HEL Conservation HEL Conservation ComplianceCompliance

Beth A SchulerBeth A SchulerNational Highly Erodible Land National Highly Erodible Land

Specialist, Conservation Operations Specialist, Conservation Operations DivisionDivision

HELC/WC – General InformationHELC/WC – General Information

Status of the Final Rule – being promulgatedStatus of the Final Rule – being promulgated Recent ActivitiesRecent Activities

GAO Audit ResultsGAO Audit Results OIG Audit ResultsOIG Audit Results

Violation Determinations – Who can make Violation Determinations – Who can make them?them?

Agency Policy – NFSAM now on the Web!!Agency Policy – NFSAM now on the Web!! Compliance Review ProceduresCompliance Review Procedures Equitable Relief – not applicable to HELC/WCEquitable Relief – not applicable to HELC/WC

Status of the Final RuleStatus of the Final Rule

The HELC/WC rule, 7 CFR Part 12 is The HELC/WC rule, 7 CFR Part 12 is currently undergoing agency and OGC currently undergoing agency and OGC review.review. Several changes, mostly to the wetland Several changes, mostly to the wetland

conservation provisions.conservation provisions. Some clarifications to the current Some clarifications to the current

definitions.definitions. Two statutory changes to who can make a Two statutory changes to who can make a

violation determination.violation determination.

GAO Audit ResultsGAO Audit Results

The audit was conducted during 2002. The audit was conducted during 2002. Requested by IA Senator Harkin as a Requested by IA Senator Harkin as a

result of complaints received from result of complaints received from several entities about USDA several entities about USDA implementation problemsimplementation problems

Conducted nationwide through a web-Conducted nationwide through a web-based survey; “live” in 5 States.based survey; “live” in 5 States.

Audit results are not finalized as yet.Audit results are not finalized as yet.

OIG AuditOIG Audit

Audit conducted in 1 State, multiple Audit conducted in 1 State, multiple counties during 2001counties during 2001

Resulted from a Whistleblower Resulted from a Whistleblower Complaint regarding the apparent Complaint regarding the apparent differences found between areas in differences found between areas in USDA implementation of the USDA implementation of the provisionsprovisions

State-level data expanded to reflect State-level data expanded to reflect National levels.National levels.

GAO Audit ResultsGAO Audit ResultsSome of the findings included:Some of the findings included:

An unwillingness of the agency to find USDA An unwillingness of the agency to find USDA participants in violation of the provisions.participants in violation of the provisions.

Compliance status reviews not being completed Compliance status reviews not being completed correctly or at the appropriate time.correctly or at the appropriate time.

Good Faith being given inappropriately in some Good Faith being given inappropriately in some cases.cases.

NFSAM unclear or conflicting on many NFSAM unclear or conflicting on many procedures.procedures.

Employees (NRCS) do not possess the skills Employees (NRCS) do not possess the skills necessary to implement the HELC/WC necessary to implement the HELC/WC provisions.provisions.

OIG Audit ResultsOIG Audit Results

Current NRCS Status Review Process flawed. Current NRCS Status Review Process flawed.

NRCS has agreed to revise the process NRCS has agreed to revise the process (currently using Access97 database procedure) (currently using Access97 database procedure) and make the process a web-based procedure.and make the process a web-based procedure.

Conflicting policy between NRCS and FSA. Conflicting policy between NRCS and FSA.

The agency agreed to work closely with FSA in The agency agreed to work closely with FSA in ensuring that agency policy documents (NFSAM ensuring that agency policy documents (NFSAM and 6-CP) are in agreement.and 6-CP) are in agreement.

OIG Audit ResultsOIG Audit Results

Employees inappropriately granting Employees inappropriately granting variances, good faith exemptions, and use variances, good faith exemptions, and use of mediation. of mediation.

The agency has agreed to The agency has agreed to provide provide trainingtraining to the States on implementation of to the States on implementation of the HELC/WC provisions. Also, NRCS has the HELC/WC provisions. Also, NRCS has agreed to provide training on the proper use agreed to provide training on the proper use of variances, exemptions, and mediation.of variances, exemptions, and mediation.

NFSAM has conflicting information; NFSAM has conflicting information; out of date information; and is not out of date information; and is not available on-line.available on-line.

NRCS has agreed to revise the NRCS has agreed to revise the NFSAM to address conflicting NFSAM to address conflicting policies, update inaccurate policy, policies, update inaccurate policy, and make the NFSAM available on-and make the NFSAM available on-line by August 2003.line by August 2003.

OIG Audit ResultsOIG Audit Results

2002 Farm Bill Changes2002 Farm Bill Changes

Only NRCS employees may make a determination Only NRCS employees may make a determination of HELC/WC violations to FSA.of HELC/WC violations to FSA.

The Farm Security and Rural Investment Act of The Farm Security and Rural Investment Act of 2002, Section 2002(a)(2), Conservation 2002, Section 2002(a)(2), Conservation Compliance amended Section 1211 of the Food Compliance amended Section 1211 of the Food Security Act of 1985 by adding Section 1211(b):Security Act of 1985 by adding Section 1211(b):

““Highly Erodible Land.—The Secretary shall Highly Erodible Land.—The Secretary shall have , and shall not delegate to any private have , and shall not delegate to any private person or entity, authority to determine person or entity, authority to determine whether a person has complied with this whether a person has complied with this section.” section.”

2002 Farm Bill Changes2002 Farm Bill Changes

The Farm Security and Rural Investment Act The Farm Security and Rural Investment Act of 2002, Section 2002(b), Conservation of 2002, Section 2002(b), Conservation Compliance amended Section 1221 of the Compliance amended Section 1221 of the Food Security Act of 1985 by adding Food Security Act of 1985 by adding Section 1221(e):Section 1221(e):

““Wetland.—The Secretary shall have , Wetland.—The Secretary shall have , and shall not delegate to any private and shall not delegate to any private person or entity, authority to person or entity, authority to determine whether a person has determine whether a person has complied with this section.” complied with this section.”

Agency PolicyAgency Policy

NFSAM is on the WEB!NFSAM is on the WEB!

Part 518, Compliance Status Reviews is Part 518, Compliance Status Reviews is now available on the NRCS Policy now available on the NRCS Policy Website:Website:

http://policy.nrcs.usda.gov/scripts/http://policy.nrcs.usda.gov/scripts/lpsiis.dll/M/M_180.htm lpsiis.dll/M/M_180.htm

NFSAM, Part 518NFSAM, Part 518

Replacing Random TractReplacing Random Tract

Randomly selected tracts must be Randomly selected tracts must be replaced in accordance with the replaced in accordance with the proposed GAO audit in order to ensure proposed GAO audit in order to ensure that the compliance status review tract that the compliance status review tract database is statistically sound in database is statistically sound in predicting the status of compliance predicting the status of compliance across the Nation.across the Nation.

See NFSAM, Part 518.03(c) for policy on See NFSAM, Part 518.03(c) for policy on this activity.this activity.

Compliance Review Compliance Review ProceduresProcedures

Compliance Review Compliance Review ProceduresProcedures

NFSAM, Part 518, Compliance Status NFSAM, Part 518, Compliance Status Reviews Reviews

GM-340, Part 413 – General Policy GM-340, Part 413 – General Policy regarding all NRCS reviews (being regarding all NRCS reviews (being developed)developed)

National Handbook for Evaluations, National Handbook for Evaluations, Assessments, Investigations, and Assessments, Investigations, and Reviews (being developed)Reviews (being developed)

Clarified Use of VariancesClarified Use of Variances

NFSAM NFSAM Part Part 518.11(f518.11(f))

Variances and ExemptionsVariances and ExemptionsVariances are issued by NRCS during Variances are issued by NRCS during the course of a compliance status the course of a compliance status review. Authorized variances are as review. Authorized variances are as follows:follows:

AC – Special Condition Variance – AC – Special Condition Variance – allowable only when there are special allowable only when there are special conditions that prohibited application conditions that prohibited application of the conservation system due to of the conservation system due to severe weather, crop pest severe weather, crop pest infestations, or crop diseases.infestations, or crop diseases.

Variances and ExemptionsVariances and Exemptions AH – Special Problem Variance – AH – Special Problem Variance –

allowable only when there are special allowable only when there are special problems such as:problems such as: Severe physical condition or death of Severe physical condition or death of

primary farm operator.primary farm operator. Destruction of holdings, equipment, by Destruction of holdings, equipment, by

natural disaster, fire, or similar natural disaster, fire, or similar occurrence.occurrence.

NRCS Error that the USDA participant NRCS Error that the USDA participant relied upon in applying the conservation relied upon in applying the conservation system.system.

Variances and ExemptionsVariances and Exemptions

AM – Minor Technical Failure – may AM – Minor Technical Failure – may only be used when there is a failure only be used when there is a failure to completely apply a conservation to completely apply a conservation system that meets the soil loss system that meets the soil loss reduction requirements. May NOT be reduction requirements. May NOT be used for NRCS error.used for NRCS error.

Variances and ExemptionsVariances and Exemptions

CA – Conditionally Applying – May ONLY CA – Conditionally Applying – May ONLY be used when compliance cannot be be used when compliance cannot be determined at the time of the review determined at the time of the review due one or more major practice needed due one or more major practice needed to be installed. This should not be used to be installed. This should not be used on any except the following cases:on any except the following cases: Tract coming out of CRPTract coming out of CRP New land entered into USDA Benefit New land entered into USDA Benefit

programsprograms

Variances and ExemptionsVariances and Exemptions

Exemptions are issued by FSA, either the Exemptions are issued by FSA, either the COC or the State Committee. The 2 COC or the State Committee. The 2 exemptions that are authorized are:exemptions that are authorized are:

Economic HardshipEconomic Hardship Good FaithGood Faith

NRCS must be consulted prior to the FSA NRCS must be consulted prior to the FSA COC issuing a Good Faith Exemption for COC issuing a Good Faith Exemption for either HELC or WC violationeither HELC or WC violation

Equitable ReliefEquitable Relief

The Equitable Relief provisions The Equitable Relief provisions outlined in the 2002 Farm Bill, outlined in the 2002 Farm Bill, Section 1613 DO NOT apply to Section 1613 DO NOT apply to violations of HELC or WC. Therefore, violations of HELC or WC. Therefore, NRCS will NOT accept or grant any NRCS will NOT accept or grant any requests for Equitable Relief from a requests for Equitable Relief from a violation of these provisions.violation of these provisions.

ConclusionConclusion

For questions, assistance, training, etc. For questions, assistance, training, etc. regarding the HELC compliance provisions, regarding the HELC compliance provisions, please call:please call:

(615) 646-9741; FAX: (615) 673-6705(615) 646-9741; FAX: (615) 673-6705Email: beth.schuler@usda.gov Email: beth.schuler@usda.gov

This presentation will be available at the This presentation will be available at the following URL: following URL: http://www.nrcs.usda.gov/programs/helc/Hhttp://www.nrcs.usda.gov/programs/helc/HELC_training_04302003.pptELC_training_04302003.ppt