B-143971, OCTOBER 31, 1960, 40 COMP. GEN. 242

B-143971: Oct 31, 1960

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AGRICULTURE - SOIL BANK CONTRACTS - RETROACTIVE REGULATIONS - CONTRACT AMENDMENT AUTHORITY AN AMENDMENT TO THE CONSERVATION RESERVE REGULATIONS ISSUED UNDER AUTHORITY OF THE SOIL BANK ACT TO APPLY TO CONTRACTS OF PRODUCERS WHO DIED OR LOST CONTROL OF ACREAGE AS A RESULT OF EMINENT DOMAIN PROCEEDINGS BEFORE THE DATE OF ISSUANCE WOULD BE TO GIVE RETROACTIVE EFFECT TO THE AMENDMENT OF EXISTING REGULATIONS AND WOULD BE IN CONTRAVENTION OF THE RULE THAT ONCE VALID REGULATIONS ARE ISSUED THE RIGHTS BECOME FIXED AND. SUCH AUTHORITY HAS NO APPLICATION TO CONTRACTS OR PARTS OF CONTRACTS WHICH HAVE BEEN TERMINATED. SOIL CONSERVATION CONTRACTS WHICH WERE TERMINATED WHEN A PRODUCER DIED OR LOST CONTROL OF HIS FARM AS A RESULT OF EMINENT DOMAIN PROCEEDINGS.

B-143971, OCTOBER 31, 1960, 40 COMP. GEN. 242

AGRICULTURE - SOIL BANK CONTRACTS - RETROACTIVE REGULATIONS - CONTRACT AMENDMENT AUTHORITY AN AMENDMENT TO THE CONSERVATION RESERVE REGULATIONS ISSUED UNDER AUTHORITY OF THE SOIL BANK ACT TO APPLY TO CONTRACTS OF PRODUCERS WHO DIED OR LOST CONTROL OF ACREAGE AS A RESULT OF EMINENT DOMAIN PROCEEDINGS BEFORE THE DATE OF ISSUANCE WOULD BE TO GIVE RETROACTIVE EFFECT TO THE AMENDMENT OF EXISTING REGULATIONS AND WOULD BE IN CONTRAVENTION OF THE RULE THAT ONCE VALID REGULATIONS ARE ISSUED THE RIGHTS BECOME FIXED AND, ALTHOUGH REGULATIONS MAY BE AMENDED PROSPECTIVELY TO INCREASE OR DECREASE THOSE RIGHTS, THEY MAY NOT BE AMENDED RETROACTIVELY. ALTHOUGH THE SECRETARY OF AGRICULTURE HAS CONTRACT MODIFICATION AUTHORITY UNDER SECTION 110 (B) OF THE SOIL BANK ACT, 7 U.S.C. 1834 (B), SUCH AUTHORITY HAS NO APPLICATION TO CONTRACTS OR PARTS OF CONTRACTS WHICH HAVE BEEN TERMINATED; THEREFORE, SOIL CONSERVATION CONTRACTS WHICH WERE TERMINATED WHEN A PRODUCER DIED OR LOST CONTROL OF HIS FARM AS A RESULT OF EMINENT DOMAIN PROCEEDINGS, PURSUANT TO REGULATIONS INCORPORATED IN THE CONTRACT, MAY NOT BE REGARDED AS SUBSEQUENTLY AMENDED OR MODIFIED BY THE ISSUANCE OF AN AMENDED REGULATION TO PROVIDE PAYMENTS NOT REQUIRED UNDER THE CONTRACT OR PART OF THE CONTRACT WHICH WAS TERMINATED.

TO THE SECRETARY OF AGRICULTURE, OCTOBER 31, 1960:

THE UNDER SECRETARY OF AGRICULTURE BY LETTER DATED SEPTEMBER 13, 1960, REQUESTED OUR DECISION ON A QUESTION WHICH HAS ARISEN UNDER THE CONSERVATION RESERVE PROGRAM.

PRIOR TO AN AMENDMENT WHICH WAS RECENTLY ISSUED, SECTION 485.169 (B) (1) OF THE REGULATIONS GOVERNING THE CONSERVATION RESERVE PROGRAM FOR 1956- 1959, 21 F.R. 6289, AS AMENDED BY 21 F.R. 10464 AND 23 F.R. 7981, PROVIDED AS FOLLOWS:

(B) (1) THE LOSS OF CONTROL OF ALL OR A PART OF THE FARM BY SALE, DEATH, OR OTHERWISE, BY ANY PRODUCER SIGNATORY TO THE CONTRACT SHALL TERMINATE THE CONTRACT AS TO SUCH PRODUCER WITH RESPECT TO THE ACREAGE OVER WHICH CONTROL IS LOST. IN THE EVENT OF SUCH TERMINATION, THE PRODUCER SHALL REFUND ALL FEDERAL COST SHARES PAID UNDER A CONTRACT WITH RESPECT TO SUCH ACREAGE, UNLESS THE PRODUCER WHO ACQUIRES HIS INTEREST IN SUCH ACREAGE IS OR BECOMES A PARTY TO A CONTRACT WHICH WILL CONTINUE IN THE CONSERVATION RESERVE, FOR THE DURATION OF THE CONTRACT PERIOD, UNDER THE SAME TERMS AND CONDITIONS, THE ACREAGE IN THE CONSERVATION RESERVE OVER WHICH CONTROL IS LOST. THE PRODUCER LOSING SUCH CONTROL SHALL NOT BE ENTITLED TO FURTHER COMPENSATION UNDER THE CONTRACT WITH RESPECT TO SUCH ACREAGE EXCEPT AS PROVIDED BELOW. THE COUNTY COMMITTEE SHALL DETERMINE THE DIVISION OF THE ANNUAL PAYMENT APPLICABLE TO SUCH ACREAGE FOR THE YEAR IN WHICH SUCH CONTROL IS LOST BETWEEN THE PRODUCER LOSING SUCH CONTROL (HEREINAFTER CALLED THE "ORIGINAL PRODUCER") AND THE PRODUCER ACQUIRING HIS INTEREST (HEREINAFTER CALLED THE "SUCCESSOR PRODUCER") ON A BASIS WHICH IT DETERMINES TO BE FAIR AND EQUITABLE, TAKING INTO CONSIDERATION, AMONG ANY OTHER FACTORS IT DEEMS PERTINENT: (I) THE RESPECTIVE INTERESTS WHICH THE ORIGINAL PRODUCER AND SUCCESSOR PRODUCER HAVE IN THE CROPS ON THE ACREAGE OVER WHICH CONTROL IS LOST, (II) THE CONTRIBUTION TO THE REDUCTION OF CROPS ON SUCH ACREAGE MADE BY THE ORIGINAL PRODUCER, (III) THE CONTRIBUTION WHICH WILL BE MADE BY THE SUCCESSOR PRODUCER TO SUCH REDUCTION, (IV) THE RESPECTIVE CONTRIBUTIONS WHICH HAVE AND WILL BE MADE BY THE ORIGINAL PRODUCER AND THE SUCCESSOR PRODUCER IN CARRYING OUT THE PROVISIONS OF THE CONTRACT WITH RESPECT TO SUCH ACREAGE, AND (V) THE TIME OF THE CONTRACT YEAR AT WHICH THE LOSS OF CONTROL OCCURS: PROVIDED, THAT NO ANNUAL PAYMENT SHALL BE MADE TO THE SUCCESSOR PRODUCER UNLESS HE IS OR BECOMES A PARTY TO A CONSERVATION RESERVE CONTRACT AS PROVIDED ABOVE: PROVIDED, FURTHER, THAT NO ANNUAL PAYMENT SHALL BE MADE TO EITHER THE ORIGINAL PRODUCER OR THE SUCCESSOR PRODUCER UNLESS THERE IS COMPLIANCE WITH THE CONTRACT FOR THE FULL CONTRACT YEAR. A CHANGE OF TENANTS OR SHARECROPPERS NOT SIGNATORY TO THE CONTRACT OR TENANTS OR SHARECROPPERS SIGNATORY TO THE CONTRACT BUT WHO DO NOT HAVE CONTROL OF THE FARM SHALL BE HANDLED IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (C) OF THIS SECTION IF 1956 OR 1957 IS THE FIRST YEAR OF THE CONTRACT PERIOD OR PARAGRAPH (D) OF THIS SECTION IF 1958 OR A SUBSEQUENT YEAR IS THE FIRST YEAR OF THE CONTRACT PERIOD.

THE UNDER SECRETARY STATES THAT UNDER THESE PROVISIONS, IF A LOSS OF CONTROL OCCURRED AND THE CONSERVATION RESERVE CONTRACT WAS CONTINUED BY THE SUCCESSOR PRODUCER, COST-SHARE PAYMENTS MADE TO THE ORIGINAL PRODUCER TO ASSIST IN THE ESTABLISHMENT OF THE CONSERVATION PRACTICE ON THE LAND REMOVED FROM PRODUCTION WERE NOT REQUIRED TO BE REFUNDED AND THE ANNUAL PAYMENT FOR THE YEAR IN WHICH THE LOSS OF CONTROL OCCURRED WAS DIVIDED BETWEEN THE ORIGINAL PRODUCER AND THE SUCCESSOR PRODUCER IN ACCORDANCE WITH THE CRITERIA SET OUT IN THE ABOVE-QUOTED SECTION 485.169 (B) (1). FOR EXAMPLE, IF PRODUCER A, WHO HAD ENTERED INTO A CONTRACT UNDER WHICH HE WAS TO RECEIVE AN ANNUAL PAYMENT OF $5,000 AND A COST-SHARE PAYMENT OF $500, LOST CONTROL IN JUNE IN THE MIDDLE OF A CONTRACT YEAR AND THE CONTRACT WAS CONTINUED UNDER THE SAME TERMS AND CONDITIONS BY PRODUCER B, THE COST-SHARE PAYMENT OF $500 WOULD NOT BE REQUIRED TO BE REFUNDED, AND THE ANNUAL PAYMENT WOULD BE DIVIDED BETWEEN PRODUCER A AND PRODUCER B--- PERHAPS $3,000 TO PRODUCER A AND $2,000 PRODUCER B. THUS, IF THE CONTRACT IS CONTINUED BY THE SUCCESSOR PRODUCER, NO PROBLEM IS PRESENTED.

ACCORDING TO THE UNDER SECRETARY, SOME OF THE PROVISIONS OF SECTION 485.169 (B) (1) WORKED UNFORESEEN HARDSHIPS ON PRODUCERS IN CERTAIN CASES WHERE THE CONTRACT WAS NOT CONTINUED BY THE SUCCESSOR PRODUCER. HE STATES THAT SECTION 485.169 (B) (1) PROVIDED THAT IF THE SUCCESSOR PRODUCER DID NOT CONTINUE THE CONTRACT THE ORIGINAL PRODUCER COULD RECEIVE ONLY HIS PROPORTIONATE SHARE OF THE ANNUAL PAYMENT, ALTHOUGH IN ORDER TO RECEIVE SUCH PROPORTIONATE SHARE, COMPLIANCE WITH THE CONTRACT WAS REQUIRED FOR THE ENTIRE CONTRACT YEAR. THEREFORE, IN THE CASE, FOR INSTANCE, OF THE DEATH OF A PRODUCER IN THE MIDDLE OF A CONTRACT YEAR IF THE CONTRACT WERE NOT CONTINUED BY THE FAMILY OR ESTATE, THE ESTATE OR REPRESENTATIVES OF THE DECEASED WOULD BE ENTITLED TO RECEIVE IN THE ABOVE EXAMPLE ONLY $3,000 ALTHOUGH COMPLIANCE WOULD BE REQUIRED FOR THE FULL CONTRACT YEAR OF THE DELAY ORDINARILY INVOLVED AFTER THE DEATH OF A PRODUCER IN SETTLING THE AFFAIRS OF THE DECEASED AND MAKING THE NECESSARY DECISIONS AS TO THE OPERATION OF THE FARM, YOUR DEPARTMENT FEELS THAT THE FULL ANNUAL PAYMENT SHOULD BE MADE IF THERE IS COMPLIANCE WITH THE CONTRACT PROVISIONS FOR THE ENTIRE YEAR EVEN THOUGH THE ULTIMATE DECISION IS NOT TO CONTINUE THE FARM IN THE PROGRAM. THE UNDER SECRETARY ADVISES THAT THE ABOVE-QUOTED REGULATION CAUSED EXTREME HARDSHIP IN SOME CASES WHERE THE HEIR TO WHOM TITLE PASSED UPON DEATH OF THE PRODUCER WAS ALREADY PARTICIPATING TO THE MAXIMUM EXTENT ALLOWED UNDER THE $5,000 LIMITATION AND THEREFORE WAS INELIGIBLE TO CONTINUE THE LAND OF THE DECEASED PRODUCER IN THE PROGRAM, AND WHERE IT WAS TOO LATE TO PLANT A CROP, THERE WAS NO WAY FOR THE FAMILY OR ESTATE OF THE DECEASED PRODUCER TO AVOID LOSS OF A SUBSTANTIAL PORTION OF THE INCOME FROM THE FARM FOR THE YEAR. MOREOVER, HE STATES THAT IN SUCH CASE, THE ESTATE OR REPRESENTATIVES OF THE DECEASED PRODUCER WERE REQUIRED UNDER THE REGULATIONS TO REFUND THE COST SHARE PAID UNDER THE CONTRACT.

IN ORDER TO REMOVE THESE INEQUITIES EXISTING IN THE CASE OF LOSS OF CONTROL BY DEATH, AMENDMENT 42 WAS ISSUED BY THE SECRETARY ON JUNE 13, 1960, 25 F.R. 5444, PROVIDING IN PART AS FOLLOWS:

SECTION 485.169 (B) (1) OF THE REGULATIONS GOVERNING THE CONSERVATION RESERVE PROGRAM FOR 1956 THROUGH 1959, 21 F.R. 6289, AS AMENDED, IS HEREBY AMENDED BY ADDING TO THE END THEREOF THE FOLLOWING: " NOTWITHSTANDING ANY OTHER PROVISION OF THIS PARAGRAPH, (I) WHERE A LOSS OF CONTROL OCCURS AS A RESULT OF THE DEATH OF THE ORIGINAL PRODUCER AND THE ACREAGE IS NOT CONTINUED IN THE PROGRAM, THE ANNUAL PAYMENT FOR THE YEAR IN WHICH THE LOSS OF CONTROL OCCURS SHALL BE PAID TO THE SUCCESSOR OF THE ORIGINAL PRODUCER AS DETERMINED IN ACCORDANCE WITH PARAGRAPH (A) OF THIS SECTION IF THERE IF COMPLIANCE WITH THE CONTRACT FOR THE FULL CONTRACT YEAR; (II) WHERE A LOSS OF CONTROL OCCURS AS A RESULT OF THE DEATH OF THE ORIGINAL PRODUCER AND THE ACREAGE IS NOT CONTINUED IN THE PROGRAM BECAUSE THE SUCCESSOR PRODUCED IS INELIGIBLE TO CONTINUE SUCH ACREAGE IN THE PROGRAM OR TO CONTINUE SUCH ACREAGE IN THE PROGRAM AT THE SAME ANNUAL PAYMENT, ANY COST-SHARE PAYMENT PAID OR PAYABLE WITH RESPECT TO SUCH ACREAGE SHALL NOT BE REFUNDED OR FORFEITED AND THE YEAR IN WHICH THE LOSS OF CONTROL OCCURS SHALL BE CONSIDERED THE LAST YEAR OF THE CONTRACT PERIOD FOR PURPOSES OF APPLYING THE PROVISIONS OF SEC. 485.157 (B) (1);

THE UNDER SECRETARY ADVISES THAT UNDER AMENDMENT 42, IF THE LOSS OF CONTROL IS AS A RESULT OF DEATH AND THE CONTRACT IS NOT CONTINUED IN THE PROGRAM, GENERALLY THE ESTATE OF THE ORIGINAL PRODUCER WILL RECEIVE THE ENTIRE ANNUAL PAYMENT IF THERE IS COMPLIANCE WITH THE CONTRACT FOR THE ENTIRE CONTRACT YEAR; AND, IF IN ADDITION THE SUCCESSOR OF THE DECEASED PRODUCER IS INELIGIBLE TO CONTINUE THE LAND COVERED BY THE CONTRACT IN THE PROGRAM, THE COST SHARES PAID WITH RESPECT TO SUCH LAND WILL NOT BE REQUIRED TO BE REFUNDED.

ACCORDING TO THE UNDER SECRETARY, THE EARLIER PROVISIONS OF SECTION 485.169 (B) (1), QUOTED ABOVE, ALSO WERE FELT TO BE INEQUITABLE IN THE CASE OF A LOSS OF CONTROL BY THE EXERCISE OF EMINENT DOMAIN BY THE GOVERNMENT. HE STATES THAT THE LOSS OF CONTROL THROUGH EMINENT DOMAIN IS SIMILAR TO LOSS OF CONTROL THROUGH DEATH IN THAT IT IS INVOLUNTARY. ADVISES THAT IN MOST OF THE CASES INVOLVING LOSS OF CONTROL THROUGH EMINENT DOMAIN, ALTHOUGH THE TITLE MAY PASS TO THE GOVERNMENT IN THE MIDDLE OF THE YEAR AND THUS, UNDER OTHER PROVISIONS OF THE REGULATIONS (SECTION 485.153) RENDER THE LAND INELIGIBLE TO BE CONTINUED IN THE PROGRAM, THE PRODUCER RETAINS ACTUAL POSSESSION OF THE LAND AND CONTROL OF THE FARMING OPERATIONS ON THE LAND FOR AT LEAST THE REST OF THE CONTRACT YEAR.

YOUR DEPARTMENT HAS BEEN INFORMALLY ADVISED BY THE DEPARTMENT OF JUSTICE THAT UNDER EMINENT DOMAIN PROCEEDINGS, WHILE A PRODUCER WOULD BE COMPENSATED FOR THE VALUE OF ANY GROWING CROPS, OR WOULD BE ALLOWED TO HARVEST SUCH CROPS, HE WOULD NOT BE COMPENSATED FOR ANY LOSS OF A SOIL BANK PAYMENT AS A RESULT OF THE EXERCISE OF EMINENT DOMAIN. THE UNDER SECRETARY ADVISES THAT IN ORDER TO REMOVE THIS INEQUITY, AMENDMENT 42, QUOTED IN PART ABOVE ALSO PROVIDES:

* * * (III) WHERE A LOSS OF CONTROL OCCURS AS A RESULT OF EMINENT DOMAIN AFTER THE NORMAL PLANTING SEASON OF THE PRINCIPAL CROP NORMALLY GROWN ON THE FARM AND MATURING IN THE YEAR IN WHICH THE LOSS OF CONTROL OCCURS, THE ANNUAL PAYMENT FOR SUCH YEAR SHALL BE PAID TO THE PRODUCER LOSING CONTROL IF THERE IS COMPLIANCE WITH THE CONTRACT FOR THE FULL CONTRACT YEAR EXCEPT FOR THE DESTRUCTION OF THE CONSERVATION USE BY THE AGENCY ACQUIRING CONTROL.

THE UNDER SECRETARY STATES THAT UNDER THE FOREGOING AMENDMENT, IF A PRODUCER LOSES TITLE TO THE GOVERNMENT BY THE EXERCISE OF EMINENT DOMAIN AFTER THE NORMAL PLANTING SEASON ON THE FARM, THE PRODUCER WILL RECEIVE THE ENTIRE ANNUAL PAYMENT PROVIDED THERE IS COMPLIANCE WITH THE CONTRACT FOR THE ENTIRE CONTRACT YEAR.

ACCORDING TO THE UNDER SECRETARY, AMENDMENT 42 WAS INTENDED TO APPLY TO ALL PENDING CASES AND ALL FUTURE CASES ARISING UNDER THE PROGRAM. HOWEVER, IT NOW DEVELOPS THAT A NUMBER OF CASES WHICH WOULD OTHERWISE FALL WITHIN THE PURVIEW OF THE AMENDMENT HAD BEEN "SETTLED" (I.E., PAID, REJECTED, OR SET OFF) PRIOR TO THE INSURANCE OF SUCH AMENDMENT. QUESTION HAS ARISEN AS TO WHETHER THE SECRETARY OF AGRICULTURE MAY NOW ACCORD THE SAME TREATMENT PROVIDED BY AMENDMENT 42 TO SUCH ,SETTLED" CASES AND OUR DECISION IS REQUESTED THEREON.

YOUR DEPARTMENT IS OF THE VIEW THAT THE SOIL BANK ACT, AS AMENDED, 7 U.S.C. 1801 ET SEQ., GRANTS THE SECRETARY OF AGRICULTURE AUTHORITY TO TAKE THE ACTION PROPOSED. THE UNDER SECRETARY STATES THAT THE SOIL BANK VESTS BROAD AUTHORITY IN THE SECRETARY WITH RESPECT TO PAYMENTS THEREUNDER AND CITIES SECTIONS 107 (B), 121, AND 124, 7 U.S.C. 1831 (B), 1809 AND 1812, IN SUPPORT OF HIS STATEMENT. THESE SECTIONS PROVIDE:

(B) IN RETURN FOR SUCH AGREEMENT BY THE PRODUCER THE SECRETARY SHALL AGREE:

(1) TO BEAR SUCH PART OF THE COST (INCLUDING LABOR) OF ESTABLISHING AND MAINTAINING VEGETATIVE COVER OR WATER STORAGE FACILITIES, OR OTHER SOIL--- , WATER---, WILDLIFE---, OR FOREST-CONSERVING USES, ON THE DESIGNATED ACREAGE AS THE SECRETARY DETERMINES TO BE NECESSARY TO EFFECTUATE THE PURPOSES OF THIS TITLE, BUT NOT TO EXCEED A MAXIMUM AMOUNT PER ACRE OR FACILITY PRESCRIBED BY THE SECRETARY FOR THE COUNTY OR AREA IN WHICH THE FARM IS SITUATED; AND

(2) TO MAKE AN ANNUAL PAYMENT TO THE PRODUCER FOR THE TERM OF THE CONTRACT UPON DETERMINATION THAT HE HAS FULFILLED THE PROVISIONS OF THE CONTRACT ENTITLING HIM TO SUCH PAYMENT. THE RATE OR RATES OF THE ANNUAL PAYMENT TO BE PROVIDED FOR IN THE CONTRACTS SHALL BE ESTABLISHED ON SUCH BASIS AS THE SECRETARY DETERMINES WILL PROVIDE PRODUCERS WITH A FAIR AND AND REASONABLE ANNUAL RETURN ON THE LAND ESTABLISHED IN PROTECTIVE VEGETATIVE COVER OR WATER STORAGE FACILITIES, OR OTHER SOIL---, WATER---, WILDLIFE---, OR FOREST CONSERVING USES, TAKING INTO CONSIDERATION THE VALUE OF THE LAND FOR THE PRODUCTION OF COMMODITIES CUSTOMARILY GROWN ON SUCH KIND OF LAND IN THE COUNTY OR AREA, THE PREVAILING RATES FOR CASH RENTALS FOR SIMILAR LAND IN THE COUNTY OR AREA, THE INCENTIVE NECESSARY TO OBTAIN CONTRACTS COVERING SUFFICIENT ACREAGE FOR THE SUBSTANTIAL ACCOMPLISHMENT OF THE PURPOSES OF THE CONSERVATION RESERVE PROGRAM, AND SUCH OTHER FACTORS AS HE DEEMS APPROPRIATE. SUCH RATE OR RATES MAY BE DETERMINED ON AN INDIVIDUAL FARM BASIS, A COUNTY OR AREA BASIS, OR SUCH OTHER BASIS AS THE SECRETARY DETERMINES WILL FACILITATE THE PRACTICAL ADMINISTRATION OF THE PROGRAM.

SEC. 121. THE FACTS CONSTITUTING THE BASIS FOR ANY PAYMENT OR COMPENSATION, OR THE AMOUNT THEREOF, AUTHORIZED TO BE MADE UNDER THIS TITLE, WHEN OFFICIALLY DETERMINED IN CONFORMITY WITH APPLICABLE REGULATIONS PRESCRIBED BY THE SECRETARY, SHALL BE FINAL AND CONCLUSIVE AND SHALL NOT BE REVIEWABLE BY ANY OTHER OFFICER OR AGENCY OF THE GOVERNMENT. IN CASE ANY PRODUCER WHO IS ENTITLED TO ANY PAYMENT OR COMPENSATION DIES, BECOMES INCOMPETENT, OR DISAPPEARS BEFORE RECEIVING SUCH PAYMENT OR COMPENSATION, OR IS SUCCEEDED BY ANOTHER WHO RENDERS OR COMPLETES THE REQUIRED PERFORMANCE, THE PAYMENT OR COMPENSATION SHALL, WITHOUT REGARD TO ANY OTHER PROVISIONS OF LAW, BE MADE AS THE SECRETARY MAY DETERMINE TO BE FAIR AND REASONABLE IN ALL THE CIRCUMSTANCES AND SO PROVIDED BY REGULATIONS. SEC. 124. THE SECRETARY SHALL PRESCRIBE SUCH REGULATIONS AS HE DETERMINES NECESSARY TO CARRY OUT THE PROVISIONS OF THIS TITLE. THE UNDER SECRETARY ALSO STATES THAT THE PROPOSED ACT INVOLVES, IN EFFECT, A MODIFICATION OF THE CONTRACT AND MAKES REFERENCE TO SECTION 110 (B) OF THE ACT, 7 U.S.C. 1834 (B), WHICH PROVIDES THAT:

(B) THE SECRETARY MAY AGREE TO SUCH MODIFICATION OF CONTRACTS PREVIOUSLY ENTERED INTO AS HE MAY DETERMINE TO BE DESIRABLE TO CARRY OUT THE PURPOSES OF THIS TITLE AND TO FACILITATE THE PRACTICAL ADMINISTRATION OF THE CONSERVATION RESERVE PROGRAM. 70 STAT. 194 (1956), 7 U.S.C. SEC. 1834 (1958).

WHILE THE SOIL BANK ACT VESTS BROAD AUTHORITY IN THE SECRETARY WITH RESPECT TO SOIL BANK PAYMENTS, IT IS CLEAR FROM SECTION 121 OF THE ACT THAT THE PAYMENTS MUST BE "DETERMINED IN CONFORMITY WITH APPLICABLE REGULATIONS PRESCRIBED BY THE SECRETARY.' ALSO, SECTION 121 REQUIRES, IN EFFECT, THAT THE SECRETARY "PROVIDE BY REGULATIONS" FOR PAYMENTS TO PRODUCERS ENTITLED THERETO WHO DIE, BECOMES INCOMPETENT, OR DISAPPEAR BEFORE RECEIVING SUCH PAYMENTS, OR WHO ARE SUCCEEDED BY ANOTHER WHO RENDERS OR COMPLETES THE REQUIRED PERFORMANCE. WE FIND NOTHING IN SECTION 121 OR ANY OTHER SECTION OF THE SOIL BANK ACT WHICH AUTHORIZES THE SECRETARY TO AMEND VALID REGULATIONS RETROACTIVELY.

WE HAVE HELD GENERALLY THAT ONCE VALID REGULATIONS ARE ISSUED THE RIGHTS THEREUNDER BECOME FIXED AND ALTHOUGH SUCH REGULATIONS MAY BE AMENDED PROSPECTIVELY TO INCREASE OR DECREASE THE RIGHTS GIVEN THEREBY THEY MAY NOT BE SO AMENDED RETROACTIVELY. SEE 32 COMP. GEN. 315. SEE ALSO 27 COMP. GEN. 339; 31 ID. 619, AND 33 ID. 505. CF. ARIZONA GROCERY V. ATCHISON RAILWAY, 284 U.S. 370.

IN VIEW OF THE ABOVE WE ARE OF THE OPINION THAT AMENDMENT 42, AS AN AMENDMENT OF EXISTING REGULATIONS, MAY NOT BE GIVEN A RETROACTIVE EFFECT SO AS TO APPLY TO CONTRACTS OF PRODUCERS WHO DIED OR LOST CONTROL OF ACREAGE AS A RESULT OF THE EXERCISE OF EMINENT DOMAIN BEFORE THE DATE OF ISSUANCE OF THE AMENDMENT.

CONCERNING AMENDMENT 42 AS INVOLVING, IN EFFECT, A MODIFICATION OF THE CONTRACT, WE UNDERSTAND THAT UNDER THE PROVISIONS OF SOIL CONSERVATION CONTRACTS, REGULATIONS ISSUED BY THE SECRETARY OF AGRICULTURE GOVERNING THE CONSERVATION RESERVE PROGRAM ARE SPECIFICALLY MADE A PART OF SUCH CONTRACTS. WE FURTHER UNDERSTAND THAT THE CONTRACT PROVISIONS ALSO PROVIDE THAT ANY AMENDMENT, OR REVISION, OR SUPPLEMENT TO SUCH REGULATIONS ISSUED AFTER THE DATE A PARTICULAR CONTRACT WAS EXECUTED SHALL HAVE NO APPLICATION TO SUCH CONTRACT IF THE AMENDMENT, REVISION, OR SUPPLEMENT IMPOSES ANY OBLIGATION ON THE PRODUCER GREATER THAN OR IN ADDITION TO THE OBLIGATIONS SET FORTH IN THE CONTRACT OR DIMINISHES THE OBLIGATION OF THE SECRETARY UNDER THE CONTRACT.

AMENDMENT 42 DOES NOT IMPOSE GREATER OR ADDITIONAL OBLIGATIONS ON THE PRODUCER OR DIMINISH THE OBLIGATION OF THE SECRETARY UNDER THE CONTRACT. THEREFORE, ASSUMING THE CONTRACTS INVOLVED HERE CONTAIN THE PROVISIONS MENTIONED IN THE PARAGRAPH ABOVE, AMENDMENT 42 WOULD, IN EFFECT, BECOME PART OF THE CONSERVATION RESERVE CONTRACTS, EVEN THOUGH EACH INDIVIDUAL CONTRACT IS NOT AMENDED TO INCLUDE SUCH PROVISION.

WE HAVE STATED IN CONNECTION WITH A PROVISION IN THE FIRST WAR POWERS ACT SIMILAR TO SECTION 110 (B), 7 U.S.C. 1834 (B), THAT SUCH PROVISION HAS NO APPLICATION TO A CONTRACT WHICH HAS BEEN TERMINATED. SEE 24 COMP. GEN. 723. THE TERMINATION INVOLVED IN THAT DECISION WAS FOR DEFAULT BUT WHAT WAS SAID THEREIN WOULD APPLY WHATEVER THE REASON FOR THE TERMINATION.

UNDER THE CONSERVATION RESERVE REGULATIONS IN EFFECT PRIOR TO THE ISSUANCE OF AMENDMENT 42, THE LOSS OF CONTROL OF ALL OR A PART OF THE FARM INVOLVED, BY SALE, DEATH, OR OTHERWISE, BY ANY PRODUCER SIGNATORY TO THE CONTRACT TERMINATED THE CONTRACT AS TO SUCH PRODUCER WITH RESPECT TO THE ACREAGE OVER WHICH CONTROL WAS LOST. THUS, PRIOR TO THE ISSUANCE OF AMENDMENT 42, WHEN A PRODUCER DIED OR LOST CONTROL OF ALL OR PART OF HIS FARM AS A RESULT OF EXERCISE OF EMINENT DOMAIN HIS CONTRACT WAS TERMINATED WHEN EITHER EVENT OCCURRED WITH RESPECT TO THE ACREAGE OVER WHICH CONTROL WAS LOST. WE ARE OF THE OPINION THAT SECTION 110 (B) HAS NO APPLICATION TO A CONTRACT OR THAT PART OF A CONTRACT PERTAINING TO ACREAGE OVER WHICH CONTROL IS LOST WHICH WAS TERMINATED PURSUANT TO VALID STATUTORY REGULATIONS MADE PART OF THE CONTRACT MAY NOT SUBSEQUENTLY BE AMENDED OR MODIFIED UNDER THE AUTHORITY OF SECTION 110 (B) TO PROVIDE FOR PAYMENTS IN CONNECTION WITH SUCH ACREAGE WHICH WERE NOT REQUIRED UNDER THE CONTRACT, OR PART THEREOF, WHICH WAS TERMINATED. AS WE STATED IN 31 COMP. GEN. 685, THERE CAN BE LITTLE ARGUMENT THAT A CONTRACT CANNOT BE AMENDED AFTER IT HAS CEASED TO EXIST. THIS WOULD ALSO BE TRUE AS TO ANY PART OF A CONTRACT WHICH CEASED TO EXIST.

ON THE BASIS OF THE FOREGOING, IT IS OUR VIEW THAT THE CASES "SETTLED" PRIOR TO THE ISSUANCE OF AMENDMENT 42 MAY NOT BE ACCORDED THE TREATMENT PROVIDED BY THE AMENDMENT. FURTHER, SINCE AMENDMENT 42 MAY NOT BE GIVEN RETROACTIVE EFFECT AS A REGULATION, AND INASMUCH AS A CONTRACT, OR ANY PART THEREOF, WHICH IS TERMINATED, MAY NOT BE MODIFIED UNDER THE AUTHORITY IN SECTION 110 (B) OF THE SOIL BANK ACT AS TO THE PART WHICH IS TERMINATED, PENDING CASES MAY NOT BE ACCORDED THE TREATMENT PROVIDED BY AMENDMENT 42, UNLESS THE DEATH OF THE PRODUCER OR THE EXERCISE OF EMINENT DOMAIN TOOK PLACE ON OR AFTER THE DATE THE AMENDMENT WAS ISSUED.