDA finds that the following
changes will improve the
implementation of the WC provisions of
the'1985 Act (WC provisions):
Identification of wetland types: The
WC provisions clearly limit the
conversion of wetlands and the planting
of an agricultural commodity on a
converted wetland, yet the technical
identification of when these provisions
are triggered can prove complex. Even
though the 1985 Act implicitly
identifies three distinct land types
(wetlands, converted wetlands, and
non-wetlands), the inherent complexity
of natural systems and the diversity of
land management methods available to
an agricultural producer require that
greater sophistication be used in
application of broad national standards
to local conditions. Some areas of land
have been planted to an agricultural
commodity but still exhibit the
characteristic of a natural wetland if
cropping ceases for even a short period
of time. Likewise, areas managed for hay
or pasture can exhibit the characteristics
of a natural wetland if the management
of the area ceases. Some activities can
permanently remove most of the water
from an area without making the
production of an agricultural
commodity possible while natural
events can make the production of an
agricultural commodity possible
without permanently removing water
from an area.
Since 1987, USDA has identified in
policy the threshold characteristics-that
define when: a wetland has been
manipulated sufficiently to make the
production of an agricultural
commodity possible; a wetland is
"converted;" conditions meet a
particular exemption identified under
the 1985 Act: and a producer has
expanded the drainage system beyond
what existed prior to December 23,
1985. The USDA is adding definitions to
§ 12.2 to state more precisely the variety
of wetland types found in the .
agricultural landscape. Section 12.5 and
§§ 12.30-12.33 are amended to describe
how these wetland types relate to
particular exemptions from ineligibility.
In this manner, agricultural producers
are provided the maximum flexibility to
manage their lands in a manner that will
not trigger the ineligibility provisions of
the 1985 Act.
Coordination with other Federal
agencies: Consistent with the intent
expressed in the Manager's Report
accompanying the 1996 Act
amendments, the changes made in this
rule "do not supersede the wetland
protection authorities land
responsibilities of the Environmental
Protection Agency [EPAJ or the Corps of
Engineers [the Corps] under Section 404
of the Clean .Water Act." This rule is
promulgated under the authority of the
1985 Act, as amended^ and therefore
does not affect the obligations of any
person under other Federal statutes, or
the legal authorities of; any other Federal
agency including, for example, EPA's
authority to determine the geographic
scope of Clean Water Act jurisdiction.
Nonetheless, NRCS, the Corps, and EPA
place a high priority op adopting
, procedures and policies that minimize
duplication and inconsistencies
between the wetland conservation
provisions of the 1985| Act and the , •
Clean Water Act section 404 programs.
To help achieve these jimportant policy
objectives, on January i6, 1994, four
Federal agencies with Iwetland
responsibilities (USDA,, EPA, the
Department of the Interior, the
Department of the Army) entered, into a
Memorandum of Agreement (MOA),
regarding the delineation of wetlands
for purposes of section 404 of the Clean
Water Act and the WC( provisions. This
MOA provides a framework for
continuing coordination between the
Federal agencies regarding the
administration of Federal wetland laws.
Consistent with the objectives of the
. MOA, the NRCS will continue to
coordinate with the otjier Federal
agencies in the development of its
policies and procedures related to the
implementation of these regulations.
More specifically, the agencies will
coordinate to develop policies and
procedures for evaluating the accuracy
of existing non-certified wetland
determinations made by NRCS. The
necessary first step in|these procedures
will be to make an assessment of the
quality of previous determinations.
After completing the quality assessment,
in order to provide certainty for the
agricultural community, the Federal
agencies will complete the process of
validating prior determinations in.an
expeditious manner. I
It is also the goal of [the agencies to
minimize duplication; and
inconsistencies between the WC
provisions and the Clean Water Act. The
agencies will coordinate to develop
policies and procedurps to. minimize
duplication and inconsistencies
between the WC provisions and the
.Clean Water Act programs regarding
other issues; in particular, conversion
for non-agricultural use, minimal effects
determinations (including categorical
minimal effects exemptions), mitigation
determination, or other written
agreements between persons and NRCS,
the re-establishment of agriculture use
on abandoned farmed wetlands and
farmed-wetland pasture, conversions
due to NRCS wetland determination
errors, and drainage maintenance. As
part of this effort, the Corps intends to
develop a new Clean Water Act
nationwide permit that addresses NRCS
minimal effects determinations, NRCS
mitigation requirements, and modify the
existing nationwide permit that
addresses voluntary wetland restoration
(See 61 FR part VII (June 17, 1996)).
In the MOA, the agencies agreed to
follow certain guidelines for delineating
wetlands. The MOA agencies currently
use the 1987 Corps of Engineers
Wetland Delineation Manual (1987
Corps Manual) for delineating wetlands
on areas where the native vegetation is ,
intact (i.e., non-agricultural lands) and
use the National Food Security Act
Manual, Third ed. (NFSAM), for
delineating wetlands on areas where the
native vegetation has been removed due
to ongoing agricultural activities (i.e.,
agricultural lands).
Copies of the NFSAM and the MOA
are available from the NRCS, P.O. Box
2890, Washington, D.C., 20013. Copies
of the 1987 Corps Manual are available
from the National Technical Information
Service (NTIS), 5285 Port Royal Road,
Attn: Order Department, Springfield,
Virginia, 22171. Copies of the
Supplemental guidance issued by the
Corps concerning use of the 1987
Manual (i.e., the October 7, 1991,
Questions and Answers, and the March
6, 1992, Clarification and Interpretation
"Memorandum) may be obtained by •
contacting the Regulatory Branch of the
local Corps district, the EPA Wetlands
Hotline at (800) 832-7828, or the
Regulatory Branch of Corps
headquarters (Office of the Chief of
Engineers) at (202) 272-0199. NRCS will
publish notice in the Federal Register
concerning a change in the Federal
wetland delineation criteria that may be
used in implementation of the WC
provisions.
" This interim final rule, however, only
applies to administration of Tide XII of
the 1985 Act. As discussed earlier, the
four agencies have identified a need to
expand and revise the MOA to assure
consistency and fairness in the
implementation of these acts. The
current MOA will remain in effect until
it is amended or rescinded by the four
agencies.
A goal of the Administration's 1993
Wetlands Plan is to harmonize the WC
provisions and the Clean Water Act to
the extent practicable. These regulations
are modified in several ways to further
the President's Wetlands Plan. In
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Federal Register / Vol. 61. No. 174 / Friday. September 6, 1996 / Rules and Regulations 47023
particular, § 12.5(b)(5) provides that
when a person requests relief on the
basis that an action was conducted in
good faith, USDA may consider whether
the person has a record of violating the
wetland provisions of these regulations
. or other Federal, State, or local wetland
provisions. "
Additionally, § 12.6(e) is added to
, state that NRCS may accept the
assistance of other Federal agencies to
carry out the wetland responsibilities of
these regulations. Sections 12,30(a) and
(b) provide that NRCS will consult with
FWS at the State level to develop a
process for implementation of the WC
provisions.
Section 12.30(c).describes the
procedure for certification of wetland '•
determinations and specifies that
certified wetland determinations will
meet current Federal mapping
conventions.
A certified wetland determination
.will remain in effect unless the person
affected by the certification requests a
review under certain circumstances or
the wetland characteristics are changed
as a result of human activities.
Section 12.31(b)(3) is amended to
provide that the determination of
prevalence of hydrophytic vegetation
, will be made in accordance with the
current Federal wetland delineation
methodology in use at the time of the
determination. This change assures that
the four agencies will utilize consistent
and up-to-date technicalstandards and
criteria.
Summary of Rule Modifications
Based on the changes in the 1996 Act
and the other considerations set forth
above, the changes to 7 CFR part 12
adopted in this notice are as follows:
SubpartA
This interim final rule adds several
new definitions to § 12.2. The
Department of Agriculture
Reorganization Act of 1994 abolished
several agencies and established new -
agencies to assume Department
responsibilities. Therefore, § 12.2 is
amended to reflect the new agencies
with responsibilities for implementation
of these regulations.
Section 12.2: This interim final rule
adds new definitions for "conservation
plan," "conservation system," and
"field" as stated in the statute. It also
adds several new definitions related to
types of wetlands and management
actions related to wetlands that have
previously only been identified in
policy. Definitions for "prior-converted
•cropland," "farmed wetland," "farmed-
wetland pasture," and "commenced-
conversion wetland" have been added.
Other provisions of the rule have been
amended, including § 12.5 and
§§ 12.31-.33, to incorporate these new
definitions where applicable.
The 1996 Act amendments provide
that a person who converts a wetland
may remain eligible for USDA program
benefits if the loss of wetland functions
and values are mitigated through the
restoration, enhancement, .or creation of
a wetland. Therefore, definitions for
"creation", "enhancement", and
"restoration", have been added to
clarify this new flexibility.
Section 12.3: This, interim final rule
applies to all actions taken after July 3,
1996, and to determinations made after,
or pending on, July 3, 1,996, the date on
which the HEL and WC statutory
amendments become effective. This
section is amended to reflect the passage
of the 1996 Act and the scope of these
new provisions.
Section 12.4: Section 12.4 describes
the actions that will cause a person to
lose eligibility for USDA program
benefits and the program benefits that
are subject to reduction or loss. The
1996 Act treats HEL and WC differently
regarding the programs encompassed by
each provision and the extent of-the
sanctions if the provisions are violated.
Section 12.4 deletes applicability to
some programs, such as crop insurance
and obsolete programs. A person who
violates the WG provisions may lose all -
or only a portion of certain USDA
benefits, but a person who violates HEL
could lose all of of these same benefits
and additional program benefits.
Sections 12.4(c) is amended to include
an interpretation of which crop year's
benefits are affected by a violation
decision, and sets forth the factors that
FSA will consider in determining the
extent of benefits to be lost based on the
seriousness of the violation.'
Section J2.5:The 1996 Act
amendments modify the provisions of
§ 12.5 regarding the exemptions from
ineligibility for USDA program benefits.
Section 12.5 (a) addresses the
exemptions that apply to HEL and
§ 12.5 (b) addresses the exemptions that
apply to WC.
. Section 12.5(a)(5) specifies that HEL
violations that are determined to have
been made in good-faith are eligible for
graduated sanctions if they were on land
that was converted from native
vegetation, i.e., rangeland or woodland,
to crop production after December 23,
1985. For good faith violations' on land
that was converted from native
vegetation, i.e., rangeland or woodland,
to crop production before December 23,
1985, the person will be allowed up to
one year to correct the problem before
being found ineligible. After one year, if
the problem is not corrected, the-
ineligibility provisions of § 12.4 will
apply. Section 12.5 (a) (6) .grants an
automatic variance if within'30 days
NRCS fails to respond to a persons
request for a variance because of
weather, pest, or disease. It describes
criteria that NRCS will consider when
determining whether to grant a variance
for a natural disaster such as weather,
pest, or disease. NRCS is especially
- soliciting comments on how these
criteria may be specified to ensure that
variances are granted where
.. appropriate. . • .
Under § 12.5(b), the exemptions from
ineligibility relative to wetland
conservation, there exists a new
exemption for land that was certified as
having been converted prior to
December 23, 1985, (prior-converted
croplands), but had returned to wetland'
characteristics after that date. This
exemption provides that if certain
requirements are met, ,a prior-converted
cropland willYibt be considered
abandoned for purposes of
implementation of these regulations.
„ Likewise, there exists another new
exemption for areas that NRCS
determined were manipulated but were
not completely converted prior to
December 23, 1985, (farmed wetlands '
and farmed-wetland pastures), but may
revert to wetland status through a
voluntary restoration, enhancement, or
creation action. This exemption
provides that if certain requirements are
met, the area will not be considered
abandoned for purposes of
implementation of these regulations.
These exemptions do not address how
the Corps may treat these wetland types
for purposes of section 404 of the Clean
Water Act. The Corps has a notice in 61
FR part Vfl~ (June 17, 1996) to issue,
reissue, and modify the nationwide
permits for section 404 of the Clean.
Water Act that addresses these issues.
The 1996 Act provides that certain
wetland conversion activities that were '
conducted pursuant to a permit issued
under section 404 of the Clean Water
Act may be exempt from ineligibility "
under the WC pro visions,, if the. '
conversion activity was adequately
mitigated for purposes of these
provisions. This rule provides that a
person who received an individual .
permit under section 404 of the Clean
Water Act after December 23, 1985, and
met certain sequencing requirements, is
exempt from the ineligibility provisions
of these regulations.
This rule, however, provides that a
person 'whose conversion activity is
encompassed by a nationwide or
regional general permit issued pursuant .
to section 404 of the Clean Water Act
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47024 Federal Register / Vol. 61, No. 174 /'Friday, (September 6, 1996 / Rules and Regulations
may not be exempt under these
regulations. USDA will evaluate
whether any mitigation was required,
and whether the wetland functions and
values lost by the conversion activity
were adequately replaced before USDA
decides whether the conversion activity
is exempt from ineligibility under these
regulations.
The regulations that existed prior to
this interim final rule described a
detailed procedure by which a person.
could receive a commenced conversion
determination from FSA. Persons who
believed that they qualified for such a
determination had to request one from
FSA by September 19, 1988. The
purpose of the determination was to
minimize any unnecessary economic
hardship to someone who had incurred
substantial financial obligations related
to the conversion of a wetland prior to
December 23,1985, but had not actually
converted the wetland by that date. Any
person who received a commehced-
conversion wetland determination had
to complete the conversion activity by
January 1,1995, to retain the exemption
status. Because the commenced
conversion determination had to be
received by 1988 and the conversion
had to be completed by the end of 1994,
the references in the rule related to the
process to obtain a determination have
been removed. If a person completed
conversion activity by January 1,1995,
the land will qualify for the same
exemptions from ineligibility as prior-
converted cropland. If, however, a
person did not complete the conversion
activity by that date, the land will be
subject to the same requirements under,
this rule as farmed wetlands.
The 1996 Act provides that a person
may remain eligible for an action
resulting in the conversion of a wetland
if the wetland functions and values are
adequately mitigated through the
restoration of a converted wetland, the
enhancement of an existing wetland, or
the creation of a new wetland. Section
12.5(b)(4) provides that this exemption
applies if the mitigation is completed in
accordance with several requirements,
including that the person implement a
mitigation plan approved by NRCS. The"
mitigation plan may be a single
document or it may be a component of
a larger conservation plan created
voluntarily by the program participant.
The requirements for this exemption are
similar to the requirements for
restoration of a converted wetland
under the current regulations, such as
the granting of an easement to USDA,
recording an easement on the public
land records, and that such mitigation
not be at the expense of the Federal
government.
The 1996 Act provides that USDA
may e'xpend Federal funds for the
establishment of a pilot program for
mitigation banking. USDA has not yet
decided whether it will establish such a
pilot program or what the particulars of
such a program would be. During the
public comment period, USDA is
especially soliciting comments from the
public regarding this subject. " ,
The 1996 Act removes the
requirement for graduated sanctions if
the FSA determines that a wetland
violation was committed in good faith.
Central to the determination about
whether a person acted in good faith is
the knowledge available to the person
concerning the existence of a wetland
oh the subject land. This knowledge can
either be direct, such as information
received from NRCS in the form of a
wetland determination, or can be
inferred from a person's past experience
with violating wetland laws or
regulations. This interim final rule
provides that if a person is considered
to have acted in good [faith and the
person agrees to implement a mitigation
plan, then USDA may waive applying
the ineligibility provisions of § 12.4.
Section 12.6:Sectidfi 12.6 concerns
the respective responsibilities of USDA
agencies; the new responsibilities
created by the 1996 Abt have been
added. Section 12.6(b) is amended to
specify that FSA is responsible for
determining the extent of reduction in
benefits for wetland violations based on
the Seriousness of the 'violation, and for
determining whether a person should
receive relief because Application of a
conservation system would result in
undue economic hardship. Section
12.6(c) is amended to reflect that NRCS
is responsible for providing information
to FSA relating to the jseriousness of a
violation. '.
In response to the n^ed to coordinate
with the MOA agencies regarding
wetland determinations, a new
paragraph has been added to § 12.6 New
paragraph (f) provides that NRCS may
accept the assistance of the MOA
agencies in implementing these
regulations. This paragraph also
confirms that NRCS Will continue to
seek the coordination pf.the other
agencies on wetland matters to increase
the public's understanding of the
importance of wetland functions and
values and the objectives of the WC
provisions and the Clean Water Act.
Section j!2.7:Sectioh 12.7 addresses
certification by a program participant
that such participant is in compliance
with the HEL and WCj provisions.
Section 12.7 is amended to allow a
person to certify application of practices
jn a plan or measurement of residue
required by a plan.,
Section 12.8: Section 12.8 is amended
to revise the definition of affiliated
persons for the purpose of determining
whose benefits may be affected by a
decision and to what extent. In
particular, § 12.8(b) is amended to
provide that spouses who provide
sufficient evidence of separate
operations shall not be considered
affiliates, and partnerships, trusts, and
joint ventures are not considered
affiliates, if the interest is held indirectly
through another business enterprise..
Section 12.8(d) limits the reduction in
payments for partnerships, joint
ventures, trust, or other enterprises to
the extent of interest held by the person
responsible for the violation. Section
' 12.8(e) states that limitations on
affiliations if action has been taken to
avoid payment reductions for
partnerships, joint ventures, trusts, or
the application of the sanctions
provided for in the regulations.
Subpart B
Section 12.21: Section 12.21 is
amended to include a reference to
publication of soil loss equations at 7
CFRpart610.
Section 12.22:-Section 12.22 is
amended to allow combining HEL and
non-HEL fields, but the requirements of
these regulations continue to apply to
the previous HEL portion only.
Section 12.23: Section 12.23 is
amended to specify that: conservation
systems shall be technically and
economically feasible (based on local
resource conditions and available
technology), cost effective, arid shall not
cause undue economic hardship; the
standard for determining whether a plan
provides a substantial reduction in
erosion is the estimated annual level of
erosion compared to the level before the
system is applied; for new land brought
into production, in no case will the
required conservation system permit a
substantial increase in erosion;
procedures for conducting field trials as
on-farm reseach; and procedures and
criteria used by FSA when a person
requests relief based on undue
economic hardship.
Subpart C '
Subpart C addresses the technical
responsibilities of NRCS and the
technical criteria used to make the
necessary determinations for wetland
cpnseryation under these regulations.
Section 12.30: Section' 12.30 is
amended to reflect that NRCS .will
continue to work with the Corps, EPA,
and FWS to improve the quality of
wetland determinations and other
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Federal Register / Vol. 61. No. 174 / Friday, September 6, 1996 / Rules and Regulations 47025
processes that affect the implementation
of the WC provisions.
The 1996 Act repealed the .
requirement for consultation with FWS,
thus allowing the Secretary to determine
under what circumstances FWS should
be utilized in the implementation.of the
WC provisions. Section 12.30 is : "
amended to reflect that NRCS will
develop a process at the State level, in
coordination with FWS, for
implementing the WC provisions and
review such implementation oh an
annual basis. The technical expertise of
FWS may be utilized whenever NRCS
determines that such expertise is
needed to address adequately the
requirements of the WC provisions or to
enhance the quality of implementation.
Under the new, mitigation flexibility '•
provided by the 1996 Act, the expertise
, of FWS will be valuable for conducting
wetland functional assessments
associated with minimal effects
determinations and formulation of
mitigation plans. The State-level process
is intended, in part, to identify any
geographic or programmatic areas where
NRCS may need additional technical
expertise to assess biological impacts of
proposed wetland conversions.
Section 12.30 is also amended to
address the process for certification of
wetland determinations for the
implementation of the WC provisions of
the 1985 Act. If NRCS certified a
wetland determination prior to July 3,
1996, the certification will remain valid.
Upon request, a person may obtain
certification of a wetland determination.
A certified wetland determination
means that the determination is of
sufficient quality to make a
determination of ineligibility for
program benefits under these
regulations. As indicated above, NRCS
will continue to work with the other
MOA agencies to coordinate the :
identification and certification of
wetlands for the purposes of these
regulations and for the Clean Water Act.
The agencies recognize the importance
of providing certainty for the
agricultural community as to the status
of their wetland determinations which
have not been certified. The Federal
agencies are therefore considering
establishing a specific time frame for
completing the evaluation of existing
wetland determinations. During this
time frame, an evaluatiqn would be
made as to the accuracy of wetland,
determinations within a given
geographic area or of a specific type of
wetland. Based on the evaluation,
landowners would be notified whether
their current wetland determinations are
acceptable for both the WC provisions
and the Clean Water Act. USDA is
especially seeking comments regarding
implementatipn of this process.
Section 12.31; Section 12.31 is
amended to reflect that NRCS will
utilize the!987 Corps Manual for
determining the prevalence of
hydrophytic vegetation. Section 12.31 is
also amended to add the criteria for
determining "categorical minimal effect
exemptions." If NRCS identifies any
categories of conversion activities and
conditions which would only have a
minimal effect .on wetland functions
and values, then such activities and
conditions will be placed on a list of
"categorical minimal effect exemptions"
and such conversion activities and
conditions will be considered exempt
from the ineligibility provisions of these
regulations. NRCS will incorporate such
activities and conditions in the
provisions of these regulations USDA is '
especially seeking comments regarding
implementation of this new exemption.
For purposes of the Clean Water Act, the
Corps intends to address this provision
as part of its reissuance of the Clean
Water Act section 404 nationwide
permits (See 61 FR part VII Qune 17,
1996)). ,
Sections 12.32 and 12.33: Sections
12.32 and 12.33 have been amended to
incorporate the definitions .for farmed
wetland, farmed-wetland pasture,
commenced-conversion wetland, and
prior-converted cropland, where
appropriate.
Section 12.33: Section 12.33 has also,
been amended to modify the conditions
under which NRCS will consider a .
particular site to be abandoned for
purposes of these regulations. A person
who wishes to allow a particular site to
revert to wetland conditions should
contact NRCS to ascertain what
documentation is necessaryto prevent
such land from being considered
abandoned for purposes of the WC
provisions of these regulations. For
purposes of the Clean Water Act, the
Corps intends to address this provision
as part of its re-issuance of the Clean
Water Act section 404 nationwide -
permits (See 61 FR part VH 0une 17,
1996)).
The amendments to part 12 do not
affect the recordkeeping requirements
and estimated .burdens previously
reviewed and approved under .Office of
Management and Budget control
number 0560-0004.
List of Subjects in 7 CFR Part 12
Administrative practices and
procedures. Soil Conservation,
Wetlands.
Accordingly, Title 7 of the Code of
Federal Regulations is amended by
revising Part 12 as follows:
PART 12—HIGHLY ERODIBLE LAND
AND WETLAND CONSERVATION
Subpart A—^General Provisions
Sec. .
12.1 General.
12.2 Definitions:
12.3 Applicability.
12.4 Determination of ineligibility. , '
12.5 Exemptions. '
12.6 Administration.
12.7 Certification of compliance.
12.8 Affiliated persons.
12.9 Landlords'and tenants.
12.10 Scheme or device.
12.11 Action based upon advice or action of
USDA. ' . .
12.12 Appeals.
Subpart B—Highly Erodible Land
Conservation
12.20 NRCS responsibilities regarding
highly erodible land.
12.21 Identification of highly erodihle lands
criteria. •
12.22 Highly erodibie field determination
criteria.
12.23 Conservation plans and conservation
systems.
Subpart C—Wetland Conservation
1.2.30 NRCS responsibilities regarding
wetlands.
12.31 Onn-site wetland identification
criteria. . •
12.32 Converted wetland identification
criteria.
• 12.33 Use of wetland and converted
wetland.
12.34 Paperwork Reduction Act assigned
number. '.
Authority. 16 U.S.C. 3801 etseq.
Suppart A—General Provisions
v . S • ,
§12.1 General.
.(a) Scope. This part sets forth the
terms and conditions under which a
person who produces an agricultural
commodity on highly erodible land or
designates such land for conservation
use, plants an agricultural commodity
on a converted wetland, or converts a
wetland shall be. determined to be
ineligible for certain benefits provided
by the United States Department of ,
Agriculture (USDA) and agencies and
instrumentalities of USDA.
(b) Purpose. The purpose of the
provisions of this part are to remove
certain incentives for persons to
produce agricultural commodities on
highly erodible land or converted
wetland and to thereby—
(1) Reduce soil loss due to wind and
water erosion;
(2) Protect the Nation's long-term
capability to produce food and fiber;
(3) Reduce sedimentation and
improve water quality; and
(4) Assist in preserving the functions
and values of the Nation's wetlands.
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47026 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations
§12.2 Definitions.
, (a) General, The following definitions
shall be applicable for the purposes of
this part:
Agricultural commodity means any
crop planted and produced by annual
tilling of the soil, including tilling by
one-trip planters, or sugarcane.
CCC means the Commodity Credit
Corporation, wholly-owned government
corporation within USDA organized
under the provisions of 15 U.S.C. 714 et
seq.
Conservation District (CD) means a
subdivision of a State or local
government organized pursuant to the
applicable law to develop and
implement soil and water conservation
activities or programs.
Conservation plan means the
document that— .
(1) Applies to highly erodible
cropland;
(2) Describes the conservation system
applicable to the highly erodible
cropland and describes the decisions of
the person with respect to location, land
use, tillage systems, and conservation
treatment measures and schedules; and
(3) Is approved by the local soil
conservation district in consultation
with the local committees established
under section 8(b)(5) of the Soil
Conservation and Domestic Allotment
Act (16 U.S.C. 590h(b)(5)) and the
Natural Resources Conservation Service
(NRCS) for purposes of compliance with
this part.
Conservation system means a
combination of one or more
conservation measures or management
practices that are—
(1) Based on local resource
conditions, available conservation
technology, and the standards and
guidelines contained in die NRCS field
office technical guides (available from
NRCS State offices); and
(2) Designed for purposes of this part
to achieve, in a cost-effective and
technically practicable mariner, a
substantial reduction in soil erosion or
a substantial improvement in soil
conditions on a field or group of fields
containing highly erodible cropland
when compared to the level of erosion
or soil conditions that existed before the
application of the conservation
measures and management practices.
Conservation use or set aside means
cropland that is designated as
conservation-use acreage, set aside, or
other similar designation for the
purpose of fulfilling provisions under
any acreage-limitation or land-diversion
program administered by the Secretary
of Agriculture requiring that the
producer devote a specified acreage to
conservation or other hon-crop
production uses.
Creation of a wetland means the
development of the hydrologic,
geochemical, and biolbgical components
necessary to support and maintain a
wetland where a wetland did not
previously exist. Any Wetland
established on a non-hydric soil will be
considered a created \yetland.
CSREES means the Cooperative State
Research, Education, and Extension
Service, an agency of (JSD A which is
generally responsible for coordinating
the information and educational ,
programs of USDA. ;
Department means the United States
Department of Agriculture (USDA).
Enhancement of a wetland means the
alteration of an existing wetland to
increase its specific functions and .
values. Enhancement actions include
new capabilities, management options,
structures, or other actions to influence
one or several functions and values.
Erodibility index means a numerical
value that expresses the potential
credibility of a soil in relation to its soil
loss tolerance value without
. consideration of applied conservation
practices or management.
FSA means the Farm Service Agency,
an agency of USDA which is generally
responsible for administering
commodity productioit adjustment and
certain conservation programs of USDA.
Field means a part ojf a farm, that is
separated from the balance of the farm
by permanent boundaries such as
fences, roads, permanent waterways, or
other similar features. jAt the option of
the owner or operator of the farm,
croplines may also be used to delineate
a field if farming practices make it
probable that the croplines are not
subject to change. Any highly erodible
land on which an agricultural
commodity is producefi after December
23, 1985, and is not exjpmpt under
§ 12.5(a), shall be considered part of the
field in which the land was included on
December 23, 1985, unless, to carry out
this title, the owner an'd FSA agree to
modify the boundaries1 of the field. ,
Highly erodible land means land that
has an credibility index of 8 or more.
Hydric soils means soils that, in an
undrained condition, are saturated,
flooded, or ponded long enough during
a growing season to deyelop an
anaerobic condition that supports the
growth and regeneration of hydrophytic
vegetation. !
Hydrophytic vegetation means plants
growing in water or in la substrate that
is at least periodically deficient in
oxygen during a growing season as a
result of excessive water content.
Landlord means a person who rents or
leases farmland to another person.
Local FSA office means the county
office of the Farm Service Agency
serving the county or a combination of
counties in the area in which a person's
land is located for administrative
purposes. • . ' •
; NRCS means the Natural Resources
Conservation Service, an agency within
USDA which is generally responsible
for providing technical assistance in
matters of natural resources
conservation and for administering
certain conservation programs of USDA.
Operator means the person who is in
general control of the farming
operations on the farm during the crop
year.
Owner means a person who is
determined to have legal ownership of
farmland and shall include a person
who is purchasing farmland under
contract.
Person means an individual,
partnership, association, corporation,
cooperative, estate, trust, joint venture,
joint operation, or other business
enterprise or other legal entity and,
whenever applicable, a State, a political
subdivision of a State, or any agency '
thereof, and such person's affiliates as
provided in § 12.8 of this part.
Restoration of a wetland means the re-
establishment of wetland conditions,
including hydrologic condition or
native hydrophytic vegetation, to an
area where a wetland had previously
existed. •
Secretary means the Secretary of
USDA. ; •
Sharecropper means a person who
performs work in connection with the
production of a crop under the
supervision of the operator and who
receives a share of such crop for such
labor.
Soil map unit means an area of the
landscape shown on a soil map which
consists of one or more soils.
State means each of the 50 states, the
District of Columbia, the
Commonwealth of Puerto Rico, Guam,
the Virgin Islands of the United States,
American Samoa, the Commonwealth of
the Northern Mariana Islands,'or the
Trust Territory of the Pacific Islands. •
Tenant means a person usually called
a "cash tenant", "fixed-rent tenant", or
"standing rent tenant" who rents land
from another.for a fixed amount of cash
or a fixed amount of a commodity to be
paid as rent; or a person (other than a
sharecropper) usually called a. "share
tenant" who rents land from another •
person and pays as rent a share of the
crops or proceeds therefrom. A tenant
shall not be considered the farm
operator unless the tenant is determined
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Federal Register / Vol.' 61, No. 174 / Friday, September 6, 1996 / Rules arid Regulations 47027
to be the operator pursuant to this part
and 7 CFR part 718.
Wetland, except when such term is a
part of the term "converted wetland",
means land, that—
(I) Has predominance of hydric soils;
(2) Is inundated or saturated by
surface or groundwater at a frequency
and duration sufficient to support a
prevalence of hydrophytic vegetation -
typically adapted for life in saturated
soil conditions; and
(3) Under normal circumstances does
not support a prevalence of such
vegetation, except that this term does
not include lands in Alaska identified as
having a high potential for agricultural
development and a predominance of
permafrost'soils.
Wetland determination means a
decision regarding whether or not an
area is a wetland, including
identification of wetland type and size.
A wetland determination may include
identification of an area as one of the
following types of wetland—
(1) Artificial wetland is an area that
was formerly non-wetland, but now
meets wetland criteria due to human
activities, such as:
(i) An artificial lake or pond created
by excavating, or. diking land that is not
a wetland to collect and retain water
that is used primarily for livestock,,fish
production, irrigation; wildlife, fire
control, flood control, cranberry
growing, or rice production, or as a
settling pond; or
(ii), A wetland that is temporarily or'
incidentally created as a result of
adjacent development activity;
(2) Commenced-conversion wetland is
a wetland, farmed wetland, farmed-
wetland pasture, or a converted wetland
on which conversion began, but was not
completed, prior to December 23, 1985.
(3) Converted wetland is a wetland
that has been drained, dredged, filled,
leveled, or otherwise manipulated
(including the removal of woody
vegetation or any activity that results in
impairing or reducing the flow and
circulation of water) for the purpose of
or to have the effect of making possible
the production of an agricultural
commodity without further application
of the manipulations described herein
if: ' . . /
. (i) Such production would not have
been possible but for-such action, and
• (ii) Before such action such land was
wetland, farmed wetland, or farmed-
wetland pasture and was neither highly
erodible land nor highly erodible
cropland; •
(4) Farmed wetland is a wetland that
prior to December 23, 1985, was
manipulated and used to produce an
agricultural commodity, and on
December 23, 1985, did not support .
woody vegetation and met the following
hydrologic criteria:
(i) Is inundated for 15 consecutive
days or more during the growing season
or 10 percent of the growing season,
whichever is less, in most years (50
percent chance or more), or
(ii) If a pothole, .playa, or pocosion, is
ponded for 7 or more consecutive days
during the growing season in most years
(50 percent chance of more) or is
saturated for 14 or more consecutive
'days during the .growing season in most
years (50 percent chance or more);
(5) Farmed- wetland pasture is
wetland that was manipulated and
managed for.pasture or hayland prior to
December 23, 1985, and on December
23, 1985, met the following hydrologic
criteria:
(i) Inundated or ponded for 7 or more
consecutive days during the growing
season in most years (5) percent chance
or more), or
(ii) Saturated for 14 or more
consecutive days during the growing
season in.most years (50 percent chance
or more);
(6) Not-inventoried land, is an area for
which no evaluation of soils', vegetation,
or hydrology has been conducted to
determine if wetland criteria are met;
(7) Non-wetland is;
(i) Land that under natural conditions
does not meet Wetland criteria, or
(ii) Is converted wetland the
conversion of which occurred prior to
December 23, 1985, and on that date,
the land did not meet wetland criteria
but and agricultural commodity was not
produced and the area was not managed
for pasture, or hay; • ' -
(8) Prior-converted cropland is a
converted wetland where the
conversion occuif ed prior to December
23, 1985, an agricultural commodity had
been produced at least once before
December 23, 1985, and as of December
23, 1985, the converted wetland did not
support woody Vegetation and met the
following hydrologic criteria:
(i) Inundation was less than 15
consecutive days during the growing
season or 10 percent of the growing
season, whichever is less, in most years
(50 percent chance or more); and
(ii) If a pothole, playa or pocosin,
ponding was less than 7 consecutive
days during the growing season in most
years (50 percent chance or more) and
saturation was less than 14 consecutive
days during the growing season most
years (50. percent chance or more); or
(9) Wetland, as defined above in this
section. .. ,
Wetland delineation means outlining
the boundaries of a wetland
determination on aerial photography,
digital imagery, other graphic
representation of the area, or on the
land. •
(b) Terms for FSA operations. In the
regulations in this part, and in all
instructions, forms, and documents in
connection therewith, all other words
and phrases specifically relating to FSA
operations shall, unless required by the
subject matter or the specific provisions
of this part, have the meanings assigned
to them in the regulations at part 718 of
this title that govern reconstituti.ons of
farms, allotments, and bases and any
subsequent amendment thereto.
§12.3 Applicability.
(a) Geographic scope. The provisions
of this part shall apply to all land,
including Indian tribal land, in the fifty
States, the District of Columbia, the
Commonwealth of'Puerto Rico, Guam,
the Virgin Island of the United States, •
American Samoa, the Commonwealth of
the Northern Mariana Islands, and the
Federated States of Micronesia, the
Republic of Palau, and the Republic of
the Marshall Islands. /
(b) Effective date. The provisions of
this part apply to all actions taken after
July 3, 1996, and to determinations .
made after or pending on July 3, 1996,
except to the extent that § 12.5 (a) (5) and
12.5 (b)(4) through (b)(8) specify
retroactive application on December 23,'
1985, and November 28, 1990, for
certain actions and determinations
regarding wetlands and converted
wetlands. Actions taken and
determinations made prior to July 3,
1996, are subject to regulations,set forth
in this part as of July 2, 1996, except as
otherwise provided in this part. Further,
to the extent that a person may be
eligible for an exemption for an action
taken before July 3, 1996, the action is
subject to the'provisions of this part.
§12.4 Determination of ineligibility.
(a) Actions. Except as provided in
§ 12.5, a person shall be ineligible for all
or a portion of USD A program benefits
listed in this section if:
(1) The person produces an
agricultural commodity" on a field in
which highly erodible land is
predominant, or designates such a field
for conservation use;
(2) The person produces an
agricultural commodity on wetland,that
was converted after December 23, 1995;
or ,
.. (3) After November 28,1990, the
person converts a wetland b'y draining,
dredging, filling, leveling, removing .
woody vegetation, or other means for
the purpose, or to have the effect, of
making the production of an agricultural
commodity possible.
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47028 Federal Register / Vol. 61, No. 174 / Friday. | September 6, 1996 / Rules and Regulations
(b) Highly erodible land. A person
determined to be ineligible under
paragraph (a)(l) of this section may be
Ineligible for all program benefits listed
In (d) and (e) of this section.
(c) Wetland conservation. A person
determined to be ineligible under
paragraph (a) (2) of this section shall be
ineligible for all or a portion of the
USDA program benefits listed in
paragraph (d) of this section for which
the person otherwise would have been
eligible during the crop year of the
commodity that was planted on the
converted wetland, A person
determined to be ineligible under
paragraph (a) (3) of this section for the
conversion of a wetland shall be
Ineligible for all or a portion of the
USDA program benefits listed in
paragraph (d) of this section for which
the person otherwise would have been
eligible during the crop year which is
equal to the calendar year during which
the violation occurred and each
subsequent crop year until the
converted wetland is restored or the loss
of wetland functions and values have
been mitigated prior to the beginning of
such calendar year in accordance with
§ 12.5(b)(4)(i) (A) and (C) through (F) of
this part. Ineligibility under paragraph
(a) (2) or (a) (3) of this section may be
reduced, in lieu of the loss of all
benefits specified under paragraph (d) of
this section for such crop year, based on
the seriousness of the violation, as
determined by the FSA Deputy
Administrator for Farm Programs or
designee upon recommendation by the
FSA County Committee. Factors such as
the information that was available to the
affected person prior to the violation,
previous land use patterns, the
existence of previous wetland violations
under this part or under other Federal,
State, or local wetland provisions, the
wetland functions and values affected,
the recovery time for full mitigation of
the wetland functions and values, and
the Impact that a reduction in payments
would have on the person's ability to
repay a USDA farm loan shall be
considered to making this
determination.
(d) Programs subject to either highly
erodible land or wetland conservation.
USDA program benefits covered by a
determination of ineligibility under this
rule are:
(1) Contract payments under a
production flexibility contract,
marketing assistance loans, and any
type of price support or payment made
available under the Agricultural Market
Transition Act. the Commodity Credit
Corporation Charter Act (15 U.S.C. 714
et seq.), or any other Act;
(2) A farm credit program loan made
or guaranteed under the Consolidated
Farm arid Rural Development Act (7
U.S.C. 1921 etseq.) or any other
provision of law administered by FSA if
the Secretary determines that the
proceeds of such loan! will be used for
a purpose that contributes to the
conversion of wetlands that would make
production of an agricultural
commodity possible o!r for a purpose
that contributes to excessive erosion of
highly erodible land (i.e., production of •
an agricultural commodity or highly
erodible land without a conservation
plan or conservation system as required
by this part); I
(3) A payment made pursuant to a
contract entered into under the
Environmental Quality Incentives
Program under chapter 4 of subtitle D of
the Food Security Acb of 1985, as
amended; or a payment under any other
provision of Subtitle D of that Act;
(4) A payment made under section
401 or 402 of the Agricultural Credit Act
of 1978 (16 U.S.C. 2201 or 2202);
(5) A payment, loan, or other
assistance under section 3 or 8 of the
Watershed Protection and Flood
Prevention Act (16 U.S.C. 1003 or
1006a). . '< '. '. •
(e) Programs subject to highly erodible
land only. In addition; to programs listed
in paragraph (d) of this section, a person
determined to be ineligible under
paragraph (a) (1) of this section shall be
ineligible as determined by FSA for the
following USDA program benefits for
which the person otherwise would have
been eligible during trie crop year for
which the determination applies:
(1) A farm storage facility loan made
under section 4(h) of tpe Commodity
Credit Corporation Charter Act (15'
U.S.C. 714b(h)); !
(2) A disaster payment made under
the Federal Agricultural Improvement
and Reform Act, Pub. L. 104-127, or any
other act; and ;
(3) A payment made under section 4
or 5 of the Commodity Credit
Corporation Charter Apt (15 U.S-C- 714b
or 714c) for the storage of ah agricultural
commodity acquired by the Commodity
Credit Corporation.
(f) Prior loans. The provisions of
paragraphs (a), (b), and (c) of this
section do not apply to any loan
described in paragraphs (d) or (e) of this
section that was made' prior to
December 23, 1985. '
(g) Determination of ineligibility. For
the purpose of paragraph (a) of this
section, a person shall, be determined to
have produced an agricultural
commodity on a field in which highly
erodible land is predominant or to have
designated such a field for conservation
use, to have produced an agricultural
commodity on converted wetland, or to
have converted a wetland if:
(1) NRCS has determined that—
(i) Highly erodible land is
predominant in such field, or
(ii) All or a portion of the field is
converted wetland; and
(2) FSA has determined that the
person is or was the owner OK operator
of the land, or. entitled to share in the
crops available from the land, or in the
proceeds thereof; and
(3) With regard to the provisions of
paragraph (a)(l) and (a) (2) of this
section, FSA has determined that the
land is or was planted to an agricultural
commodity or was designated as
conversation use during the year for'
which the person is requesting benefits.
(h) Intent to participate in USDA
programs. Persons who wish to
participate in any of the USDA .
programs described in paragraph (d) or
(e) of this section are responsible for
contacting the appropriate agency of
USDA well in advance of the intended
participated date so that Form AD-1026
can be completed. This contact will
help assure that the appropriate
determinations regarding highly
erodible land or wetland, and
conversation plans or conversation
systems are scheduled in a timely
manner. A late contact may not allow
sufficient time for USDA to service the
request and, could result in a substantial
delay in receiving a USDA
determination of eligibility or
ineligibility.
§12.5 Exemption.
(a) Exemptions regarding highly
erodible land.
(1) Highly erodible cropland in
production or in USDA programs during
1981 through 1985 crop years. During
the period beginning on December 23,
1985, and ending on the later of January
1, 1990, or the date that is two years
after the date the cropland on which an
agricultural commodity is produced was
surveyed by NRCS to determine if such
land is highly erodible, no person shall
be determined to be ineligible for
benefits as provided in § 12.4 as the
result of the production of an
agricultural commodity on any highly
erodible land:
(i) That was planted to an agricultural
commodity in any year 1081 through
1985; or
(ii) That was set aside, diverted, or
otherwise not cultivated in any such
crop years under a program
administered by the Secretary for any
such crops to reduce production of an
agricultural commodity. ;
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Federal Register / Vol. 61, No. 174 /Friday, "September 6. 1996, / Rules and Regulations 47029
(2) Compliance with a conservation
plan or conservation system, as further
specified in this part, no person shall be
ineligible for the program benefits
described in § 12.4 as the result of
production of an agricultural
. commodity on highly erodible land or
the designation of such land for
conservation use if such production or .
designation is in compliance with a
conservation plan or conservation
system approved under paragraph
(a) (2) (i) or (a) (2) (ii) of this sectioh. A
person shall not be ineligible for
program benefits under §12.4 as the
result of the production of an
agricultural commodity on highly
erodible land or as the result of
designation of such land as conservation
use if the production or designation .is:
(i) In an area within'a CD, under a
conservation system that has been
approved by the CD after the CD
determines that the conservation system
is in conformity with technical
standards set forth in the NRCS field
office technical guide for such district;
or •
(iij In an area not within a CD, under
a conservation system that has been
approved by NRCS to be adequate for
the production of such agricultural
commodity on highly erodible land or
for the designation of such land as
conservation use. . •
(3) Reliance upon NRCS
determination for highly erodible land.
A. person may be relieved from
ineligibility for program benefits as the
result of the production of an
agricultural commodity which was
produced on highly erodible land or for
the designation of such land as . •
conservation use in reliance on a,
determination by NRCS that such fand
was not highly erodible land, except
that this paragraph shall not apply to
any agricultural commodity that was
planted on highly erodible land, or for .
the designation of highly erodible land
as conservation use after NRCS
determines that such land is highly
erodible land, and the person is notified
of such determinations.
• (4) Areas of 2 acres or less. No person
shall be determined to be ineligible
under § 12.4 for noncommercial
production of agricultural commodities
on highly erodible land on an area of 2
acres or less if it is determined by FSA
that such production is not intended to
circumvent the conservation
requirements otherwise'applicable •
under this part..
(5) Good faith. -
(i) No person shall become ineligible
under § 12.4 as a result of the failure, of
such person to apply a conservation
system on highly erodible land that was
converted from native vegetation, i.e.
rangeland or woodland, to crop
production before December 23, 1985, if
FSA determines such person has acted
in good faith and.without the intent to
violate the provisions of this part and if
NRCS determines that the person
complies with paragraph (a)(5)(ii) of this
section.
(ii) A person is who determined tq
meet the requirements of paragraph
(a)(5)(i) of this section shall 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 applying the person's
conservation plan. 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 years.
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 shall
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
shall 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; and if
the person takes corrective action as
directed by NRCS 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 years.
(iii) No person shall become ineligible
under § 12.4 as a result of failure to
apply a conservation system with
respect to highly erodible cropland that
was converted from native vegetation,
i.e., rangeland or woodland, to crop
production after December 23, 1985, if
such person has acted in good faith and
without an intent to violate the
provisions of this part. The person .shall,
in lieu of the loss of all benefits
specified under § 12.4 (d) and (e) for ,
such crop year, be subject to a reduction
in benefits of not less than $500 nor
more than $5,000 depending upon 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 deems appropriate.
(iv) 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 § 124
(d) and (e) for any subsequent crop year
if NRCS determines that such person is
applying a conservation plan according
tq the schedule s.et forth in the plan on
all highly erodible land planted to an
agricultural commodity or designated as
conservation user
(6) Allowable variances.
(i) Notwithstanding any other
provisions of this part, no person shall
be determined to he ineligible for .
benefits as a result of the failure of such
person to apply a conservation system if •
NRCS determines that—
(A) The failure is technical and minor
in nature and that such violation has
little effect on the-erosion control
purposes of the conservation plan '
applicable to the land on which the
violation, has occurred; or
(B) The failure is due to
circumstances beyond the control of the
person; or .
(C) NRCS grants a temporary variance
from the practices specified in the plan
for the purpose of handling a specific
problem, including weather, pest, and
disease problems, which NRCS
determines cannot reasonably be
addressed except through such variance.
(ii) If the person's request for a
temporary variance involves the use of
practices or measures to address
weather, pest, or disease problems,
NRCS shall make a decision on whether
to grant the variance during the 30-day
period beginning on the date of receipt
of the request. If NRCS fails to render a
decision during the period, the .
temporary variance shall be considered
granted unless the person seeking the
variance had reason to know that the
variance would not be granted. In
determining whether to grant a variance
for natural disasters such as weather,
pest, or disease problems, NRCS will
consider such factors as:
(A) The percent of a stand damaged or
destroyed by the event;
(B) The percent of expected crop
production compared to normal.
production for that crop;
(C) The,documented invasion of non-
native insects, weeds, or diseases for
which no recognized treatment exists;
(D) Whether an event is severe or
unusual based on historical weather
records; and
.-(E) Other specific circumstances
caused by a natural event that prevented
'the implementation of conservation
practices or systems, installation of
structures, or planting of cover crops.
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47030 Federal Register / Vol. 61,,No. 174 / Friday, jSeptember 6, 1996 / Rules and Regulations
(b) Exemptions for wetlands and
converted wetlands.
(1) General exemptions. A person
shall not be determined ,to be ineligible
for program benefits under § 12.4 as the
result of the production of an
agricultural commodity on converted
wetland or the conversion of wetland if:
(i) The land is a prior-converted
cropland and meets the definition of a'
prior-converted cropland as of the date
of a wetland determination by NRCS;
(ii) The land has been determined by
NRCS to be a prior-converted cropland
and such determination has been
certified, and NRCS determines that the
wetland characteristics returned after
the date of the wetland certification as
a result of—
(A) The lack of maintenance of
drainage, dikes, levees, or similar
structures,
(B) The lack of management of the
lands containing the wetland, or
(C) Circumstances beyond the control
of the person;
(iii) The land was determined by
NRCS to be a farmed wetland or a
farmed-wetland pasture and—
(A) Such land meets wetland criteria
through a voluntary restoration,
enhancement, or creation action after
that determination,
(B) The technical determinations
regarding the baseline site conditions
and the restoration, enhancement, or
creation action have been adequately
documented by NRCS,
(C) The proposed conversion action is
documented by the NRCS prior to
implementation, and
(D) The extent of the proposed
conversion is limited so that the
conditions will be at least equivalent to
the wetland functions and values that
existed at the time of implementation of
the voluntary wetland restoration,
enhancement, or creation action;
(iv) NRCS has determined that the
conversion if for a purpose that does not
make the production of an agricultural
commodity possible, such as
conversions for fish production, trees,
vineyards, shrubs, cranberries,'
agricultural waste management
structures, livestock ponds, fire control,
or building and road construction and
no agricultural commodity is produced
on such land;
(v) NRCS has determined that the
actions of the person xvith respect to the
conversion of the wetland or the
combined effect of the production of an
agricultural commodity on a wetland
converted by the person or by someone
else, individually and in connection
with all, other similar actions authorized
by NRCS in the area, would have only
a minimal effect on the wetland
functions and values of wetlands in the
area; '
(vi) (A) After December 23, 1985, the
Army Corps of Engineers issued an
individual permit pursuant to section
404 of the Clean Water. Act, 33 U.S.C.
1344. authorizing such action and the
permit required mitigation that •
adequately replaced the functions and
values of the wetlands converted, as
determined by NRCS, lor
(B) After December |23, 1985, the
action is encompassed under section
404 of the Clean Water Act, 33 U.S.C.
1344, by an Army Corps of Engineers
nationwide or regional general permit
and the wetland functions and values
were adequately mitigated, as
determined by NRCS; lor
(vii) The land is determined by NRCS
to be— ;
(A) An artificial wetland,
(B) A wet area created by a water
delivery system, irrigation, irrigation
system, or application of water for
irrigation, . >
(C) A nontidal drainage or irrigation
ditch excavated in non-wetland, or
(D) A wetland converted by actions of
persons other than the person applying
for USDA program benefits or any of the
person's predecessors Jin interest after
December 23, 1985, if such conversion
was not the result of a scheme or device
to avoid compliance with this part.
Further drainage improvement on such
land is not permitted \ivithout loss of
eligibility for USDA program benefits,
unless NRCS determines under
paragraph (b)(l)(v) of this section that
further drainage activities applied to
such land would have;minimal effect on
the wetland functions land values in the
area. In applying this paragraph, a
converted wetland shall be presumed to
have been converted by the person
applying for USDA program benefits
unless the person can show that the
conversion was caused by a third party
with whom the person was not
associated through a scheme or device
as described under § l|Z.10 of this part.
In this regard, activities of a water
resource district, drainage district, or
similar entity will be attributed to all
persons within the jurisdiction of the
district or other entity !who are assessed
for the activities of the district or entity.
Accordingly, where a person's wetland
is converted due to the actions of the
district or entity, the person shall be
considered to have catised or permitted
the drainage. Notwithstanding the
provisions of the preceding sentences
and as determined by FSA to be
consistent with the purposes of this
part, the activities of ai drainage district
or other similar entity Will not be
attributed to a person to the extent that
the activities of the district or entity
were beyond the control of the person
and the wetland converted is not used
by the person for the production of an
agricultural commodity or a forage crop1
for haryest by mechanical means or
mitigation for the converted wetland
occurs in accordance with this part.
(2) Commenced conversion wetlands.
• (i) The purpose of a determination of
a commenced conversion made under
this paragraph is to implement the
legislative intent that those persons who
had actually started conversion of a
wetland or obligated funds for
conversion prior to December 23, 1985,
would be allowed to complete the
conversion so as to avoid unnecessary
economic hardship.
(ii) All persons who believed they had
a wetland or converted wetland for
which conversion began but was not
completed prior to December 23, 1985,
must have requested by September 19,
1988, FSA to make a determination of
commencement in order to be
considered exempt under this section.
(iii) Any conversion activity
considered by F,SA to be commenced
under this section lost its exempt status
if such activity as not completed on or
• before January 1,1995. For purposes of
this part, land on which such
conversion activities were completed by
January 1, 1995, shall be evaluated by
the same standards and qualify for the
same exemptions as prior-converted
croplands. For purposes of this part,
land on which such conversion
• activities were not completed by
January 1, 1995,.shall be evaluated by
the same standards and qualify for the
same'exemptions as wetlands or famed
wetlands, as applicable.
(iv) Only those wetlands for which
the construction had begun, or to which,
the contract or purchased supplies and
materials related, qualified for a
determination of commencement.
However, in those circumstances where
the conversion of wetland did not meet
the specific requirements of this
paragraph, the person could have
requested a commencement of
conversion determination from the FSA,:
Deputy Administrator for Farm
Programs, upon a showing that undue •
economic hardship would have resulted
because of substantial financial
obligations incurred prior to December
23, 1985, for the primary and direct
purpose of converting the wetland.
(3) Wetlands farmed under natural
conditions. A person shall not be
determined to be ineligible for program
benefits under § 12.4 of this part as a
result of the production of an
agricultural commodity on a wetland on
which the owner or operator of a farm
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Federal Register / Vol. 61, No. 174 / Friday. September 6, 199.6 / Rules and Regulations 47031
or ranch uses normal cropping or
ranching practices to produce
agricultural commodities in a manner •
that is consistent for the area, where '
such production is possible as a result
of natural conditions, such as drought,
and is without action by the producer
that alters the hydrology or removes
woody vegetation.
(4) Mitigation. . .
(i) No person shall be determined to
be ineligible under § 12.4 for any action
associated with the conversion of a
wetland if the wetland functions'and
values are adequately mitigated, as
determined by NRCS, through the
restoration'of a converted wetland, the
enhancement of an existing wetland, or
the creation of a new wetland, if the
mitigation— . .
(A) Is in accordance with a mitigation
plan approved by NRCS;
(B) Is in advance of, or concurrent
with, the wetland conversion or the
production of an agricultural
commodity, as applicable;
(C) Is not at the expense of the federal
government in either supporting the
director indirect costs of the restoration
activity or costs associated with
acquiring or securing mitigation sites,
except if conducted under a mitigation
banking pilot program established by
USDA;
(D) Occurs on lands in the same
general area of the local watershed as
the converted wetlands, provided that
for purposes of this paragraph, lands in
the same general area of the local
watershed may include regional
mitigation banks;
(E) Is on lands for which the owner
has granted an easement to USDA,
recorded the easement on public land
records, and has agreed to the
maintenance of the restored, created, or
enhanced wetland for as long as the
converted wetland for which the
mitigation occurred remains in
agricultural use or is not returned to its
original wetland classification with
equivalent functions and values; and
(F) Provides the equivalent functions
and values that will be lost as a result
of the wetland conversion-
. (ii) A mitigation plan is a record of
decisions that document the actions
necessary to compensate for the loss of
wetland functions and values that result
from converting a wetland. The
mitigation plan may be a component of
a larger natural resources conservation
plan.
- (iii) The State Conservationist, in
consultation with the State Technical
Committee, may name certain types or
classes of wetland riot eligible for
exemption under paragraph (b)(4)(i) of
this section where the State
Conservationist determines that
mitigation will not achieve equivalent
replacement of wetland fuftctions and
values -within a reasonable time frame or
for other reasons identified by,the State
Conservationist. Any type or class of
wetland that a State Conservationist
identifies as not eligible for exemption
under paragraph (b)(4)(i) of this section
will be published in the Federal
Register for inclusion in this part.
(5) Good Faith Violations.
(i) A person who is determined under
§ 12.4 tafae 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—
• (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
, within an agreed to period, not to
exceed 1 year, is implementing all
practices in a mitigation plan.
(ii) In determining whether a person
acted in good faith under paragraph
(b)(5)(i)(A) of this section, the FSA shall
consider such factors as whether—
(A) The characteristics of the site were
such that the person should have been
aware that a wetland existed on the
subject land,
(B) NRCS had informed the person
about the existence of a wetland on the
subject land, .
(C) The person did not convert the
wetland, but planted an agricultural
commodity on converted wetland when
the person should have known that a -
wetland previously existed on the
subject land, ,
, (D) The,person has a record of
violating the wetland provisions of this
part or other Federal, State, or local
wetland provisions, or
(E) There exists other information that
demonstrates that the person acted with
the intent to violate the wetland
provisions of this part.
(iii) After the requirements of
paragraph (b) (5) (i) of this section are
met, USDA may waive applying the
ineligibility provisions of § 12.4.
(6) Reliance upon NRCS wetland
determination, (i) A person shall not be
ineligible for program benefits as a
result of taking an action in reliance on
a previous certified wetland
determination by NRCS.
. (ii) A person who may be ineligible-
for program benefits as the result of the
production of an agricultural
commodity on converted wetland or for
the conversion of a wetland may seek
relief under § 12.11 of this part if such
action was taken in reliance on an
incorrect technical determination by
NRCS as to the status of such land. If the
error caused the person to make a
substantial financial investment, as
determined by the NRCS, for the
conversion of a wetland, the person may
be relieved of ineligibility for actions
related to that portion of the converted
wetland for which the substantial
financial investment was expended in
conversion activities. The relief
.available under this paragraph shall not
apply to situations in which the person
. knew or reasonably should have known
that the determination was in error
because the characteristics of the site •
were such that the person should have^
been aware that a wetland existed on
the subject land/or for other reasons.
(7) Responsibility to provide evidence.
,It is the responsibility of the person
seeking an exemption related to
converted wetlands under this section
to provide evidence, such as receipts, .
crop-history data, drawings, plans or
similar information, for purposes of
determining whetherfthe conversion or
other action is exempt in accordance
with this section.
§12.6 Administration.
(a) General. A determination of
ineligibility for benefits in accordance
with the provisions of this part shall be
made by the agency of USDA to which .
the person has applied for benefits. All
determinations required to be made
under the provisions of this part shall be
made by the agency responsible for
making such determinations, as
provided in this section.
l(b) Administration by FSA.
(1) The provisioris of this part which
are applicable to FSA will be '
administered under the general
supervision of the Administrator, FSA,
and shall be carried out in the field in '
part by State FSA committees and
county FSA committees (COC).
(2). The FSA Deputy Administrator for
Farm Programs may determine, any
question arising Under the provisions of
this part which are applicable to FSA
and may reverse or modify any •
determination of eligibility with respect
to programs administered by FSA made .
by a State FSA committee or COC or any
other FSA office or FSA official (except
the Administrator) in.connection with
the provisions of this part.
(3) FSA shall make the following
determinations which are required to be
made in accordance with this part:
(i) Whether a person produced an
agricultural commodity on a particular
field as determined under § 12.5(a)(l);
(ii) The establishment of field
boundaries;
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47032 Federal Register / Vol. 61, No. 174 / Friday,;September 6, 1996 / Rules and Regulations
(!H) Whether land was planted to an
agricultural commodity in any of the
years, 1981 through 1985. for the
purposes of § 12.5(a)(l);
(iv) Whether land was set aside,
diverted, or otherwise not cultivated
under a program administered by the
Secretary for any crop to reduce
production of an agricultural
commodity under § 12.4(g) and
§12.5(a)(l);
(v) Whether for the purposes of § 12.9,
the production of an agricultural
commodity on highly erodible land or
converted wetland by a landlord's
tenant or sharecropper is required under
the terms and conditions of the
agreement between the landlord and
such tenant or sharecropper;
(vi) Whether the conversion of a
particular wetland was commenced
before December 23,1985, for the
purposes of § 12.5(b)(3);
(vlS) Whether the conversion of a
wetland was caused by a third party
under §12.5(b)(l)(vii)(D);
(viii) Whether certain violations were
made in good faith under §§ 12.5(a)(5)
or 12.5(b)(5);
(ix) The determination of the amount
of reduction in benefits based on the
seriousness of the violation, based on
technical information provided by
NRCS;
(x) The determination of whether the
application of the producer's
conservation system would impose an
undue economic hardship on the "
producer; and
(xi) Whether the proceeds of a farm
loan made, insured, or guaranteed by
FSA will be used for a purpose that will
contribute to excessive erosion of highly
erodible land or to the conversion of
wetland.
(4) A representative number of farms
selected in accordance with instructions
issued by the Deputy Administrator
shall be inspected by an authorized
representative of FSA to determine
compliance with any requirement
specified in this part as a prerequisite
for obtaining program benefits.
(5) FSA may consult with U.S. Fish
and Wildlife Service on third-party
determinations.
(c) Administration by NRCS.
(1) The provisions of this part that are
applicable to NRCS shall be
administered under the general
supervision of the Deputy Chief for
Natural Resources Conservation
Programs, and shall be carried out in the
field by the regional conservationist,
state conservationist, area
conservationist, and district
conservationist or other NRCS
representative.
(2) An NRCS representative shall
make the following determinations
which are required to'be made in
accordance with this part:
(i) Whether land is highly erodible or
has a wetland type or ja converted
wetland identified in accordance with
the provisions of this jpart;
(ii) Whether highly erodible land is
predominant on a particular field under
§ 12.22; ;
(iii) Whether the conservation plan
that a person is applying is based on the
local NRCS field office technical guide
and is approved by—
(A) The CD and NRCS, or
(B) By NRCS;
(iv) Whether the conservation system
that a person is using has been approved
by the CD under § 12.5 (a) (2) or, in an
area not within a CD, k conservation
system approved by N^RCS to be
adequate for the production, of an
agricultural commodity on highly
erodible land; • .
(v) Whether the actipns of a person(s)
with respect to the conversion of a
wetland or production of an agricultural
commodity on converted wetland.
would have only a minimal effect on the
functions and values of wetlands in the
area; !
(vi) Whether an approved
conservation plan is being applied on
highly erodible fields in accordance
with the schedule specified therein or
whether a failure to apply the plan is
technical and minor in nature, due to
circumstances beyond1 the control of the
person, or whether a temporary variance
form the requirements' of the plan
should be granted; '
(vii) Whether an approved
conservation system is being used on a
highly erodible field;
(viii) Whether the conversion of a
wetland is for the purpose or has the
effect of making the production of an
agricultural commodity possible;
(ix) Whether a farmed wetland or
farmed-wetland pasture is abandoned;
(x) Whether the planting of an
agricultural commodity on a wetland is
possible under natural conditions;
(xi) Whether maintenance of existing
drainage of a wetland Described in
§ 12.33 exceeds the scope and effect of
the original drainage; ; •
(xii) Whether a planjfor the mitigation
of a converted wetland will be approved
and whether the mitigation of a
converted wetland is accomplished .
according to the approved mitigation
plan; , ;
(xiii) Whether all technical
information relating to| the
determination of a violation and
severity of a violation has been provided
to FSA for making payment-reduction
determinations; and
(xiv) Whether or not a commenced-
conversion activity was completed by
January 1, 1995.
(3) NRCS may provide such other
technical assistance for implementation
of the provisions of this part as is
determined to be necessary.
(4) A person may obtain a highly
erodible land or a wetland scope-and-
effect determination by making a
- written request on Form AD-1026. The
determination will be made in writing,
and a copy will be provided to the
person.
(5) A determination of whether or not
an area meets the highly erodible land
criteria or whether wetland criteria,
identified in accordance with the
current Federal wetland delineation
methodology in use at the time of the
determination and that are consistent
with current mapping conventions, may
be made by the NRCS representative
based upon existing records or other
information and without the need for an
on-site determination. This
determination will be made by the •
NRCS representative as soon as possible
following a request for such a • -
determination.
(6) An on-site determination as to
whether an area meets the applicable
criteria shall be made by an NRCS
representative if the person has
disagreed with the determination made
under paragraph (c) (5) of this section, or
if adequate information is not otherwise
available to an NRCS representative on
which to make an off-site determination.
(7) An on-site determination, where
applicable, will be made by the NRCS
representative as soon as possible
following a request for such a
determination, but" only when site
conditions are favorable for the
evaluation of soils, hydrology, or
vegetation.
(8) With regard to wetland
determinations, if an area is
continuously inundated or saturated for
long periods of time during the growing ,
season to such an extent that access by
foot to make a determination of
predominance of hydric soils or
prevalence of hydrophytic vegetation is
not feasible, the area will be determined
to be a wetland.
(9) Persons who are adversely affected
by a deterrnination made under this
section and believe that the
requirements of this part were
improperly applied may appeal, under
§ 12.12 of this part, any deterrnination
by NRCS.
(d) Administration by CSREES. The
CSREES shall coordinate the related
information and education program for
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Federal Register / Vol. 61, No. 1747 Friday, September 6, 1996 / Rules and Regulations 47033
.US'DA concerning implementation of
this rule.
(e) Assistance of other Federal
agencies. If NRCS determines, through
agreement or otherwise, that the
purposes of this part would be furthered
by the assistance of other Federal
agencies with wetland responsibilities,
NRCS may accept such assistance and
adopt any or all such actions by these
agencies as an action by an NRGS
representative under this part.
§12.7 Certification of compliance.
(a) Self-certification. In order for a
person to be determined to be eligible
for any of the benefits specified in
§12.4:
(1) It must be determined by USD A
whether any field in which the person
applying for the benefits has an interest
and intends to produce an agricultural
commodity contains highly erodible
land;
(2) The person applying for or
receiving the benefits must certify in
writing on Form AD-1026 that such
person will not produce an agricultural
commodity on highly erodible land, or
designate such land for conservation
use; or plant an agricultural commodity
on a converted wetland; or convert a
wetland to make possible the
production of an agricultural"
commodity during the crop year in
which the person is seeking such
benefits, unless such actions are
exempt', under § 12.5, from the
provisions of § 12.4 of this part; : -
(3) A person may certify application
of practices required by the person's
conservation plan. NRCS shall permit a
person who makes such a certification
with respect to a conservation plan to
revise the conservation plan in any
manner, if the same level of
conservation treatment provided for by
the conservation system under the
person's conservation plan is
maintained. NRCS may not revise the
person's conservation plan without the
concurrence of the person; •.
(4) The person applying for a FSA
direct or guaranteed farm credit program
loan must certify that such person shall
not use the proceeds' of the loan for a
purpose that will contribute to'excessive
erosion on highly erodible land or to
conversion of wetlands for the purpose,
or to have the effect, of making the
production of an agricultural
commodity possible; and
' (5) The person applying for the •
benefits must authorize and provide
representatives of USDA access to all •
land in which such person has an
interest for the purpose of verifying any
such certification.
(b) Availability.to other agencies. Each
agency "of USDA. shall make all
certifications bf compliance received by
such agency and the results of ;
investigations concerning such
certifications of compliance available to
other agencies. • '
. (c) Compliance. A certification made
in accordance with this section does not
relieve any person from compliance
with provisions of this part.
§12.8 Affiliated persons.
(a) Ineligibility of affiliated persons.
Ineligibility of an individual or entity
under this part for benefits shall also be
an ineligibility for benefits for
"affiliated persons" as defined in this
section.
(b) Affiliated persons of an individual. -
If the person requesting benefits is an
individual, the affiliated persons are:
(1) The spouse and minor child of
such person or guardian of such child;
except that spouses who establish to the
satisfaction of the COC that operations
of the husband and wife are maintained
separately and independently shall not
'be considered affiliates;
(2) Any partnership, joint venture, or
other enterprise in which the person or
any person listed in paragraphs (b)(l)
has an ownership interest or financial
interest; unless such interest is held
indirectly through another business
enterprise; or
(3) Any trust in which the individual,
business enterprise, 'or any person listed
in paragraph (b) (1) is a beneficiary or
has a financial interest, unless such-
interest is held indirectly through
another business enterprise;
(c) Affiliated persons of an entity. If
the person who has requested benefits
from USDA is a corptiration,
partnership, or other joint venture, the
affiliated persons are any participant or
stockholder therein of the corporation,
partnership, or other joint venture,
except for persons who have.an indirect
interest through another business
enterprise in such corporation,
partnership, or other joint venture or
persons with a 20 percent or less share
in a corporation.
(d) Limitation. Any reduction in
payments which results only from the
application of the affiliation provisions
of this section to a partnership, joint
venture, trust, or other enterprise shall
be limited to the extent of interest held
in such partnership, joint venture, trust,
or other enterprise by the person or
business enterprise that committed the
violation. However, for violations for
which the business enterprise is
considered directly responsible under
the provisions of this part, the business
enterprise shall be subject to a full loss
of benefits, including those instances in
which the business enterprise has an
interest in the land where the violation
occurred or Where the business
enterprise had an interest in the crops
produced on the land.
(e) Avoidance of this part. Limitations.
on affiliation shall not apply as needed
tb correct for any action that would
otherwise tend to defeat the purposes of
this part.
•§12.9 Landlords and tenants.
(a) Landlord eligibility.
(1) Except as provided in paragraph
(a) (2) of this section, the ineligibility of
a tenant or sharecropper for benefits (as
determined under § 12.4) shall not cause
a landlord to be ineligible for USDA
program benefits accruing with respect
to land other than those in which the
tenant or sharecropper has an interest
(2) The provisions of paragraph (a) (1)
of this section shall not be applicable to
a landlord if the production of an
agricultural commodity on highly •
erodible land or converted wetland by
the landlord's tenant or sharecropper is
required under the terms and conditions
of the agreement between the landlord
and such tenant or sharecropper and
such agreement was entered into after
December 23, 1985, or if the landlord ,'
has acquiesced in such activities by the
tenant or sharecropper. .
• (b) Tenant or renter eligibility.
(1) The ineligibility of a tenant or
renter may;be limited to the program
benefits listed in § 12.4(c) accruing with
respect to qnly the farm on which the
violation occurred if:
(i) The tenant or renter shows that a
good-faith effort was made to comply by
developing an approved conservation
plan for the highly erodible land in a •
timely manner and prior to any
violation of the provisions of this part;
and • - •
(ii) The owner of such farm refuses to
apply such a plan and prevents the '
tenant or renter from implementing
certain practices that are a part of the
approved conservation plan; and
. (Hi) FSA determines that the lack of
compliance is not a part of a scheme or
device as described in § 12.10.
(2) If relief is granted under paragraph
(b)(l) of this section, the tenant or renter
must actively apply those conservation
treatment measures that are determined
to be within the control of the tenant or
renter.
§12.10 Scheme or device.
All or any part of the benefits listed
in § 12.4 otherwise due a person from
USDA may be withheld or required to
be refunded if the person adopts or
participates in adopting any scheme or
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47034 Federal Register / Vol. 61, No. 174 / Friday, ;September 6, 1996 / Rules and Regulations
device designed to evade, or which has
the effect of evading, the provisions of
this part. Such acts shall include, but
are not limited to, concealing from
USDA any information having a bearing
on the application of the provisions of
this part or submitting false information
to USDA or creating entities for the
purpose of concealing the interest of a
person in a farming operation or to
otherwise avoid compliance with the
provisions of this part. Such acts shall
also include acquiescence in, approval
of, or assistance to acts which have the
effect of, or the purpose of,
circumventing these regulations.
§12.11 Action based upon adyice or
action of USDA.
The provisions of part 718 of this
Title, as amended, relating to
performance based upon the action or
advice of a County Committee (COC) or
State FSA Committee shall be
applicable to the provisions of this part.
In addition, if it is determined by the
appropriate USDA agency that the
action of a person which would form
the basis of any ineligibility under this
part was taken by such person in good-
faith reliance on erroneous advice,
information, or action of any other
authorized representative of USDA, the
appropriate agency may make such
benefits available to the extent that
similar relief would be allowed under 7
CFR part 718.
§12.12 Appeals.
Any person who has been or who
would be denied program benefits in
accordance with § 12.4 as the result of
any determination made in accordance
with the provisions of this part may
obtain a review of such determination in
accordance with the administrative
appeals procedures of the agency which
rendered such determination. Agency
appeal procedures are contained in the
Code of Federal Regulations as follows:
FSA, part 780 of this title; NRCS, part
614 of this title; Rural Utilities Service,
part 1900, subpart B of this title.
Sub-part B—Highly Erodible Land
Conservation
§12.20 NRCS responsibilities regarding
highly credible land.
In implementing the provisions of this
part, NRCS shall, to the extent
practicable:
(a) Develop and maintain criteria for
identifying highly erodible lands;
(b) Prepare and make available to the
public lists of highly erodible soil map
units;
(c) Make soil surveys for purposes of
Identifying highly erodible land; and
(d)-Provide technical guidance to
conservation districts'which approve
conservation plans and systems, in
consultation with local county FSA
committees, for the purposes of this
part. .
§ 12.21 Identification of highly erodible
lands criteria.
(A) Basis for identification as highly
erodible. Soil map units and an
credibility index will be used as the
basis for identifying highly erodible
land. The credibility index for a soil is
determined by dividing the potential
average annual rate of erosion for each
-soil by its predetermined soil loss
tolerance (T) value. The T value
represents the maximum annual rate of
soil erosion that could occur without
causing a decline in long-term
productivity. The equation for
measuring erosion is described belpw.
(1) The potential average annual rate
of sheet and rill erosipn is estimated by
multiplying the following factors of the
Universal Soil Loss Equation (USLE):
(i) Rainfall and runoff (R);
(ii) The degree to which the soil
resists water erosion (K); and '
(iii) The function (LjS), which
includes the effects of slope length (L)
and steepness (S).
(2) The potential average annual rate
of wind erosion is estirnated by
multiplying the following factors of the
Wind Erosion Equation (WEQ): Climatic
characterization of windspeed and
surface soil moisture (C) and the degree
to which soil resists wind erosion (I).
(3) The USLE is explained in the U.S.
Department of Agriculture Handbook
537, "Predicting Rainfall Erosion
Losses." The WEQ is explained in the
paper by Woodruff, NlP., and F. H.
Siddaway, 1965, "A Wind Erosion
Equation," Soil Science Society of
America Proceedings, Vol. 29. N,o. 5,
pages 602-608. Values for all the factors
used in these equations are contained in
the NRCS field office technical guide
and the references.which are a part of
the guide. The Universal Soil Loss
Equation, the Revised Universal Soil
Loss Equation, and the Wind Erosion
Equation and the rules under which
NRCS uses the equations are published
at §§610.11 through 6J10.15 of this title.
(b) Highly erodible. A soil map unit
shall be determined to be highly
erodible if either the RKLS/T or the CI/
T value for the map uijiit equals or
exceeds 8. :
(c) Potentially highly erodible.
Whenever a soil map unit description
contains a range of a slope length and
steepness characteristics that produce a
range of LS values which result in
RKLS/T quotients both above and below
8, the soil map unit will be entered on
the list of highly erodible soil map units
as "potentially highly erodible." The
final determination of credibility for an '
individual field containing these soil
map unit delineations will be made by
an on-site investigation.
§ 12.22 Highly erodible field determination
criteria.
(a) Predominance. Highly erodible
land shall be considered to be
predominant on a field if either:
(1) 33.33 percent or more of the total
field acreage is identified as soil map
units which are highly erodible; or
(2) 50 or more acres;in such field are
identified as soil map units which are
. highly erodible.
(b) Modification of field boundaries. A
perspn may request the modification of
field boundaries for the purpose of
excluding highly erodible land from a
field. Such a request must be submitted
to, and is subject to the approval of,
FSA. FSA shall use the technical '
determination of NRCS in approving
this request.
(C) Impact of changing field
boundaries. When field boundaries are
changed to include areas of land that
were included in a field that was
previously determined to be
predominately highly erodible
according to paragraph (a) of this
section, such areas shall continue to be
subject to the requirements for
predominately highly erodible fields,
except as provided in paragraph (b) of
this section.
(d) Small area ofnoncropland. Small
areas of noncropland within or adjacent
to the boundaries of existing highly
erodible crop fields such as abandoned
farmsteads, areas around filled or
capped wells, rock piles, trees, or brush
which are converted to cropland are
considered to meet the requirement of
§ 12.5 (a) (2) if they are included in an
approved conservation plan for the
entire highly erodible field.
§ 12.23 Conservation plans and
conservation systems.
(a) Use of field office technical guide.
A conservation plan or conservation
system developed for the purposes of
§ 12.5(a) must be based on, and to the
extent practicable conform with, the
NRCS field office technical guide in use
at the time the plan is developed or
revised. For highly erodible croplands
which were used to produce agricultural
commodities prior to December 23tl
1985, the applicable conservation •
systems in the field office technical
guide are designed to achieve
substantial reductions in soil erosion.
Conservation systems shall be
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Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations '47035
technically and economically feasible; •
based on local resource conditions and
available conservation technology; cost-
effective; and shall not cause undue
economic hardship on the person
applying the conservation system. Any
conservation plans or systems that were
approved prior to July 3, 1996, are
deemed to be in compliance with this
paragraph. . ' • •
(b) Substantial reduction in soil
erosion. For the purpose of determining
.whether there is a substantial reduction
in soil erosion on a field containing
highly erodible cropland which was
used to produce an agricultural
commodity prior to December 23, 1985,'
the measurement of erosion reduction
• achieved by applying a conservation
• plan or system shall be based on a
comparison of the estimated annual
level of erosion that is expected to occur
on that portion of the field for which a
conservation plan or.system was
developed and is being applied, to the
estimated annual level of erosion that
existed on that same portion of the field
before the application of a conservation
plan or system. On a field that is
converted from native vegetation after
July 3, 1996, and where any crop
production will result in increased
erosion, in no case will the required
conservation plan or system permit a
substantial increase in erosion.
(c) Field trials. NRCS may allow a
person to include in the person's
conservation plan or a conservation
system under the plan, on a field-trial
basis, practices that are not currently
" approved but that NRCS considers have
a reasonable likelihood of success.
These trials must have prior approval by
NRCS, and must be documented in the
person's conservation plan specifying
the limited time period during which
the field trial is in effect. If, at the end
of the conservation field trial period,
NRCS finds that the practice does not
meet conservation compliance
requirements, the person will not he
ineligible for USDA program benefits
during the period of the field trial.
(d) Jfighly erodible land previously
under a Conservation Reserve Program
contract. Any person who owns or
operates highly erodible land that was
under a Conservation Reserve Program
contract as authorized by section 1231
of the Food Security Act of 1985, as
amended, shall have 2 years after the
expiration of termination of the contract
to fully apply a conservation system if
the conservation plan for such land
requires the installation of structural
measures for the production of an
agricultural commodity. NRCS officials
may extend this period one additional
year for circumstances beyond the
control of the person. The person shall
not be required to meet a higher
conservation"standard thari the standard
applied to other highly erodible
cropland located within the area served
by the field office technical guide for the
area in which the field is located.
(e) Information regarding
conservation options. NRCS, in
providing assistance to a person for the
preparation or revision of a conservation
plan under this part, will provide such
person with information concerning
cost-effective and applicable erosion
control alternatives, crop flexibility, or
other conservation assistance options
that may be available.
(f) Timely request for assistance.
Persons who require NRCS assistance .
for the development of a conservation
plan or the installation of a conservation
system are encouraged to request this
assistance well in advance of deadline
dates for compliance; otherwise the ,
person may not be able to comply with
these provisions and maintain eligibility
for USDA .program benefits.
(g) Act/on by conservation districts. >
Conservation districts approve or
disapprove conservation plans or
conservation systems after NRCS
determines that the plans or systems
conform to the NRCS field office
technical guide. If a conservation
district fails, without due cause, to act
on a request for conservation plan or
conservation system approval within 45
days, or if no conservation district
exists, NRCS will approve or
disapprove, as appropriate, the
conservation plan or system in question.
(h) Application of a conservation plan
or system. A person is considered to be
applying a conservation plan for
purposes of § 12.5(a) if the conservation
system or plan being applied achieves
or exceeds the substantial reduction in
soil erosion as described in paragraph
(b) which the conservation system or
plan was designed to achieve. It is the
responsibility of the person to:
(1) Certify that the conservation plan
or system is being applied; and
(2) Arrange for a revision of the -
.conservation plan with NRCS, if
changes are made in land use, crop
rotation or management, conservation -
practices, or in the original schedule of
practice installation that would, affect
the achievement of substantial
reduction in soil erosion in a given crop
year.
(i) Appeal to FSA. Persons who are
adversely affected by the determinations
made under this subpart and believe
that the requirements of this subpart
were improperly applied may appeal
the decision to FSA under §12.12.-
0) Undue economic hardship. After a
technical determination has been made,
the FSA,county committee shall, if a
person asserts that the application of the
person's conservation system would
impose an'undue economic hardship on
the person, make a recommendation to
the State FSA Committee as to whether
or not the application of the
conservation system would impose an
undue economic hardship. The State
FSA Committee may provide the person
with a variance on the basis of the
hardship. Under this variance, and any
conditions that may be required in the
variance, the person will be considered
to be in compliance with the applicable
provisions of this part. The State FSA
Committee will consider relevant
factors, such as the cost of installation
of required conservation practices and
benefits earned through programs '
subject to compliance with'this part,
and the person's general economic
•situation. .
Subpart C—Wetland Conservation
§ 12.30 NRCS responsibilities regarding
wetlands.
(a) Technical and coordination
. responsibilities. In carrying out the
provisions of this part, NRCS shall:
(1) Oversee the development and
application of criteria to identify hydric
soils in consultation with the National
Technical Committee.for Hydric Soils
and make available to the public an
approved county list of hydric soil map
units, which is based upon the National
List of Hydric Soils; '
.(2) Coordinate'with the U.S. Fish and.
Wildlife Service and others in updating
the National List of Plant Species that
Occur in Wetlands;
(3) Make or approve wetland
determinations, delineations and
certifications, functional assessments,
mitigation plans, categorical minimal
effects, and other technical
determinations relative to the •
implementation of the wetland ' •
conservation provisions of this part;
, . (4) Develop and utilize off-site and
on-site wetland identification
procedures;
(5) Assure quality of service and
. determinations through procedures
developed by NRCS in consultation
with other Federal agencies that have
wetland responsibilities;
(6) Investigate complaints and make
technical determinations regarding
potential violations;'
(7) Develop a process at the state
level, in coordination with the U.S. Fish
and Wildlife Service, to ensure that
these provisions are carried out in a
technically defensible and timely
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47036 Federal Register / Vol. 61, No. 174 / Friday,
September 6, 1996 / Rules and Regulations
manner, seek assistance as appropriate,
and annually review the progress being
made on implementation; and
(8) Conduct reviews of
implementation and provide the Army
Corps of Engineers, Environmental
Protection Agency, and the U.S. Fish
and Wildlife Service an opportunity to
participate in this review.
(b) Technical assistance from others
In carrying out the provisions of this
part, NRCS may request technical
assistance from the U.S. Fish and
Wildlife Service, State or local agencies •
conservation districts, or qualified
private entities when NRCS determines
that additional staff resources or
technical expertise are needed to
address adequately the requirements of
this part or to enhance the quality of
implementation of this part.
(c) Certification of wetland
determinations and wetland
delineations.
(1) Certification of a wetland
determination means that the wetland
determination is of sufficient quality to
make a determination of ineligibility for
program benefits under § 12.4 of this
part. Certification of a wetland
determination shall be completed
according to delineation procedures
agreed to by the Army Corps of
Engineers, the Environmental Protection
Agency, the U.S. Fish and Wildlife
Service and NRCS. NRCS may certify a
wetland determination without making
a field investigation. NRCS will notify
the person affected by the certification
and provide an opportunity to appeal
the certification prior to the certification
becoming final. All wetland
determinations made after July 3,1996,
will be done on a tract basis and will be
considered certified wetland •
determinations. A not-inventoried
designation within a certified wetland is
subject to change when the soil,
hydrology, and vegetation evaluation is
completed and identified as to type of
wetland or as a non-wetland. This
change from a not-inventoried
designation to an approved wetland
designation will be done at the request
of the landowner or during a formal
Investigation of a potential violation.
(2) The wetland determination and
wetland delineation shall be certified as
final by the NRCS official 30 days after
providing the person notice of
certification or, if an appeal is filed with
USDA, after the administrative appeal
procedures are exhausted.
(3) In the case of an appeal, NRCS will
review and certify the accuracy of the
determination of all lands subject to the
appeal to ensure that the subject lands
have been accurately delineated. Prior
to a decision being rendered on the
appeal, NRCS will conduct an tin-site
investigation of the subject land.
(4) Before any benefits are withheld,
an on-site investigatio'n of a potential
wetland violation will be made by
NRCS. The affected person will be
provided an opportunity to appeal the
on-site determination!to USDA if the on-
site determination differs from the
original determination. Such action by
NRCS shall be considered a review of
the prior determination and certification
of the delineation. If the prior
determination was a certified wetland
determination, an appeal of the NRCS
on-site determinationlshall be limited to
the determination thajt the wetland was
converted in violation of this part.
(5) A copy of the information from the
final certified wetland determination
and the wetland delineation shall be
recorded on official U^DA aerial
photography, digital imagery, or other
graphic representation of the area.
(6) As long as the affected person is
in compliance with the wetland
conservation provision of this part, and
as long as the area is devoted to the use
and management of the land for
production of food, fiber, horticultural
crops, a certification made under this
section will remain valid and in effect
until such time as the|person affected by
the certification requests review of the
certification by NRCS; A person may
request review of a certification only if
a natural event alters the topography or
hydrology of the subject land to the
extent that the final certification is no
longer a reliable indication of site
conditions, or if NRCS concurs with art
affected person that an error exists in
the current wetland determination
§ 12.31 On-site wetland identification
criteria. i
(a) .Hydric soils.
(1) NRCS shall identify hydric soils
through the use of published soil maps
which reflect soil surveys completed by
NRCS or through the use of ori-site
reviews. If a published soil map is
unavailable for a given area, NRCS may
use unpublished soil rnaps which were
made according to the specifications of
the National Cooperative Soil Survey or
may conduct an on-site evaluation of
the land. '•
(2) NRCS shall determine whether an
area of a field or_pther parcel of land has
a predominance of hydric soils that are
inundated or saturated as follows:
(i) If a soil map unit: has hydric soil
as all or part of its name, that soil map
unit or portion of the map unit related
to the hydric soil shall be determined to
have a predpminancejof hydric soils;
(ii) If a soil map unit is named for a
miscellaneous area that meets the
criteria for hydric soils (i.e., riverwash,
playas, beaches, or water) the soil map
unit shall be determined to have a
predominance of hydric soils; or
(iii) If a soil map unit contains
inclusions of hydric soils, that portion
of the soil map unit identified as hydric
soil shall be determined tp have a
predominance of hydric soils.
(3) List of hydric soils.
(i) Hydric soils are those soils which
meet criteria set forth in the publication
"Hydric Soils of the United States 1985"
which was developed by the National
Technical Cpmmittee for Hydric Soils
and which is incorporated by reference.
This publication may be obtained upon
request by writing NRCS at U.S.
Department of Agriculture, P.O. Box
2890, Washington, DC 20013, and is
available for inspection at the Office of
the Federal Register Information Center,
800 North Capitol Street NW., Suite 700,
Washington, DC 20408. Incorporation of
this publication by reference was
approved by the Director of the Federal
Register on June 24, 1986. The materials
are incorporated as they exist on the
date of the approval and a notice of any
change in these'materials will be
published in the Federal Register.'
(ii) An official list of hydric soil map
units shall be maintained at the local
NRCS office and shall include—
(A) All soils from the National List of
Hydric Soils that can be found in that
field office area, and
(B) Any soil map units or areas which
the state conservationist determines to
meet such hydric soil criteria.
(iii) Any deletions of a hydric soil
unit from the hydric soil map) Unit list
must be made according to the
established procedure contained in the
publication "Hydric Soils of the United
States 1985" for adding or deleting soils
from the National List of Hydric Soils.
(b) Hydrophytic vegetation.
Hydrophytic vegetation consists of
plants growing in water or in a substrate
that is at least periodically deficient in r
oxygen during a growing season as a
result of excessive water content.
(1) A plant shall be considered tp be
a plant species that occurs in wetland if
such plant is listed in the National List
of Plant Species that Occur in Wetlands.
The publication may be obtained upon
request from the U.S. Fish and Wildlife
Service at National Wetland Inventory,
Monroe Bldg.' Suite 101, 9720 Executive
Center Drive, St. Petersburg, Florida
33702. '
(2) For the purposes of the definition
of "wetland" i'n § 12.2 of this part, land
shall be determined to have a
prevalence of hydrophytic vegetation if:
(i) NRCS determines through the
criteria specified in paragraph (b)(3) of
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Federal Register / Vol. 61, No.' 174 / Friday, September 6, ' 19.96 / Rules and Regulations 47037
this section that un'der normal
circumstances such land supports a
prevalence of hydrophytic vegetation.
The term "normal circumstances" refers
to the soil and hydrologic conditions
'that are normally present, without
regard to whether the vegetation has
been removed; or
(ii) In the event the vegetation on such
land has been altered or removed, NRCS
will determine if a prevalence of
hydrophytic vegetation typically exists
in the local area on the same hydric soil
map unit under non-altered'hydrologic
conditions. .''•-•
(3) The determination of prevalence of
hydrophytic vegetation will be made in
accordance with the current Federal
wetland delineation methodology in use
by NRCS at the time of the '
determination.
(c) Mitigation wetlands.
Notwithstanding the provisions of this
section, wetlands which are created in
order to mitigate the loss of other
wetlands as a result of irrigation,
recreation, municipal water, flood
control, or other similar projects shall
hot be considered to be artificial
wetland for the purposes of
§ 12.5 (b) (1) (vii) (A) of this part.
(d) Minimal effect determination. For
the purposes of § 12.5 (b) (1) (v) of this
part, NRCS shall determine' whether the -
effect of any action of a person
associated with the conversion of a
wetland, the conversion of wetland and'
the production of an agricultural
commodity on converted wetland, or
the combined effect of the production of
an agricultural commodity on a wetland
.converted by someone else has a
minimal effect on the functions and
values of wetlands in the area. Such
determination shall be based upon a
functional assessment of functions and
values of the wetland under
consideration and other related
wetlands in the area, and will be made •
through an on-site evaluation. A request
for such determination will be made
prior to the beginning of activities that
would convert the wetland. If a person ,
has converted a wetland and then seeks
a determination that the effect of such
conversion on wetland was minimal,
the burden will be upon the person to
demonstrate to the satisfaction of NRCS
that the effect was minimal. . '
The production of an agricultural
commodity on any portion of a
converted wetland in' conformance with"
a minimal-effect determination by NRCS
is exempt under § 12.5(b)(l)(v) of this •
part. However, any additional action of
a person that will change the functions
and, values of a wetland for which a
minimal-effect determination has been
made shall be reported to NRCS for a
determination of whether the effect
continues to be minimal. The loss of a
minimal effect determination will cause
a person who produces an agricultural
commodity on the converted wetland
after such change in status to be
ineligible, under § 12.4, for certain •
program benefits. In situations where
the wetland functions and values are
replaced by the restoration,
enhancement or creation of a wetland in
accordance with a mitigation plan .
approved by NRCS, the exemption
provided by the determination will.be
effective after NRCS determines that all
practices in a mitigation plan are being
implemented.
(e) Categorical Minimal Effect
Exemptions.
(1) The state conservationist, in
consultation with the state technical
committee established under 16 U.S.C.
3861, shall identify any categories of
conversion activities and conditions
which are routinely determined by
NRCS to have minimal effect on
wetland functions and values, as
described in paragraph (d) of this
section, and recommend to the Chief,
NRCS, or a designee, inclusion on a list
of categorical minimal effect
exemptions. -. '.
(2) The Chief, or designee, shall
evaluate the conversion practices
recommended by the state
conservationists in the region to ensure
consistency across State and regional .
lines, and to determine whether any •
categories of conversion activities
identified pursuant to paragraph (e)(l).
of this section, if such activities were
exempt from the ineligibility provisions
of § 12.4, would only have a minimal
effect on wetland functions and values
in a wetland system within the region.
(3) Any categories of conversion
activities which meet the criteria of,
paragraph (e) (2) of this section will be
published in the Federal register for
inclusion in this part and shall be
exempt under § 12.5(b)(l)(v) of this part.
(4) The NRCS local field office shall
maintain a list of any activities and
conditions which are determined by the
Chief, or designee, exempt pursuant to
this section and will provide the list to
a person upon request.
§12.32 Converted wetland identification .
criteria.
(a) Converted wetland shall be
identified by determining whether the
wetland was altered so as to meet the
definition of converted wetland'. In
making this..determination, the
following factors are to be considered:
(1) Where hydric soils have been used
for production of an agricultural
commodity and the effect of the
.drainage or other altering activity is not
clearly discernible, NRCS will compare
the site with other sites containing the
same,hydric soils in a natural condition
to determine if the hydric soils can or
cannot be used to produce an
agricultural commodity under natural
conditions. If the soil on the comparison
site could not produce an agricultural
commodity under natural conditions,
the subject wetland will be considered-
to be. converted wetland.
(2) Where woody hydrophytic
vegetation has been removed from
hydric soils for the purpose of or
permitting the production of an
agricultural commodity, the area will be
considered to be converted wetland.
(b) A wetland shall not be considered
to be converted if:
(1) Production of an agricultural
commodity on such land is possible as
a result of a natural condition, such as
drought, and it is determined that the
actions of the person producing such
agricultural commodity does not
permanently alter or destroy natural
wetland characteristics. Destruction .of
herbaceous hydrophytic vegetation (i.e.,
plants other than woody shrubs or trees)
, as a result of the production-of an
agricultural commodity shall not be
'considered as altering or destroying .
natural wetland.characteristic if such
vegetation could return following '
cessation of the natural condition which
made production of the agricultural
commodity possible; or
(2) Such land is correctly identified as
farmed wetland or farmed-wetland
pasture. s
§ 12.33 Use of wetland and converted
wetland. T
(a) The provisions of § 12.32(b)(2) are
intended to protect remaining functions
and values of the wetlands described
therein. Persons may continue to farm
such wetlands.under natural conditions
or as they did prior to December 23,
1985. However, no action can be taken
to-increase effects on the water regime
beyond that which existed on such
lands on or before December 23, 1985.,
unless NRCS determines the effect on
losing remaining wetland values would
be minimal under § 12.5(b)(l)(v). If, after
December 23, 1985, changes due to
human activity occurred in the
watershed and resulted in an increase in
the water regime on a person's land, the
person may be allowed to adjust the
existing drainage system to ,
accommodate the increased water
regime on the condition that the person
affected by this additional water
provides NRCS with appropriate
documentation of the increased water
regime, the causes thereof, and.the
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47038 Federal Register / Vol. 61, No. 174 / Friday, JSeptember 6. 1996 / Rules and Regulations
planned changes in the existing
drainage system. In order to maintain
program eligibility, a person must
provide sufficient documentation and
receive approval from NRCS prior to
making any changes that will have the
effect of increasing the capacity of the
existing drainage systems.
(b) unless otherwise provided in this
part, the production of an agricultural
commodity on land determined by
NRCS to be prior-converted cropland is
exempted by law from these regulations
for the area which was converted.
Maintenance or improvement of
drainage systems on prior-converted
croplands are not subject to this rule so
long as the prior-converted croplands
are used for the production of food,
forage, or fiber and as long as such
actions do not alter the hydrology of
nearby wetlands or do not make
possible the production of an
agricultural commodity on these other
wetlands. Other wetlands under this
section means any natural wetland,
farmed wetland, farmed-wetland
pasture, or any converted wetland that
is not exempt under § 12.5 of this part. -
(c) Abandonment is the cessation for
five consecutive years of management or
maintenance operations related to the
use of a farmed wetland or a farmed-
wetland pasture. Unless the criteria for
receiving an exemption under
§ 12.5(b)(l)(iii) are met, such land is
considered to be abandoned when the
land meets the wetland criteria of
§ 12.31. In order for documentation of
site conditions to be considered
adequate under § 12.5(b)(l)(iii), the
affected person must provide to NRCS
available information concerning the
extent of hydrological manipulation; the
extent of woody vegetation, and the
history of use. In accordance with
§ 12.5(b)(l)(iii), participation in a USDA
approved wetland restoration, set-aside,
diverted acres, or similar programs shall
not be deemed to constitute
abandonment.
(d) The maintenance of the drainage
capacity or any alteration or
manipulation, including the
maintenance of a natural waterway
operated and maintained as a drainage
outlet, that affects the circulation and
flow of water made to a farmed wetland
or farmed-wetland pasture would not
cause a person to be determined .to be
ineligible under this part, provided that
the maintenance does not exceed the
scope and effect of the original
alteration or manipulation, as
determined by NRCS, and provided that
the area is not abandoned. Any resultant
conversion of wetlands is to be at the
minimum extent practicable, as
determined by NRCS.
§ 12.34 Paperwork Reduction Act assigned
number.
The information collection
requirements contained in this
regulation (7 CFRpart 12) have been
approved by the Office of Management
and Budget under provisions of 44
U.S.C. chapter 35 and have been
assigned OMB Number 0560-0004.
Signed at Washington, D.C. on August 23,
1996.
Dan Glickman, :
!
Secretary. '
[FR Doc. 96-22784 Filed: 9-5-96; 8:45 ami.
BILLING CODE 3410-01-M
Agricultural Marketing Service
7 CFR Part 1075 ;
[DA-96-12] . !
Milk in the Black Hills, South Dakota,
Marketing Area; Termination of the
Order
AGENCY: Agricultural Marketing Service,
USDA. •
ACTION: Final rule; termination order.
SUMMARY: This document terminates all
but certain administrative sections of
the order regulating the handling of
milk in the Black Hilljs, South Dakota,
marketing area. Termination of this
order was requested by Black Hills Milk
Producers, a cooperative association
that represents all of the producers
whose milk is pooled^ under the order.
Thus, termination of the order is
required under the Agricultural
Marketing Agreement Act of 1937, as.
amended.
EFFECTIVE DATE: October 1, 1996.
FOR FURTHER INFORMATION CONTACT:
Clifford M. Carman, Marketing
Specialist, USDA/AMS/Dairy Division,
Order Formulation Branch, Room 2971,
South Building, P.O. Box 96456,
Washington, DC 20090-6456, (202) 720-
9368. , ; •
SUPPLEMENTARY INFORMATION: The
Departrnent is issuing this rule in
confor'mance with Executive Order
12866. :
This termination order has been
reviewed under Executive Order 12988,
Civil Justice Reform. This action is not
intended to have retroactive effect. This
rule will not preempt any state or local
laws, regulations, or policies, unless
they present an irreconcilable conflict
with this rule. ( •.
. The Agricultural Marketing
Agreement Act of 19J37, as amended (7.
U.S.C. 601-674), provides that
administrative proceedings must be
exhausted before parties may file suit in
court. Under section 608c (15) (A) .of the
Act, any handler subject to an order may
file with the Secretary a petition s'tating
that the order, any provision of the
order, or any obligation imposed in
connection with the order is not in •
accordance with the law and requesting
a modification of an order or to be
exempted from the order. A. handler is
afforded the opportunity for a hearing
on the petition. After a hearing, the
Secretary would rule on the petition.
The Act provides that the District Court
of the United States in any district in
which the handler is an inhabitant, or
has its principal place of business, has
jurisdiction in equity to review the
Secretary's ruling on the petition,
provided a bill in equity is filed not
later than 20 days after the date of the
entry of the ruling.
This order of termination is issued
pursuant to the provisions of the
Agricultural Marketing Agreement Act
and of the order regulating the handling
of milk in the Black Hills, South Dakota,
marketing area.
Small Business Consideration
During June 1996, the representative
period determined for this action, 58
producers (all members of the Black
Hills Milk Producers cooperative
association) had their milk pooled
under the Black Hills order. The Small
Business Administration (SBA) criterion
of $500,000 in annual receipts, adjusted
to reflect the information for one month
($500,000 divided by 12, divided by the
1995 average order blend price of $13.95
per hundredweight) was used to
1 determine that dairy farmers marketing
less than 300,000 pounds of milk meet
the description of a small dairy farm. On
the basis of the pounds of milk
marketed during the representative
period, 54 of the 58 dairy farmers would
be small businesses. Of these, 27
marketed less than 100,000 pounds
during June, 20 marketed between
100,000 and 200,000 pounds, and 7
marketed between 200,000 and 300,000
pounds.
In addition to the cooperative, there is
one other milk handler regulated under
, the Black Hills order in South Dakota.
Under SBA criterion, this handler
would be considered a small business.
Consequently, nearly all of the parties
affected by the Black Hills milk order
would be classified as small entities.
The current reporting, recordkeeping
and other compliance requirements of
the rule would cease with termination
of the order. None of the currently-
affected entities«would be subject to any
additional reporting or recordkeeping
requirements for purposes of the Federal
milk order program as a result of the
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53491
Corrections
Federal Register
Vol. 61, No. 199
Friday, October 11, 1996
This section of the FEDERAL REGISTER
contains editorial corrections of previously
published Presidential, Rule, Proposed Rule,
and Notice documents. These corrections are
prepared by the Office of the Federal
Register. Agency prepared corrections are
.issued as signed documents and appear in
the appropriate document categories
elsewhere in the issue.
DEPARTMENT OF AGRICULTURE
Office of the Secretary
7CFRPart12
RIN0578-AA17
Highly Erodible Land and Wetland
Conservation
Correction
In rule document 96-22784 beginning
on page 47019 in the issue of Friday,
September 6, 1996, make the following
corrections: '
1. On page 47019:
a. In the first column, under
ADDRESSES, in the sixth line, "service"
should read "Service".
' b. In the second column, in the first
paragraph, the last two lines should
read "Conservation Service, P.O.'Box
2890, Washington, D.C. 20013-2890.".
c. In the third column, in the second
paragraph, in the first line, "unfunded."
should read "Unfunded".
2. On page 47020, in the second
column, in the fourth line from the top,
"resources" should read "resource".
3. On page 47021, iri the 1st column:
a. The heading should read "Public
. Listening Forums".
b. In the 1st paragraph below the
heading, in the 9th line, insert a semi-
colon after "Texas".
c. In the same paragraph, in the 23rd
line, "Ssummary" should read
"summary". •
d. In the next paragraph, in th second
line, "variance" should read
"variances". • •
4. On the same page, in the second
column, in the seventh line from, the
top, "provision" should read
"provisions".
5. On page 47022, in the second
column, in the last line,
"determination" should read '
"determinations".
6. On the same page, in the third
column, in the second full paragraph, in
the ninth line, "Supplemental" should
read "supplemental".
7. On page 47024, in the second
column, in the fourth full paragraph, in
the fourth line, insert a period after
"§12.6". . '
8. On the same page, in the third
column, in the fourth full paragraph, in
the third line from the bott6m,
"research" was misspelled.
9. On page 47025, in the second
column, in the first full paragraph, in
the ninth line from the bottom, insert a
period after "regulations".
10. On the same page, in the third
column, in the table of contents for part
12, in the heading for 12.31, "Onn-site"
should read "On-site".
§12.2 [Corrected]
. 11. On page 47026, in the first
column, in § 12.2(a), in the.definition .
for CCC, insert "a" before "wholly-
owned";
12. On page 47027:
a. In the first column/in § 12.2(a), in
the definition for Wetland, in paragraph
(3), in the second line, remove "not".
fa. In the second column, in § 12.2(a);
in the definition for farmed-wetland
pasture, in subparagraph (i), in the third
line, "(5) percent" should read "(50)
percent". •
c. In the same column, in § 12.2(a), in
the definition for Non-wetland, in
subparagraph (ii), in the fourth line,.
"and" should read "an".
§12.4 [Corrected]
13. On page 47027, in the third
column, in § 12.4(a)(2), in the third line,
"December 23, 1995" should'read
"December 23, J985".
14. On page 47028, in the third
column, in § 12.4, in paragraph (g)(3), in
the sixth line and in paragraph (h), in
the eighth line from the bottom,
"conversation" should read
"conservation" each time it appears.
§12.5 [Corrected]
15. On page 47028, in the third
column, in § 12.5(a)(l)(i), in the second .
line, "1081" should read "1981"
16. On page 47029, in the first
column, in § 12.5(a)(2), in the second
line, "as" should read "As".
17. On page 47030, in the third
column, in § 12.5(fa)(2)(iii), in the
second line from the bottom, "farmed"
was misspelled.
18, On page 47031, in the third
column, in § 12.5(b)(7), in the first line,
"Responsibility" was misspelled.
§12.6 [Corrected] .
19. On page 47032, in the first
column, in § 12.6(c), in the first line,
"Administration"^ was misspelled. •
§12.21 [Corrected]
' 20. .On page 47034, in the second
column, in § 12.21, the first paragraph
designated "(A)" should read "(a)".
§12.22 [Corrected]
2.1. On page 47034, in the third
'column, in § 12.22, the paragraph
designated "(C)" should read "(c)".
§12.30 [Corrected] , .
22. On page 47036, in the first
column, in § 12.30(b), in the fifth line,
insert a comma after "agencies".
23. On the same page, in the second
column, in § 12.30(c)(6), in the sixth
line, insert "or" after "fiber,".
BILLING CODE 1505-01-D
DEPARTMENT OF EDUCATION
.William D. Ford Federal Direct Loan
Program
Correction .
In notice document 96-25709
beginning on page 52778 in the issue of
Tuesday, October 8,, 1996, make the
following correction:
On page 52779, in the second column,
under Deadlines for Submission of
Records, in the first paragraph, in the
seventh and eighth liries, "(45 days after
publication in the Federal Register)"
should read "November 22, 1996".
BILLING CODE 1505-01-D
OFFICE OF PERSONNEL
MANAGEMENT
5CFRPart550
RI.N 3206-AH09
Pay Under the General Schedule;
Termination of Interim Geographic
Adjustments
Correction
In the corrections to rule document
96-1835 published on page 50535, in
the issue of Thursday, September 26,
1996; on page 51319 in the issue of
Tuesday, October 1, 1996; and on page
52497 in the issue of Monday, October
7, 1996, in the subject heading,
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