80 FR 62439 - NRCS Procedures for Granting Equitable Relief

DEPARTMENT OF AGRICULTURE
Natural Resources Conservation Service

Federal Register Volume 80, Issue 200 (October 16, 2015)

The Natural Resources Conservation Service (NRCS) issues its final rule implementing the equitable relief authority, and the procedures set forth in section 1613 of the Farm Security and Rural Investment Act of 2002 (the 2002 Act), relating to relief for participants for covered programs administered by NRCS. The relief applies to cases where the program participant took action to his or her detriment based on action or advice from an NRCS employee, and situations where the participant acted in good faith, but failed to fully comply with program requirements.

[Federal Register Volume 80, Number 200 (Friday, October 16, 2015)]
[Rules and Regulations]
[Pages 62439-62441]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-26309]



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Federal Register / Vol. 80, No. 200 / Friday, October 16, 2015 / 
Rules and Regulations

[[Page 62439]]



DEPARTMENT OF AGRICULTURE

Natural Resources Conservation Service

7 CFR Part 635

RIN 0578-AA57


NRCS Procedures for Granting Equitable Relief

AGENCY: Natural Resources Conservation Service, USDA.

ACTION: Final rule.

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SUMMARY: The Natural Resources Conservation Service (NRCS) issues its 
final rule implementing the equitable relief authority, and the 
procedures set forth in section 1613 of the Farm Security and Rural 
Investment Act of 2002 (the 2002 Act), relating to relief for 
participants for covered programs administered by NRCS. The relief 
applies to cases where the program participant took action to his or 
her detriment based on action or advice from an NRCS employee, and 
situations where the participant acted in good faith, but failed to 
fully comply with program requirements.

DATES: This rule is effective October 16, 2015.

FOR FURTHER INFORMATION CONTACT: Paulette Craig, National Equitable 
Relief Specialist, at (301) 504-1650.

SUPPLEMENTARY INFORMATION: 

Executive Orders 12866 and 13563

    The Office of Management and Budget (OMB) designated this rule as 
not significant under Executive Order 12866 as supplemented by 
Executive Order 13563. Therefore, OMB will not review this final rule.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601-612) generally 
requires an agency to prepare a regulatory flexibility analysis of any 
rule subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act or any other statute. However, this 
regulation implements section 1613 of the 2002 Act, which is part of 
Title I of the 2002 Act. Section 1601(c) of the 2002 Act requires NRCS 
to promulgate regulations or administer Title I without regard to 5 
U.S.C. 553. Therefore, NRCS did not prepare a regulatory flexibility 
analysis for this final rule.

Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 
U.S.C. 1531-1538) requires Federal agencies to assess the effects of 
their regulatory actions on State, local, and Tribal governments, or 
the private sector of $100 million or more in any one year.
    This rule contains no Federal mandates, as defined under Title II 
of UMRA, for State, local, and Tribal governments, or the private 
sector. Therefore, a statement under section 202 of UMRA is not 
required.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule under the Small Business Regulatory 
Enforcement Fairness Act of 1996, (Pub. L. 104-121). Therefore, NRCS is 
not required to delay the effective date for 60 days from the date of 
publication to allow for congressional review. Accordingly, this rule 
is effective upon publication in the Federal Register.

Paperwork Reduction Act

    Section 1601(c)(2) of the 2002 Act requires that the implementation 
of this provision be carried out without regard to the Paperwork 
Reduction Act, Chapter 35 of Title 44, United States Code. 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 as well as continued pursuit of providing all services 
electronically when practicable. This rule requires that a program 
participant make a written request for equitable relief for a program 
administered by NRCS. In part, this rule lends itself to electronic 
requests as submitted by State Conservationists or participants.

Environmental Analysis

    NRCS has determined that changes made by this rule fall within a 
category of actions that are excluded from the requirement to prepare 
either an environmental assessment or an environmental impact 
statement. Administrative changes made in this rule fall within a 
categorical exclusion for policy development relating to routine 
activities and similar administrative functions (7 CFR 1b.3(a)(1)) and 
NRCS has identified no extraordinary circumstances that would otherwise 
require preparation of either.

Civil Rights Impact Analysis

    NRCS has determined through a Civil Rights Impact Analysis (CRIA) 
that the final rule discloses no disproportionately adverse impacts for 
minorities, women, or persons with disabilities. The CRIA provides 
responses to the Final rule amendments.
    The data presented indicates producers who are members of the 
protected groups have participated in NRCS conservation programs at 
parity with other producers. Extrapolating from historical 
participation data, it is reasonable to conclude that NRCS programs, 
including procedures for granting equitable relief for ineligibility 
for these programs, 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 U.S. Department of 
Agriculture (USDA) programs.
    The equitable relief procedures apply to all persons equally 
regardless of their race, color, national origin, gender, sex, or 
disability status. Therefore, the final rule portends no adverse civil 
rights implications for women, minorities, or persons with 
disabilities.

Discussion of the Rule 7 CFR Part 635--Equitable Relief From 
Ineligibility

Section 635.1 Definitions and Abbreviations

    This section amends, adds, or removes a number of defined terms in 
the rule. Specifically, it adds definitions for ``appeal rights,'' 
``equitable relief,'' ``participant,'' and ``State.'' ``Appeal rights'' 
is defined to clarify that a

[[Page 62440]]

decision under this rule may be appealed to the National Appeals 
Division (NAD). ``Participant'' and ``State'' are defined consistent 
with their statutory definitions. The definitions of ``covered 
program'' and ``State Conservationist'' are simplified. The definition 
of ``Natural Resources Conservation Service (NRCS)'' is revised to be 
consistent with the definition used in other NRCS regulations, and 
clarifies that the term includes programs administered by the agency 
using the funds, facilities, and authorities of the Commodity Credit 
Corporation (CCC).

Section 635.2 Applicability

    The amended rule clarifies the application of subsection (a), and 
strikes subsections (b) and (c) which are no longer needed.

Section 635.3 Reliance on Incorrect Actions or Information

    The amended rule makes changes to this section to more closely 
conform to the language of the statute by enumerating the specific 
requirements to qualify for relief under this section. These changes do 
not substantively change the scope of this authority.

Section 635.4 Failure To Fully Comply

    Section 635.4 of the amended rule makes changes to this section to 
more closely conform to the language of the statute by enumerating the 
specific requirements to qualify for relief under this section. These 
changes provide more flexibility for State Conservationists and 
participants to request equitable relief, and do not substantively 
change the scope of this authority.

Section 635.5 Forms of Relief

    The amended rule makes technical and grammatical changes to this 
section, and removes references to ``loans'' since NRCS does not have 
authority to make loans.

Section 635.6 Equitable Relief by State Conservationists

    The amended rule restructures and clarifies the existing language 
of Sec.  635.6. In particular, the revised section explains the 
limitations on a State Conservationist's authority in a separate 
subsection, and amends the description of the State Conservationist's 
authority to more closely reflect the statutory language.

Section 635.7 Procedures for Granting Equitable Relief

    The amended rule strikes the list of covered programs in paragraph 
(a). The definition of ``covered programs'' sufficiently identifies 
these programs.
    The amended rule allows the Chief, State Conservationist, or 
participant to initiate a request for equitable relief. Under the 
current rule, only the participant can initiate a request for equitable 
relief. The State Conservationist cannot initiate a request even if he 
or she believes the participant qualifies for such relief. For example, 
an NRCS employee's misaction or misinformation may impact several 
different participants, resulting in a number of them being determined 
ineligible for program benefits. Under the current rule, the 
participants must request equitable relief from NRCS in order to obtain 
equitable relief. The State Conservationist cannot initiate an 
equitable relief request, even if he or she knows that other 
participants would likely also qualify for equitable relief. Given the 
potential for treating participants differently, NRCS is amending this 
procedure to allow the Chief or a State Conservationist to initiate a 
request for equitable relief for a participant meeting the requirements 
of this part.
    Section 635.7 is also amended to add Sec.  635.7(e) and (f). 
Paragraph 635.7(e) provides that requests for equitable relief must 
include any information necessary to determine eligibility under this 
authority and such other information as required by NRCS to determine 
whether granting equitable relief is appropriate. This revision 
reflects that the information needed by the agency to assess equitable 
relief requests will be provided and updated by applicable policy and 
procedure at Title 440 of the Conservation Program Manual, Part 509.
    Paragraph 635.7(f) provides the participant with appeal rights to 
the National Appeals Division, pursuant to Sec.  614.9(e) of this 
chapter, if equitable relief is denied.

List of Subjects in 7 CFR Part 635

    Administrative practice and procedure, Agriculture, Conservation 
programs, Equitable Relief.
    Accordingly, for the reasons set forth in the preamble, 7 CFR part 
635 is revised to read as follows:

PART 635--EQUITABLE RELIEF FROM INELIGIBILITY

Sec.
635.1 Definitions and abbreviations.
635.2 Applicability.
635.3 Reliance on incorrect actions or information.
635.4 Failure to fully comply.
635.5 Forms of relief.
635.6 Equitable relief by State Conservationists.
635.7 Procedures for granting equitable relief.

    Authority:  7 U.S.C. 7996.


Sec.  635.1  Definitions and abbreviations.

    The following terms apply to this part:
    Appeal rights means the right of the participant to appeal a 
decision to the National Appeals Division (NAD) pursuant to part 614 of 
this chapter.
    Chief means the Chief of the Natural Resources Conservation Service 
or a person with delegated authority to act for the Chief.
    Covered program means a conservation program administered by NRCS.
    Equitable relief means an action described in Sec.  635.5 of this 
part.
    Natural Resources Conservation Service (NRCS) means an agency of 
the U.S. Department of Agriculture which has responsibility for 
administering covered programs, including those using the funds, 
facilities, and authorities of the Commodity Credit Corporation (CCC).
    OGC means the Office of the General Counsel of the U.S. Department 
of Agriculture.
    Participant means a participant in a covered program.
    Secretary means the Secretary of U.S. Department of Agriculture.
    State means each of the several States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, and any other 
territory or possession of the United States.
    State Conservationist means the NRCS employee authorized to direct 
and supervise NRCS activities in a State or the State Conservationist's 
designee.


Sec.  635.2  Applicability.

    This part applies to all covered programs administered by the 
Natural Resources Conservation Service, except for the Highly Erodible 
Land and Wetland Conservation provisions of Title XII, subtitles B and 
C of the Food Security Act of 1985, as amended, (16 U.S.C. 3811 et 
seq.). Administration of this part shall be under the supervision of 
the Chief, except that such authority shall not limit the exercise of 
authority by State Conservationists of the Natural Resources 
Conservation Service provided in Sec.  635.6 of this part.


Sec.  635.3  Reliance on incorrect actions or information.

    The Chief may grant equitable relief to any participant that NRCS 
determines is not in compliance with the requirements, terms and 
conditions of a

[[Page 62441]]

covered program, and therefore ineligible for a payment, or other 
benefit, if the participant--
    (a) Acting in good faith, relied on action and advice from an NRCS 
employee or representative of USDA to their detriment;
    (b) Did not know or have sufficient reason to know that the action 
or advice upon which they relied would be detrimental; and
    (c) Did not act in reliance on their own misunderstanding or 
misinterpretation of the program provisions, notices, or information.


Sec.  635.4  Failure to fully comply.

    The Chief may grant equitable relief to any participant that NRCS 
determines is not in full compliance with the requirements, terms and 
conditions of a covered program, and therefore ineligible for a 
payment, or other benefit, if the participant--
    (a) Made a good faith effort to comply fully with the requirements; 
and
    (b) Rendered substantial performance.


Sec.  635.5  Forms of relief.

    (a) The Chief may authorize a participant in a covered program to:
    (1) Retain payments or other benefits received under the covered 
program;
    (2) Continue to receive payments and other benefits under the 
covered program;
    (3) Continue to participate, in whole or in part, under any 
contract executed under the covered program;
    (4) Re-enroll all or part of the land covered by the program; and
    (5) Receive such other equitable relief as determined to be 
appropriate.
    (b) As a condition of receiving relief under this part, the 
participant may be required to remedy their failure to meet the program 
requirement or mitigate its effects.


Sec.  635.6  Equitable relief by State Conservationists.

    (a) State Conservationists' Authority. State Conservationists have 
the authority to grant requests for equitable relief under this section 
when--
    (1) The program matter with respect to which the relief is sought 
is a program matter in a covered program operated within the authorized 
jurisdiction of the State Conservationist;
    (2) The total amount of relief (including payments and other 
benefits) that will be provided to the participant under this section 
during the fiscal year is less than $20,000;
    (3) The total amount of such relief that has been previously 
provided to the participant using this section in the fiscal year, as 
calculated in paragraph (a)(2) of this section, is not more than 
$5,000;
    (4) The total amount of payments and benefits of any kind for which 
relief is provided to similarly situated participants by a State 
Conservationist in a fiscal year, is not more than $1,000,000.
    (b) Additional limits on authority. The authority provided under 
this section does not extend to the administration of:
    (1) Payment limitations under part 1400 of this title;
    (2) Payment limitations under a conservation program administered 
by the Secretary; or
    (3) The highly erodible land and wetland conservation requirements 
under subtitles B or C of Title XII of the Food Security Act of 1985 
(16 U.S.C. 3811 et seq.).
    (c) Concurrence by the Office of the General Counsel. Relief shall 
only be made under this part after consultation with, and concurrence 
by, the Office of General Counsel.
    (d) Secretary's reversal authority. A decision made under this part 
by the State Conservationist may be reversed only by the Secretary, who 
may not delegate that authority.
    (e) Relation to other authorities. The authority provided under 
this section is in addition to any other applicable authority that may 
allow relief.


Sec.  635.7  Procedures for granting equitable relief.

    (a) The Chief or State Conservationist may initiate a request for 
equitable relief for a participant that meets the requirement of this 
part.
    (b) Participants may request equitable relief from the Chief or the 
State Conservationist as provided in Sec. Sec.  635.3 and 635.4 of this 
part.
    (c) Only a participant directly affected by the non-compliance with 
the covered program requirements is eligible for equitable relief under 
this part.
    (d) Requests by a participant for equitable relief must be made in 
writing, no later than 30 calendar days from the date of receipt of the 
notification of non-compliance with the requirements of the covered 
conservation program.
    (e) Requests for equitable relief must include any information 
necessary to determine eligibility under this part and such other 
information as required by NRCS to determine whether granting equitable 
relief is appropriate. Information needed by the agency to assess 
equitable relief requests will be provided and updated by applicable 
policy and procedure.
    (f) If equitable relief is denied by the Chief or the State 
Conservationist, the participant will be provided with written notice 
of appeal rights to the National Appeals Division, pursuant to 7 CFR 
part 614.

    Signed this 7th day of October, 2015, in Washington, DC.
Leonard Jordan,
Associate Chief for Conservation, Natural Resources Conservation 
Service.
[FR Doc. 2015-26309 Filed 10-15-15; 8:45 am]
 BILLING CODE 3410-16-P