[Code of Federal Regulations]
[Title 7, Volume 1]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 7CFR12.6]

[Page 339-342]
 
                          TITLE 7--AGRICULTURE
 
PART 12_HIGHLY ERODIBLE LAND AND WETLAND CONSERVATION--Table of Contents
 
                      Subpart A_General Provisions
 
Sec. 12.6  Administration.

    (a) General. A determination of ineligibility for benefits in 
accordance with the provisions of this part shall be made by the agency 
of USDA to which the person has applied for benefits. All

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determinations required to be made under the provisions of this part 
shall be made by the agency responsible for making such determinations, 
as provided in this section.
    (b) Administration by FSA. (1) The provisions of this part which are 
applicable to FSA will be administered under the general supervision of 
the Administrator, FSA, and shall be carried out in the field in part by 
State FSA committees and county FSA committees (COC).
    (2) The FSA Deputy Administrator for Farm Programs may determine any 
question arising under the provisions of this part which are applicable 
to FSA and may reverse or modify any determination of eligibility with 
respect to programs administered by FSA made by a State FSA committee or 
COC or any other FSA office or FSA official (except the Administrator) 
in connection with the provisions of this part.
    (3) FSA shall make the following determinations which are required 
to be made in accordance with this part:
    (i) Whether a person produced an agricultural commodity on a 
particular field as determined under Sec. 12.5(a)(1);
    (ii) The establishment of field boundaries;
    (iii) Whether land was planted to an agricultural commodity in any 
of the years, 1981 through 1985, for the purposes of Sec. 12.5(a)(1);
    (iv) Whether land was set aside, diverted, or otherwise not 
cultivated under a program administered by the Secretary for any crop to 
reduce production of an agricultural commodity under Sec. 12.4(g) and 
Sec. 12.5(a)(1);
    (v) Whether for the purposes of Sec. 12.9, the production of an 
agricultural commodity on highly erodible land or converted wetland by a 
landlord's tenant or sharecropper is required under the terms and 
conditions of the agreement between the landlord and such tenant or 
sharecropper;
    (vi) Whether the conversion of a particular wetland was commenced 
before December 23, 1985, for the purposes of Sec. 12.5(b)(3);
    (vii) Whether the conversion of a wetland was caused by a third 
party under Sec. 12.5(b)(1)(vii)(D);
    (viii) Whether certain violations were made in good faith under 
Sec. Sec. 12.5(a)(5) or 12.5(b)(5);
    (ix) The determination of the amount of reduction in benefits based 
on the seriousness of the violation, based on technical information 
provided by NRCS;
    (x) The determination of whether the application of the producer's 
conservation system would impose an undue economic hardship on the 
producer; and
    (xi) Whether the proceeds of a farm loan made, insured, or 
guaranteed by FSA will be used for a purpose that will contribute to 
excessive erosion of highly erodible land or to the conversion of 
wetland.
    (4) A representative number of farms selected in accordance with 
instructions issued by the Deputy Administrator shall be inspected by an 
authorized representative of FSA to determine compliance with any 
requirement specified in this part as a prerequisite for obtaining 
program benefits.
    (5) FSA may consult with U.S. Fish and Wildlife Service on third-
party determinations.
    (c) Administration by NRCS. (1) The provisions of this part that are 
applicable to NRCS shall be administered under the general supervision 
of the Deputy Chief for Natural Resources Conservation Programs, and 
shall be carried out in the field by the regional conservationist, state 
conservationist, area conservationist, and district conservationist or 
other NRCS representative.
    (2) An NRCS representative shall make the following determinations 
which are required to be made in accordance with this part:
    (i) Whether land is highly erodible or has a wetland type or a 
converted wetland identified in accordance with the provisions of this 
part;
    (ii) Whether highly erodible land is predominant on a particular 
field under Sec. 12.22;
    (iii) Whether the conservation plan that a person is applying is 
based on the local NRCS field office technical guide and is approved 
by--
    (A) The CD and NRCS, or
    (B) By NRCS;

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    (iv) Whether the conservation system that a person is using has been 
approved by the CD under Sec. 12.5(a)(2) or, in an area not within a 
CD, a conservation system approved by NRCS to be adequate for the 
production of an agricultural commodity on highly erodible land;
    (v) Whether the actions of a person(s) with respect to the 
conversion of a wetland or production of an agricultural commodity on 
converted wetland would have only a minimal effect on the functions and 
values of wetlands in the area;
    (vi) Whether an approved conservation plan is being applied on 
highly erodible fields in accordance with the schedule specified therein 
or whether a failure to apply the plan is technical and minor in nature, 
due to circumstances beyond the control of the person, or whether a 
temporary variance form the requirements of the plan should be granted;
    (vii) Whether an approved conservation system is being used on a 
highly erodible field;
    (viii) Whether the conversion of a wetland is for the purpose or has 
the effect of making the production of an agricultural commodity 
possible;
    (ix) Whether a farmed wetland or farmed-wetland pasture is 
abandoned;
    (x) Whether the planting of an agricultural commodity on a wetland 
is possible under natural conditions;
    (xi) Whether maintenance of existing drainage of a wetland described 
in Sec. 12.33 exceeds the scope and effect of the original drainage;
    (xii) Whether a plan for the mitigation of a converted wetland will 
be approved and whether the mitigation of a converted wetland is 
accomplished according to the approved mitigation plan;
    (xiii) Whether all technical information relating to the 
determination of a violation and severity of a violation has been 
provided to FSA for making payment-reduction determinations; and
    (xiv) Whether or not a commenced-conversion activity was completed 
by January 1, 1995.
    (3) NRCS may provide such other technical assistance for 
implementation of the provisions of this part as is determined to be 
necessary.
    (4) A person may obtain a highly erodible land or a wetland scope-
and-effect determination by making a written request on Form AD-1026. 
The determination will be made in writing, and a copy will be provided 
to the person.
    (5) A determination of whether or not an area meets the highly 
erodible land criteria or whether wetland criteria, identified in 
accordance with the current Federal wetland delineation methodology in 
use at the time of the determination and that are consistent with 
current mapping conventions, may be made by the NRCS representative 
based upon existing records or other information and without the need 
for an on-site determination. This determination will be made by the 
NRCS representative as soon as possible following a request for such a 
determination.
    (6) An on-site determination as to whether an area meets the 
applicable criteria shall be made by an NRCS representative if the 
person has disagreed with the determination made under paragraph (c)(5) 
of this section, or if adequate information is not otherwise available 
to an NRCS representative on which to make an off-site determination.
    (7) An on-site determination, where applicable, will be made by the 
NRCS representative as soon as possible following a request for such a 
determination, but only when site conditions are favorable for the 
evaluation of soils, hydrology, or vegetation.
    (8) With regard to wetland determinations, if an area is 
continuously inundated or saturated for long periods of time during the 
growing season to such an extent that access by foot to make a 
determination of predominance of hydric soils or prevalence of 
hydrophytic vegetation is not feasible, the area will be determined to 
be a wetland.
    (9) Persons who are adversely affected by a determination made under 
this section and believe that the requirements of this part were 
improperly applied may appeal, under Sec. 12.12 of this part, any 
determination by NRCS.

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    (d) Administration by CSREES. The CSREES shall coordinate the 
related information and education program for USDA concerning 
implementation of this rule.
    (e) Assistance of other Federal agencies. If NRCS determines, 
through agreement or otherwise, that the purposes of this part would be 
furthered by the assistance of other Federal agencies with wetland 
responsibilities, NRCS may accept such assistance and adopt any or all 
such actions by these agencies as an action by an NRCS representative 
under this part.

[61 FR 47025, Sept. 6, 1996; 61 FR 53491, Oct. 11, 1996]