Equitable Relief from Program Violations

1. Equitable Relief from Program Violations November 9, 2004 NRCS Contract Administration & Appeals Spokane, Washington

2. Statutory Authority and Regulation • The Farm Security and Rural Investment Act of 2002, Public Law 107-171, 7 U.S.C. 7996, May 13, 2002 • 7 CFR 635, Published Sept. 21, 2004

3. Policy and Regulation NRCS Policy -- CPM Part 509 FSA policy is Handbook 7-CP, Parts 3 and 4 Website: www.nrcs.usda.gov/program/ER/

4. Equitable Relief Provisions • Section 1613 of the 2002 Farm Bill provides that either the NRCS Chief or the STC may grant relief where either of the following has occurred: • A Contract Violation • Non-compliance determination • Only applicable for violations that occur after May 12, 2002

5. Equitable Relief Provisions • Acting in Good Faith —Misaction/Misinformation: Applying the required conservation system, practice, or operation and maintenance component incorrectly but consistent with instruction provided by an NRCS employee.

6. Acting in Good Faith • An error was made by a program participant, but the error was the result of the detrimental, good faith reliance of the participant on an error made by NRCS. • There was no misrepresentation by the participant. • The participant had no reason to know there was an error. • The error caused a failure by the participant to meet the requirements of the applicable program.

7. Situations Not Subject toActing in Good Faith Relief • Programs not directly administered by NRCS. • Where the participant had sufficient reason to know that the action or information on which he or she relied was improper or erroneous. • Where the participant acted in reliance on his or her own misunderstanding or misinterpretation of program provisions, notices, or information.

8. Granting Acting in Good Faith Relief Requests All of the following must apply: • The participant acted, or failed to act, as a result of detrimental reliance upon the incorrect action of, or incorrect information from, an authorized NRCS representative. • The incorrect action resulted in ineligibility for program benefits. • The participant did not have sufficient reason to know that the action or information upon which he or she relied was improper or erroneous.

9. Granting Acting in Good Faith Relief Requests • The participant did not act in reliance on their own misunderstanding or misinterpretation of the covered conservation program provisions, notices, or information. The fact that an error in action or information is made by NRCS personnel does not mean that the error automatically qualifies as a basis for relief under the misaction/misinformation provisions.

10. Equitable Relief Provisions • Good Faith Effort — Failure to Fully Comply: A covered program participant’s efforts at applying the required conservation system, practice, or operation and maintenance component, albeit incorrectly, but without an intent to defraud NRCS through a scheme or device, or other attempt to perform less than the requirements of the program.

11. Good Faith Effort • NRCS did not make an error that caused the failure of the participant to fully comply with the requirements of the applicable program. • An error was made by the participant so that he or she did not meet the requirements of the applicable program, but the participant made a good faith effort to fully comply.

12. Situations Not Subject toGood Faith Effort Relief • Areas where relief provisions are already provided under the specific program regulation or program manual provisions. • Conservation Program application deadlines.

13. Granting Good Faith Effort Relief Requests All of the following must apply: • A participant made a good faith effort to fully comply with the terms and conditions of a covered conservation program. • The participant rendered substantial performance. • The participant will take the necessary remedial action to remedy the failure to fully comply situation if required by the reviewing authority as a condition of receiving relief.

14. Granting Good Faith Effort Relief Requests • The fact that a participant has previously always been in full compliance is not, in itself, a basis for determining that the participant made a good faith effort to fully comply.

15. EquitableRelief Limitations • The total amount of equitable relief to an NRCS conservation program participant shall not exceed $20,000 per FY. • A program participant who has already received $5,000 or more in relief per FY is not eligible for any further relief. • When more than one participant is affected by the same type of advice, the total amount relief provided to the similarly situated participants shall not exceed $1 million per FY.

16. Exclusions Equitable relief may not be provided for relief from either of the following: • Payment Limitation Violations • The Highly Erodible Land and Wetland Conservation Provisions Violations

17. Forms of Equitable Relief • Retention payments or other benefits. • Continued participation in the conservation program, either in whole or in part. • Re-enrollment of all or part of the land in a conservation program. • Any other form of relief that the Chief has determined to be appropriate.

18. Remedial Actions Required • Repair or replacement of the damaged conservation practice, conservation system, or operation and maintenance requirements. • Purchase of additional equipment, materials, or other items that will enable the covered conservation program participant to fully comply with the program provisions. • Revision of the conservation plan or conservation system to be implemented.

19. Remedial Actions Required • Revision of the operation and maintenance plan. • Remediation shall be commensurate with the overall conservation program provisions, purposes, and functions.

20. Approval, Consultation, and Review • The NRCS Chief or the State Conservationist must consult with and receive approval from the appropriate Office of the General Counsel (OGC). • Neither the Chief’s nor a State Conservationist’s final decision for equitable relief is subject to review and reversal only by the Secretary, USDA, who may not delegate that authority. • Decisions regarding Equitable Relief are NOT appealable by law. • This provision does not limit either the Chief or a State Conservationist’s authority to grant waivers to specific conservation programs as provided by that program. • The State Conservationist’s final decision is not subject to Judicial Review under Chapter 7 of Title 5 of the United States Code. CPM 509.12

21. Preventing Future Need for Equitable Relief • It is important that the State Conservationist take appropriate corrective actions to minimize these unnecessary costs to the agency. • Corrective action may include, but is not limited to, any of the following: • Additional training • Revising office procedure • Other action, as needed, and if warranted CPM, 509.11

22. Conclusion For questions, assistance, training, etc. regarding Equitable Relief or other matters, please call: Beth A. Schuler (615) 646-9741; Cell: (615) 415-9819; FAX: (615) 673-6705 Email: beth.schuler@usda.gov