This section of the FEDERAL REGISTER

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.

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new books are listed in the first FEDERAL

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Rules and Regulations Federal Register

64591 

Vol. 74, No. 234 

Tuesday, December 8, 2009 

DEPARTMENT OF AGRICULTURE 

Commodity Credit Corporation 

7 CFR Part 1465 

RIN 0578–AA50 

Agricultural Management Assistance 

Program 

AGENCY: Commodity Credit Corporation, 

Natural Resources Conservation Service, 

United States Department of Agriculture 

ACTION: Final rule. 

SUMMARY: This final rule sets forth the 

policies and procedures implementing 

the Agricultural Management Assistance 

Program (AMA). The Natural Resources 

Conservation Service (NRCS), on behalf 

of the Commodity Credit Corporation 

(CCC), published an interim final rule 

with request for comment on November 

20, 2008 (73 FR 70245). NRCS issues 

this final rule to address public 

comments received during the 60-day 

public comment period and to clarify 

policies to improve program 

implementation. 

DATES: Effective Date: The rule is 

effective December 8, 2009. 

ADDRESSES: This final rule may be 

accessed via the Internet at: http:// 

www.nrcs.usda.gov/programs/farmbill/ 

2008/index.html, or the governmentwide rulemaking Web site: at http:// 

www.regulations.gov, (identified by 

Docket Number NRCS–FR–09050). 

Persons with disabilities who require 

alternative means for communication 

(Braille, large print, audio tape, etc.) 

should contact the USDA TARGET 

Center at: (202) 720–2600 (voice and 

TDD). 

FOR FURTHER INFORMATION CONTACT: 

Gregory Johnson, Director, Financial 

Assistance Programs Division, Natural 

Resources Conservation Service, 1400 

Independence Avenue, SW., Room 5241 

South Building, Washington, DC 20250; 

Telephone: (202) 720–1844; Fax: (202) 

720–4265. 

SUPPLEMENTARY INFORMATION: 

Regulatory Certifications 

Executive Order 12866 

The Office of Management and Budget 

has determined that this final rule is a 

non-significant regulatory action under 

Executive Order 12866. 

Regulatory Flexibility Act 

NRCS has determined that the 

Regulatory Flexibility Act is not 

applicable to this final rule because 

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. 

Executive Order 13132 

This final rule has been reviewed in 

accordance with the requirements of 

Executive Order 13132, Federalism. The 

Department of Agriculture (USDA) has 

determined that this final rule conforms 

with the Federalism principles set forth 

in the Executive Order; would not 

impose any compliance costs on the 

States; and would not have substantial 

direct effects on the States, on the 

relationship between the Federal 

Government and the States, or on the 

distribution of power and 

responsibilities on the various levels of 

government. Therefore, USDA 

concludes that this final rule does not 

have Federalism implications. 

Executive Order 13175 

This final rule has been reviewed in 

accordance with Executive Order 13175, 

Consultation and Coordination with 

Indian tribal governments. NRCS has 

assessed the impact of this final rule on 

Indian tribal governments and has 

concluded that this rule will not have 

substantial direct effects on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes. 

Environmental Analysis 

The National Environmental Policy 

Act (NEPA) applies to ‘‘major Federal 

actions’’ where the agency has control 

and responsibility over the actions and 

has discretion as to how the actions will 

be carried out (40 CFR part 1508.18). 

Accordingly, any actions that are 

directed by Congress to be implemented 

in such manner that there is no 

discretion on the part of the agency are 

not required to undergo an 

environmental review under NEPA. The 

lack of discretion over the action by the 

agency undermines the rationale for 

NEPA review—evaluation of the 

environmental impacts of the proposed 

action and consideration of alternative 

actions to avoid or mitigate the impacts. 

Where Congress has directed that a 

specific action be implemented, and an 

agency has no discretion to consider 

and take alternative actions, a NEPA 

review would be moot. 

For AMA, the interim final rule noted 

that Congress mandated the addition of 

Hawaii to the list of States to which the 

Secretary of Agriculture is authorized to 

provide financial assistance. The 

Secretary is, therefore, required to make 

this addition to the program. There is no 

discretion on the part of the agency to 

take this action. For this reason, an 

environmental review of these changes 

under NEPA was not required nor 

prepared for the interim final rule. 

For this final rulemaking, NRCS has 

determined there are a few minor 

discretionary changes that should be 

made. The majority of these changes are 

administrative, technical, or corrections 

to the regulation. The primary change is 

the expansion of the definition of 

eligible lands to include those lands that 

are publicly owned. The agency believes 

that any potential effects from this 

minor change to the human 

environment have been sufficiently 

analyzed in the Programmatic 

Environmental Assessment (EA) and 

Finding of No Significant Impact issued 

for AMA on March 23, 2003, which 

included public lands in the definition 

of eligible lands. As a result, a new 

Programmatic EA is not warranted. 

Civil Rights Impact Analysis 

NRCS has determined through a Civil 

Rights Impact Analysis that the issuance 

of this final rule discloses no 

disproportionately adverse impact for 

minorities, women, or persons with 

disabilities. The data presented 

indicates producers who are members of 

the historically underserved groups 

have participated in NRCS programs at 

parity with other producers. 

Extrapolating from historical 

participation data, it is reasonable to 

conclude that NRCS programs, 

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64592 Federal Register / Vol. 74, No. 234 / Tuesday, December 8, 2009 / Rules and Regulations 

including AMA, will continue to be 

administered in a non-discriminatory 

manner. Outreach and communication 

strategies are in place to ensure all 

producers will be provided the same 

information to allow them to make 

informed compliance decisions 

regarding the use of their lands that will 

affect their participation in USDA 

programs. AMA applies to all persons 

equally regardless of race, color, 

national origin, gender, sex, or disability 

status. Therefore, the AMA rule 

portends no adverse civil rights 

implications. Copies of the Civil Rights 

Impact Analysis may be obtained from 

Gregory Johnson, Director, Financial 

Assistance Programs Division, 

Department of Agriculture, Natural 

Resources Conservation Service, 1400 

Independence Avenue, SW., Room 5241 

South Building, Washington, DC 20250. 

Paperwork Reduction Act 

Section 2904 of the Food, 

Conservation, and Energy Act of 2008 

(2008 Act) requires that implementation 

of programs authorized by Title II of the 

2008 Act be made without regard to the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.). Therefore, NRCS is 

not reporting recordkeeping or 

estimated paperwork burden associated 

with this final rule. 

Government Paperwork Elimination Act 

NRCS is committed to compliance 

with the Government Paperwork 

Elimination Act, which requires 

Government agencies, in general, to 

provide the public the option of 

submitting information or transacting 

business electronically to the maximum 

extent possible. To better accommodate 

public access, NRCS has developed an 

online application and information 

system for public use. 

Executive Order 12988 

This final rule has been reviewed in 

accordance with Executive Order 12988, 

Civil Justice Reform. The provisions of 

this final 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 parts 11 

and 614 must be exhausted. 

Federal Crop Insurance Reform and 

Department of Agriculture 

Reorganization Act of 1994 

USDA classified this final rule as ‘‘not 

major’’ under section 304 of the 

Department of Agriculture 

Reorganization Act of 1994, Public Law 

104–354. Therefore, a risk assessment is 

not required. 

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 effects of 

this rulemaking action on State, local, 

and Tribal governments, as well as the 

public. 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 section 202 

of the Unfunded Mandates Reform Act 

of 1995 is not required. 

Discussion of Program 

The conservation provisions of AMA 

are administered and implemented 

under the general supervision and 

direction of the Chief of NRCS, who is 

a Vice President of the Commodity 

Credit Corporation (CCC). Accordingly, 

where NRCS is mentioned in this rule, 

it also refers to the CCC’s funds, 

facilities, and authorities, where 

applicable. While NRCS has leadership 

for the conservation provisions of AMA, 

other agencies have authority for 

different aspects of the program. The 

Agricultural Marketing Service has 

responsibility for the organic 

certification cost-share program and the 

Risk Management Agency has 

responsibility for the insurance costshare program for mitigation of financial 

risk. 

Through AMA, NRCS provides 

technical and financial assistance to 

participants in eligible States to address 

issues such as water management, water 

quality, and erosion control by 

incorporating conservation practices 

into their agricultural operations. 

Producers may construct or improve 

water management structures or 

irrigation structures; plant trees for 

windbreaks or to improve water quality; 

and mitigate risk through production 

diversification or resource conservation 

practices, including soil erosion control, 

integrated pest management, or organic 

farming. 

Section 524(b) of the Federal Crop 

Insurance Act, as amended by section 

133 of the Agricultural Risk Protection 

Act of 2000, authorized AMA to provide 

assistance to producers in States that 

historically had low participation in the 

Federal Crop Insurance Program. The 

Farm Security and Rural Investment Act 

of 2002 made amendments to AMA 

specifying eligible States and providing 

additional clarity on the types of 

assistance to be made available. The 

original AMA regulation (7 CFR part 

1465) was published in the Federal 

Register on April 9, 2003. 

Section 2801 of the 2008 Act 

amended AMA to include Hawaii as an 

eligible State, and to authorize $15 

million in funding each year from fiscal 

year (FY) 2008 through FY 2012. In 

response to these statutory changes, 

NRCS published an interim final rule 

with request for comment on November 

20, 2008 (73 FR 70245). NRCS received 

four letters containing approximately 

one dozen comments. Respondents 

included two non-governmental 

organizations, one individual, and one 

Tribal agency. Comments were received 

from Arizona, Nebraska, Pennsylvania, 

and Wyoming. The discussion that 

follows is organized in the same 

sequence as the final rule. 

Discussion of Comments 

Section 1465.1 Purposes and 

Applicability 

Section 1465.1, ‘‘Purposes and 

Applicability,’’ sets forth AMA’s 

purpose, scope, and objectives. Through 

AMA, NRCS provides technical and 

financial assistance to producers in 

statutorily-designated States. Section 

2801 of the 2008 Act expanded AMA’s 

geographic scope to include the State of 

Hawaii. In response, NRCS revised 

§ 1465.1 in the interim final rule to add 

Hawaii to the list of States eligible for 

AMA assistance and replaced ‘‘15’’ with 

the number ‘‘16’’ when referring to the 

number of eligible States. AMA is now 

available in Connecticut, Delaware, 

Hawaii, Maine, Maryland, 

Massachusetts, Nevada, New 

Hampshire, New Jersey, New York, 

Pennsylvania, Rhode Island, Utah, 

Vermont, West Virginia, and Wyoming. 

One respondent indicated his overall 

support of the AMA program, stating 

that AMA provides ‘‘the best source of 

financial support that {the} government 

has developed to assure continued 

stewardship of America’s natural 

resources.’’ No changes have been made 

in this section. 

Section 1465.2 Administration 

Section 1465.2, ‘‘Administration,’’ 

describes the role of NRCS and provides 

a brief overview of the agency’s 

administrative responsibilities. In the 

interim final rule NRCS amended 

§ 1465.2 to reflect the 2003 decision 

made by USDA to have NRCS 

administer the AMA natural resource 

conservation provisions and to clarify 

NRCS’ relationship with the CCC. No 

further changes have been made in this 

section. 

Section 1465.3 Definitions 

Section 1465.3 sets forth definitions 

for terms used throughout this 

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regulation. The interim final rule added 

or revised several definitions to align 

AMA terms with terms used by other 

NRCS conservation programs. Two 

respondents commented on the 

definitions provided in § 1465.3. 

One respondent requested that the 

‘‘resource concern’’ definition reflect the 

risk management aspect of AMA. NRCS 

has chosen to retain the interim final 

rule’s definition of ‘‘resource concern’’ 

to keep it consistent with other USDA 

programs. As defined in § 1465.3, the 

term, ‘‘resource concern means a 

specific natural resource problem that 

represents a significant concern in a 

State or region and is likely to be 

addressed through the implementation 

of conservation practices by 

participants.’’ Instead of addressing 

‘‘risk management’’ in the ‘‘resource 

concern’’ definition, NRCS addressed 

risk management in the program’s 

purpose statement, which is located in 

§ 1465.1. As stated, the purpose of 

AMA’s financial assistance funds are to: 

‘‘Construct or improve water 

management structures; plant trees to 

form windbreaks or to improve water 

quality; and mitigate risk through 

production diversification or resource 

conservation practices, including soil 

erosion control, integrated pest 

management, or the transition to organic 

farming.’’ 

Another respondent requested 

clarification on the definition 

‘‘Historically underserved producers’’ 

and asked specifically whether 

producers in the Navajo Nation will be 

considered ‘‘historically underserved 

producers.’’ The term, ‘‘historically 

underserved producer’’ merges the term 

‘‘beginning farmer or rancher,’’ ‘‘limited 

resource farmer or rancher,’’ and 

‘‘socially disadvantaged farmer or 

rancher’’ to simplify terms within the 

AMA rule. Farmers and ranchers that 

meet one or more of these 

aforementioned terms — beginning, 

limited resource, or socially 

disadvantaged — are considered 

historically underserved for the 

purposes of AMA. Producers in the 

Navajo Nation meet the definition of 

‘‘socially disadvantaged,’’ since in the 

past they have been subject to racial or 

ethnic prejudices because of their 

identity as a group without regard to 

their individual qualities. 

NRCS is amending the definition of 

‘‘historically underserved producers’’ 

for editorial clarification to make sure it 

is understood that the definition 

includes nonindustrial private forest 

landowners. The definition, as 

amended, reads as follows: ‘‘historically 

underserved producer means an eligible 

person, joint operation, or legal entity 

who is a beginning farmer or rancher, 

socially disadvantaged farmer or 

rancher, limited resource farmer or 

rancher, or nonindustrial private forest 

landowner who meets the beginning, 

socially disadvantaged, or limited 

resource qualifications set forth in 

§ 1465.3.’’ 

One respondent requested that NRCS 

compensate the respondent for 

providing programmatic support to 

NRCS to implement a conservation 

practice. Specifically, the respondent 

wanted to be compensated for 

conducting inventories and cultural 

resource assessments on Indian lands. 

Section 2706 of the 2008 Act amended 

the Food Security Act of 1985 (1985 

Act) to authorize payments to third 

party technical service providers (TSPs) 

for ‘‘related technical assistance services 

that accelerate program delivery.’’ 

Related technical assistance services 

include, but are not limited to, 

conservation planning documentation, 

payment scheduling and 

documentation, and other services like 

cultural resources inventory and 

assessment, which may accelerate 

conservation program delivery. 

The 2008 Act also authorized TSPs to 

be used to carry out the AMA program. 

For this reason and to clarify that TSPs 

may be used to expedite AMA 

conservation program delivery, NRCS 

added § 1465.8 to the final rule to 

incorporate the TSP provisions used by 

other NRCS conservation programs. As 

in the case of Title XII conservation 

programs, an AMA participant or NRCS 

may use the services of a qualified TSP 

to install and implement conservation 

practices. Technical services provided 

may include conservation planning; 

cultural resources studies; conservation 

practice survey, layout, design, 

installation, and certification; 

information, education, and training for 

producers; and related technical 

assistance services as described above. 

In addition to becoming certified TSPs, 

Indian Tribes may also explore with 

NRCS the special sole source provisions 

contained in section 8(a) of the Small 

Business Administration Act or enter 

into one or more contribution 

agreements or cooperative agreements 

with NRCS to provide professional 

services. 

Section 1465.4 National Priorities 

As part of the interim final rule, NRCS 

added § 1465.4, ‘‘National Priorities,’’ 

and re-designated the subsequent 

sections accordingly. The new § 1465.4 

establishes national priorities to guide 

State funding allocations, AMA contract 

selection, and implementation priorities 

for AMA conservation practices. One 

respondent requested that paragraph (c) 

be revised to include State Technical 

Committees in the establishment of 

State and local priorities. Section 1261 

of the 1985 Act requires the Secretary of 

Agriculture to establish a technical 

committee in each State to assist the 

Secretary in the considerations relating 

to implementation and technical aspects 

of the conservation programs authorized 

under Title XII of the 1985 Act. AMA 

was authorized by section 524(b) of the 

Federal Crop Insurance Act, as 

amended, and therefore, is not a Title 

XII conservation program. Thus, State 

Technical Committees are not permitted 

to provide advice on AMA. However, 

nothing precludes a State 

Conservationist from obtaining input 

from particular Federal, State, Tribal, 

and local agencies when establishing 

State and local priorities. NRCS also 

encourages local input in § 1465.20, 

where it states: ‘‘* * * the State 

Conservationist will develop ranking 

criteria and a ranking process to select 

applications taking into account 

national, State, Tribal, and local 

priorities.’’ No changes have been made 

in this section. 

Section 1465.5 Program Requirements 

Section 1465.5, ‘‘Program 

requirements,’’ sets forth land and 

applicant eligibility. NRCS revised 

§ 1465.5(c)(6) of the interim final rule to 

clarify that AMA participants are 

subject to Adjust Gross Income (AGI) 

limitations, as set forth in the 2008 Act’s 

amendments to section 1001D of the 

1985 Act. The AGI and program 

eligibility requirements require NRCS to 

obtain from legal entities a list of 

members, including members in 

embedded entities, along with their 

social security numbers and percent 

interest in the legal entity. One 

respondent requested that a waiver 

process be implemented so that a 

contract can proceed if substantially all 

members of the legal entity are listed. 

NRCS is bound by section 

1001D(b)(2)(A)(i) of the 1985 Act, as 

amended, which states that a person or 

legal entity will not be eligible to 

receive a conservation program 

payment, such as an AMA payment, if 

the average adjusted gross income 

exceeds $1,000,000, unless not less than 

66.66 percent of the average adjusted 

gross income of the person or legal 

entity is average adjusted gross farm 

income. The statutory language did not 

place any exemptions or waiver 

authority based on the involvement of 

members within a legal entity. As a 

result, an applicant is required to list all 

members of a legal entity. Specifically, 

text has been added to § 1465.5, 

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‘‘program requirements,’’ that requires 

participants to ‘‘supply other 

information, as required by NRCS, to 

determine payment eligibility as 

established by 7 CFR part 1400.’’ 

Paragraph (6) has also been added to 

clarify policies related to Indian Tribes 

or Indians represented by the Bureau of 

Indian Affairs (BIA), and paragraphs (7) 

through (11) have been renumbered 

accordingly. 

One respondent supported the 

inclusion of publicly-owned land as 

eligible land. With this in mind, and in 

an effort to be consistent with other 

USDA conservation programs, NRCS 

amends the AMA regulation and 

removes the requirement that the benefit 

of the conservation practice on public 

land address an identified resource 

concern that is on private land. NRCS 

has determined that the AMA statute 

should not be interpreted so narrowly to 

preclude the ability of producers to 

enroll part of their overall agricultural 

or forestry operation simply because the 

resource concerns exist on publically 

owned land. USDA considers these 

lands to be part of the producer’s 

operation if it is a working component 

of the private agricultural operation. 

Therefore, NRCS is issuing this final 

rule that modifies the AMA regulation 

to authorize an AMA contract to include 

conservation practices that address an 

identified resource concern on public 

land where a participant manages such 

lands as a working component of their 

agricultural or forestry operation, and 

the participant has control of the land 

for the term of the AMA contract. 

Section 1465.6 AMA Plan of 

Operations 

Section 1465.6, ‘‘AMA plan of 

operations,’’ describes the AMA plan of 

operations (APO) as the document that 

contains the information related to 

practices and activities to be 

implemented under AMA. Section 

1465.6 also specifies the requirements 

for the APO and that participants are 

responsible for implementing them. No 

changes have been made in this section. 

Section 1465.7 Conservation Practices 

Section 1465.7, ‘‘Conservation 

practices,’’ describes how NRCS 

determines eligible conservation 

practices. No changes have been made 

in this section. 

Section 1465.8 Technical Services 

Provided by Qualified Personnel Not 

Affiliated With USDA 

Section 1465.8, ‘‘Technical services 

provided by qualified personnel not 

affiliated with USDA,’’ has been added 

to the final rule to address the use of 

TSPs by NRCS and AMA participants. 

Subpart B—Contracts 

Section 1465.20 Application for 

Participation and Selecting 

Applications for Contracting 

Section 1465.20, ‘‘Application for 

participation and selecting applications 

for contracting,’’ describes the processes 

for submitting and selecting 

applications. In the interim final rule, 

NRCS removed the reference to State 

Technical Committees providing advice 

on AMA ranking criteria, since State 

Technical Committees are permitted 

only to provide advice on conservation 

programs authorized by Title XII of the 

1985 Act. While the respondent 

accepted NRCS’ rationale for removing 

State Technical Committees from the 

criteria development process, the 

respondent suggested that language be 

included that requires consultation with 

the State conservation agencies and 

local conservation districts. NRCS 

retains paragraphs (c) and (d) of 

§ 1465.20 which states that the State 

Conservationist will develop ranking 

criteria using a locally-led process that 

takes into account National, State, 

Tribal, and local priorities. No changes 

have been made in this section. 

Section 1465.21 Contract 

Requirements 

Section 1466.21, ‘‘Contract 

requirements,’’ identifies elements 

contained within an AMA contract and 

the responsibilities of the participant 

who is party to the AMA contract. No 

changes have been made in this section. 

Section 1465.22 Conservation Practice 

Operation and Maintenance 

Section 1465.22, ‘‘Conservation 

practice operation and maintenance,’’ 

addresses the participant’s 

responsibility for operating and 

maintaining conservation practices. To 

further clarify a participant’s 

obligations, NRCS added paragraph (e) 

to this section to specify that if a 

participant is not operating and 

maintaining practices during the 

contract period, NRCS may terminate 

and request a refund of payments made 

for that conservation practice under the 

contract. 

Section 1465.23 Payments 

Section 1465.23, ‘‘Payments,’’ 

addresses payments and payment 

limitations applicable to a participant. 

NRCS revised paragraph (a) in the 

interim final rule to allow payments of 

‘‘up to 75 percent of the estimated cost 

of an eligible practice and up to 100 

percent of the estimated income 

foregone’’ rather than providing a flat 

rate of 75 percent. Allowing for a range 

of payment rates makes it possible to 

provide reduced rates where 

participants can implement a 

conservation practice at a lower cost. 

This allows the opportunity to 

distribute AMA funds to more 

participants. Two respondents 

supported NRCS’ policy to pay up to 75 

percent of the estimated incurred cost or 

up to 100 percent of the estimated 

income foregone and distributing the 

money to more participants. One 

respondent requested that NRCS utilize 

actual costs when determining income 

foregone and that the approach used in 

evaluating income foregone should be 

consistent. NRCS defines income 

foregone as ‘‘the annual net income lost 

from a change in land use, or land taken 

out of production, or the opportunity 

cost of accepting less farm income in 

exchange for improved resource 

conditions due to the practice.’’ An 

income foregone payment may be based 

on crop yield losses associated with 

implementing the practice. For example, 

this type of payment calculation may 

apply to a filter strip practice. To 

establish a filter strip, land is taken out 

of crop production and planted to an 

herbaceous cover. The participant will 

no longer have income from crops on 

this land or the costs associated with 

crop production. The costs associated 

with crop production would be 

subtracted from the normal crop income 

received from the area to determine 

annual estimated income foregone. 

Section 1465.24 Contract 

Modifications, Extensions, and 

Transfers of Land 

Section 1465.24, ‘‘Contract 

modifications, extensions, and transfers 

of land,’’ addresses contract 

modifications, changes in land 

ownership or control of the land, and 

contract implications if the participant 

loses control of the land. One 

respondent specifically supported 

NRCS’ addition of paragraph (f) in the 

interim final rule to ensure that in the 

event a conservation practice fails 

through no fault of the participant, the 

State Conservationist may issue 

payments to re-establish the 

conservation practice in accordance 

with established payment rates and 

limitations. No changes have been made 

in this section. 

Section 1465.25 Contract Violations 

and Terminations 

Section 1465.25, ‘‘Contract violations 

and terminations,’’ addresses the 

procedures that NRCS takes where a 

violation has occurred or a contract 

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termination is necessary. One 

respondent has requested that NRCS 

further clarify or define the type and 

extent of documentation that may be 

necessary to demonstrate hardship 

claims. NRCS has chosen to further 

define examples of hardship in its 

policy in part 512 of Title 440 of the 

Conservation Programs Manual (440 

CPM 512). Documentation varies upon 

the type of hardship incurred. Examples 

of hardship may include, but not be 

limited to, natural disasters (e.g., 

drought, hurricanes, tornadoes, hail, 

and pest infestations); farm or ranch 

buildings and equipment destruction; 

major illness; death; bankruptcy; or 

public interest (e.g., military service, 

public utilities easement or 

condemnation, and environmental and 

archeological concerns). 

Subpart C—General Administration 

Section 1465.30 Appeals 

Section 1465.30, ‘‘Appeals,’’ 

references the policies that govern when 

a producer seeks an appeal to an 

adverse decision made by NRCS. No 

changes have been made in this section. 

Section 1465.31 Compliance With 

Regulatory Measures 

Section 1465.31, ‘‘Compliance with 

regulatory measures,’’ specifies that the 

program participant is responsible for 

ensuring compliance with regulatory 

measures. No changes have been made 

in this section. 

Section 1465.32 Access to Operating 

Unit 

Section 1465.32, ‘‘Access to operating 

unit,’’ provides notice to applicants, 

participants, and the public that NRCS 

has the right to enter an operating unit 

or tract for the purpose of ascertaining 

the accuracy of any representations 

related to contract performance. 

Specifically, § 1465.32 was amended in 

the interim final rule to notify potential 

AMA applicants that an authorized 

NRCS representative may enter an 

agricultural operation for the purposes 

of eligibility determinations. NRCS will 

continue to provide the participant 

notice prior to entering the property. 

One respondent supported this policy, 

stating that it was important for NRCS 

to contact the participant prior to 

exercising the right to access the 

property to maintain a positive working 

relationship between the agency and the 

producer. NRCS concurs with this 

rationale and has further clarified this 

policy in the AMA contract to make 

NRCS and the participant’s contract 

obligations more transparent. 

Section 1465.33 Equitable Relief 

Section 1465.33, ‘‘Equitable relief,’’ 

outlines the policy when a participant 

relies upon erroneous advice provided 

by NRCS or when a participant who is 

in violation of a program provision is 

determined to have made a good faith 

effort to comply with the terms of 

participation. One respondent 

supported NRCS’ policy on equitable 

relief. No changes have been made in 

this section. 

Section 1465.34 Offsets and 

Assignments 

Section 1465.34, ‘‘Offsets and 

assignments,’’ governs offsets and 

withholdings, as well as assignment of 

payments. No changes have been made 

in this section. 

Section 1465.35 Misrepresentation and 

Scheme or Device 

Section 1465.35, ‘‘Misrepresentation 

and scheme and device,’’ outlines the 

policies governing producers who have 

erroneously or fraudulently represented 

themselves. No changes have been made 

in this section. 

Section 1465.36 Environmental 

Services Credits for Conservation 

Improvements 

Section 1465.36, ‘‘Environmental 

services credits for conservation 

improvements,’’ provides policies 

related to AMA participants who are 

interested in entering into agreements 

on land subject to an AMA agreement. 

NRCS made minor changes to this 

section to clarify the policy. 

List of Subjects in 7 CFR Part 1465 

Conservation contract, Conservation 

plan, Conservation practices, and Soil 

and water conservation. 

■ For the reasons stated in the preamble, 

the Natural Resources Conservation 

Service, on behalf of the Commodity 

Credit Corporation, amends 7 CFR 

Chapter XIV by revising part 1465 to 

read as follows: 

PART 1465—AGRICULTURAL 

MANAGEMENT ASSISTANCE 

Subpart A—General Provisions 

Sec. 

1465.1 Purposes and applicability. 

1465.2 Administration. 

1465.3 Definitions. 

1465.4 National priorities. 

1465.5 Program requirements. 

1465.6 AMA plan of operations. 

1465.7 Conservation practices. 

1465.8 Technical services provided by 

qualified personnel not affiliated with 

USDA. 

Subpart B—Contracts 

1465.20 Applications for participation and 

selecting applications for contracting. 

1465.21 Contract requirements. 

1465.22 Conservation practice operation 

and maintenance. 

1465.23 Payments. 

1465.24 Contract modifications, extensions, 

and transfers of land. 

1465.25 Contract violations and 

terminations. 

Subpart C—General Administration 

1465.30 Appeals. 

1465.31 Compliance with regulatory 

measures. 

1465.32 Access to operating unit. 

1465.33 Equitable relief. 

1465.34 Offsets and assignments. 

1465.35 Misrepresentation and scheme or 

device. 

1465.36 Environmental services credits for 

conservation improvements. 

Authority: 7 U.S.C. 1524(b). 

Subpart A—General Provisions 

§ 1465.1 Purposes and applicability. 

Through the Agricultural 

Management Assistance program 

(AMA), the Natural Resources 

Conservation Service (NRCS) provides 

financial assistance funds annually to 

producers in 16 statutorily designated 

States to: Construct or improve water 

management structures or irrigation 

structures; plant trees to form 

windbreaks or to improve water quality; 

and mitigate risk through production 

diversification or resource conservation 

practices including soil erosion control, 

integrated pest management, or the 

transition to organic farming. AMA is 

applicable in Connecticut, Delaware, 

Hawaii, Maine, Maryland, 

Massachusetts, Nevada, New 

Hampshire, New Jersey, New York, 

Pennsylvania, Rhode Island, Utah, 

Vermont, West Virginia, and Wyoming. 

§ 1465.2 Administration. 

(a) Administration and 

implementation of AMA’s conservation 

provisions for the Commodity Credit 

Corporation (CCC) is assigned to NRCS, 

using the funds, facilities, and 

authorities of the CCC. Accordingly, 

where NRCS is mentioned in this part, 

it also refers to the CCC’s funds, 

facilities, and authorities, where 

applicable. 

(b) NRCS will: 

(1) Provide overall management and 

implementation leadership for AMA; 

(2) Establish policies, procedures, 

priorities, and guidance for 

implementation; 

(3) Establish payment limits; 

(4) Determine eligible practices; 

(5) Develop and approve AMA plans 

of operation and contracts with selected 

participants; 

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(6) Provide technical leadership for 

implementation, quality assurance, and 

evaluation of performance; 

(7) Make AMA allocation and contract 

funding decisions; and 

(8) Issue payments for completed 

conservation practices. 

(c) No delegation in this part to lower 

organizational levels will preclude the 

Chief of NRCS from determining any 

issues arising under this part or from 

reversing or modifying any 

determination made under this part. 

§ 1465.3 Definitions. 

The following definitions apply to 

this part and all documents used in 

accordance with this part, unless 

specified otherwise: 

Agricultural land means cropland, 

grassland, rangeland, pasture, and other 

agricultural land on which agricultural 

or forest-related products or livestock 

are produced. Other agricultural lands 

may include cropped woodland, 

marshes, incidental areas included in 

the agricultural operation, and other 

types of agricultural land used for 

production of livestock. 

Agricultural operation means a parcel 

or parcels of land whether contiguous or 

noncontiguous, which the producer is 

listed as the operator or owner/operator 

in the Farm Service Agency (FSA) 

record system, which is under the 

effective control of the producer at the 

time the producer applies for a contract, 

and which is operated by the producer 

with equipment, labor, management and 

production, forestry, or cultivation 

practices that are substantially separate 

from other operations. 

AMA plan of operations (APO) means 

the document that identifies the 

location and timing of conservation 

practices that the participant agrees to 

implement on eligible land in order to 

address the resource concerns and 

program purposes. The APO is part of 

the AMA contract. 

Applicant means a person, legal 

entity, joint operation, or Indian Tribe 

that has an interest in an agricultural 

operation, as defined in 7 CFR part 

1400, who has requested in writing to 

participate in AMA. 

Beginning farmer or rancher means a 

person or legal entity who: 

(1) Has not operated a farm or ranch, 

or who has operated a farm or ranch for 

not more than 10 consecutive years. 

This requirement applies to all members 

of an entity who will materially and 

substantially participate in the 

operation of the farm or ranch. 

(2) In the case of a contract with an 

individual, individually, or with the 

immediate family, material and 

substantial participation requires that 

the individual provide substantial dayto-day labor and management of the 

farm or ranch consistent with the 

practices in the county or State where 

the farm or ranch is located. 

(3) In the case of a contract with an 

entity or joint operation, all members 

must materially and substantially 

participate in the operation of the farm 

or ranch. Material and substantial 

participation requires that each of the 

members provide some amount of the 

management, or labor and management 

necessary for day-to-day activities, such 

that if each of the members did not 

provide these inputs, operation of the 

farm or ranch would be seriously 

impaired. 

Chief means the Chief of NRCS, 

United States Department of Agriculture 

(USDA), or designee. 

Conservation district means any 

district or unit of State, Tribal, or local 

government formed under State, Tribal, 

or territorial law for the express purpose 

of developing and carrying out a local 

soil and water conservation program. 

Such district or unit of government may 

be referred to as a ‘‘conservation 

district,’’ ‘‘soil conservation district,’’ 

‘‘soil and water conservation district,’’ 

‘‘resource conservation district,’’ 

‘‘natural resource district,’’ ‘‘land 

conservation committee,’’ or similar 

name. 

Conservation practice means one or 

more conservation improvements and 

activities, including structural practices, 

land management practices, vegetative 

practices, forest management, and other 

improvements that achieve program 

purposes. 

Contract means a legal document that 

specifies the rights and obligations of 

any participant accepted into the 

program. An AMA contract is an 

agreement for the transfer of assistance 

from USDA to the participant to share 

in the costs of applying conservation 

practices. 

Designated conservationist means an 

NRCS employee whom the State 

Conservationist has designated as 

responsible for AMA administration in 

a specific area. 

Historically underserved producer 

means an eligible person, joint 

operation, or legal entity who is a 

beginning farmer or rancher, socially 

disadvantaged farmer or rancher, 

limited resource farmer or rancher, or 

nonindustrial private forest landowner 

who meets the beginning, socially 

disadvantaged, or limited resource 

qualifications set forth in this section. 

Indian Tribe means any Indian Tribe, 

band, nation, or other organized group 

or community, including any Alaska 

Native village, or regional or village 

corporation as defined in or established 

pursuant to the Alaska Native Claims 

Settlement Act (43 U.S.C. 1601 et seq.) 

that is eligible for the special programs 

and services provided by the United 

States to Indians because of their status 

as Indians. 

Indian land is an inclusive term 

describing all lands held in trust by the 

United States for individual Indians or 

Tribes, or all lands, titles to which are 

held by individual Indians or Tribes, 

subject to Federal restrictions against 

alienation or encumbrance, or all lands 

which are subject to the rights of use, 

occupancy, and benefit of certain 

Tribes. For purposes of this part, the 

term Indian land also includes land for 

which the title is held in fee status by 

Indian Tribes and the United States 

Government-owned land under the 

Bureau of Indian Affairs (BIA) 

jurisdiction. 

Joint operation means, as defined in 7 

CFR part 1400, a general partnership, 

joint venture, or other similar business 

arrangement in which the members are 

jointly and severally liable for the 

obligations of the organization. 

Legal entity means, as defined in 7 

CFR part 1400, an entity created under 

Federal or State law that: (1) Owns land 

or an agricultural commodity, product, 

or livestock; or (2) produces an 

agricultural commodity, product, or 

livestock. 

Lifespan means the period of time in 

which a conservation practice should be 

operated and maintained and used for 

the intended purpose. 

Limited resource farmer or rancher 

means: 

(1) A person with direct or indirect 

gross farm sales of not more than 

$155,200 in each of the previous 2 years 

(adjusted for inflation using the Prices 

Paid by Farmer Index as compiled by 

the National Agricultural Statistics 

Service), and 

(2) Has a total household income at or 

below the national poverty level for a 

family of four, or less than 50 percent 

of county median household income in 

each of the previous 2 years (to be 

determined annually using Commerce 

Department data). 

Liquidated damages means a sum of 

money stipulated in the AMA contract 

that the participant agrees to pay NRCS 

if the participant fails to adequately 

complete the terms of the contract. The 

sum represents an estimate of the 

technical assistance expenses incurred 

to service the contract and reflects the 

difficulties of proof of loss and the 

inconvenience or non-feasibility of 

otherwise obtaining an adequate 

remedy. 

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Livestock means all animals produced 

on farms and ranches, as determined by 

the Chief. 

Natural Resources Conservation 

Service is an agency of USDA which has 

responsibility for administering AMA 

using the funds, facilities, and 

authorities of the CCC. 

Nonindustrial private forest land 

means rural land that has existing tree 

cover or is suitable for growing trees and 

is owned by any nonindustrial private 

individual, group, association, 

corporation, Indian Tribe, or other 

private legal entity that has definitive 

decision-making authority over the 

land. 

Operation and maintenance means 

work performed by the participant to 

keep the applied conservation practice 

functioning for the intended purpose 

during the conservation practice 

lifespan. Operation includes the 

administration, management, and 

performance of non-maintenance 

actions needed to keep the completed 

practice safe and functioning as 

intended. Maintenance includes work to 

prevent deterioration of the practice, 

repairing damage, or replacement of the 

practice to its original condition if one 

or more components fail. 

Operation and maintenance (O&M) 

agreement means the document that, in 

conjunction with the APO, specifies the 

operation and maintenance 

responsibilities of the participants for 

conservation practices installed with 

AMA assistance. 

Participant means a person, legal 

entity, joint operation, or Indian Tribe 

that is receiving payment or is 

responsible for implementing the terms 

and conditions of an AMA contract. 

Payment means the financial 

assistance provided to the participant 

based on the estimated costs incurred in 

performing or implementing 

conservation practices, including costs 

for planning, design, materials, 

equipment, installation, labor, 

maintenance, management, or training, 

as well as the estimated income 

foregone by the producer for the 

designated conservation practices. 

Person means, as defined in 7 CFR 

part 1400, an individual, natural person 

and does not include a legal entity. 

Producer means a person, legal entity, 

joint operation, or Indian Tribe that has 

an interest in the agricultural operation, 

according to 7 CFR part 1400, or who is 

engaged in agricultural production or 

forestry management. 

Resource concern means a specific 

natural resource problem that represents 

a significant concern in a State or region 

and is likely to be addressed 

successfully through the 

implementation of the conservation 

practices by participants. 

Secretary means the Secretary of 

USDA. 

Socially disadvantaged farmer or 

rancher means a farmer or rancher who 

has been subjected to racial or ethnic 

prejudices because of their identity as a 

member of a group without regard to 

their individual qualities. 

State Conservationist means the 

NRCS employee authorized to direct 

and supervise NRCS activities in a State, 

Caribbean Area, or Pacific Islands Area. 

Structural practice means a 

conservation practice, including a 

vegetative practice, that involves 

establishing, constructing, or installing a 

site-specific measure to conserve and 

protect a resource from degradation, or 

improve soil, water, air, or related 

natural resources in the most costeffective manner. Examples include, but 

are not limited to, animal waste 

management facilities, terraces, grassed 

waterways, tailwater pits, livestock 

water developments, contour grass 

strips, filterstrips, critical area plantings, 

tree plantings, establishment or 

improvement of wildlife habitat, and 

capping of abandoned wells. 

Technical assistance means technical 

expertise, information, and tools 

necessary for the conservation of natural 

resources on land active in agricultural, 

forestry, or related uses. The term 

includes the following: 

(1) Technical services provided 

directly to farmers, ranchers, and other 

eligible entities, such as conservation 

planning, technical consultation, and 

assistance with design and 

implementation of conservation 

practices; and 

(2) Technical infrastructure, including 

activities, processes, tools, and agency 

functions needed to support delivery of 

technical services, such as technical 

standards, resource inventories, 

training, data, technology, monitoring, 

and effects analyses. 

Technical Service Provider (TSP) 

means an individual, private-sector 

entity, or public agency certified by 

NRCS to provide technical services to 

program participants or in lieu of, or on 

behalf of NRCS. 

§ 1465.4 National priorities. 

(a) The Chief, with advice from State 

Conservationists, will identify national 

priorities to achieve the conservation 

objectives of AMA. 

(b) National priorities will be used to 

guide annual funding allocations to 

States. (c) State Conservationists will 

use national priorities in conjunction 

with State and local priorities to 

prioritize and select AMA applications 

for funding. 

(d) NRCS will undertake periodic 

reviews of the national priorities and 

the effects of program delivery at the 

State and local levels to adapt the 

program to address emerging resource 

issues. 

§ 1465.5 Program requirements. 

(a) Participation in AMA is voluntary. 

The participant, in cooperation with the 

local conservation district, applies for 

practice installation for the agricultural 

operation. NRCS provides payments 

through contracts to apply needed 

conservation practices within a time 

schedule specified in the APO. 

(b) The Chief determines the funds 

available for financial assistance 

according to the purpose and projected 

cost for which the financial assistance is 

provided in a fiscal year. The Chief 

allocates the funds available to carry out 

AMA in consideration of national 

priorities established under § 1465.4. 

(c) To be eligible to participate in 

AMA, an applicant must: 

(1) Own or operate an agricultural 

operation within an applicable State, as 

listed in 1465.1; 

(2) Provide NRCS with written 

evidence of ownership or legal control 

for the life of the proposed contract, 

including the O&M agreement. An 

exception may be made by the Chief: 

(i) In the case of land allotted by the 

BIA, Tribal land, or other instances in 

which the Chief determines that there is 

sufficient assurance of control; or 

(ii) If the applicant is a tenant of the 

land involved in agricultural 

production, the applicant will provide 

NRCS with the written concurrence of 

the landowner in order to apply a 

structural practice(s); 

(3) Submit an application form 

NRCS–CPA–1200; 

(4) Agree to provide all information to 

NRCS determined to be necessary to 

assess the merits of a proposed project 

and to monitor contract compliance; 

(5) Provide a list of all members of the 

legal entity and embedded entities along 

with members’ tax identification 

numbers and percentage interest in the 

entity. Where applicable, American 

Indians, Alaska Natives, and Pacific 

Islanders may use another unique 

identification number for each 

individual eligible for payment; 

(6) With regard to contracts with 

Indian Tribes or Indians represented by 

the BIA, payments if a BIA or Tribal 

official certify in writing that no one 

individual, directly or indirectly, will 

receive more than the payment 

limitation. The Tribal entity must also 

provide, annually, a listing of 

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individuals and payments made by 

social security or tax identification 

number or other unique identification 

number, during the previous year for 

calculation of overall payment 

limitations. The BIA or Tribal entity 

must also provide, at the request of 

NRCS, proof of payments made to the 

person or legal entity that incurred costs 

or sacrificed income related to 

conservation practice implementation. 

(7) Supply other information, as 

required by NRCS, to determine 

payment eligibility as established by 7 

CFR part 1400, Adjusted Gross Income; 

(8) With regard to any participant that 

utilizes a unique identification number 

as an alternative to a tax identification 

number, the participant will utilize only 

that identifier for any and all other 

AMA contracts to which the participant 

is a party. Violators will be considered 

to have provided fraudulent 

representation and be subject to full 

penalties of § 1465.25; 

(9) States, political subdivisions, and 

entities thereof will not be persons 

eligible for payment. Any cooperative 

association of producers that markets 

commodities for producers will not be 

considered to be a person eligible for 

payment; 

(10) Be in compliance with the terms 

of all other USDA-administered 

conservation program agreements to 

which the participant is a party; and 

(11) Develop and agree to comply 

with an APO and O&M agreement, as 

described in § 1465.3. 

(d) Land may only be considered for 

enrollment in AMA if NRCS determines 

that the land is: 

(1) Privately owned land; 

(2) Publicly owned land where: 

(i) The land is a working component 

of the participant’s agricultural and 

forestry operation; and 

(ii) The participant has control of the 

land for the term of the contract; and 

(iii) The conservation practices to be 

implemented on the public land are 

necessary and will contribute to an 

improvement in the identified resource 

concern; or 

(3) The land is Indian land. 

§ 1465.6 AMA plan of operations. 

(a) All conservation practices in the 

APO must be approved by NRCS and 

developed and carried out in 

accordance with the applicable NRCS 

technical guidance. 

(b) The participant is responsible for 

implementing the APO. 

(c) The APO must include: 

(1) A description of the participant’s 

specific conservation and 

environmental objectives to be 

achieved; 

(2) To the extent practicable, the 

quantitative or qualitative goals for 

achieving the participant’s conservation 

and environmental objectives; 

(3) A description of one or more 

conservation practices in the 

conservation system, including 

conservation planning, design, or 

installation activities to be implemented 

to achieve the conservation and 

environmental objectives; 

(4) A description of the schedule for 

implementing the conservation 

practices, including timing, sequence, 

operation, and maintenance; and 

(5) Information that will enable 

evaluation of the effectiveness of the 

plan in achieving the environmental 

objectives. 

(d) An APO may be modified in 

accordance with § 1465.24. 

§ 1465.7 Conservation practices. 

(a) The State Conservationist will 

determine the conservation practices 

eligible for AMA payments. To be 

considered eligible conservation 

practices, the practices must meet the 

purposes of the AMA as set out in 

§ 1465.1. A list of eligible practices will 

be available to the public. 

(b) The APO includes the schedule of 

operations, activities, and payment rates 

of the practices needed to solve 

identified natural resource concerns. 

§ 1465.8 Technical services provided by 

qualified personnel not affiliated with 

USDA. 

(a) NRCS may use the services of 

qualified TSPs in performing its 

responsibilities for technical assistance. 

(b) Participants may use technical 

services from qualified personnel of 

other Federal, State, local agencies, 

Indian Tribes, or individuals who are 

certified as TSPs by NRCS. 

(c) Technical services provided by 

qualified personnel not affiliated with 

USDA may include, but are not limited 

to: conservation planning; conservation 

practice survey, layout, design, 

installation, and certification; and 

information, education, and training for 

producers, and related technical 

services as defined in 7 CFR part 652. 

(d) NRCS retains approval authority of 

work done by non-NRCS personnel for 

the purpose of approving AMA 

payments. 

Subpart B—Contracts 

§ 1465.20 Applications for participation 

and selecting applications for contracting. 

(a) Any producer who has eligible 

land may submit an application for 

participation in AMA at a USDA service 

center. Producers who are members of a 

joint operation will file a single 

application for the joint operation. 

(b) NRCS will accept applications 

throughout the year. The State 

Conservationist will distribute 

information on the availability of 

assistance, national priorities, and the 

State-specific goals. Information will be 

provided that explains the process to 

request assistance. 

(c) The State Conservationist will 

develop ranking criteria and a ranking 

process to select applications, taking 

into account national, State, Tribal, and 

local priorities. 

(d) The State Conservationist, or 

designated conservationist, using a 

locally-led process will evaluate, rank, 

and select applications for contracting 

based on the State-developed ranking 

criteria and ranking process. 

(e) The State Conservationist, or 

designated conservationist, will work 

with the applicant to collect the 

information necessary to evaluate the 

application using the ranking criteria. 

§ 1465.21 Contract requirements. 

(a) In order for a participant to receive 

payments, the participant will enter into 

a contract agreeing to implement one or 

more eligible conservation practices. 

Costs for technical services may be 

included in the contract. 

(b) An AMA contract will: 

(1) Encompass all portions of an 

agricultural operation receiving AMA 

assistance; 

(2) Have a minimum duration of one 

year after completion of the last 

practice, but not more than 10 years; 

(3) Incorporate all provisions required 

by law or statute, including participant 

requirements to: 

(i) Not conduct any practices on the 

agricultural operation that would tend 

to defeat the purposes of the contract 

according to § 1465.25; 

(ii) Refund any AMA payments 

received with interest, and forfeit any 

future payments under AMA, on the 

violation of a term or condition of the 

contract, consistent with the provisions 

of § 1465.25; 

(iii) Refund all AMA payments 

received on the transfer of the right and 

interest of the producer in land subject 

to the contract, unless the transferee of 

the right and interest agrees to assume 

all obligations, including operation and 

maintenance of the AMA contract’s 

conservation practices, consistent with 

the provisions of § 1465.24; and 

(iv) Supply information as required by 

NRCS to determine compliance with the 

contract and requirements of AMA. 

(4) Specify the participant’s 

requirements for operation and 

maintenance of the applied 

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conservation practices consistent with 

the provisions of § 1465.22; and 

(5) Specify any other provision 

determined necessary or appropriate by 

NRCS. 

(c) The participant must apply the 

practice(s) according to the schedule set 

out in the APO. 

§ 1465.22 Conservation practice operation 

and maintenance. 

(a) The contract will incorporate the 

O&M agreement that addresses the 

operation and maintenance of the 

conservation practices applied under 

the contract. 

(b) NRCS expects the participant to 

operate and maintain each conservation 

practice installed under the contract for 

its intended purpose for the 

conservation practice lifespan as 

specified in the O&M agreement. 

(c) NRCS may periodically inspect the 

conservation practice(s) during the 

contract duration to ensure that 

operation and maintenance 

requirements are being carried out, and 

that the conservation practice is 

fulfilling its intended objectives. 

(d) Conservation practices installed 

before the contract execution, but 

included in the contract to obtain the 

environmental benefits agreed upon, 

must be operated and maintained as 

specified in the contract and O&M 

agreement. 

(e) If NRCS finds during the contract 

that a participant is not operating and 

maintaining practices in an appropriate 

manner, NRCS may terminate and 

request a refund of payments made for 

that conservation practice under the 

contract. 

(f) In the event a conservation practice 

fails through no fault of the participant, 

the State Conservationist may issue 

payments to re-establish the 

conservation practice, at the rates 

established in accordance with 

§ 1465.23, provided such payments do 

not exceed the payment limitation 

requirements as set forth in § 1465.23. 

§ 1465.23 Payments. 

(a) The Federal share of payments to 

a participant will be: 

(1) Up to 75 percent of the estimated 

incurred cost or 100 percent of the 

estimated income foregone of an eligible 

practice, except as provided in (a)(2) of 

this section. 

(2) In the case of historically 

underserved producers, the payment 

rate will be the applicable rate and an 

additional rate that is not less than 25 

percent above the applicable rate, 

provided that this increase does not 

exceed 90 percent of the estimated 

incurred costs or estimated income 

foregone. 

(3) In no instance will the total 

financial contributions for an eligible 

practice from other sources exceed 100 

percent of the estimated incurred cost of 

the practice. 

(b) Participants may contribute their 

portion of the estimated costs of 

practices through in-kind contributions, 

including labor and materials, providing 

the materials contributed meet the 

NRCS standard and specifications for 

the practice being installed. 

(c) Payments for practices applied 

prior to application or contract 

approval— 

(1) Payments will not be made to a 

participant for a conservation practice 

that was applied prior to application for 

the program. 

(2) Payments will not be made to a 

participant for a conservation practice 

that was initiated or implemented prior 

to contract approval, unless the 

participant obtained a waiver from the 

State Conservationist, or designated 

conservationist, prior to practice 

implementation. 

(d) The total amount of payments paid 

to a person or legal entity under this 

part may not exceed $50,000 for any 

fiscal year. 

(e) For purposes of applying the 

payment limitations provided for in this 

section, NRCS will use the provisions in 

7 CFR part 1400, Payment Limitation 

and Payment Eligibility. 

(f) A participant will not be eligible 

for payments for conservation practices 

on eligible land if the participant 

receives payments or other benefits for 

the same practice on the same land 

under any other conservation program 

administered by USDA. 

(g) The participant and NRCS must 

certify that a conservation practice is 

completed in accordance with the 

contract before NRCS will approve any 

payment. 

(h) Subject to fund availability, the 

payment rates for conservation practices 

scheduled after the year of contract 

obligation may be adjusted to reflect 

increased costs. 

§ 1465.24 Contract modifications, 

extensions, and transfers of land. 

(a) The participant and NRCS may 

modify a contract if both parties agree 

to the contract modification, the APO is 

revised in accordance with NRCS 

requirements, and the designated 

conservationist approves the modified 

contract. 

(b) It is the participant’s responsibility 

to notify NRCS when he or she either 

anticipates the voluntary or involuntary 

loss of control of the land. 

(c) The participant and NRCS may 

mutually agree to transfer a contract to 

another party. 

(1) To receive an AMA payment, the 

transferee must be determined by NRCS 

to be eligible to participate in AMA and 

will assume full responsibility under 

the contract, including the O&M 

agreement for those conservation 

practices already installed and those 

conservation practices to be installed as 

a condition of the contract. 

(2) With respect to any and all 

payment owed to participants who wish 

to transfer ownership or control of land 

subject to a contract, the division of 

payment will be determined by the 

original party and the party’s successor. 

In the event of a dispute or claim on the 

distribution of payments, NRCS may 

withhold payments without the accrual 

of interest pending a settlement or 

adjudication on the rights to the funds. 

(d) NRCS may require a participant to 

refund all or a portion of any assistance 

earned under AMA if the participant 

sells or loses control of the land under 

an AMA contract, and the successor in 

interest is not eligible or refuses to 

accept future payments to participate in 

the AMA or refuses to assume 

responsibility under the contract. 

(e) The contract participants will be 

jointly and severally responsible for 

refunding the payments with applicable 

interest pursuant to paragraph (d) of this 

section. 

§ 1465.25 Contract violations and 

termination. 

(a) If NRCS determines that a 

participant is in violation of the terms 

of a contract, O&M agreement, or other 

documents incorporated into the 

contract, NRCS will give the participant 

notice and 60 days, unless otherwise 

determined by the State Conservationist, 

to correct the violation and comply with 

the terms of the contract and 

attachments thereto. If a participant 

continues in violation, the State 

Conservationist may terminate the AMA 

contract. 

(b) Notwithstanding the provisions of 

(a) of this section, a contract termination 

will be effective immediately upon a 

determination by the State 

Conservationist that the participant has 

submitted false information or filed a 

false claim, or engaged in any act, 

scheme, or device for which a finding of 

ineligibility for payments is permitted 

under the provisions of § 1465.35, or in 

a case in which the actions of the party 

involved are deemed to be sufficiently 

purposeful or negligent to warrant a 

termination without delay. 

(c) If NRCS terminates a contract, the 

participant will forfeit all rights to 

future payments under the contract and 

refund all or part of the payments 

received, plus interest. Participants 

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64600 Federal Register / Vol. 74, No. 234 / Tuesday, December 8, 2009 / Rules and Regulations 

violating AMA contracts may be 

determined ineligible for future NRCSadministered conservation program 

funding. 

(1) The State Conservationist may 

require only a partial refund of the 

payments received if the State 

Conservationist determines that a 

previously installed conservation 

practice can function independently 

and is not affected by the violation or 

the absence of other conservation 

practices that would have been installed 

under the contract. 

(2) If NRCS terminates a contract due 

to breach of contract, or the participant 

voluntarily terminates the contract 

before any contractual payments have 

been made, the participant will forfeit 

all rights for further payments under the 

contract and will pay such liquidated 

damages as prescribed in the contract. 

The State Conservationist will have the 

option to waive the liquidated damages 

depending upon the circumstances of 

the case. 

(i) When making all contract 

termination decisions, NRCS may 

reduce the amount of money owed by 

the participant by a proportion that 

reflects the good faith effort of the 

participant to comply with the contract 

or the existence of hardships beyond the 

participant’s control that have 

prevented compliance with the contract. 

If the participant claims hardship, that 

claim must be well documented and 

cannot have existed when the applicant 

applied for participation in the program. 

(ii) The participant may voluntarily 

terminate a contract if NRCS agrees 

based on NRCS’ determination that 

termination is in the public interest. 

(iii) In carrying out NRCS’ role in this 

section, NRCS may consult with the 

local conservation district. 

Subpart C—General Administration 

§ 1465.30 Appeals. 

(a) A participant may obtain 

administrative review of an adverse 

decision under AMA in accordance 

with 7 CFR parts 11 and 614, except as 

provided in paragraph (b) of this 

section. 

(b) The following decisions are not 

appealable: 

(1) Payment rates, payment limits; 

(2) Funding allocations; 

(3) Eligible conservation practices; 

and 

(4) Other matters of general 

applicability, including: 

(i) Technical standards and formulas; 

(ii) Denial of assistance due to lack of 

funds or authority; or 

(iii) Science-based formulas and 

criteria. 

§ 1465.31 Compliance with regulatory 

measures. 

Participants who carry out 

conservation practices will be 

responsible for obtaining the authorities, 

rights, easements, permits, or other 

approvals necessary for the 

implementation, operation, and 

maintenance of the conservation 

practices in keeping with applicable 

laws and regulations. Participants will 

be responsible for compliance with all 

laws and for all effects or actions 

resulting from the participant’s 

performance under the contract. 

§ 1465.32 Access to operating unit. 

Any authorized NRCS representative 

will have the right to enter an operating 

unit or tract for the purpose of 

determining eligibility and for 

ascertaining the accuracy of any 

representations related to contracts and 

performance. Access will include the 

right to provide technical assistance; 

determine eligibility; inspect any work 

undertaken under the contracts, 

including the APO and O&M agreement; 

and collect information necessary to 

evaluate the conservation practice 

performance as specified in the 

contracts. The NRCS representative will 

make an effort to contact the participant 

prior to exercising this provision. 

§ 1465.33 Equitable relief. 

(a) If a participant relied upon the 

advice or action of any authorized NRCS 

representative and did not know, or 

have reason to know, that the action or 

advice was improper or erroneous, the 

participant may be eligible for equitable 

relief under 7 CFR part 635, section 

635.3. The financial or technical 

liability for any action by a participant 

that was taken based on the advice of an 

NRCS certified TSP is the responsibility 

of the certified TSP and will not be 

assumed by NRCS when NRCS 

authorizes payment. 

(b) If a participant has been found in 

violation of a provision of the AMA 

contract or any document incorporated 

by reference through failure to comply 

fully with that provision, the participant 

may be eligible for equitable relief under 

7 CFR part 635, section 635.4. 

§ 1465.34 Offsets and assignments. 

(a) Except as provided in paragraph 

(b) of this section, any payment or 

portion thereof to any participant will 

be made without regard to questions of 

Title under State law and without 

regard to any claim or lien against the 

crop, or proceeds thereof, in favor of the 

owner or any other creditor except 

agencies of the United States 

Government. The regulations governing 

offsets and withholdings found at 7 CFR 

part 1403 will be applicable to contract 

payments. 

(b) AMA participants may assign any 

payments in accordance with 7 CFR part 

1404. 

§ 1465.35 Misrepresentation and scheme 

or device. 

(a) A participant who is determined to 

have erroneously represented any fact 

affecting an AMA determination made 

in accordance with this part will not be 

entitled to contract payments and must 

refund to NRCS all payments plus 

interest, as determined in accordance 

with 7 CFR part 1403. 

(b) A participant will refund to NRCS 

all payments, plus interest, as 

determined by NRCS with respect to all 

NRCS contracts to which they are a 

party if they are determined to have 

knowingly: 

(1) Adopted any scheme or device 

that tends to defeat the purpose of 

AMA; 

(2) Made any fraudulent 

representation; 

(3) Adopted any scheme or device for 

the purpose of depriving any tenant or 

sharecropper of the payments to which 

such person would otherwise be 

entitled under the program; or 

(4) Misrepresented any fact affecting 

an AMA determination. 

(c) Where paragraph (a) or (b) of this 

section applies, the participant’s interest 

in all contracts will be terminated. In 

accordance with § 1465.25(c), NRCS 

may determine the producer ineligible 

for future funding from any NRCS 

conservation programs. 

§ 1465.36 Environmental services credits 

for conservation improvements. 

NRCS recognizes that environmental 

benefits will be achieved by 

implementing conservation practices 

funded through AMA, and that 

environmental credits may be gained as 

a result of implementing activities 

compatible with the purposes of an 

AMA contract. NRCS asserts no direct 

or indirect interest on these credits. 

However, NRCS retains the authority to 

ensure that operation and maintenance 

requirements for AMA-funded 

improvements are met, consistent with 

§ 1465.21 and § 1465.22. Where 

activities may impact the land under an 

AMA contract, participants are highly 

encouraged to request an operation and 

maintenance compatibility 

determination prior to entering into any 

credit agreements. The AMA 

conservation program contract may be 

modified in accordance with policies 

outlined in § 1465.24 provided the 

modifications meet AMA purposes and 

are in compliance with this part. 

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Federal Register / Vol. 74, No. 234 / Tuesday, December 8, 2009 / Rules and Regulations 64601 

Signed this 1st day of December 2009, in 

Washington, DC. 

Dave White, 

Vice President, Commodity Credit 

Corporation and Chief, Natural Resources 

Conservation Service. 

[FR Doc. E9–29070 Filed 12–7–09; 8:45 am] 

BILLING CODE 3410–16–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Bureau of Customs and Border 

Protection 

19 CFR Part 101 

[CBP Dec. 09–45] 

Technical Amendments to List of CBP 

Preclearance Offices in Foreign 

Countries: Addition of Halifax, Canada 

and Shannon, Ireland 

AGENCY: Customs and Border Protection, 

DHS. 

ACTION: Final rule; technical 

amendments. 

SUMMARY: This document amends title 

19 of the Code of Federal Regulations 

(CFR) to reflect that U.S. Customs and 

Border Protection (CBP) has added 

preclearance stations in Halifax, Canada 

and Shannon, Ireland. CBP officers at 

preclearance stations conduct 

inspections and examinations to ensure 

compliance with U.S. customs, 

immigration, and agriculture laws, as 

well as other laws enforced by CBP at 

the U.S. border. Such inspections and 

examinations prior to arrival in the 

United States generally enable 

passengers to exit the domestic terminal 

or connect directly to a U.S. domestic 

flight without undergoing further CBP 

processing. 

DATES: Effective Date: December 8, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Kathleen Conway, Office of Field 

Operations, Preclearance Operations, 

(202) 344–1759. 

SUPPLEMENTARY INFORMATION: 

Background 

CBP preclearance operations have 

been in existence since 1952. 

Preclearance facilities are established 

through the cooperative efforts of CBP, 

foreign government representatives, and 

the local airport authorities and are 

evidenced with signed preclearance 

agreements. Each facility is staffed with 

CBP officers responsible for conducting 

inspections and examinations in 

connection with preclearing passengers 

bound for the United States. Generally, 

passengers who are inspected at a 

preclearance facility are permitted to 

arrive at a U.S. domestic facility and 

exit the U.S. domestic terminal upon 

arrival or connect directly to a U.S. 

domestic flight without further CBP 

processing. Preclearance facilities 

primarily serve to facilitate low risk 

passengers, relieve passenger congestion 

at Federal inspection facilities in the 

United States, and enhance security in 

the air environment through the 

screening and inspection of passengers 

prior to their arrival in the United 

States. In Fiscal Year 2008, over 14.9 

million passengers were processed at 

preclearance locations. This figure 

represents more than 15 percent of all 

commercial air passengers cleared by 

CBP in 2008. 

The Agreement on Air Transport 

Preclearance Between the Government 

of the United States of America and the 

Government of Canada was signed on 

January 18, 2001. Preclearance 

operations began in Halifax, Canada on 

October 4, 2006. The Halifax 

preclearance station is open for use by 

commercial flights. 

The Agreement Between the 

Government of the United States of 

America and the Government of Ireland 

on Air Transport Preclearance was 

signed on November 17, 2008. 

Preclearance operations began in 

Shannon, Ireland on August 5, 2009. 

The Shannon preclearance station is 

open for use by commercial flights. 

Section 101.5 of the CBP regulations 

(19 CFR 101.5) sets forth a list of CBP 

preclearance offices in foreign countries. 

This document amends this section to 

add Halifax, Canada and Shannon, 

Ireland to the list of preclearance 

offices, and to reflect the nomenclature 

changes made necessary by the transfer 

of the legacy U.S. Customs Service of 

the Department of the Treasury to the 

Department of Homeland Security 

(DHS) and DHS’ subsequent renaming of 

the agency as U.S. Customs and Border 

Protection (CBP) on March 31, 2007 (see 

72 FR 20131, dated April 23, 2007). 

Inapplicability of Public Notice and 

Delayed Effective Date Requirements 

This amendment reflects the addition 

of two new CBP preclearance offices 

that were established through signed 

agreements between the United States 

and the respective host nation. 

Accordingly, pursuant to 5 U.S.C. 

553(b)(3)(B), notice and public 

procedure are unnecessary. For the 

same reason, pursuant to 5 U.S.C. 

553(d)(3), a delayed effective date is not 

required. 

The Regulatory Flexibility Act and 

Executive Order 12866 

Because no notice of proposed 

rulemaking is required, the provisions 

of the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) do not apply. This 

amendment does not meet the criteria 

for a ‘‘significant regulatory action’’ as 

specified in Executive Order 12866. 

Signing Authority 

This document is being issued in 

accordance with 19 CFR 0.2(a). 

List of Subjects in 19 CFR Part 101 

Customs duties and inspection, 

Customs ports of entry, Foreign trade 

statistics, Imports, Organization and 

functions (Government agencies), 

Shipments, Vessels. 

Amendments to Regulations 

■ For the reasons set forth above, Part 

101 of the Code of Federal Regulations 

(19 CFR part 101) is amended as set 

forth below. 

PART 101—GENERAL PROVISIONS 

■ 1. The general authority citation for 

part 101 and the specific authority 

citation for section 101.5 continue to 

read as follows: 

Authority: 5 U.S.C. 301; 19 U.S.C. 2, 66, 

1202 (General Note 3(i), Harmonized Tariff 

Schedule of the United States), 1623, 1624, 

1646a. 

* * * * * 

Section 101.5 also issued under 19 U.S.C. 

1629. 

* * * * * 

■ 2. Revise § 101.5 to read as follows: 

§ 101.5 CBP preclearance offices in 

foreign countries. 

Listed below are the preclearance 

offices in foreign countries where CBP 

officers are located. A Director, 

Preclearance, located in the Office of 

Field Operations at CBP Headquarters, 

is the responsible CBP officer exercising 

supervisory control over all 

preclearance offices. 

Country CBP office 

Aruba ...................... Orangestad. 

The Bahamas ......... Freeport. 

Nassau. 

Bermuda ................. Kindley Field. 

Canada ................... Calgary, Alberta. 

Edmonton, Alberta. 

Halifax, Nova Scotia. 

Montreal, Quebec. 

Ottawa, Ontario. 

Toronto, Ontario. 

Vancouver, British 

Columbia. 

Winnipeg, Manitoba. 

Ireland ..................... Shannon. 

WReier-Aviles on DSKGBLS3C1PROD with RULES