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.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

28511

Vol. 60, No. 105

Thursday, June 1, 1995

OFFICE OF PERSONNEL

MANAGEMENT

5 CFR Part 890

RIN 3206–AG33

Federal Employees Health Benefits

Program: Procedures for Direct

Payment of Premiums

AGENCY: Office of Personnel

Management.

ACTION: Final rule.

SUMMARY: The Office of Personnel

Management (OPM) is issuing final

regulations to eliminate the requirement

for the use of certified mail, return

receipt requested, when notifying

certain enrollees that their enrollment in

the Federal Employees Health Benefits

(FEHB) Program will be terminated due

to nonpayment of premiums unless the

payment is received within 15 calendar

days. The purpose of these regulations

is to reduce the cost of administering

the FEHB enrollments of enrollees who

make payments directly rather than

through payroll or annuity deductions.

EFFECTIVE DATE: July 3, 1995.

FOR FURTHER INFORMATION CONTACT:

Margaret Sears (202) 606–0004.

SUPPLEMENTARY INFORMATION: On

December 30, 1994, OPM published

interim regulations in the Federal

Register (59 FR 67605) eliminating the

requirement for using certified mail,

return receipt requested, when notifying

FEHB enrollees that their coverage is

about to be terminated due to

nonpayment of premiums. Most

individuals enrolled under the FEHB

Program pay their share of the

premiums through withholding from

pay or annuity. However, in some cases

enrollees may make direct payments.

These include: (1) Certain annuitants

and compensationers (individuals who

are entitled to compensation from the

Office of Workers’ Compensation

Programs based on a job-related injury

or disease) whose annuity or

compensation has been waived or

suspended; (2) former spouses whose

enrollment is based on a qualifying

court order under subpart H of 5 CFR

part 890 governing FEHB; and (3) former

employees, former spouses, and

children enrolled under the Temporary

Continuation of Coverage (TCC)

provisions.

Under regulations in effect before we

issued the interim regulations, if an

employing office did not receive the

payment by the due date, it was

required to notify the enrollee by

certified mail, return receipt requested,

that continuation of coverage rests upon

payment being made within 15 days (or

45 days for some enrollees living

overseas) after receipt of the notice.

The interim regulations eliminated

the requirement for sending the

nonpayment notice by certified mail,

return receipt requested. Further, they

clarified that there must be a delay of 60

days (90 days for overseas enrollees)

before employing offices take action to

terminate enrollments for nonpayment

of premiums. We believe that the

interim regulations are much more

convenient for the enrollee because the

enrollees no longer need to sign for the

notice. If no one is at home when a

letter carrier delivers a return-receiptrequested letter, the addressee must go

to the post office to sign for it. Under the

interim regulations, the letter is left in

the enrollee’s mailbox and the enrollee

has the information without making an

unnecessary trip to the post office.

OPM received no comments on the

interim regulations.

Regulatory Flexibility Act

I certify that these regulations will not

have a significant economic impact on

a substantial number of small entities

because they primarily affect

individuals enrolled under the Federal

Employees Health Benefits Program.

List of Subjects in 5 CFR Part 890

Administrative practice and

procedure, Government employees,

Health facilities, Health insurance,

Health professions, Hostages, Iraq,

Kuwait, Lebanon, Reporting and

recordkeeping requirements,

Retirement.

Office of Personnel Management.

James B. King,

Director.

Accordingly, under authority of 5

U.S.C. 8913, the interim rule amending

5 CFR Part 890 published on December

30, 1994, (59 FR 67605) is adopted as

final without any change.

[FR Doc. 95–13316 Filed 5–31–95; 8:45 am]

BILLING CODE 6325–01–P

DEPARTMENT OF AGRICULTURE

Natural Resources Conservation

Service

7 CFR Chapter VI and Part 620

RIN 0578–AA15

Wetlands Reserve Program

AGENCY: Natural Resources

Conservation Service, USDA.

ACTION: Interim rule with request for

comments.

SUMMARY: Title XIV of the Food

Agriculture, Conservation, and Trade

Act of 1990 (the 1990 Act), enacted on

November 28, 1990, amended the Food

Security Act of 1985 to provide for the

establishment of the Wetlands Reserve

Program (WRP). Under the WRP, the

secretary of Agriculture is authorized to

purchase easements from owners of

eligible land who voluntarily agree to

restore and protect farmed wetlands or

converted wetlands and eligible

adjacent acres. The Department of

Agriculture Reorganization Act of 1994,

authorized the establishment of the

Natural Resources Conservation service

(NRCS) and transferred responsibility

for the WRP from the Consolidated

Farm Service Agency to the NRCS,

formerly the Soil Conservation Service

(SCS). This interim rule provides the

process by which the WRP will be

administered within the NRCS. This

rule also amends 7 CFR Chapter VI to

reflect the establishment of the NRCS

and the abolishment of the SCS.

DATES: Effective date: June 1, 1995.

Comments should be received on or

before July 31, 1995.

ADDRESSES: Comments should be sent to

National Wetlands Team, Natural

Resources Conservation Service, Cotton

Annex, Mezzanine One, Post Office Box

2890, Washington, DC 20013.
28512 Federal Register / Vol. 60, No. 105 / Thursday, June 1, 1995 / Rules and Regulations

FOR FURTHER INFORMATION CONTACT:

Bob Misso (202) 720–3534.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

The Office of Management and Budget

(OMB) has determined that this interim

rule is 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.

Environmental Evaluation

It has been determined through an

environmental review that this action is

a modification of the existing WRP and

is covered under the NRCS 1990

Environmental Assessment entitled,

‘‘Wetlands Reserve ProgramEnvironmental Assessment: Wetlands

Reserve Provision of the Conservation

Program Improvements Act of 1990.’’

Copies of the environmental assessment

are available upon request from: Bob

Misso, Program Manager, National

Wetlands Team, Natural Resources

Conservation Service, Mezzanine One,

Cotton Annex, Post Office Box 2890,

Washington, DC 20250.

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: Wetlands Reserve Program—10.072.

Paperwork Reduction Act

The information collection

requirements contained in this interim

rule will be submitted to the Office of

Management and Budget (OMB) for

review under the Paperwork Reduction

Act of 1980.

Executive Order 12778

This interim rule has been reviewed

in accordance with Executive Order

12778. The provisions of this interim

rule are not retroactive. Furthermore,

except as provided at 16 U.S.C.

3837a(e)(2), the provisions of this

interim rule preempt State and local

laws to the extent such laws are

inconsistent with this interim 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, which

the President signed into law on March

22, 1995, the affects of this rulemaking

action on State, local, and tribal

governments, and the public have been

assessed. This action does not compel

the expenditure of $100 million or more

by any State, local or tribal

governments, or anyone in the private

sector, and therefore a statement under

section 202 of the Unfunded Mandates

Reform act of 1995 is not required.

Discussion of Program

Under the WRP, the Natural

Resources Conservation Service (NRCS)

will purchase easements from persons

voluntarily agreeing to allow for the

restoration of farmed or converted

wetlands. The 1990 Act (16 U.S.C. 3837

et seq.) created an umbrella program

called the Agricultural Resource

Conservation Program which includes

the Environmental Conservation

Acreage Reserve Program. The

Environmental Conservation Acreage

Reserve Program includes the

Conservation Reserve Program (CRP)

and the WRP.

The current regulations implementing

the WRP were published by the

Consolidated Farm Service Agency as a

final rule on November 23, 1994 (59 FR

60297) and are codified at 7 CFR Part

703. This rule establishes a new part (7

CFR part 620) for WRP, and pursuant to

the Department of Agriculture

Reorganization Act of 1994, Public Law

103–354, the NRCS assumes

responsibility for administrating the

WRP. Funds will be allocated based on

landowner interest, amount of restorable

wetland acres, environmental benefits,

cost of acquisition and restoration, and

other factors as determined by the Chief,

NRCS, in consultation with the U.S.

Fish and Wildlife Service.

Section 3837 of Title 16, United States

Code, specifies that eligible land will

include farmed or converted wetlands,

but not wetlands converted after

December 23, 1985, together with

adjacent lands on which the wetlands

are functionally dependent so long as

the likelihood of successful restoration

of such land and the wetland values

merit inclusion in the program taking

into account the cost of restoring the

wetlands. NRCS is also permitted to

include in the program: (1) farmed or

converted wetlands and adjoining lands

that are enrolled in the CRP with the

highest wetland functions and values

and that are likely to return to

production at the end of the CRP

contract; (2) other wetlands that would

not otherwise be eligible if it is

determined that inclusion in the

program would significantly add to the

value of the easement; and (3) riparian

areas that link wetlands that are

protected by easements or by some other

device or circumstance that achieves the

same purpose as an easement.

The NRCS shall not enroll lands that:

(1) are converted wetlands if the

conversion was commenced after

December 23, 1985, (2) contain timber

stands established under a CRP contract,

(3) are owned by an agency of the

United States, (4) are subject to a deed

restriction of 30 years or more

prohibiting the production of

agricultural commodities, or (5) are

subject to on-site or off-site conditions

that preclude successful long term

restoration.

With respect to owner eligibility, 16

U.S.C. 3837e provides that no WRP

easement shall be created on land that

has changed ownership in the preceding

12 months unless: (1) the new

ownership was acquired by will or

succession as a result of the death of the

previous owner; or, (2) the Secretary

determines that the land was acquired

under circumstances that give adequate

assurances that such land was not

acquired for the purpose of placing it in

the WRP.

In return for participation in the

program, a landowner will receive

financial compensation from the NRCS

for the easement itself, and the NRCS

will bear all or a portion of the cost of

restoring the functions and values of the

enrolled land. In each State, the State

Conservationist, with the assistance of

the State Technical Committee, shall

determine easement payment rates to be

applied to specific geographic areas

within the State or to individual

easement areas. In order to provide for

better uniformity among States, the

Regional Conservationist may review

and adjust, as appropriate, any easement

payment rates established within a

region.

Compensation for easements acquired

by the Secretary under the WRP must be

an agreed upon amount, but not to

exceed the fair market value of the land

less the fair market value of such land

encumbered by the easement, a method

of valuation known as the before and

after value of the land. In response to

this requirement and the further desire

to ensure that the program focus is
Federal Register / Vol. 60, No. 105 / Thursday, June 1, 1995 / Rules and Regulations 28513

largely to maximize net environmental

benefits per expenditure of federal

funds, the compensation for the

easements is limited to the agricultural

value of the lands. Based upon

acquisition experience, the effect of the

WRP easement is largely to eliminate

agricultural uses of the land. Therefore,

to utilize the agricultural value of the

land is equivalent to the value of the

easement utilizing the traditional before

and after method of valuation. Under

this calculation of compensation, other

speculative and higher uses are not

considered in the determination of

compensation rates. Furthermore, any

compatible agricultural use of the

easement area is limited to such level

and timing of use as is integral to

achieving and maintaining optimum

wetland restoration benefits, and not for

the purpose of achieving economic

profit.

Therefore, the easement value rates

will be determined using the best

information which is readily available

for assessing the values of land for

agricultural purposes. Such information

may include soil types, cropping

histories, production histories, location,

real estate market values, appraisals and

market analyses, and tax rates and

assessments.

To achieve program cost efficiency in

relation to the ecological benefits to be

achieved, the restoration of wetlands

which maximize net environmental

benefits per expenditure of federal

funds will be emphasized. One source

of accomplishing this cost-efficiency

goal is to establish maximum easement

payments for the State or geographic

areas of the State. Maximum easement

payment limitations may be available

for public review prior to the sign-up

period. No easement payment shall

exceed the fair market value of the land

rights being acquired.

Section 3837a of Title 16, United

States Code, provides that the easements

purchased under the WRP shall be in a

recordable form and shall be for 30

years, permanent, or the maximum

duration allowed under applicable State

laws. Section 3837c(c) provides that in

determining the acceptability of offers,

consideration may be given to the extent

to which the purposes of the program

can be accomplished on the land, the

productivity of the land, and the onfarm and off-farm environmental threats

if the land is used for the production of

agricultural commodities. In addition,

section 3837c(d) provides that to the

extent practicable, taking into

consideration costs and future

agricultural and food needs, the

Secretary shall give priority to obtaining

permanent easements before shorter

term easements and, in consultation

with the Secretary of the Interior, shall

place priority on acquiring easements

based on the value of the easement for

restoring and protecting habitat for

migratory birds and other wildlife. In

order to accomplish this goal, § 620.6

and § 620.8(b)(5) of the interim rule

provide that permanent easements will

be preferred whenever possible.

Before proceeding to acquire a nonpermanent easement, the State

Conservationist will first seek to acquire

any permanent easement offer that is

determined to have the ecological and

cost characteristics that warrant

acquisition. After the effort to acquire

permanent easements is completed, and

provided that funding continues to be

available, the State Conservationist,

following review and approval of the

request by the Regional Conservationist

and the Chief, may pursue the

acquisition of non-permanent

easements.

The Regional Conservationist and the

Chief, when considering the request of

the State Conservationist, will

simultaneously consider any backlog of

unaccepted permanent easements offers

that may exist in other areas of the

region and Nation before approval of the

acquisition of non-permanent easements

is granted.

On land encumbered by permanent

easements, the law establishing WRP

allows for the Secretary to pay all the

restoration costs or to cost-share with

the landowner. The cost-share formula

recognizes that the ecological benefits

associated with a non-permanent

easement is significantly less than that

which would be associated with a

permanent easement on the same land.

Thus, 16 U.S.C. 3837c(b) provides for a

smaller cost-share payment-rate on land

encumbered with non-permanent

easements than on land encumbered

with permanent easements. In

particular, section 3837c(b) provides for

cost-share payments on non-permanent

easements to range from 50 percent to

75 percent of restoration costs, whereas

the cost-share payments on areas with

permanent easements range from 75

percent to 100 percent of restoration

costs (16 U.S.C. 3837c(b)). These

restoration cost-share rates apply to

NRCS expenditures and do not prohibit

the landowner from obtaining cost-share

assistance from other entities.

Under this rule, this statutory

distinction between cost-share

payments made for permanent versus

non-permanent easements is replicated

in the payment for the easements. For a

given easement on a particular area of

land, payments for non-permanent

easements will be between 50 percent

and 75 percent of that which would be

paid for a permanent easement.

Easement payments for a short-term, 30-

year easement will be 50 percent of that

which would have been paid for a

permanent easement. Such reduced

easement payments are consistent with

the significant reduction in ecological

benefits and cost efficiency associated

with non-permanent easements.

Landowners will be allowed to apply

for transfer of eligible land from the CRP

to WRP. Enrollment in WRP will not

require the refund of past payments or

require a reduced WRP easement

payment. CRP contracts will be

terminated at the time of enrollment in

WRP.

This is a voluntary program designed

to achieve cost-effective, long-lasting

wetland restoration, and the NRCS shall

not acquire easements by eminent

domain or other non-voluntary

acquisition procedures. As a means of

improving selection competitiveness,

landowners may accept cost-share or

easement payments less than that which

may be determined applicable for the

particular easement.

During announced sign-up periods,

interested landowners will be able to

apply for enrollment by stating on an

NRCS form their intention to

participate. This Application for

Participation must be submitted during

an announced period for submissions.

Sign-up periods may be announced

periodically by the NRCS.

The State Conservationist, with the

assistance of the State Technical

Committee, will develop a ranking

process. Each of the applications that

are submitted by eligible landowners for

eligible lands shall be evaluated

according to the following factors: (1)

Duration of the easement, (2) wetland

functions and values, (3) habitat for

migratory birds and other wildlife,

particularly at risk species, (4) location

significance, (5) wetland management

requirements, (6) likelihood of success

of restoration, (7) easement purchase

and restoration costs borne by the

NRCS, and (8) other environmental (e.g.

water quality) or cost factors determined

appropriate by the NRCS.

It is the intention of the NRCS in

ranking the applications to enroll the

wetlands that provide the greatest

environmental benefits while taking

into consideration the cost of

restoration, easement purchase, and

associated costs. The ranking process

will emphasize factors that (1) Ensure

the effectiveness of the restored wetland

functions and values, and (2)

incorporate regional and State

ecological priorities. The Chief, NRCS,

may identify and accept certain
28514 Federal Register / Vol. 60, No. 105 / Thursday, June 1, 1995 / Rules and Regulations

easements that advance the national

goals of the WRP, even if such lands

would not otherwise receive priority

under the regional or State ranking

procedures. For example, the Chief may

allocate funds for purposes related to

special pilot programs for wetland

management and monitoring,

cooperative agreements with other

Federal or State agencies for program

implementation, or for coordination of

easement enrollment across State

boundaries.

All landowners who want to enroll

land in the WRP shall: (1) Grant to the

United States a reserved interest

easement on the land; (2) agree to the

implementation of a Wetlands Reserve

Plan of Operation (WRPO); (3) provide

for the creation and recordation of a

deed restriction covering the easement

area; and (4) ensure consent to the

easement from persons holding a

security interest in the property. The

WRPO will be completed in

consultation with the U.S. Fish and

Wildlife Service and the Conservation

District. The WRPO specifies the

manner in which the enrolled land will

be restored, operated, and maintained to

accomplish the goals of the program.

Section 3837a(b) of Title 16, United

States Code, requires, in addition, that

the easement allow: (1) Repairs,

improvements, and inspections on such

lands that are necessary to maintain

existing public drainage systems; and

(2) landowners to control public access

on the easement area while identifying

access routes to be used for wetland

restoration activities, management and

monitoring. Section 3837a(b) also

requires that the terms of the easement

prohibit such activities as spraying with

chemicals or mowing of the land except

as allowed to comply with Federal or

State noxious weed laws or Federal or

State emergency pest treatment

programs. These provisions have been

incorporated into § 620.10 of this

interim rule.

A major program participation

requirement contained in § 620.10 is the

inclusion in the easement of the right of

the United States to determine if a

specific use of the easement area may be

permitted as compatible. For a use to be

considered compatible, the Chief or

designee must determine that the use is

consistent with the long term protection

and enhancement of the wetland

resources for which the easement was

established.

The uses commonly considered

compatible include hunting and fishing,

haying, grazing, and harvest of timber.

Hunting and fishing are generally

considered compatible where the

activities are carried out under the

established State and Federal

regulations that govern such uses.

Haying, grazing, and timbering, because

of the potential for substantial and

adverse impacts upon the vegetative

conditions of the easement area, may

only be considered compatible under

specifically prescribed circumstances

that are directly associated with sitespecific conditions as influenced by soil

productivity, time of year, short and

long term weather patterns, and other

factors that may from time to time be

pertinent. The type, method, timing,

duration, and extent of a use, to be

deemed compatible, must be an integral

and positive part of the overall

management plan for the easement area.

For example, in a restored forested

wetland easement area, a salvage cut to

remove diseased or damaged trees may

be appropriate. A selective harvest of

overstory trees which opens up the

canopy to provide for understory

vegetative diversity may also be

compatible in specific cases. A clear

cutting approach to timber harvest,

however, for the purpose of achieving

economic gain at the expense of wetland

functions and values would not be

compatible with forested wetland

functions and values.

Section 3837a(g) of Title 16, United

States Code, provides that in the case of

any violation of the terms and

conditions of the easement or WRPO,

the easement shall remain in force and

the owner may be required to refund all

or part of the payments made together

with interest. Accordingly, this

requirement has been incorporated into

§ 620.14 of this interim rule.

Once an easement has been recorded,

a landowner can request modifications

that do not adversely affect the

functions and values for which the

easement was established. Any

modification, however, must result in

equal or greater environmental and

economic values to the United States, as

determined by the NRCS in consultation

with the U.S. Fish and Wildlife Service.

During the 1994 WRP sign-up,

landowners in only 20 States could

participate in the WRP. In fiscal year

1995 and subsequent years, no specific

geographic limitation is required and

eligible landowners in all 50 States and

territories and possessions of the United

States may, subject to a determination

by the Chief, be given the opportunity

to participate in the WRP.

This interim rule establishes a new

part in chapter VI, title 7 of the Code of

Federal Regulations, and makes the

following changes to the administration

of the program:

(1) Identifies possible enrollment

availability in all 50 States, the District

of Columbia, the Commonwealth of

Puerto Rico, Guam, the Virgin Islands of

the United States, American Samoa, the

Commonwealth of the Northern Mariana

Islands, and the Trust Territory of the

Pacific Islands;

(2) Expands land eligibility to certain

agricultural lands that do not have a

cropping history, such as former or

degraded wetlands presently used for

pasture and hayland;

(3) Provides a non-permanent

easement option;

(4) Makes other changes to the

administration of the program to

become consistent with NRCS structure,

policies, and procedures; and

(5) Delegates additional decisionmaking authority to the NRCS Regional

Conservationists and State

Conservationists with assistance

provided by the State Technical

Committees.

List of Subjects in 7 CFR Part 620

Administrative practices and

procedures, Natural resources,

Wetlands.

CHAPTER VI—NATURAL RESOURCES

CONSERVATION SERVICE, DEPARTMENT

OF AGRICULTURE

Accordingly, 7 CFR chapter VI is

amended as follows:

1. The heading of Chapter VI is

revised to read as set forth above.

2. In 7 CFR Chapter VI (consisting of

parts 600–663), all references to ‘‘Soil

Conservation Service’’ are revised to

read ‘‘Natural Resources Conservation

Service,’’ and all references to ‘‘SCS’’

are revised to read ‘‘NRCS.’’

3. A new part 620 is added to read as

follows:

PART 620—WETLANDS RESERVE

PROGRAM

Sec.

620.1 Purpose and scope.

620.2 Definitions.

620.3 Administration.

620.4 Program requirements.

620.5 Application procedures.

620.6 Establishing priority for enrollment of

properties in WRP.

620.7 Enrollment.

620.8 Compensation for easements.

620.9 Cost-share payments.

620.10 Program participation requirements.

620.11 The WRPO development.

620.12 Modifications.

620.13 Transfer of land.

620.14 Violations and remedies.

620.15 Payments not subject to claims.

620.16 Assignments.

620.17 Appeals.

620.18 Scheme and device.

Authority: 16 U.S.C. 590a et seq., 3837 et

seq.
Federal Register / Vol. 60, No. 105 / Thursday, June 1, 1995 / Rules and Regulations 28515

§ 620.1 Purpose and scope.

(a) The regulations in this part set

forth the policies, procedures, and

requirements for the Wetlands Reserve

Program (WRP) as administered by the

Natural Resources Conservation Service

(NRCS) for program implementation and

processing outstanding and new

applications for enrollment during

calendar year 1995 and thereafter.

(b) The Chief, NRCS, may implement

WRP in any of the 50 States, the District

of Columbia, the Commonwealth of

Puerto Rico, Guam, the Virgin Islands of

the United States, American Samoa, the

Commonwealth of the Northern Mariana

Islands, and the Trust Territories of the

Pacific Islands.

§ 620.2 Definitions.

The following definitions shall be

applicable to this part:

Agricultural commodity means any

crop planted and produced by annual

tilling of the soil or on an annual basis

by one trip planters, or alfalfa and other

multi-year grasses and legumes in

rotation as approved by the Secretary.

Land shall be considered planted to an

agricultural commodity during a crop

year if, as determined by the NRCS, an

action of the Secretary prevented land

from being planted to the commodity

during the crop year.

Chief means the Chief of the Natural

Resources Conservation Service or the

person delegated authority to act for the

Chief.

Commenced conversion wetland

means a wetland or converted wetland

for which the Consolidated Farm

Service Agency has determined that the

wetland manipulation was contracted

for, started, or for which financial

obligation was incurred before

December 23, 1985.

Conservation District is a subdivision

of a State or local government organized

pursuant to applicable State law to

promote soil and water conservation

practices.

Conservation Reserve Program (CRP)

means the program administered by the

Secretary of Agriculture and referenced

at 7 CFR Parts 704 and 1410.

Consolidated Farm Service Agency

(CFSA) is an agency of the United States

Department of Agriculture.

Contract means the NRCS document

that specifies the obligations and rights

of any person who has been accepted for

participation in the program.

Converted wetland means a wetland

that has been drained, dredged, filled,

leveled, or otherwise manipulated

(including the removal of woody

vegetation, or any activity that results in

impairing or reducing the flow,

circulation, or reach of water) for the

purpose, or that has the effect, of

making the production of an agricultural

commodity possible if such production

would not have been possible but for

such action.

Cost-share payment means the

payment made by the NRCS to achieve

the restoration of the wetland functions

and values of the easement area in

accordance with the WRPO.

Easement means a reserved interest

easement which is an interest in land

defined and delineated in a deed

whereby the landowner conveys all

rights, title, and interests in a property

to the grantee, but the landowner retains

those rights, title, and interests in the

property which are specifically reserved

to the landowner in the easement deed.

Easement area means the land

encumbered by an easement.

Easement payment means the

consideration paid to a landowner for

an easement conveyed to the United

States under the WRP.

Farmed wetland means wetlands that

were manipulated and used to produce

an agricultural commodity prior to

December 23, 1985, but had not been

converted prior to that date and,

therefore, are not prior converted

croplands. These areas include

potholes, playas, and pocosins that still

meet the wetland criteria, and other

wetlands that are seasonally ponded or

flooded for an extended period of time

during the growing season.

Farmed wetland pasture means

wetlands that were manipulated and

managed for pasture or hayland prior to

December 23, 1985, but still meet

wetland criteria and are not abandoned,

or were prior converted croplands or

farmed wetlands that were not cropped

for 5 successive years, but were used for

forage production during that time and

have not been abandoned.

Forest Service is an agency of the

United States Department of

Agriculture.

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.

Lands substantially altered by

flooding means areas where flooding has

created wetland hydrologic conditions

which, with a high degree of certainty,

will develop wetland soil and

vegetation characteristics over time.

Natural Resources Conservation

Service (NRCS) is an agency of the

United States Department of

Agriculture, formerly called the Soil

Conservation Service.

Permanent easement means an

easement that lasts in perpetuity.

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 restoration measure

necessary or desirable to accomplish the

desired program objectives.

Prior converted cropland means

wetlands that before December 23, 1985,

were drained, dredged, filled, leveled,

or otherwise manipulated including the

removal of woody vegetation, for the

purpose, or to have the effect, of making

the production of an agricultural

commodity possible and an agricultural

commodity has been produced at least

once before December 23, 1985.

Riparian areas means areas of land

that occur along streams, channels,

rivers, and other water bodies. These

areas are normally distinctly different

from the surrounding lands because of

unique soil and vegetation

characteristics, may be identified by

distinctive vegatative communities

which are reflective of soil conditions

normally wetter than adjacent soils, and

generally provide a corridor for the

movement of wildlife.

State Technical Committee means a

committee established by the Secretary

of the U.S. Department of Agriculture in

a State pursuant to 16 U.S.C. 3861. For

the purposes of the WRP, 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.

Wetland means land that:

(1) Has a predominance of hydric

soils;

(2) Is inundated or saturated by

surface or groundwater at a frequency

and duration sufficient to support a

prevalence of hydrophytic vegetation

typically adapted for life in saturated

soil conditions; and

(3) Does support a prevalence of such

vegetation under normal circumstances.

For purposes of WRP, wetland shall also

refer to adjacent lands that contribute to

wetland functions and values.

Wetland functions and values means

the hydrological and biological

characteristics of wetlands and the

social worth placed upon these

characteristics, including:

(1) Habit for migratory birds and other

wildlife, in particular at risk species;

(2) Protection and improvement of

water quality;
28516 Federal Register / Vol. 60, No. 105 / Thursday, June 1, 1995 / Rules and Regulations

(3) Attenuation of water flows due to

flood;

(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.

Wetland restoration means the

rehabilitation of degraded or lost habitat

in a manner such that:

(1) The original vegetation community

and hydrology are, to the extent

practical, re-established; or

(2) A community different from what

likely existed prior to degradation of the

site is established. The hydrology and

native self-sustaining vegetation being

established will substantially replace

original habitat functions and values but

does not involve more than 30 percent

of the wetland restoration area.

WRP means the Wetlands Reserve

Program.

WRPO means the Wetlands Reserve

Plan of Operations.

§ 620.3 Administration.

(a) The regulations in this part will be

administered under the general

supervision and direction of the Chief.

(b) The Chief is authorized to modify

or waive a provision of this part if the

Chief deems the application of that

provision to a particular limited

situation to be inappropriate and

inconsistent with the environmental

and cost-efficiency goals of the WRP.

This authority cannot be further

delegated. The Chief may not modify or

waive any provision of this part which

is required by applicable law.

(c) As determined by the Chief and

the Administrator of the Consolidated

Farm Service Agency, the NRCS will

seek the agreement of the Consolidated

Farm Service Agency in establishing

policies, priorities, and guidelines

related to the implementation of this

part.

(d) The State Conservationist will

consult with the State Technical

Committee on the development of the

rates of compensation for an easement,

a priority ranking process, and related

policy matters.

(e) The NRCS may delegate at any

time easement management, monitoring,

and enforcement responsibilities to

other Federal or State agencies.

(f) The NRCS may enter into

cooperative agreements with Federal or

State agencies and with private

conservation organizations to assist the

NRCS with educational efforts,

easement management and monitoring,

and program implementation assistance.

(g) The NRCS shall consult with the

U.S. Fish and Wildlife Service in the

implementation of the program and in

establishing program policies. The

NRCS may consult with other Federal

and State agencies and other

organizations in program

administration. No determination by the

U.S. Fish and Wildlife Service, Federal,

or State agency shall compel the NRCS

to take any action which the NRCS

determines will not serve the purposes

of the program established by this part.

(h) 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 easement enrollment

across State boundaries, or for other

goals of the WRP found in this part.

§ 620.4 Program requirements.

(a) General. Under the WRP, the

NRCS will purchase conservation

easements from eligible landowners

who voluntarily cooperate in the

restoration and protection of wetlands

and associated lands. To participate in

WRP, a landowner will agree to the

implementation of a Wetlands Reserve

Plan of Operations (WRPO), the effect of

which is to restore, 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 restoration, protection,

enhancement, maintenance, and

management of wetland functions and

values. Specific restoration, protection,

enhancement, maintenance, and

management actions may be undertaken

by the landowner or other NRCS

designee.

(b) Acreage limitations.

(1) Except for areas devoted to

windbreaks or shelterbelts after

November 28, 1990, no more than 25

percent of the total cropland in any

county, as determined by the

Consolidated Farm Service Agency, may

be placed in the Environmental

Conservation Acreage Reserve Program,

16 U.S.C. 3830, and no more than 10

percent of the total cropland in the

county may be subject to an easement.

(2) The NRCS and the Consolidated

Farm Service Agency shall concur

before a waiver of either the 25 percent

limit or the 10 percent limit of this

subsection can be approved for an

easement proposed for enrollment in the

WRP. Such a waiver will only be

approved if it will not adversely affect

the local economy.

(c) Landowner eligibility. To be

eligible to participate in the WRP, a

person must:

(1) Be the landowner of eligible land

for which enrollment is sought;

(2) Have been the landowner of such

land for the 12 months prior to the time

the intention to participate is declared

unless it is determined by the State

Conservationist that the land was

acquired by will or succession as a

result of the death of the previous

landowner, or that adequate assurances

have been presented to the State

Conservationist that the new landowner

of such land did not acquire such land

for the purpose of placing it in the WRP;

and

(3) Agree to provide such information

to the NRCS as the agency deems

necessary or desirable to assist in its

determination of eligibility for program

benefits and for other program

implementation purposes.

(d) 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

restoration of wetland functions and

values when considering the cost of

acquiring the easement and restoration,

protection, enhancement, maintenance,

and management costs.

(2) Land which meets the eligibility

requirements of this section shall only

be considered for enrollment in WRP if

the NRCS determines, in consultation

with the U.S. Fish and Wildlife Service,

that the wetland functions and values

can and will be restored, protected,

enhanced, maintained, and managed.

(3) The following land is eligible for

enrollment in the WRP, which land may

have been determined by the NRCS

pursuant to regulations and

implementing policies is pertaining to

wetland conservation found at 7 CFR

12.30–12.33, as:

(i) Wetlands farmed under natural

conditions, farmed wetlands, prior

converted cropland, commenced

conversion wetlands, farmed wetland

pastures, and lands substantially altered

by flooding so as to develop wetland

functions and values;

(ii) Former or degraded wetlands that

occur on lands that have been used or

are currently being used for the

production of food and fiber, including

rangeland and forest production lands,

where the hydrology has been

significantly degraded or modified and

will be substantially restored;

(iii) Riparian areas along streams or

other waterways that link or, after

restoring the riparian area, will link

wetlands which are protected by an
Federal Register / Vol. 60, No. 105 / Thursday, June 1, 1995 / Rules and Regulations 28517

easement or other device or

circumstance that achieves the same

objectives as an easement:

(iv) Land adjacent to the restored

wetland which would contribute

significantly to wetland functions and

values including buffer areas, wetland

creations, and non-cropped neutral

wetlands, but not more than the State

Conservationist, in consultation with

the State Technical Committee,

determines is necessary for such

contribution;

(v) Other wetlands that would not

otherwise be eligible but would

significantly add to the wetland

functions and values; and

(vi) Wetlands that have been restored

under a private, State, or Federal

restoration program with an easement or

deed restriction with a duration of less

than 30 years.

(4) To be enrolled in the program,

eligible land must be configured in a

size and with boundaries that allow for

the efficient management of the area for

easement purposes and otherwise

promote and enhance program

objectives.

(e) Ineligible land. The following land

is not eligible for enrollment in the

WRP:

(1) Converted wetlands if the

conversion was commended after

December 23, 1985;

(2) Land that contains timber stands

established under a CRP contract;

(3) Lands owned by an agency of the

United States;

(4) Land subject to an easement or

deed restriction with a duration of 30

years or more prohibiting the

production of agricultural commodities;

and,

(5) Lands where implementation of

restoration practices would be futile due

to on-site or off-site conditions.

(f) Enrollment of CRP lands. Land

subject to an existing CRP contract may

be enrolled into the WKP only if the

land and landowner meet the

requirements of this part, and the

enrollment is requested by the

landowner and agreed to by the NRCS.

To enroll in WRP, the CRP contract for

the property shall be terminated or

otherwise modified subject to such

terms and conditions as are mutually

agreed upon by the Consolidated Farm

Service Agency and the landowner.

§ 620.5 Application procedures.

(a) Application for participation. To

apply for enrollment, a landowner must

submit an Application for Participation

in the WRP. The application must be

submitted during an announced period

for such submissions.

(b) Preliminary agency actions. By

filing an Application for Participation,

the landowner consents to an NRCS

representative entering upon the land

for purposes of assessing the wetland

functions and values, and for other

activities such as the development of

the preliminary WRPO that are

necessary or desirable for the NRCS to

make offers of enrollment. The

landowner is entitled to accompany an

NRCS representative on any site visits.

(c) Voluntary reduction in

compensation. In order to enhance the

probability of enrollment in WRP, a

landowner may voluntarily offer to

accept a lesser payment than is being

offered by the NRCS.

§ 620.6 Establishing priority for enrollment

of properties in WRP.

(a) Ranking considerations. Based on

applications for participation, the State

Conservationist, in consultation with

the U.S. Fish and Wildlife Service and

the State Technical Committee, will

rank properties based on: estimated

costs of restoration and easement

acquisition, availability of matching

funds, significance of wetland functions

and values, estimated success of

restoration measures, and the duration

of a proposed easement with permanent

easements being given priority over

non-permanent easements.

(b) The NRCS may place higher

priority on certain geographic regions of

the State where restoration of wetlands

may better achieve NRCS State and

regional goals and objectives.

(c) 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

restoration of the wetlands and those

adjacent landowners are unwilling to

participate.

§ 620.7 Enrollment.

(a) Offers of enrollment. Based on the

priority ranking, the NRCS will notify

an affected landowner of tentative

acceptance into the program for which

the landowner has 15 calendar days to

sign a letter of intent to continue. NRCS

will select lands to maximize

environmental benefits per expenditure

of Federal funds.

(b) Effect of letter of intent to continue

(tentative acceptance). An offer of

tentative acceptance into the program

does not bind the NRCS or the United

States to acquire an easement, nor does

it bind the landowner to convey an

easement or agree to WRPO activities.

However, receipt of an executed letter of

intent to continue will authorize the

NRCS to proceed.

(c) Acceptance of offer of enrollment.

A contract will be presented by the

NRCS to the landowner, which will

describe the easement area; the

easement terms and conditions; and

other terms and conditions for

participation that may be required by

the NRCS. A landowner accepts

enrollment in the WRP by signing

contract.

(d) Effect of the acceptance of the

offer. After the contract is executed by

NRCS and the landowner, the NRCS

will proceed with various easement

acquisition activities, which may

include conducting a survey of the

easement area, securing necessary

subordination agreements, procuring

title insurance, and conducting other

activities necessary to record the

easement or implement the WRPO.

(e) Withdrawal of offers. Prior to

execution by the United States and the

landowner of the contract, the NRCS

may withdraw its offer anytime due to

availability of funds, inability to clear

title, or other reasons. The offer to the

landowner shall be void if not executed

by the landowner within the time

specified. The date of the offer shall be

the date of notification to the landowner

of tentative acceptance.

§ 620.8 Compensation for easements.

(a) Establishment of rates.

(1) The State Conservationist, in

consultation with the State Technical

Committee, shall determine easement

payment rates to be applied to specific

geographic areas within the State or to

individual easement areas.

(2) In order to provide for better

uniformity among States, the Regional

Conservationist and Chief may review

and adjust, as appropriate, State or other

geographically based easement payment

rates.

(b) Determination of easement

payment rates.

(1) Easement payment rates will be

based upon analyses of the values of the

lands when used for agricultural

purposes. The landowner will receive

the lesser of the following:

(i) the geographic area rate;

(ii) the value based on a market

appraisal analysis/assessment; or

(iii) the landowner offer.

(2) Each State Conservationist will

determine the easement payment rates

using the best information which is

readily available in that State for

assessing the values of land for

agricultural purposes. Such information

may include: soil types, type(s) of crops

capable of being grown, production
28518 Federal Register / Vol. 60, No. 105 / Thursday, June 1, 1995 / Rules and Regulations

history, location, real estate market

values, appraisals and market analyses,

and tax rates and assessments. The State

Conservationist may consult with other

Federal agencies, real estate market

experts, appraisers, local tax authorities,

and other entities or persons which may

provide information on productivity

and market conditions.

(3) Easement payments for nonpermanent easements will be less than

those for permanent easements because

the quality and duration of the

ecological benefits derived from a nonpermanent easement are significantly

less than those derived from a

permanent easement on the same land.

Easement payments for a nonpermanent easement shall be

determined by the Chief at between 50

percent and 75 percent of that which

would have been paid for a permanent

easement, with the actual percentage of

compensation being determined by the

Chief based upon the extent to which

full restoration and ecological benefits

can be achieved when compared to a

permanent easement. Easement

payments for the short-term 30-year

easements shall be 50 percent of that

which would have been paid for a

permanent easement.

(4) Before proceeding to acquire a

non-permanent easement, the State

Conservationist shall first seek to

acquire any permanent easement offer

that is determined to have the ecological

and cost characteristics that warrant

acquisition. After the effort to acquire

permanent easements is completed, and

provided that funding continues to be

available, the State Conservationist, in

consultation with the State Technical

Committee and following review and

approval of the request by the Regional

Conservationist and the Chief, may

pursue the acquisition of nonpermanent easements.

(5) The Regional Conservationist and

the Chief, when considering the request

of the State Conservationist for approval

to acquire a non-permanent easement,

will simultaneously consider any

backlog of unaccepted permanent

easement offers that may exist in other

areas of the region and Nation before

approval of the acquisition of nonpermanent easements is granted.

(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 a maximum

easement payment for any one easement

within a State or for geographic areas

within a State.

(d) Preliminary estimates of easement

payments. Upon request of the

landowner prior to filing an application

for enrollment, a landowner may be

appraised of the maximum easement

payment rates.

(e) Acceptance of offered easement

compensation.

(1) The NRCS will not acquire any

easement unless the landowner accepts

the amount of the easement payment

which is offered by the NRCS. The

easement payment may or may not

equal the fair market value of the

interests and rights to be conveyed by

the landowner under the easement. By

voluntarily participating in the program,

a landowner waives any claim to

additional compensation based on fair

market value.

(2) For permanent easements, the

NRCS may make one lump-sum cash

easement payment after the easement is

recorded.

(3) For non-permanent easements, the

easement payment shall be made in no

less than 5 annual payments or no more

than 20 annual payments.

(f) Reimbursement of a landowner’s

expenses. For completed easement

conveyances, the NRCS will reimburse

landowners for their fair and reasonable

expenses, if any, incurred for surveying

and related costs, as determined by the

NRCS. The State Conservationist, in

consultation with the State Technical

Committee, may establish maximum

payments to reimburse landowners for

reasonable expenses.

(g) Tax implications of easement

conveyances. Subject to applicable

regulations of the Internal Revenue

Service, a landowner may be eligible for

a bargain sale tax deduction which is

the difference between the fair market

value of the easement conveyed to the

United States and the easement

payment made to the landowner. The

NRCS disclaims any representations

concerning the tax implications of any

easement or cost-share transaction.

(h) Payment limitation on nonpermanent easements. With respect to

non-permanent easements, the annual

amount of easement payments to any

person shall not exceed $50,000.

(i) If easement payments are

calculated on a per acre basis,

adjustment to stated easement payment

will be made based on final

determination of acreage.

§ 620.9 Cost-share payments.

(a) In addition to easement payments,

the NRCS may share the cost with

landowners of restoring the enrolled

land as provided in the WRPO after the

easement is recorded. The amount and

terms and conditions of the cost-share

assistance shall be subject to the

following restrictions on the costs of

establishing or installing practices

specified in the WRPO:

(1) On enrolled land subject to a

permanent easement, the NRCS shall

offer to pay not less than 75 percent nor

more than 100 percent of such costs;

and

(2) On enrolled land subject to a nonpermanent easement, the NRCS shall

offer to pay not less than 50 percent nor

more than 75 percent of such costs.

Cost-share payments offered by NRCS

for the short-term, 30-year easements

shall be 50 percent.

(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 landowner or

other designee.

(c) Cost-share payments may be made

for the establishment and installation of

additional eligible practices, or the

maintenance or replacement of an

eligible practice, but only if NRCS

determines the practice is needed to

meet the objectives of the easement, and

the failure of the original practices was

due to reasons beyond the control of the

landowner.

(d) A landowner 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

landowner receive an amount which

exceeds 100 percent of the total actual

cost of the restoration.

§ 620.10 Program participation

requirements.

(a) To enroll land in WRP, a

landowner shall grant an easement to

the United States. The easement shall

require that the easement area be

maintained in accordance with WRP

goals and objectives for the duration of

the term of the easement, including the

restoration, protection, enhancement,

maintenance, and management of

wetland and other land functions and

values.

(b) For the duration of its term, the

easement shall require, at a minimum,

that the landowner, and the landowner’s

heirs, successors and assigns, shall

cooperate in the restoration, protection,

enhancement, maintenance, and

management of the land in accordance

with the easement and with the terms of

the WRPO. In addition, the easement

shall grant to the United States, through

the NRCS:

(1) A right of access to the easement

area;
Federal Register / Vol. 60, No. 105 / Thursday, June 1, 1995 / Rules and Regulations 28519

(2) The right to permit compatible

uses of the easement area, including

such activities as hunting and fishing,

managed timber harvest, or periodic

haying or grazing, if such use is

consistent with the long-term protection

and enhancement of the wetland

resources for which the easement was

established;

(3) All rights, title and interest in the

easement area subject to compatible

uses reserved to the landowner; and,

(4) The right to perform restoration,

protection, enhancement, maintenance,

and management activities on the

easement area.

(c) The landowner shall convey title

to the easement which is acceptable to

the NRCS. The landowner shall warrant

that the easement granted to the United

States is superior to the rights of all

others, except for exceptions to the title

which are deemed acceptable by the

NRCS.

(d) The landowner shall:

(1) Comply with the terms of the

easement;

(2) Comply with all terms and

conditions of any associated contract;

(3) Agree to the permanent retirement

of any existing cropland base and

allotment history for the easement area

under any program administered by the

Secretary, as determined by the

Consolidated Farm Service Agency;

(4) Agree to the long-term restoration,

protection, enhancement, maintenance,

and management of the easement in

accordance with the terms of the

easement and related agreements;

(5) The landowner may have the

option to enter into an agreement with

governmental or private organizations to

assist in carrying out any landowner

responsibilities on the easement area;

and,

(6) Agree that each person who is

subject to the easement shall be jointly

and severally responsible for

compliance with the easement and the

provisions of this part and for any

refunds or payment adjustment which

may be required for violation of any

terms or conditions of the easement or

the provisions of this part.

§ 620.11 The WRPO development.

(a) The NRCS shall prepare the WRPO

in consultation with the U.S. Fish and

Wildlife Service and the Conservation

District. At the local level, the NRCS

must reach agreement with the U.S. Fish

and Wildlife Service. If agreement

cannot be reached, the WRPO will be

forwarded to the State Conservationist,

who, giving consideration to the

information provided by the U.S. Fish

and Wildlife Service, will develop the

WRPO. In all cases of disagreement at

the local level, the NRCS and the U.S.

Fish and Wildlife Service will file a

report with their respective national

offices.

(b) The WRPO shall specify the

manner in which the enrolled land shall

be restored, protected, enhanced,

maintained, and managed to accomplish

the goals of the program.

§ 620.12 Modifications.

(a) Easements.

(1) After an easement has been

recorded, no modification will be made

in the easement except by manual

agreement with the Chief and the

landowner. The Chief will consult with

the U.S. Fish and Wildlife Service and

the Conservation District prior to

making any modifications to easements.

(2) Approved modifications will be

made only in an amended easement

which is duly prepared and recorded in

conformity with standard real estate

practices, including requirements for

title approval, subordination of liens,

and recordation.

(3) The Chief may approve

modifications to facilitate the practical

administration and management of the

easement area or the program so long as

the modification will not adversely

affect the wetland functions and values

for which the easement was acquired.

(4) Modifications must result in equal

or greater environmental and economic

values to the United States.

(b) WRPO. Insofar as is consistent

with the easement and applicable law,

the Chief may approve modifications to

the WRPO after consultation with the

U.S. Fish and Wildlife Service. Any

WRPO modification must meet WRP

program objectives, and must result in

equal or greater environmental and

economic values to the United States.

Modifications to the WRPO which are

substantial and affect provisions of the

easement may require agreement from

the landowner and require execution of

an amended easement.

§ 620.13 Transfer of land.

(a) Offers voided. Any transfer of the

property prior to the landowner

acceptance into the program shall void

the offer of enrollment. At the option of

the State Conservationist, an offer can

be extended to the new landowner if the

new landowner agrees to the same or

more restrictive easement and contract

terms and conditions.

(b) Payments to landowners.

(1) For non-permanent easements

with multiple annual payments, any

remaining easement payments will be

made to the original landowner unless

the NRCS receives an assignment of

proceeds from the original landowner to

a successor in title.

(2) The new landowner or purchaser

shall be held responsible for assuring

completion of all measures and

practices required by the contract.

Eligible cost-share payments shall be

made to the new landowner upon

presentation of an assignment of rights

or other evidence that title had passed.

(c) Claims to payments. With respect

to any and all payments owed to

landowners, the United States shall bear

no responsibility for any full payments

or partial distributions of funds between

the original landowner and the

landowner’s successor. In the event of a

dispute or claim on the distribution of

cost-share payments, the NRCS may

withhold payments without the accrual

of interest pending an agreement or

adjudication on the rights to the funds.

§ 620.14 Violations and remedies.

(a) In the event of a violation of the

easement or any associated contract

directly involving the landowner, the

landowner 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) Notwithstanding paragraph (a) of

this section, the NRCS reserves the right

to enter upon the easement area at any

time to remedy deficiencies or easement

violations. Such entry may be made at

the discretion of the NRCS when such

actions are deemed necessary to protect

important wetland functions and values

or others rights of the United States

under the easement. The landowner

shall be liable for any costs incurred by

the United States as a result of the

landowner’s negligence or failure to

comply with easement or contractual

obligations.

(c) In addition to any and all legal and

equitable remedies as may be available

to the United States under applicable

law, the NRCS may withhold any

easement and cost-share payments

owing to landowners at any time there

is a material breach of the easement

covenants or any associated contract.

Such withheld funds may be used to

offset costs incurred by the United

States in any remedial actions or

retained as damages pursuant to court

order or settlement agreement.

(d) The United states 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.
28520 Federal Register / Vol. 60, No. 105 / Thursday, June 1, 1995 / Rules and Regulations

§ 620.15 Payments not subject to claims.

Any cost-share or easement payment

or portion thereof due any person under

this part shall be allowed without regard

to any claim or lien in favor of any

creditor, except agencies of the United

States Government.

§ 620.16 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.

§ 620.17 Appeals.

(a) A person participating in the WRP

may obtain a review of any

administrative determination

concerning eligibility for participation

utilizing the administrative appeal

procedures pursuant to Title II, Subtitle

B and Subtitle H of the Department of

Agriculture Reorganization Act of 1994,

Public Law 103–354.

(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.

(c) Any appraisals, market analysis, or

supporting documentation that may be

used by the NRCS in determining

property value are considered

confidential information, and shall only

be disclosed as determined at the sole

discretion of the NRCS in accordance

with applicable law.

§ 620.18 Scheme and device.

(a) If it is determined by the NRCS

that a landowner has employed a

scheme or device to defeat the purposes

of this part, any part of any program

payment otherwise due or paid such

landowner 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 payments for cost-share

practices or easements for the purpose

of obtaining a payment to which a

person would otherwise not be entitled.

(c) A landowner 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, DC on May 19,

1995.

Gary A. Margheim,

Acting Chief, Natural Resources Conservation

Service.

[FR Doc. 95–13161 Filed 5–31–95; 8:45 am]

BILLING CODE 3410–16–M

Agricultural Marketing Service

7 CFR Part 981

[FV94–981–3IFR]

Almonds Grown in California; Release

of the Reserve Established for the

1994–95 Crop Year

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Interim final rule with request

for comments.

SUMMARY: This document relaxes

volume regulations imposed on

California almond handlers for the

1994–95 crop year by releasing reserve

almonds into salable channels. Volume

regulations were imposed under the

authority of the Federal marketing order

which regulates the handling of

almonds grown in California and is

locally administered by the Almond

Board of California (Board). During the

1994–95 season, handlers were required

to withhold as a reserve, from normal

competitive markets, 10 percent of the

almonds which they received from

growers. The remaining 90 percent of

the crop could be sold by handlers to

any market at any time. This rule

relaxes these regulations on handlers by

releasing the reserve percentage to the

salable category and is necessary to

provide a sufficient quantity of almonds

to meet anticipated trade demand and

carryover needs.

DATES: Effective on May 25, 1995;

comments received by July 3, 1995 will

be considered prior to issuance of a final

rule.

ADDRESSES: Interested persons are

invited to submit written comments

concerning this rule. Comments must be

sent in triplicate to the Docket Clerk,

Fruit and Vegetable Division, AMS,

USDA, room 2525–S, P.O. Box 96456,

Washington, DC 20090–6456. All

comments should reference the docket

number and the date and page number

of this issue of the Federal Register and

will be made available for public

inspection in the Office of the Docket

Clerk during regular business hours.

FOR FURTHER INFORMATION CONTACT:

Kathleen M. Finn, Marketing Specialist,

Marketing Order Administration

Branch, Fruit and Vegetable Division,

AMS, USDA, room 2522–S, P.O. Box

96456, Washington, DC 20090–6456;

telephone: (202) 720–1509, or fax (202)

720–5698; or Martin Engeler, Assistant

Officer-in-Charge, California Marketing

Field Office, Fruit and Vegetable

Division, AMS, USDA, 2202 Monterey

Street, suite 102B, Fresno, California

93721; telephone: (209) 487–5901, or fax

(209) 487–5906.

SUPPLEMENTARY INFORMATION: This rule

is issued under Marketing Agreement

and Order No. 981 (7 CFR part 981),

both as amended, hereinafter referred to

as the ‘‘order,’’ regulating the handling

of almonds grown in California. The

order is effective under the Agricultural

Marketing Agreement Act of 1937, as

amended (7 U.S.C. 601–674), hereinafter

referred to as the ‘‘Act.’’

The Department of Agriculture

(Department) is issuing this rule in

accordance with Executive Order 12866.

This rule has been reviewed under

Executive Order 12778, Civil Justice

Reform. Under the provisions of the

marketing order now in effect, salable

and reserve percentages may be

established for almonds during any crop

year. This rule revises the salable and

reserve percentages for marketable

California almonds during the 1994–95

crop year. This rule will not preempt

any State or local laws, regulations, or

policies, unless they present an

irreconcilable conflict with this rule.

The Act provides that administrative

proceedings must be exhausted before

parties may file suit in court. Under

section 608c(15)(A) of the Act, any

handler subject to an order may file

with the Secretary a petition stating that

the order, any provision of the order, or

any obligation imposed in connection

with the order is not in accordance with

law and request a modification of the

order or to be exempted therefrom. A

handler is afforded the opportunity for

a hearing on the petition. After the

hearing the Secretary would rule on the

petition. The Act provides that the

district court of the United States in any

district in which the handler is an

inhabitant, or has his or her principal

place of business, has jurisdiction in

equity to review the Secretary’s ruling

on the petition, provided a bill in equity

is filed not later than 20 days after date

of the entry of the ruling.

Pursuant to requirements set forth in

the Regulatory Flexibility Act (RFA), the

Administrator of the Agricultural

Marketing Service (AMS) has

considered the economic impact of this

action on small entities.

The purpose of the RFA is to fit

regulatory actions to the scale of

business subject to such actions in order