B-140638, SEP. 21, 1959

B-140638: Sep 21, 1959

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OF THE REQUIREMENTS OF ANY PROVISIONS OF THE REGULATIONS IN HARDSHIP CASES WAS NOT AUTHORIZED BY SECTION 124 OR BY ANY OTHER SECTION OF THE SOIL BANK ACT. MAY WAIVE THE REQUIREMENTS OF ANY PROVISION OF THE REGULATIONS CONTAINED HEREIN OR IN THE AGREEMENT * * * IF SUCH WAIVER * * * IS NOT PROHIBITED BY LAW AND IF. SUCH ACTION IS IN THE BEST INTERESTS OF THE PROGRAM. IF THE FACTS OR CIRCUMSTANCES ON WHICH THE REQUEST FOR A WAIVER * * * ARE BASED HAVE. OR ARE LIKELY TO HAVE GENERAL APPLICABILITY. HE STATES THAT FROM THE INCEPTION OF THE AGRICULTURAL CONSERVATION PROGRAMS THE REGULATIONS THEREFOR EACH YEAR PROVIDED AN APPEALS PROCEDURE WHEREBY AGRICULTURAL PRODUCERS WHO ARE DISSATISFIED WITH DETERMINATIONS OF THE COUNTY COMMITTEES.

B-140638, SEP. 21, 1959

TO THE SECRETARY OF AGRICULTURE:

LETTER OF AUGUST 28, 1959, FROM THE ACTING SECRETARY OF AGRICULTURE REFERS TO OUR DECISION OF JUNE 5, 1958, B-135647, 37 COMP. GEN. 820, WHEREIN WE STATED THAT A PROVISION IN THE 1957 SOIL BANK ACREAGE RESERVE PROGRAM REGULATIONS PROVIDING FOR WAIVING BY THE ADMINISTRATOR, COMMODITY STABILIZATION SERVICE, OF THE REQUIREMENTS OF ANY PROVISIONS OF THE REGULATIONS IN HARDSHIP CASES WAS NOT AUTHORIZED BY SECTION 124 OR BY ANY OTHER SECTION OF THE SOIL BANK ACT. THE WAIVER PROVISION CONSIDERED THEREIN READ, IN PERTINENT PART, AS FOLLOWS:

"THE ADMINISTRATOR, IN ORDER TO PREVENT UNDUE HARDSHIP, MAY WAIVE THE REQUIREMENTS OF ANY PROVISION OF THE REGULATIONS CONTAINED HEREIN OR IN THE AGREEMENT * * * IF SUCH WAIVER * * * IS NOT PROHIBITED BY LAW AND IF, IN HIS JUDGMENT, SUCH ACTION IS IN THE BEST INTERESTS OF THE PROGRAM. ANY SUCH WAIVER * * * SHALL BE IN WRITING AND SHALL CONTAIN A FULL STATEMENT OF THE REASONS THEREFORE. IF THE FACTS OR CIRCUMSTANCES ON WHICH THE REQUEST FOR A WAIVER * * * ARE BASED HAVE, OR ARE LIKELY TO HAVE GENERAL APPLICABILITY, RELIEF MAY NOT BE GRANTED UNDER THE PROVISIONS OF THIS SECTION BUT ONLY BY AN APPROPRIATE AMENDMENT TO THESE REGULATIONS.'

THE ACTING SECRETARY THEN REFERS TO SECTION 4 OF THE SOIL CONSERVATION AND DOMESTIC ALLOTMENT ACT, AS AMENDED--- (16 U.S.C. 590D), AS DISTINGUISHED FROM THE SOIL BANK ACT--- WHICH PROVIDES, IN PERTINENT PART, THAT "FOR THE PURPOSES OF THIS ACT, THE SECRETARY OF AGRICULTURE MAY * * * PRESCRIBE SUCH REGULATIONS, AS HE MAY DEEM PROPER TO CARRY OUT THE PROVISIONS OF THIS ACT.' HE STATES THAT FROM THE INCEPTION OF THE AGRICULTURAL CONSERVATION PROGRAMS THE REGULATIONS THEREFOR EACH YEAR PROVIDED AN APPEALS PROCEDURE WHEREBY AGRICULTURAL PRODUCERS WHO ARE DISSATISFIED WITH DETERMINATIONS OF THE COUNTY COMMITTEES, WHICH ADMINISTER THE PROGRAM AT THE COUNTY LEVEL, AFFECTING THEIR RIGHT TO OR THE AMOUNT OF ANY PAYMENT UNDER THE PROGRAM MAY APPEAL SUCH DETERMINATIONS TO THE STATE COMMITTEE AND FROM THE STATE COMMITTEE'S DETERMINATION TO THE OFFICIAL IN WASHINGTON HAVING GENERAL RESPONSIBILITY FOR THE PROGRAM. FURTHER STATES THAT EFFECTIVE FOR THE PROGRAMS FOR 1952 THROUGH 1958 THERE WAS ADDED TO THE APPEALS PROVISION A NEW PARAGRAPH READING AS FOLLOWS--- QUOTING FROM HIS LETTER:

"/B) APPEALS CONSIDERED UNDER THIS SECTION SHALL BE DECIDED IN ACCORDANCE WITH THE PROVISIONS OF THIS SUBPART AND OF THE APPLICABLE STATE AND COUNTY PROGRAMS ON THE BASIS OF THE FACTS OF THE INDIVIDUAL CASE: PROVIDED, THAT THE SECRETARY, UPON THE RECOMMENDATION OF THE ADMINISTRATOR, ACPS, AND THE STATE AND COUNTY COMMITTEES, MAY WAIVE THE REQUIREMENTS OF ANY SUCH PROVISION, WHERE NOT PROHIBITED BY STATUTE, IF, IN HIS JUDGMENT, SUCH WAIVER UNDER ALL CIRCUMSTANCES IS JUSTIFIED TO PERMIT A PROPER DISPOSITION OF AN APPEAL WHERE THE FARMER, IN REASONABLE RELIANCE ON ANY INSTRUCTION OR COMMITMENT OF ANY MEMBER, EMPLOYEE, OR REPRESENTATIVE OF A STATE OR COUNTY COMMITTEE, IN GOOD FAITH PERFORMED AN ELIGIBLE CONSERVATION PRACTICE AND SUCH PERFORMANCE REASONABLY ACCOMPLISHED THE PURPOSE OF THE PRACTICE.'

THE ACTING SECRETARY ADVISES THAT THE QUOTED PARAGRAPH WAS OMITTED FROM THE REGULATIONS FOR THE 1959 AGRICULTURAL CONSERVATION PROGRAM (ACP) PENDING CLARIFICATION OF THE EFFECT, IF ANY, WHICH OUR DECISION OF JUNE 5, 1958, DEALING SPECIFICALLY WITH THE SOIL BANK ACREAGE RESERVE PROGRAM, MIGHT HAVE ON THE LEGAL PROPRIETY OF THE PROVISION UNDER THE AGRICULTURAL CONSERVATION PROGRAM. HE STATES THAT AN APPEAL UNDER THE 1957 PROGRAM REGULATIONS HAS BEEN MADE TO YOUR DEPARTMENT FOR DECISION. BEFORE RENDERING A DECISION ON THE APPEAL HE REQUESTS OUR RULING AS TO WHETHER THE APPEALS PROCEDURE MAY PROPERLY BE APPLIED AND PAYMENTS AFFIRMED IN SUCH CASE AND IN OTHER CASES WHERE THE DETERMINATION REQUIRED BY THE APPEALS PROCEDURE CAN BE MADE.

THE SPECIFIC CASE INVOLVED IS AS FOLLOWS--- QUOTED FROM THE ACTING SECRETARY'S LETTER:

"A PRODUCER REQUESTED ACP COST-SHARING ASSISTANCE FOR THE INSTALLATION OF TILE DRAINAGE UNDER THE 1957 PROGRAM. HIS REQUEST WAS TENTATIVELY APPROVED BY THE COUNTY ASC COMMITTEE SUBJECT TO A FAVORABLE FINDING THAT THE PRACTICE WAS NEEDED AND THAT IT WAS PRACTICABLE TO INSTALL. UNDER THE 1957 REGULATIONS THE NEED AND PRACTICABILITY FINDINGS WERE REQUIRED TO BE MADE BY A LOCAL SOIL CONSERVATION SERVICE TECHNICIAN. SUCH FAVORABLE FINDINGS BY AN SCS TECHNICIAN WERE MADE AND THE COUNTY COMMITTEE THEREUPON DEFINITELY APPROVED THE PRACTICE.

THE PRODUCER ARRANGED WITH AN EXPERIENCED CONTRACTOR IN THE AREA TO INSTALL THE TILE. SPECIFICATIONS FOR THE PRACTICE CALLED FOR A SPACING OF AT LEAST 66 FEET BETWEEN TILE LINES AND AN AVERAGE DEPTH OF AT LEAST 36 INCHES. DUE TO THE TYPE OF SOIL AND OTHER CONDITIONS ON THE FARM THE CONTRACTOR PROPOSED TO LAY THE TILE AT AN AVERAGE DEPTH OF 33 1/2 INCHES, IN LINES APPROXIMATELY 50 FEET APART, BELIEVING THAT THIS WOULD PROVIDE A MORE EFFECTIVE DRAINAGE SYSTEM UNDER THE CONDITIONS ENCOUNTERED. PRIOR TO LAYING THE PIPE THE SURVEY NOTES OF THE CONTRACTOR SHOWING THE SPACING AND DEPTH OF THE TILE WERE PRESENTED TO THE SCS TECHNICIAN.

IN ADDITION TO MAKING THE NEED AND PRACTICABILITY FINDINGS THE SCS TECHNICIAN WAS ALSO RESPONSIBLE FOR SITE SELECTION, PRACTICE LAYOUT, NECESSARY SUPERVISION OF THE INSTALLATION, AND CERTIFICATION OF PERFORMANCE. DUE TO THE HEAVY WORKLOAD ON THE LOCAL SCS TECHNICIAN AND THEIR AIDES AND LACK OF ADEQUATE FUNDS TO EMPLOY MORE ASSISTANTS IT WAS NOT POSSIBLE FOR THE TECHNICIANS AND THEIR AIDES PERSONALLY TO PERFORM ALL OF THE WORK RELATED TO THE TECHNICAL RESPONSIBILITIES ASSIGNED TO THEM. AFTER REVIEWING THE SURVEY NOTES, THE CONTRACTOR, WHO WAS WELL KNOWN IN THE AREA AS QUALIFIED AND EXPERIENCED IN TILE INSTALLATION, WAS AUTHORIZED BY THE SCS TECHNICIAN TO PROCEED WITH THE WORK AS INDICATED BY THE SURVEY. IT DOES NOT APPEAR WHETHER THE TECHNICIAN ACTUALLY WAS AWARE OF THE VARIANCE FROM THE PRACTICE REGULATIONS. UPON COMPLETION OF THE WORK ANOTHER LOCAL SCS TECHNICIAN CHECKED THE PERFORMANCE AND DISAPPROVED THE PRODUCER'S APPLICATION FOR PAYMENT BECAUSE OF THE VARIANCE FROM THE SPECIFICATIONS.

"NATIONAL AND STATE OFFICIALS OF THE SOIL CONSERVATION SERVICE HAVE MADE AN ON-THE-FARM EXAMINATION OF THE TILE SYSTEM AND HAVE CONCLUDED THAT ALTHOUGH NOT MEETING ACP SPECIFICATIONS IT PROVIDES SATISFACTORY DRAINAGE AND SERVES THE SAME CONSERVATION OBJECTIVES AS IF THE TILE HAD BEEN INSTALLED IN ACCORDANCE WITH THE SPECIFICATIONS. THE PRACTICE SPECIFICATIONS COULD BE REVISED IN ORDER TO PERMIT ACP COST SHARING SINCE THE PURPOSE OF THE PRACTICE SPECIFICATIONS IS TO ASSURE THE MEETING OF THE CONSERVATION OBJECTIVE OF THE PRACTICE. HOWEVER, IT IS NOT PRACTICAL TO DEVELOP PRACTICE SPECIFICATIONS, OR TO REVISE THEM, TO MEET ALL OF THE VARYING CONDITIONS WHICH MAY BE FOUND IN INDIVIDUAL CASES. PRACTICE SPECIFICATIONS ARE DESIGNED TO PROVIDE ADEQUATE PERFORMANCE IN THE LIGHT OF GENERAL CONDITIONS IN THE AREA. IN THE CASE AT HAND IT IS AGREED THAT IT WOULD BE PREFERABLE TO HANDLE THE CASE UNDER THE APPEALS PROCEDURE RATHER THAN TO REVISE THE PRACTICE SPECIFICATIONS.'

THE LETTER CONTINUES AS FOLLOWS:

"THE ACP REGULATION IS PUBLISHED, IS PROSPECTIVE IN OPERATION, AND IS SUSCEPTIBLE IN UNIFORM APPLICATION TO ALL PRODUCERS WHO CAN ESTABLISH THE THREE FACTS. IT PROVIDES A GUIDE OR STANDARD ALIKE TO ALL PERSONS SIMILARLY SITUATED SO THAT ANYONE INTERESTED MAY KNOW THE BASIS ON WHICH HE MAY QUALIFY FOR THE EXEMPTION, WHEREAS THE ACREAGE RESERVE REGULATION PROVIDED ONLY THAT THE ADMINISTRATOR, CSS, IN ORDER TO PREVENT UNDUE HARDSHIP COULD WAIVE ANY PROVISION OF THE REGULATIONS NOT PROHIBITED BY STATUTE IF HE CONSIDERED SUCH ACTION TO BE IN THE BEST INTERESTS OF THE PROGRAM. THE ONLY SIMILARITY BETWEEN THE ACREAGE RESERVE REGULATION AND THE ACP REGULATION IS THAT BOTH EMPLOY THE WORD "WAIVE" . THE USE OF THE WORD "WAIVE" IN THE ACP REGULATION IS IN REALITY A MISNOMER. THE ACP REGULATION DOES NOT AUTHORIZE THE WAIVER OF A PROVISION OF THE REGULATIONS AT THE DISCRETION OF THE ADMINISTRATOR; RATHER IT PROVIDES A SPECIAL EXCEPTION TO THE USUAL REQUIREMENTS OF THE ACP PROGRAM UNDER WHICH PRODUCERS WHO CAN ESTABLISH CERTAIN REQUIRED FACTS CAN OBTAIN PAYMENT. PROPERLY VIEWED, IT IS A PROVISION OF THE PROGRAM REGULATIONS UNDER WHICH THE SECRETARY OF AGRICULTURE WILL REVIEW THE REQUIREMENTS OF THE PROVISIONS OF THE PROGRAM WITH RESPECT TO THE CARRYING OUT OF THE PRACTICE AND A PRODUCER WHO HAS RENDERED SUBSTANTIAL PERFORMANCE WILL BE PAID FOR HIS ACTUAL PERFORMANCE, NOT TO EXCEED THE PAYMENT WHICH WOULD HAVE BEEN RECEIVED IF THE REQUIRED PERFORMANCE HAS BEEN RENDERED, IF HIS FAILURE TO COMPLY WITH THE PRACTICE REQUIREMENTS IN ALL RESPECTS RESULTED FROM AN ERRONEOUS INSTRUCTION OR COMMITMENT AND IF THE APPLICANT IN GOOD FAITH RELIED ON SUCH ERRONEOUS INFORMATION. IN ISSUING ITS ACP BULLETINS IN THE FUTURE, THE DEPARTMENT PROPOSES TO REVISE THE APPEALS PROVISION TO REFLECT MORE CLEARLY THE INTENDED OPERATION.'

AS INDICATED IN THE ACTING SECRETARY'S LETTER THE ACP REGULATION IS PUBLISHED, IS PROSPECTIVE IN OPERATION AND APPEARS SUSCEPTIBLE IN UNIFORM APPLICATION TO ALL PRODUCERS WHO CAN MEET CRITERIA SET FORTH IN THE REGULATION. ALSO, IN VIEW OF THE INTENDED OPERATION OF THE APPEALS PROVISIONS IN THE ACP REGULATIONS FOR THE PROGRAMS 1952 THROUGH 1958, AS SET FORTH IN THE ACTING SECRETARY'S LETTER, IF APPEARS, AS INDICATED IN THE LETTER, THAT THE USE OF THE WORK "WAIVE" IN THE REGULATION IS, IN REALITY, A MISNOMER. MOREOVER, WE AGREE THAT THE REGULATION DOES NOT AUTHORIZE THE WAIVING OF A PROVISION OF THE REGULATIONS AT THE DISCRETION OF THE ADMINISTRATOR, AS WAS THE CASE IN THE WAIVER PROVISION CONSIDERED IN OUR DECISION OF JUNE 5, BUT RATHER IT PROVIDES A SPECIAL EXCEPTION TO THE USUAL REQUIREMENTS OF THE ACP PROGRAM UNDER WHICH ALL PRODUCERS WHO CAN ESTABLISH CERTAIN REQUIRED FACTS CAN OBTAIN PAYMENT. CF. 17 COMP. GEN. 568. IN FACT, IT PROVIDES FOR PAYMENTS ONLY IN CERTAIN CASES WHERE THE PURPOSE OF THE PRACTICE HAS BEEN ACCOMPLISHED. THEREFORE, THE APPEALS PROVISION IN QUESTION WOULD NOT BE SUBJECT TO THE SAME OBJECTIONS AS THE WAIVER PROVISION CONSIDERED IN OUR JUNE 5 DECISION.

IN VIEW OF THE FOREGOING, THE PARTICULARLY THE INTENDED OPERATION OF THE PROVISION IN QUESTION, YOU ARE ADVISED THAT THE APPEALS PROCEDURE PROVIDED IN YOUR ACP REGULATIONS FOR THE PROGRAMS FOR 1952 THROUGH 1958 MAY BE APPLIED--- IN THE MANNER INDICATED IN THE ACTING SECRETARY'S LETTER--- TO THE SPECIFIC CASE REFERRED TO IN THE ACTING SECRETARY'S LETTER AND IN OTHER CASES ARISING UNDER THE ABOVE REFERRED TO PROGRAMS, WHERE THE DETERMINATIONS REQUIRED BY THE APPEALS PROCEDURE CAN BE MADE. HOWEVER, AS INDICATED IN THE LETTER, THE APPEALS PROVISION SHOULD BE REVISED IN FUTURE ACP BULLETINS TO REFLECT MORE CLEARLY ITS INTENDED OPERATION.