Federal Register / Vol. 62, No. 179 / Tuesday, September 16, 1997 / Rules and Regulations 48471

1Compliance Agreement forms are available

without charge from Permit Unit, PPQ, APHIS, 4700

River Road Unit 136, Riverdale, MD 20737–1236,

and from local offices of the Plant Protection and

Quarantine. (Local offices are listed in telephone

directories).

monitoring of an APHIS inspector. The

cleaning will be at the expense of the

owner or consignee.

(1) At the location where the seed is

being cleaned, the identity of the seed

must be maintained at all times to the

satisfaction of the Administrator. The

refuse from the cleaning must be placed

in containers and securely sealed and

identified. Upon completion of the

cleaning, a representative sample of the

seed will be analyzed by a registered

seed technologist, an official seed

laboratory, or by APHIS; if the seed is

found to be within the noxious weed

tolerances set forth in § 361.6(b), the

seed may be allowed entry into the

United States;

(2) The refuse from the cleaning must

be destroyed under the monitoring of an

APHIS inspector at the expense of the

owner or consignee of the seed.

(3) Any person engaged in the

business of cleaning imported seed may

enter into a compliance agreement

under paragraph (c) of this section to

facilitate the cleaning of seed imported

into the United States under this part.

(b) Any person engaged in the

business of processing screenings who

wishes to process screenings imported

from Canada under § 361.7(c) that are

otherwise prohibited under this part

must enter into a compliance agreement

under paragraph (c) of this section.

(c) A compliance agreement for the

cleaning of imported seed or processing

of otherwise prohibited screenings from

Canada shall be a written agreement 1

between a person engaged in such a

business, the State in which the

business operates, and APHIS, wherein

the person agrees to comply with the

provisions of this part and any

conditions imposed pursuant thereto.

Any compliance agreement may be

canceled orally or in writing by the

APHIS inspector who is monitoring its

enforcement whenever the inspector

finds that the person who entered into

the compliance agreement has failed to

comply with the provisions of this part

or any conditions imposed pursuant

thereto. If the cancellation is oral, the

decision and the reasons for the

decision shall be confirmed in writing,

as promptly as circumstances permit.

Any person whose compliance

agreement has been canceled may

appeal the decision to the

Administrator, in writing, within 10

days after receiving written notification

of the cancellation. The appeal shall

state all of the facts and reasons upon

which the person relies to show that the

compliance agreement was wrongfully

canceled. The Administrator shall grant

or deny the appeal, in writing, stating

the reasons for such decision, as

promptly as circumstances permit. If

there is a conflict as to any material fact,

a hearing shall be held to resolve such

conflict. Rules of practice concerning

such a hearing will be adopted by the

Administrator.

§ 361.9 Recordkeeping.

(a) Each person importing agricultural

seed or vegetable seed under this part

must maintain a complete record,

including copies of the declaration and

labeling required under this part and a

sample of seed, for each lot of seed

imported. Except for the seed sample,

which may be discarded 1 year after the

entire lot represented by the sample has

been disposed of by the person who

imported the seed, the records must be

maintained for 3 years following the

importation.

(b) Each sample of vegetable seed and

each sample of agricultural seed must be

at least equal in weight to the sample

size prescribed for noxious weed seed

examination in table 1 of § 361.5.

(c) An APHIS inspector shall, during

normal business hours, be allowed to

inspect and copy the records.

(Approved by the Office of Management and

Budget under control number 0579–0124)

§ 361.10 Costs and charges.

Unless a user fee is payable under

§ 354.3 of this chapter, the services of an

APHIS inspector during regularly

assigned hours of duty and at the usual

places of duty will be furnished without

cost. The U.S. Department of

Agriculture’s provisions relating to

overtime charges for an APHIS

inspector’s services are set forth in part

354 of this chapter. The U.S.

Department of Agriculture will not be

responsible for any costs or charges

incident to inspections or compliance

with this part, other than for the

services of the APHIS inspector during

regularly assigned hours of duty and at

the usual places of duty. All expenses

incurred by the U.S. Department of

Agriculture (including travel, per diem

or subsistence, and salaries of officers or

employees of the Department) in

connection with the monitoring of

cleaning, labeling, other reconditioning,

or destruction of seed, screenings, or

refuse under this part shall be

reimbursed by the owner or consignee

of the seed or screenings.

Done in Washington, DC, this 10th day of

September 1997.

Terry L. Medley,

Administrator, Animal and Plant Health

Inspection Service.

[FR Doc. 97–24524 Filed 9–15–97; 8:45 am]

BILLING CODE 3410–34–P

DEPARTMENT OF AGRICULTURE

Natural Resources Conservation

Service

7 CFR Part 633

Water Bank Program

AGENCY: Natural Resources

Conservation Service, USDA.

ACTION: Final Rule.

SUMMARY: The Department of

Agriculture Reorganization Act of 1994

authorized the establishment of the

Natural Resources Conservation Service

(NRCS) and transferred responsibility

for the Water Bank Program (WBP) from

the Agricultural Stabilization (ASCS)

and Conservation Service to the NRCS,

formerly the Soil Conservation Service

(SCS). This final rule provides the

process by which the WBP will be

administered within the NRCS.

DATES: Effective date: September 16,

1997.

FOR FURTHER INFORMATION CONTACT:

Robert Misso (Program Manager), (202)

720–3534.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

The Office of Management and Budget

(OMB) has determined that this final

rule is not significant.

Regulatory Flexibility Act

It has been determined that the

Regulatory Flexibility Act is not

applicable to this rule because the NRCS

is not required by 5 U.S.C. 553 or any

other provision of law to publish a

notice of proposed rulemaking with

respect to the subject matter of this rule.

Further, because this rule merely

reflects a statutory change in

administrative responsibility,

publication for public comment is

unnecessary.

Environmental Evaluation

This regulatory action, which merely

recognizes a transfer in administrative

responsibilities, is categorically

excluded by 7 CFR1b.3(a)(1). Therefore,

neither an environmental assessment

nor an environmental impact statement

is needed.
48472 Federal Register / Vol. 62, No. 179 / Tuesday, September 16, 1997 / Rules and Regulations

Executive Order 12372

This program/activity is not subject to

the provisions of Executive Order 12372

because it involves direct payments to

individuals and not to State and local

officials. See notice related to 7 CFR

part 3015, subpart V, published at 48 FR

29115 (June 24, 1983).

Federal Domestic Assistance Program

The title and number of the Federal

Domestic Assistance Program, as found

in the Catalog of Federal Domestic

Assistance, to which this rule applies

are: Water Bank Program 10.062.

Paperwork Reduction Act

No substantive changes have been

made in this final rule which affect the

recordkeeping requirements and

estimated burdens previously reviewed

and approved under OMB control

number 0578–0013.

Executive Order 12778

This final rule has been reviewed in

accordance with Executive Order 12778.

The provisions of this rule are not

retroactive. Furthermore, the provisions

of this final rule preempt State and local

laws to the extent such laws are

inconsistent with this final rule. Before

an action may be brought in a Federal

court of competent jurisdiction, the

administrative appeal rights afforded

persons at 7 CFR part 614 must be

exhausted.

Unfunded Mandates Reform Act of

1995

Pursuant to Title II of the Unfunded

Mandates Reform Act of 1995, Public

Law 104–4, NRCS assessed the affects of

this rulemaking action on State, local,

and tribal governments. 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, and therefore a statement

under section 202 of the Unfunded

Mandates Reform Act of 1995 is not

required.

Discussion of Program

The Agricultural Stabilization and

Conservation Service (ASCS) issued the

current regulations for implementation

of WBP, and the regulations are codified

at 7 CFR part 752. Pursuant to the

Department of Agriculture

Reorganization Act of 1994, Pub. L.

103–354, the Natural Resources

Conservation Service (NRCS) assumed

responsibility for administering the

WBP and this final rule establishes a

new part (7 CFR part 633) for

implementation of the WBP under

NRCS. Under this rule, NRCS will

administer agreements entered into by

persons with ASCS and, as funds are

made available, new agreements entered

into by persons with NRCS. This final

rule adopts most of the policies as found

in 7 CFR part 752, except that the

administration, enforcement,

monitoring, and management of the

program is now under the jurisdiction of

the Chief, NRCS, or designee. NRCS

believes that issuance of a final rule

without a public comment period is

appropriate because of the pending

removal of 7 CFR part 752 and the need

to maintain a regulatory framework for

the program. More importantly, the

changes made by this rule merely

transfer administrative responsibilities.

This final rule does not relieve any

person of any obligation or liability

incurred under 7 CFR part 752, nor

otherwise deprive any person of any

rights received or accrued under the

provisions of 7 CFR part 752. Therefore,

no person’s rights shall be adversely

impacted as a result of this action.

WBP was developed in accordance

with the Water Bank Act, enacted in

1970. The purpose of the program is to

conserve water, preserve and improve

the condition of migratory waterfowl

habitat and other wildlife resources, and

secure other wildlife benefits through

10-year land use agreements with

landowners and operators in important

migratory waterfowl nesting and

breeding areas.

The program operates primarily in the

northern part of the Central flyway and

the northern and southern parts of the

Mississippi flyway, which are the major

migratory water routes used by

waterfowl. WBP also operates along

other flyways in States where the

program is authorized. NRCS currently

administers WBP agreements in

Arkansas, California, Kentucky,

Louisiana, Minnesota, Mississippi,

Montana, Nebraska, North Dakota, Ohio,

South Dakota, and Wisconsin.

Unlike other Federal wetland laws,

the Water Bank Act defines wetlands in

accordance with Circular 39, Wetlands

of the United States, published by the

Department of the Interior. WBP

agreements encompass inland fresh

areas (types 1 through 7) as described in

Circular 39, and artificially developed

inland fresh water areas that meet the

description of inland fresh water areas

(types 1 through 7).

List of Subjects in 7 CFR Part 633

Administrative practices and

procedures, Contracts, Natural

Resources, Technical assistance.

Accordingly 7 CFR Chapter VI is

amended as follows:

A new part 633 is added to read as

follows:

PART 633—WATER BANK PROGRAM

Sec.

633.1 Purpose and scope.

633.2 Definitions.

633.3 Administration.

633.4 Program requirements.

633.5 Application procedures.

633.6 Program participation requirements.

633.7 Annual payments.

633.8 Cost-share payments.

633.9 Conservation plan.

633.10 Modifications.

633.11 Transfer of an interest in an

agreement.

633.12 Termination of agreements.

633.13 Violations and remedies.

633.14 Debt collection.

633.15 Payments not subject to claims.

633.16 Assignments.

633.17 Appeals.

633.18 Scheme and device.

Authority: 16 U.S.C. 1301–1311.

§ 633.1 Purpose and scope.

The regulations in this part set forth

the policies, procedures, and

requirements for the Water Bank

Program (WBP) as administered by the

Natural Resources Conservation Service

(NRCS) for program implementation.

§ 633.2 Definitions.

The following definitions shall be

applicable to this part:

Adjacent land means land on a farm

which adjoins designated types 1

through 7 wetlands and is considered

essential for the protection of the

wetland or for the nesting, breeding, or

feeding of migratory waterfowl.

Adjacent land need not be contiguous to

the land designated as wetland, but

cannot be located more than one quarter

of a mile away.

Agreement means the document that

specifies the obligations and rights of

any person who has been accepted for

participation in the WBP.

Annual payment means the

consideration paid to a participant each

year for entering an agreement with the

NRCS under the WBP.

Chief means the Chief of the Natural

Resources Conservation Service or the

person delegated authority to act for the

Chief.

Conservation District is a subdivision

of a State government organized

pursuant to applicable State law to

promote and undertake actions for the

conservation of soil, water, and other

natural resources.

Conservation plan means a written

record of the land user’s decision on the

use and management of the wetland and

adjacent areas covered by the

agreement.

Cost-share payment means the

payment made by the NRCS to achieve

the protection of the wetland functions
Federal Register / Vol. 62, No. 179 / Tuesday, September 16, 1997 / Rules and Regulations 48473

and values of the agreement area in

accordance with the conservation plan.

Landowner means a person or persons

having legal ownership of farmland,

including those who may be buying

farmland under a purchase agreement.

Landowner may include all forms of

collective ownership including joint

tenants, tenants in common, and life

tenants and remaindermen in a farm

property.

Natural Resources Conservation

Service (NRCS) is an agency of the

United States Department of

Agriculture, formerly called the Soil

Conservation Service.

Operator means the person who is in

general control of the farming

operations on the farm during the crop

year.

Person means one or more

individuals, partnerships, associations,

corporations, estates or trusts, or other

business enterprises or other legal

entities and, whenever applicable, a

State, a political subdivision of a State,

or any agency thereof.

Practice means a measure necessary

or desirable to accomplish the desired

program objectives.

State Technical Committee means a

committee established by the Secretary

of the United States Department of

Agriculture in a State pursuant to 16

U.S.C. 3861. The State Conservationist

will be the chairperson of the State

Technical Committee.

U.S. Fish and Wildlife Service is an

agency of the United States Department

of the Interior.

Wetlands mean the inland fresh areas

defined under 16 U.S.C. 1302 and

described as types 1 through 7 in

Circular 39, Wetlands of the United

States, as published by the United States

Department of the Interior.

Wetlands functions and values mean

the hydrological and biological

characteristics of wetlands and the

social worth placed upon these

characteristics, including:

(1) Habitat for migratory birds and

other wildlife, in particular at risk

species;

(2) Protection and improvement of

water quality;

(3) Attenuation of water flows due to

flooding;

(4) The recharge of ground water;

(5) Protection and enhancement of

open space and aesthetic quality;

(6) Protection of flora and fauna

which contributes to the Nation’s

natural heritage; and

(7) Contribution to educational and

scientific scholarship.

WBP means the Water Bank Program.

§ 633.3 Administration.

(a) The regulations in this part will be

administered under the general

supervision and direction of the Chief.

(b) As determined by the Chief and

the Administrator of the Farm Service

Agency, the NRCS will seek the

agreement of the Farm Service Agency

in establishing policies, priorities, and

guidelines related to the

implementation of this part.

(c) The State Conservationist will

consultation with the State Technical

Committee, on program administration

and related policy matters. No

determination by the State Technical

Committee shall compel the NRCS to

take any action which the NRCS

determines will not serve the purposes

of the program established by this part.

(d) The NRCS may enter into

cooperative agreements with Federal or

State agencies and with private

conservation organizations to assist the

NRCS with educational efforts,

agreement management and monitoring,

program implementation assistance, and

to assure a solid technical foundation

for the program.

(e) The NRCS shall consult with the

U.S. Fish and Wildlife Service in the

implementation of the program and in

establishing program policies.

(f) The Chief may allocate funds for

such purposes related to special pilot

programs for wetland management and

monitoring, emergencies, cooperative

agreements with other Federal or State

agencies for program implementation,

coordination of enrollment across State

boundaries, or for other goals of the

WBP found in this part.

§ 633.4 Program requirements.

(a) General. Under the WBP, the

NRCS will enter 10-year agreements

with eligible persons who voluntarily

cooperate in the protection of wetlands

and associated lands. To participate in

WBP, a person will agree to the

implementation of a conservation plan,

the effect of which is to protect,

enhance, maintain, and manage the

hydrologic conditions of inundation or

saturation of the soil, native vegetation,

and natural topography of eligible lands.

The NRCS may provide cost-share

assistance for the activities that promote

the protection of wetland functions and

values. Specific protection actions may

be undertaken by the participant or

other NRCS designee.

(b) Participant eligibility. To be

eligible to participate in the WBP, a

person must:

(1) Be the landowner of eligible land

for which enrollment is sought; or

(2) Have possession of the land by

written lease over all designated acreage

in the agreement for at least two years

preceding the date of the agreement and

will have possession over the all

designated acreage for the agreement

period.

(c) Eligible land. (1) The NRCS shall

determine whether land is eligible for

enrollment and whether, once found

eligible, the lands may be included in

the program based on the likelihood of

successful protection of wetland

functions and values when considering

the cost of entering the agreement and

protection costs. Land placed under an

agreement shall be specifically

identified and designated for the period

of the agreement.

(2) The following land is eligible for

enrollment in the WBP:

(i) Privately owned inland fresh

wetland areas of types 1 through 7.

(ii) Privately owned inland fresh

wetland areas of types 1 through 7

which are under a drainage easement

with the U.S. Department of the Interior

or with a State government which

permits agricultural use; or

(iii) Other privately owned land

which is adjacent to or within one

quarter mile of designated types 1

through 7 wetlands and which is

determined by the State Conservationist

to be essential for the nesting, breeding,

or feeding of migratory waterfowl, or for

the protection of wetland.

(d) Ineligible land. The following land

is not eligible for enrollment in the

WBP:

(1) Converted wetlands if the

conversion was in violation of 16 U.S.C.

3821 et seq.;

(2) Lands owned by an agency of the

United States;

(3) Land which is set aside or diverted

under any other program administered

by the Department of Agriculture;

(4) Land which is harvested in the

first year of the agreement period prior

to being designated, except for land on

which timber is harvested in accordance

with a Forest Management Plan which

is included in the conservation plan and

is approved by the State forester or

equivalent State official;

(5) Lands where implementation of

agreement practices would be futile due

to on-site or off-site conditions; and

(6) Land on which the ownership has

changed during the 2-year period

preceding the first year of the agreement

period unless:

(i) The new ownership was acquired

by will or succession as a result of the

death of the previous owner,

(ii) The land was acquired by the

owner or operator to replace eligible

land from which he was displaced

because of its acquisition by any
48474 Federal Register / Vol. 62, No. 179 / Tuesday, September 16, 1997 / Rules and Regulations

Federal, State, or other agency having

the right of eminent domain, or

(iii) The new owner operated the land

to be designated for as long as 2 years

preceding the first year of the agreement

and has control of such land for the

agreement period.

§ 633.5 Application procedures.

(a) Application for participation. To

apply for enrollment, a person must

submit an application for participation

in the WBP.

(b) Preliminary agency actions. The

NRCS must certify that the designated

acreage that would be placed under an

agreement constitutes a viable wetland

unit, contains sufficient adjacent land to

protect the wetland, and provides

essential habitat for the nesting,

breeding or feeding of migratory

waterfowl.

(c) Where funds allocated to the State

do not permit accepting all requests

which are filed, the State

Conservationist, in consultation with

the State Technical Committee, may

establish ranking criteria and limit the

approval of requests for agreements in

accordance with the ranking scheme.

Any ranking scheme shall consider

estimated costs of the agreement, costs

of protection, availability of matching

funds, significance of wetland functions

and values, and estimated success of

protection measures.

(d) The NRCS may place higher

priority on certain geographic regions of

the State where the protection of

wetlands may better achieve NRCS State

and regional goals and objectives.

(e) Notwithstanding any limitation of

this part, the State Conservationist may

enroll eligible lands at any time in order

to encompass total wetland areas subject

to multiple ownership or otherwise to

achieve program objectives. Similarly,

the State Conservationist may, at any

time, exclude otherwise eligible lands if

the participation of the adjacent

landowners is essential to the successful

protection of the wetlands and those

adjacent landowners are unwilling to

participate.

§ 633.6 Program participation

requirements.

(a) WBP Agreement. An agreement

shall be executed for each participating

farm. The agreement shall be signed by

the owner of the designated acreage and

any other person who, as landlord,

tenant, or share cropper, will share in

the payment or has an interest in the

designated acreage. There may be more

than one agreement for a farm.

(b) Agreement period. The agreement

period shall:

(1) Be for a term of 10 years;

(2) Become effective on January 1 of

the year in which the agreement is

approved except that the agreement

shall become effective on January 1 of

the next succeeding year in cases where,

at the time the agreement is approved,

the NRCS determines that the agreement

signers will be unable to comply with

the provisions of paragraph (c) of this

section in the year in which such

agreement is approved.

(c) Agreement terms and conditions.

The acreage designated under an

agreement shall:

(1) Be maintained for the agreement

period in a manner which will preserve,

restore, or improve the wetland

character of the land;

(2) Not be drained, burned, filled, or

otherwise used in a manner which

would destroy the wetland character of

the acreage, except that the provisions

of this paragraph shall not prohibit the

carrying out of management practices

which are specified in a conservation

plan for the farm;

(3) Not be used as a dumping area for

draining other wetlands, except where

the State Conservationist determines

that such use is consistent with the

sound management of wetlands and is

specified in the conservation plan;

(4) Not be used as a source of

irrigation water;

(5) Not be used for the harvesting of

a crop;

(6) Not be hayed except for during

periods of severe drought and only

under conditions prescribed by the State

Conservationist in consultation with the

Secretary of the Interior or his designee;

and

(7) Not be grazed, except as may be

specified in the conservation plan.

§ 633.7 Annual payments.

(a) Person on the farm having an

interest in the designated acreage,

including tenants and sharecroppers,

shall be eligible for an annual payment

in the manner agreed upon by them as

representing their respective

contributions to compliance with the

agreement. The State Conservationist

shall not approve an agreement if it is

determined that the proposed division

of payment is not fair and equitable.

(b) The annual per acre payment rates

for wetlands and for adjacent land shall

be determined for each county by the

State Conservationist, based on

recommendations of the State Technical

Committee.

(c) Maximum payments. In order to

ensure that limited program funds are

expended to maximize program

benefits, the State Conservationist, in

consultation with the State Technical

Committee, may establish uniform

maximum annual payment limits for

agreements within a State or for

geographic areas within a State.

(d) Preliminary estimates of annual

payments. Upon request prior to filing

an application for enrollment, a person

may be apprised of the maximum

annual payment rates.

(e) Adjustment of annual rates.

(1) The State Conservationist, in

consultation with the State Technical

Committee, shall reexamine the

payment rates with respect to each

agreement at the beginning of the fifth

year of any ten-year initial or renewal

period and before the renewal expires.

(2) An adjustment in the payment

rates shall be made for any initial or

renewal period taking into

consideration the current land rental

rates and crop values in the area. No

adjustment shall be made in a payment

rate which will result in a reduction of

an annual payment rate from the rate

which is specified in the initial or

renewal agreement.

(3) The rate or rates of annual

payments may be increased if the

program participant permits access by

the general public to the designated

acreage for hunting, trapping, fishing,

and hiking, subject to applicable State

and Federal regulations.

§ 633.8 Cost-share payments.

(a) In addition to annual payments,

the NRCS may share the cost with

program participants of protecting the

wetland functions and values of the

enrolled land as provided in the

conservation plan. The NRCS may pay

up to 75 percent of such costs.

(b) Cost-share payments may be made

only upon a determination by the NRCS

that an eligible practice or an

identifiable unit of the practice has been

established in compliance with

appropriate standards and

specifications. Identified practices may

be implemented by the program

participant or other designee.

(c) A program participant may seek

additional cost-share assistance from

other public or private organizations as

long as the activities funded are in

compliance with this part. In no event

shall the program participant receive an

amount which exceeds 100 percent of

the total actual cost of the practices.

§ 633.9 Conservation plan.

(a) The program participant, with

assistance from NRCS and in

consultation with the Conservation

District, shall prepare a conservation

plan for the acreage designated under an

agreement.

(b) The conservation plan is the basis

for the agreement and is incorporated
Federal Register / Vol. 62, No. 179 / Tuesday, September 16, 1997 / Rules and Regulations 48475

therein. It includes a schedule of

conservation treatment and management

required to protect and to maintain the

wetland and adjacent land as a

functional wetland unit for the life of

the agreement.

(c) Conservation treatment and

management of the vegetation for

wetland protection, wildlife habitat, or

other authorized objectives are

consistent with the program objectives

and priorities.

§ 633.10 Modifications.

The NRCS may approve modifications

to the agreement or associated

conservation plan after consultation

with the Conservation District. Any

modification must meet WBP program

objectives, and must be in compliance

with this part.

§ 633.11 Transfer of interest in an

agreement.

(a) If the ownership or operation of a

farm changes in such a manner that the

agreement no longer contains the

signatures of the persons required by

§ 633.6(a) to sign the agreement, the

agreement shall be modified to reflect

the new interested persons and new

divisions of payments.

(b) If such persons are not willing to

become parties to the modified

agreement or for any other reason a

modified agreement is not executed, the

agreement shall be terminated and all

unearned payments shall be forfeited or

refunded.

(c) The annual payment for the year

in which the change of ownership or

operation occurs shall not be considered

to have been earned unless the

designated acreage is continued in the

program and there is compliance with

the agreement for the full agreement

year.

(d) The signatories to the agreement

prior to the change of ownership or

operation shall be jointly and severally

responsible for refunding the unearned

payments previously made.

§ 633.12 Termination of agreements.

(a) The State Conservationist may, by

mutual agreement with the parties to the

agreement, consent to the termination of

the agreement where:

(1) The parties to the agreement are

unable to comply with the terms of the

agreement as the result of conditions

beyond their control;

(2) Compliance with the terms of the

agreement would work a severe

hardship on the parties to the

agreement; or

(3) Termination of the agreement

would be in the public interest.

(b) If an agreement is terminated in

accordance with the provisions of this

section, the annual payment for the year

in which the agreement is terminated

shall not be considered to have been

earned unless there is compliance with

the terms and conditions of the

agreement for the entire calendar year.

§ 633.13 Violations and remedies.

(a) In the event of a violation of an

agreement or any associated

conservation plan, the parties to the

agreement shall be given reasonable

notice and an opportunity to voluntarily

correct the violation within 30 days of

the date of the notice, or such additional

time as the State Conservationist may

allow.

(b) In addition to any and all legal and

equitable remedies as may be available

to the NRCS under applicable law, the

NRCS may withhold any annual or costshare payments owing to the parties of

the agreement at any time there is a

material breach of the agreement or any

conservation plan. Such withheld funds

may be used to offset costs incurred by

the NRCS in any remedial actions or

retained as damages pursuant to court

order or settlement agreement.

(c) The NRCS shall be entitled to

recover any and all administrative and

legal costs, including attorney’s fees or

expenses, associated with any

enforcement or remedial action.

§ 633.14 Debt collection.

Any debts arising under this program

are governed with respect to their

collection by the Federal Claims

Collection Act of 1966 (31 U.S.C. 3701)

and the regulations found in 4 CFR

chapter II.

§ 633.15 Payments not subject to claims.

(a) Any payments due any person

shall be determined and allowed

without regard to State land and

without regard to any claim or lien

against any crop, or proceeds thereof,

which may be asserted by any creditor,

except as provided in paragraph (b) of

this section.

(b) The regulations governing setoffs

and withholdings, in part 13 of this title,

as amended, shall be applicable to this

program.

§ 633.16 Assignments.

Any person entitled to any cash

payment under this program may assign

the right to receive such cash payments,

in whole or in part.

§ 633.17 Appeals.

(a) Any person may obtain

reconsideration and review of

determinations affecting participation in

this program in accordance with part

614 of this chapter.

(b) Before a person may seek judicial

review of any action taken under this

part, the person must exhaust all

administrative appeal procedures set

forth in paragraph (a) of this section,

and for purposes of judicial review, no

decision shall be a final agency action

except a decision of the Chief of NRCS

under these procedures.

§ 633.18 Scheme and device.

(a) If it is determined by the NRCS

that a person has employed a scheme or

device to defeat the purposes of this

part, any part of any program payment

otherwise due or paid such person

during the applicable period may be

withheld or be required to be refunded

with interest thereon, as determined

appropriate by the NRCS.

(b) A scheme or device includes, but

is not limited to, coercion, fraud,

misrepresentation, depriving any other

person of an annual payment or

payments for cost-share practices for the

purpose of obtaining a payment to

which a person would otherwise not be

entitled.

(c) A program participant who

succeeds to the responsibilities under

this part shall report in writing to the

NRCS any interest of any kind in

enrolled land that is held by a

predecessor or any lender. A failure of

full disclosure will be considered a

scheme or device under this section.

Signed at Washington, D.C. on September

4, 1997.

Gary R. Nordstrom,

Acting Chief, Natural Resources Conservation

Service.

[FR Doc. 97–24486 Filed 9–15–97; 8:45 am]

BILLING CODE 3410–16–P

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection

Service

9 CFR Part 78

[Docket No. 97–077–1]

Brucellosis in Cattle; State and Area

Classifications; Kentucky

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Interim rule and request for

comments.

SUMMARY: We are amending the

brucellosis regulations concerning the

interstate movement of cattle by

changing the classification of Kentucky

from Class A to Class Free. We have

determined that Kentucky meets the

standards for Class Free status. This

action relieves certain restrictions on