MD.440.9.5, PGM - To provide guidance regarding documentation of authority and actions needed for EQIP/WHIP/AMA waivers to not implement practices within 12 months of contract obligation.

Maryland Bulletin: 440-9-5
Subject: PGM - To provide guidance regarding documentation of authority and actions needed for EQIP/WHIP/AMA waivers to not implement practices within 12 months of contract obligation.
Date: December 9, 2008

Purpose. This bulletin provides guidance to Maryland Field Offices to address Environmental Quality Incentives Program (EQIP), Wildlife Habitat Incentives Program (WHIP) and Agricultural Management Assistance (AMA) policy to document requests by program participants for waiver of the requirement to implement a practice within the first 12 months of contract obligation.

Expiration Date. September 30, 2009.

Background.

Program policy requires that program participants implement a practice within the initial 12 months of the contract period. Waivers to delay implementation of a practice must be approved and documented according to policy. The open obligation review has revealed that some requests for this program waiver were not documented nor was policy followed to assure approval for waivers were properly delegated. This bulletin provides explanation of the agency authority to grant this waiver, actions needed to document waiver requests for open obligation contracts being reviewed, and other actions that may be needed to meet policy and audit requirements. This bulletin applies to program contracts administered through ProTracts.

Contract Waiver and Program Authority.

The authority to allow and approve waiver of practice installation during the first year of the contract agreement is established in:

• Prior to 2002 Farm Bill – 7CFR Section 1466.21(1997): “§1466.2 Administration. Contract requirements. (c) The participant must apply a financially assisted practice within the first 12 months of signing a contract.”
• Conservation Programs Manual, First Edition (1999) 440-V-CPM Amendment No. 1: “515.111(k) Waiver to Commencing a Practice.” This EQIP policy provided authority to grant a waiver for delay of starting a practice within the initial 12 month period of the contract. Waiver requests were made to the Farm Service Agency County Committee (COC) with concurrence from the NRCS Designated Conservationist.
• After 2002 Farm Bill – 7CFR Section 1466 Final Rule (2003): “§1466.21 Contract requirements. (c) The participant must start at least one financially assisted practice within the first 12 months of signing a contract. If a participant, for reasons beyond their control, is unable to start a practice within the first year of the contract, they can request a waiver from the State Conservationist.”
• Program Contract Appendix: Program Appendix requirements and option for waiver. o 1997 – EQIP CCC-1200 Appendix: “To apply or commence a financially assisted practice within the first 12 months from the date of the contract executed by CCC.”
  • 1998-2002 – EQIP CCC-1200 Appendix: “To apply or commence a financially assisted practice within the first 12 months from the date of the contract executed by CCC. The participant may be granted a waiver to this requirement by the FSA county committee.”
  • 2003-2004 – EQIP CCC-1200 Appendix: “To apply or commence a financially assisted practice within the first 12 months from the date of the contracted executed by NRCS. The participant may request, in writing, a waiver to this requirement from the NRCS State Conservationist.”
  • 2005 – EQIP CCC-1200 Appendix and beginning in 2006, the CPA-1202 Appendix for EQIP, WHIP and AMA: “Apply or commence a financially assisted practice within the first 12 months from the date of this Contract is signed by NRCS. The Participant may request, in writing, a waiver of this requirement from the NRCS STC or designee for circumstances beyond the Participant’s control;

These documents provide substantial authority and historical policy that establish agency procedures to advise program participants how to request this waiver and for proper documentation in contract reviews and delegations of approval authority as appropriate.

Who can approve a waiver using this authority?

For active contracts, State Conservationists are authorized to grant a waiver to delay the start of a practice in the first 12 months of the contract. Since the 2003 program year, an EQIP participant could request a waiver in writing. Beginning in the 2006 program year, WHIP and AMA participants could also request a waiver in writing. State Conservationists may delegate their authority to approve a waiver as clarified in recently issued Circular No. 8 Part 512, Conservation Program Contracting.

Action required for contracts missing waiver documentation.

1. Waiver Currently Requested/Needed: For open obligations (FY08 Program Contract) where the participant has requested a waiver in writing to delay practice installation, follow current policy in CPM 515.10(i)(xxii) for justification and modification per CPM 512.50 (Note: the justification to approve a waiver may be related to NRCS inability to provide timely technical service). A sample waiver letter is attached to this bulletin. If the participant is approved for a waiver to install in year one, but intends to install the practice within one year of the original planned year, current policy requires a contract review be completed, but does not require a contract modification (CPM 512.40). If the practice is to be rescheduled more than two years after contract obligation, a contract review and modification to reschedule practices will be required.
2. Waiver Not Needed Retroactively: If an active (not expired) contract is past the initial 12 month period and the participant has not installed a practice according to schedule, a waiver or documentation to retroactively approve a waiver is not required. NRCS shall complete a contract review to determine if the participant wishes to reschedule the practices. If after completing the contract review the participant agrees to continue the contract, then complete a modification to reschedule practices and/or extend the contract if needed, according to policy (CPM 512.50). Print out a copy of this bulletin and place it in the appropriate contract files.
3. Keep a list of all contracts that have had no payment activity in the last 24 months. MD NRCS will notify the participant that a practice must be implemented and receive financial assistance for a practice by June 20, 2009. If the participant fails to implement said practice in this time frame, NRCS will begin termination proceedings on the contract.

If the contract has expired, the agreement may not be re-activated.

Additional guidance on what constitutes commenced activities. During the open obligation review, questions were raised regarding what NRCS should use to determine if a participant has “commenced” practice installation. There is no regulation or policy which defines what constitutes “commenced” as cited in contract agreements. For purposes of this effort, this bulletin establishes the definition of a commenced practice as: “Evidence of commitment of labor or incurred costs as provided by the participant.” This may include, but is not limited to construction activities. If NRCS determines this definition has been met, the participant is determined to have met contract requirements and is in compliance with the agreement. For practices that are commenced within the first 12 months of a contract period, a waiver is not required and NRCS shall document compliance during the annual contract review (CPM 512.55).

Contact: Mark Rose, 443-482-2910, Tom Morgart, 443-482-2927, Tiffany Laws, 443-482-2960.

/s/

JON F. HALL
State Conservationist

< Back to 2009 Bulletins