[Federal Register Volume 61, Number 199 (Friday, October 11, 1996)]
[Proposed Rules]
[Pages 53574-53589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-26265]
[[Page 53573]]
_______________________________________________________________________
Part V
Department of Agriculture
_______________________________________________________________________
Commodity Credit Corporation
_______________________________________________________________________
7 CFR Part 1466
Environmental Quality Incentives Program; Proposed Rule
Federal Register / Vol. 61, No. 199 / Friday, October 11, 1996 /
Proposed Rules
[[Page 53574]]
DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR Part 1466
RIN 0578-AA19
Environmental Quality Incentives Program
AGENCY: Commodity Credit Corporation, United States Department of
Agriculture.
ACTION: Proposed rule with request for comments.
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SUMMARY: The Commodity Credit Corporation (CCC) is issuing a proposed
rule for the Environmental Quality Incentives Program (EQIP). This
proposed rule describes how CCC intends to implement EQIP as authorized
by amendments in the Federal Agriculture Improvement and Reform Act of
1996 to the Food Security Act of 1985. The United States Department of
Agriculture (USDA) seeks comments from the public which will be used to
make revisions, if necessary, that will be issued in a final rule.
DATES: Comments must be received by November 25, 1996.
ADDRESSES: All comments concerning this proposed rule should be
addressed to Lloyd E. Wright, Director, Conservation and Ecosystems
Assistance Division, Natural Resources Conservation Service, P.O. Box
2890, Washington, D.C. 20013-2890. Attention: EQIP. Fax: 202-720-1838.
This rule may also be accessed, and comments submitted, via Internet.
Users can access the Natural Resources Conservation Service (NRCS)
Federal Register homepage and submit comments at http://
astro.itc.nrcs.usda.gov:6500.
FOR FURTHER INFORMATION CONTACT: Jeffrey R. Loser, Conservation and
Ecosystems Assistance Division, Natural Resources Conservation Service,
P.O. Box 2890, Washington, D.C. 20013-2890. 202-720-1845. Fax: 202-720-
1838.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
Pursuant to Executive Order 12866 (58 FR 51735, October 4, 1993),
it has been determined that this proposed rule is an economically
significant regulatory action because it may result in an annual effect
on the economy of $100 million or more. The administrative record is
available for public inspection in Room 6029, South Building, USDA,
14th and Independence Ave, SW, Washington, D.C.
Pursuant to Executive Order 12866, NRCS conducted an economic
analysis of the potential impacts associated with this program, and
included the analysis as part of a Regulatory Impact Analysis document
prepared for this rule. The analysis estimates EQIP will have a
beneficial impact on the adoption of conservation practices and, when
installed or applied to technical standards, will increase net farm
income. In addition, benefits would accrue to society for long-term
productivity maintenance of the resource base, non-point source
pollution damage reductions, and wildlife enhancements. As a voluntary
program, EQIP will not impose any obligation or burden upon
agricultural producers that choose not to participate. The program was
authorized at $1.3 billion over the seven-year period of FY 1996
through FY 2002, with annual amounts of $200 million per year after the
initial transition year of $130 million.
NRCS estimates that 37 million acres of agricultural land would be
treated over the seven years of the program, including 19 million acres
of cropland, 4 million acres of pasture, and 14 million acres of
rangeland. Of the 37 million acres treated, an estimated 31.5 million
acres are expected to be within priority areas. The projected national
impact on participants' net farm income ranges from increases of $155
to $500 million per year, with a medium impact estimate of $310 million
per year. These positive returns come from the incentive payments, on-
site benefits to the land and crops, and lower operation and repair
costs attributable to the conservation practices. NRCS estimates that
an additional $49 to $166 million annually, with a medium impact
estimate of $117 million annually on-site benefits will accrue to
participants from the enhanced productivity associated with long-term
maintenance of their soil resource base. Estimated total on-site
returns are between $204 million and $666 million annually, with a
medium impact estimate of $247 million annually.
The environmental benefits off-site are projected to be between
$247 and $417 million annually, with a medium impact estimate of $336
million annually. Some of the off-site environmental benefits are
attributable to improvements made to enhance freshwater and marine
water quality and fish habitat, improved aquatic recreation
opportunities, reduced sedimentation of reservoirs, streams, and
drainage channels, reduced flood damages. Additional benefits are from
reduced pollution of surface and groundwater from agrochemical,
improvements in air quality by reducing wind erosion, and enhancements
to wildlife habitat.
The total monetary benefits from full implementation of EQIP are
therefore estimated to be $763 million per year. Providing for an
allowance for the accrual of treated acreage over time and adjusting to
an annual basis (at a 3% interest rate), the annualized net benefits
are estimated to be $439 million over the life of the program. The
capitalized Federal cost of the program is about $195 million per year
(at a 3% interest rate). EQIP participants incur costs associated with
their share of cost-share contracts and the operation and maintenance
of conservation practices, and these costs are reflected in the net
benefits estimate. A copy of this analysis is available upon request
from Jeffrey R. Loser, Conservation and Ecosystems Assistance Division,
Natural Resources Conservation Service, P.O. Box 2890, Washington, D.C.
20013-2890.
NRCS will revise and enhance this analysis for the final rule.
Future quantitative work will seek to estimate the amount of farmland
in different areas by type of agricultural operation where farmers are
likely to adopt the conservation measures expected to be profitable in
the baseline, i.e. if the program were not to be implemented. As part
of this estimate, NRCS will also seek to assess the extent to which
other programs are affecting the adoption of conservation measures and
reflect this in the baseline. Future analysis will seek to disaggregate
point source and nonpoint source treatments in the program, and the
impacts of each will be estimated independently. To the extent
possible, alternative allocations of program dollars across different
conservation practices will be quantified and their impacts estimated.
To better implement the program to maximize environmental benefits
per dollar expended, as required by the Federal Agriculture Improvement
and Reform Act of 1996 to the Food Security Act of 1985, NRCS seeks
public comment, data, or references that can quantitatively or
qualitatively enhance its analytical efforts. NRCS especially welcomes
comments or data on levels or trends in conservation technology
adoption, the on- and off-site returns to various conservation
practices, and other literature about incentive schemes for technology
adoption.
Regulatory Flexibility Act
The Regulatory Flexibility Act is not applicable to this rule
because CCC is not required by 5 U.S.C. 533 or any other provision of
law to publish a
[[Page 53575]]
notice of proposed rulemaking with respect to the subject matter of
this rule.
Environmental Analysis
It has been determined through an Environmental Assessment (EA)
that the issuance of this proposed rule will not have a significant
effect on the human environment. Copies of the EA and finding of no
significant impact may be obtained from Jeffrey R. Loser, Conservation
and Ecosystems Assistance Division, Natural Resources Conservation
Service, P.O. Box 2890, Washington, D.C. 20013-2890.
Paperwork Reduction Act
This proposed rule sets forth procedures for implementing EQIP. CCC
needs certain information from potential applicants, in order to carry
out the requirements of the program. CCC submitted the information
collection requirements in this proposed rule to the Office of
Management and Budget (OMB) for approval under the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. CCC prepared an Information Collection
Request (ICR) document; the public may obtain a copy of this request
from Jeffrey R. Loser, Conservation and Ecosystems Assistance Division,
Natural Resources Conservation Service, P.O. Box 2890, Washington, D.C.
20013-2890.
Title: Environmental Quality Incentives Program, Wildlife Habitat
Improvement Program, and Farmland Protection Program.
OMB Control Number: 0560-0174.
Expiration Date of Approval: Three years from OMB approval.
Type of Request: Revision.
Abstract: The Federal Agriculture Improvement and Reform Act of
1996, Pub. L. 104-127, authorized USDA to implement the Environmental
Quality Incentives Program, the Wildlife Habitat Incentives Program
(WHIP), and the Farmland Protection Program (FPP). This rule sets forth
the procedures for producers to apply and participate in the
Environmental Quality Incentives Program. Pursuant to Sec. 1466.20,
producers may file an application for EQIP participation at a USDA
service center. NRCS will collect information from a participant on the
resource problems to be addressed, evaluate the information, and,
working with the participant, develop a conservation plan that
describes the needed practices or land management changes. This plan
becomes a part of the EQIP contract, and CCC will make payments to
producers as the producers carry out the provisions of the contract.
USDA submitted to OMB proposed forms that CCC will use for the
application, the contract, and for the NRCS collection of information
related to resource needs.
Estimate of Burden: CCC estimates the public reporting for the
information collection associated with EQIP forms is an average of 90
minutes per applicant.
Respondents: Agricultural producers who wish to participate in
EQIP.
Estimated Number of Respondents: 15,000.
Estimated Number of Responses per Respondent: 6.
Estimated Total Annual Burden on Respondents: 23,700 hours.
Additionally, CCC shall utilize information supplied by local work
groups to designate particular geographic areas as priority areas for
program funding, under EQIP. Staff from State and local governments
shall comprise part of these local work groups, and thus information
collected from these groups is governed under the Paperwork Reduction
Act.
For the local work groups, the annualized cost to EQIP respondents
is $4,200,000. This figure is based on 300,000 burden hours times an
average wage of $14.00 per hour (wages for State and local agency staff
average approximately $14 an hour).
There also exists a burden associated with development of
conservation plans and follow-up verification of the conservation
practices adopted pursuant to the EQIP conservation plan. For the
collection of information resulting from the development of
conservation plans and subsequent verification of practices, the
annualized cost to respondents is $1,440,000. This figure is based on
120,000 burden hours times the wage of $12.00 per hour.
CCC requests comments regarding: (a) Whether the collection of
information is necessary for the proper performance of the functions of
the agency, including whether the information will have practical
utility; (b) the accuracy of the agency's estimate of burden including
the validity of the methodology and assumptions used; (c) ways to
enhance the quality, utility, and clarity of the information to be
collected; (d) ways to minimize the burden of the collection of
information on those who are to respond, including through the use of
appropriate automated, electronic, mechanical, or other technological
collection techniques or other forms of information technology.
USDA will accept comments on this information collection at: Desk
Officer for Agriculture, Office of Information and Regulatory Affairs,
Office of Management and Budget, Washington, D.C. 20503, and to Jeffrey
R. Loser, Conservation and Ecosystems Assistance Division, Natural
Resources Conservation Service, P.O. Box 2890, Washington, D.C. 20013-
2890. USDA will incorporate all comments as part of the public record.
The Paperwork Reduction Act requires OMB to make a decision
concerning the collection(s) of information contained in this proposed
rule between 30 and 60 days after publication of this document in the
Federal Register. Therefore, a comment to OMB is best assured of having
its full effect if OMB receives it within 30 days of publication. This
does not affect the deadline for the public to comment to USDA on the
proposed regulations. CCC submitted the information collection
requirements to OMB, totaling 443,700 burden hours.
Executive Order 12788
This proposed rule has been reviewed in accordance with Executive
Order 12778. The provisions of this proposed rule are not retroactive.
Furthermore, the provisions of this proposed rule preempt State and
local laws to the extent such laws are inconsistent with this proposed
rule. Before an action may be brought in a Federal court of competent
jurisdiction, the administrative appeal rights afforded persons at 7
CFR parts 614, 780 and 11 must be exhausted.
Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994
Pursuant to section 304 of the Department of Agriculture
Reorganization Act of 1994, Pub. L. 104-354, USDA classified this
proposed rule as major and CCC conducted a risk analysis. The risk
analysis establishes that the EQIP proposed rule will produce benefits
and reduce risks to human health, human safety, and the environment in
a cost-effective manner. A copy of the risk analysis is available upon
request from Jeffrey R. Loser, Conservation and Ecosystems Assistance
Division, Natural Resources Conservation Service, P.O. Box 2890,
Washington, D.C. 20013-2890.
Unfunded Mandates Reform Act of 1995
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,
Pub. L. 104-4, CCC assessed the effects of this rulemaking action on
State, local, and tribal governments, and the public. This action does
not compel the expenditure of $100 million or more by any State, local,
or tribal governments, or anyone in the private sector; therefore a
statement under section 202 of the Unfunded Mandates Reform Act of 1995
is not required.
[[Page 53576]]
Discussion of Program
The Federal Agriculture Improvement and Reform Act of 1996 (the
1996 Act) (Pub. L. 104-127, April 4, 1996) amended the Food Security
Act of 1985 (the 1985 Act) (16 U.S.C. 3801 et seq.) to re-authorize the
Environmental Conservation Acreage Reserve Program as the umbrella
conservation program encompassing the Conservation Reserve Program
(CRP) (16 U.S.C. 3831-3836), the Wetlands Reserve Program (WRP) (16
U.S.C. 3837 et seq.), and the newly created Environmental Quality
Incentives Program (16 U.S.C. 3840). Under the Environmental
Conservation Acreage Reserve Program, the Secretary of Agriculture may
designate areas as conservation priority areas to assist landowners to
meet nonpoint source pollution requirements, other Federal and State
environmental laws, and to meet other conservation needs.
The Environmental Quality Incentives Program (EQIP) combines into
one program the functions of several conservation programs administered
by the Secretary of Agriculture, including the Agricultural
Conservation Program, the Agricultural Water Quality Incentives
Program, the Colorado River Salinity Control Program, and the Great
Plains Conservation Program, which are rescinded by the 1996 Act.
Through EQIP, CCC provides flexible technical, financial, and
educational assistance to farmers and ranchers who face serious threats
to soil, water, and related natural resources on their land, including
grazing lands, wetlands, forest land, and wildlife habitat.
Participation in the program is voluntary. Under EQIP, CCC will provide
assistance in a manner that maximizes environmental benefits per dollar
expended, helps producers comply with the eligibility provisions of the
1985 Act, and helps farmers and ranchers meet Federal and State
environmental requirements. CCC will use a consolidated and simplified
conservation planning process to reduce any administrative burdens that
would otherwise be placed on producers.
The 1996 Act provides that funds of the CCC will be used to fund
the assistance provided under EQIP. For fiscal year 1996, $130 million
was made available to administer an interim program; a minimum of $200
million is to be made available for each of fiscal years 1997 through
2002. Fifty percent of the funding available for the program will be
targeted at practices relating to livestock production.
I. Priority Area Designation
CCC will primarily offer the program in priority areas throughout
the Nation, using the services of the Natural Resources Conservation
Service (NRCS), county and state committees of the Farm Services Agency
(FSA), and the Cooperative State Research, Education, and Extension
Service (CSREES). CCC will designate certain watersheds, regions, or
areas of special environmental sensitivity or having significant soil,
water, or related natural resource concerns as priority areas. Unlike
some prior conservation programs that provided program assistance to
virtually all agricultural locations in the Nation, EQIP will place an
emphasis on priority areas that are selected because of the natural
resource and environmental concerns. The emphasis of priority areas
helps assure that the most environmentally sensitive areas are
considered and funds are directed to the areas in most need. The use of
the priority area concept focuses assistance on those areas that pose
the most serious threats to soil, water, and related natural resources.
Implementation of conservation measures will be accelerated in these
areas. Past experience has shown that by focusing assistance, greater
environmental benefits are derived.
When considering where the program would be delivered, several
alternatives were considered. One alternative was to have priority
areas selected at the national level based on analysis of existing
scientific data characterizing natural resource problems and existing
environmental assessments. This approach would provide a consistent and
dominant role for national-level resource concerns and selection
options. However, it would lack State and local buy-in by individuals,
producers, landusers, and groups which have vested interests in the
resolution of natural resource problems.
Another alternative was to utilize a partnership process with
States, other Federal agencies, and local work groups providing input
and recommendations for selecting priority areas. In this alternative
the NRCS national office will provide national guidance which is used
by NRCS State conservationists, in consultation with State technical
committees, to select priority areas from proposals submitted by local
work groups. This locally-led conservation effort would likely include
the State and local buy-in that is missing in the first alternative.
This alternative was selected.
The 1996 Act does not restrict EQIP to only priority area;
therefore, another alternative was considered and selected to make the
program available for EQIP purposes that are outside of funded priority
areas. A primary issue with this alternative was the amount of funds to
be made available for this purpose. In considering this issue, it was
concluded that providing assistance to producers located outside of
funded priority areas should be limited through the allocation process.
Not allowing any assistance outside of funded priority areas would fail
to address significant statewide natural resource concerns that may be
widespread geographically. This approach would enable serious natural
resource concerns to be addressed regardless of their location. At the
same time, the basic intent to focus the program in priority areas
would require a limitation on the amount of EQIP funds for assistance
outside funded priority areas.
CCC seeks comments regarding the process for designating priority
areas and the development of ranking criteria for both priority areas
and significant statewide natural resource concerns.
A. Development of Guidance for Designation of Priority Areas
To establish these priority areas, the NRCS national office in
consultation with other Federal partners, will develop through national
guidance an identification and rating process that will seek to
maximize the environmental benefit per dollar expended. That process
will give weight to considerations such as the:
Special environmental sensitivity or degradation in an
area, and the expected environmental benefit from the program;
Extent and scope of State, local, and other non-Federal
contributions;
Expected impact of the program on a participant's ability
to satisfy nonpoint source requirements and other Federal and State
environmental laws;
Federal cost; and
Ways to measure performance and success.
The NRCS State conservationist will use the national guidance, with
advice of the State technical committee on adapting the guidance to
State and local conditions, for the selection of priority areas, and to
make other decisions. The guidance will address: interpretations of
what factors create the serious threats to soil, water, and related
resources; natural resource quality criteria which describe the
treatment level for identified natural resource concerns for a
particular area; eligible agricultural land, including crop history and
livestock production activities; and other relevant information. NRCS
Regional conservationists will coordinate guidance for multi-state
areas and regions.
[[Page 53577]]
The State technical committee will also advise the State
conservationist on developing, within national guidelines, ranking
criteria that consider such factors as: condition of the natural
resources and significance of the concern; impact the program could
have on the natural resource concern; existence of programs and/or
projects already implemented; financial incentives from other sources;
technical support from other agencies; importance in meeting State and
local environmental laws; commitment of local producers to implement
the program; and evidence that producers in critical areas will
participate. CCC will give special consideration to priority areas that
contain multiple-conservation benefits. CCC will also give special
consideration in the ranking process to other agency or conservation
group participation, such as providing technical, educational, or
financial assistance. This participation will lessen the requirement
for Federal assistance and will strengthen the Federal, State, and
local partnership.
B. Needs Assessment and Selecting Priority Areas
The process for selecting the priority areas will begin with the
local conservation district(s) convening local work groups to advise
NRCS in various conservation issues. These local work groups consist of
representatives of the conservation district, NRCS, FSA, FSA county
committee, CSREES, and other Federal, State or local agencies,
including Tribes, as needed with expertise in natural resources. CCC
encourages, therefore, State and local agency representatives to
participate in these local work groups. State and local agency
representatives can contact the NRCS State Conservationist for more
information about these local work groups in their area.
Local work groups, under local conservation district leadership,
will use the national and State guidance to develop comprehensive
conservation needs assessments of the natural resource conditions in a
locality. The public is welcome to provide information related to such
natural resources conditions to the local work group. Through the needs
assessment, the local work group will, among other things, identify
natural resource concerns and goals, expected outcomes, means for
measuring and evaluating achievement of these outcomes, and solutions
to resource problems. NRCS will incorporate the local conservation
needs assessment into the agency's State, regional, and national
natural resources strategic plans, thus aiding in program decision-
making.
The local work group will provide and use the information contained
in the needs assessment to develop proposals for priority areas,
suggest ranking criteria for the CCC to prioritize producer's
applications, and provide further input. The local work group, through
the local NRCS representative, will forward the proposals for priority
areas to the NRCS State conservationist. The NRCS State
conservationist, with the advice of the State technical committee, will
periodically approve priority areas in accordance with the priorities
established for the program. Proposals that are not approved by the
NRCS State conservationist may be resubmitted for subsequent
consideration.
The local work groups serve a valuable function to the overall
ability of EQIP successfully resolving significant resource concerns.
While assisting CCC in identifying local concerns and resources, CCC
believes that the interaction and coordination that will ensue within
and among these local work groups will help localities to build
coalitions on a watershed, area, or regional basis, and thus enable
local residents to find solutions for the environmental problems that
confront them. NRCS will work with the local work groups to further
this end. CCC hopes that, by building stronger local coalitions,
residents will possess the necessary institutions and tools to address
significant environmental issues that transcend political boundaries.
Even if CCC does not allocate funds to a particular priority area in
any given year, these coalitions or groups will be in a position to
avail themselves of other program assistance outside of EQIP. CCC
requests comments on the best ways for CCC to utilize these work groups
and nurture their capacity to address environmental concerns.
The NRCS State conservationist will periodically submit a funding
request for highly rated State-approved priority areas to the NRCS
national office. An interagency team comprised of Federal agencies with
interests in this program will review and prioritize the submissions
received from the NRCS State conservationists and, based on national
program objectives and criteria, make recommendations for funding to
the Chief of NRCS. The Chief of NRCS, who is a vice-president of the
CCC, will consider the team's recommendations and decide periodically
which priority areas will receive funding. FSA must concur with the
decisions for funding before funds are allocated. Areas to which CCC
does not allocate funds may be resubmitted for later funding decisions.
State conservationists can continue current priority area designations
or redesignate them if circumstances change. For instance, the changes
may be improvements to the proposal with the addition of new
information, or environmental conditions or conservation priorities for
that State may change.
The Chief may also determine the need for national conservation
priority areas where eligible producers may receive enhanced program
assistance from EQIP, WRP, or CRP. If the Chief designates any areas as
national conservation priority areas, the Chief will also make these
funding decisions with the concurrence of FSA.
CCC requests comments as to whether and in what manner the
conservation priority goals under the Environmental Conservation
Acreage Reserve Program should be jointly applicable to EQIP, CRP, and
WRP for the relevant conservation concerns of water quality, wildlife
habitat, or other concerns. CCC recognizes that the identified
environmental problems in a geographic area may best be served by only
one of the programs. In some cases, however, CCC may better address the
identified environmental problems through the coordinated effort of the
three programs. CCC may accomplish this through the targeting of funds
and consolidating the application process, thus offering watershed,
area, or regional coalitions and producers a greater opportunity for
more effective and convenient program delivery. Accordingly, CCC seeks
comments on the most appropriate, cost-effective manner in which to
consider redesignation of these and other conservation priority areas.
C. Significant Statewide Natural Resource Concerns
State conservationists, with the advice of the State technical
committee, may also determine that CCC can maximize environmental
benefits per dollar by providing program assistance to producers with
other significant natural resource concerns outside of approved and
funded priority areas. These significant concerns may be of a similar
nature as those found within a priority area, but they occur widespread
and may not be concentrated in a specific geographic location. Upon
request by a State conservationist, the Chief, with concurrence of FSA,
may provide EQIP funds for the purpose of funding projects to address
these identified significant statewide natural resource concerns. The
Chief will give priority to States that establish programs to
accelerate adoption of cost-effective,
[[Page 53578]]
special-emphasis practices which address these significant statewide
natural resource concerns outside of priority areas.
II. Program Administration
A. Conservation Plan and Contract
Program participation is voluntary. A producer demonstrates
interest in the program by submitting an application for participation.
CCC will accept applications throughout the year, but will rank and
select the offers of producers during designated periods. To rank and
select the highest priority applicants, NRCS on behalf of CCC will
evaluate the environmental benefits the producer offers to achieve by
using the program. The evaluation uses ranking criteria that is based
on national guidance and developed with the advice of the local work
group to give a higher priority to projects that maximize environmental
benefits per dollar expended. The FSA county committee, with NRCS
concurrence, approves funding for the highest priority applications in
a particular priority area.
Approved applicants will assume responsibility for developing and
submitting a conservation plan that encompasses the producer's farming
or ranching unit of concern. The producer must implement a conservation
plan, acceptable to NRCS and approved by the conservation district,
that protects the soil, water, or related natural resources in a manner
that meets the purposes of the program. The producer develops a
conservation plan in cooperation with the local conservation district
and with the assistance of NRCS or other public and private natural
resource professionals. The plan becomes part of an EQIP contract.
The contract specifies the cost-sharing or incentive payments the
producer will receive from the CCC in return for applying the needed
conservation practices and land use adjustments within a specified time
schedule. CCC makes payments to the producer when the NRCS determines
that the conservation practices specified in the contract are
satisfactorily established. CCC expenditures under a contract entered
into during a fiscal year will not be made until the subsequent fiscal
year.
CCC's intention is to use this program to provide assistance to
producers who, in the absence of financial incentives, would not
otherwise apply conservation practices to address natural resource
concerns. It is unlikely that without incentives producers would be
inclined to undertake costly conservation practices to provide
environmental benefits off their property. The role of EQIP in
addressing such circumstances is clear. When the benefits accrue to the
landowner, as well as to off-site areas, the policy question is more
complicated. The cost benefit analysis discussed earlier estimates that
participants' on-site benefits would be significant, totaling $427
million annually, while off-site benefits total $336 million annually.
CCC seeks ``win-win'' conservation solutions, but recognizes that in
cases where producers would adopt conservation practices in a timely
manner without government assistance, then EQIP funds should be
directed elsewhere. CCC seeks public comment on the role of EQIP in
funding conservation practices that may be profitable.
Producers have various reasons to be reluctant to apply certain
conservation practices, even when there may be financial benefit to
them in the near or longer term from adopting these practices. CCC
seeks public comment on what factors contribute to the reluctance of
producers to adopt conservation practices, even when profitable.
The initial costs of applying conservation practices can be
significant. Costs may include the direct costs associated with the
practice as well as investments in other farm equipment to operate and
maintain the conservation practice for which EQIP financial assistance
would not be eligible. Without financial assistance producers cannot
justify the investment for the expected returns within a relevant time
frame. This is often the case under some conservation practices, such
as grazing land management, crop residue management, and nutrient
management, where it can take several years to realize the profits. CCC
seeks information and comment on the time frame involved in
experiencing profits from new conservation technology, and the extent
to which farmers and ranchers cannot get sufficient credit in current
markets or through other government programs to convert to more
profitable conservation practices. CCC seeks public comment on the
manner in which EQIP will work in the context of other programs that
can or are supporting the adoption of conservation practices.
CCC intends to monitor and evaluate the program to assure that
financial assistance is used in an appropriate way to maximize the
environmental benefits per dollar it expends, and welcomes public
comment on how CCC could best carry out this intention.
B. Large Confined Livestock Operations
The 1996 Act states that a producer who owns or operates a large
confined livestock operation (as defined by the Secretary) shall not be
eligible for cost-share payments through EQIP to construct an animal
waste management facility. The report of the Conference Managers states
that when determining whether an operation is a large confined
livestock operation within the meaning of this provision, the Secretary
will consider various resource and environmental factors, including
regulations promulgated pursuant to the Clean Water Act (33 U.S.C.
1251-1387). The Secretary is expected to specify clearly the factors
and considerations involved in developing the requirements for program
eligibility and should follow notice and comment procedures. The
Managers also expect the Secretary to take into account needs for
maximizing environmental benefits in targeted watersheds affected by
animal agriculture, the ability of operations to pay for the cost of
animal waste management facilities, the obligations of operations under
other environmental authorities, and the particular characteristics of
modern livestock operations.
In considering how to define large animal operations, CCC explored
a number of options. For example, for the National Pollution Discharge
Elimination System (NPDES) authorized by the Clean Water Act, the
Environmental Protection Agency (EPA) uses certain criteria when
considering if a livestock facility is confined or concentrated. The
facility must stable, confine, and feed or maintain animals for a total
of 45 days or more in any 12-month period; and not sustain crops,
vegetation, forage growth, or post-harvest residues within the confined
area in the normal growing season over any portion of the facility.
The first part of this definition means that some animals must be
kept on the lot or facility where waste is generated and/or
concentrated for a minimum of 45 days. The second part of the
definition distinguishes feedlots from pasture land, which is not
subject to the NPDES program. Further, EPA has determined that a
totally enclosed facility with no discharge (and no anticipated or
potential discharge) of animal waste to waters of the United States is
not subject to the NPDES program. CCC proposes to use this definition
for a confined operation.
CCC considered using the 1,000 animal unit (AU) equivalents
threshold, with some exceptions authorized, using the consideration
elements specified in
[[Page 53579]]
the Conference Manager's report and variable cost-share rates for
larger operations. This option offers some advantages, because most
family and small farms are under this threshold and will be eligible
for cost-sharing. This option would also target more program funds to
smaller operations, limit funds to large operations, and provide
flexibility to address State and local environmental needs when
exceptions are granted. However, this option may not tend to maximize
the environmental benefits per dollar expended because cost-share
eligibility would not be based on environmental need and would only be
indirectly related to the likelihood the landowner would not otherwise
construct a waste management system. This threshold level may allow
some major problems to be neglected by producers. While these producers
may still be eligible for other EQIP assistance, withholding
eligibility for animal waste management facilities may alienate the
producers and thus CCC may lose the opportunity to obtain additional
environmental benefits through other aspects of the program. It would
exclude sectors of the livestock industry with higher shares of total
operations above the threshold level, such as broiler operations where
nearly four percent exceed 1,000 AU, compared to 0.6 percent for dairy
and beef feedlot operations and 1.2 percent for hog operations. Over 70
percent of the total beef cattle are on feedlot operations that exceed
1,000 AU. (Reference: GAO/RCED-95-200BR Animal Waste Management and
Water Quality Issues; Economic Research Service's analysis of 1992
Census of Agriculture data. Copies of GAO reports are available from
the U.S. General Accounting Office, P.O. Box 6015, Gaithersburg,
Maryland 20884-6015, or by calling (202) 512-6000 or fax (301) 258-
4066.)
Another option considered by CCC was to base the national
definition on the amount and environmental threat of manure and other
animal waste generated in the confined livestock operation. Although
this option would enable choices more closely related to the
environmental issues and problems resulting from the animal manure, and
would enable more operations that produce dry manure (primarily poultry
and beef feedlots) to be eligible, it would have the disadvantage of
retarding participation in the less-concentrated livestock sectors
where a larger percentage of operations would be below the threshold
level of 1,000 AU. This process also presents a complex and easily
challenged process of defining thresholds by weight, volume, or
environmental threat.
CCC also considered the option to use an economic achievability
analysis, including the ability to pay for measures to meet
environmental objectives. One such analysis is that conducted by EPA,
the ``Economic Impact Analysis of National Nonpoint Source Management
Measures Affecting Confined Animal Facilities,'' which was completed in
1995. ``This type of analysis will most likely result in defining
large'' differently for different animal types. EPA's analysis
indicates that dairies with 98 or more animal units (AU) can afford to
implement animal waste runoff and storage systems without cost-shares.
Thresholds for other animal types, as identified by EPA, are: beef
feedlots, 300 AU; horse stables, 400 AU; dairies, 98 AU; poultry
broilers and layers, 150 AU for liquid manure systems, 495 AU for
continuous overflow watering; turkeys, 2,475 AU; and swine, 80 AU. Like
the first option, some exceptions could be authorized.
This option would be most sensitive to a producer's ability to pay
for needed facilities and would make more program funds available to
small operations and provide flexibility to address State and local
environmental needs. However, there are problems inherent in
translating national level data to State and local conditions. Some
operations with high potential for environmental benefits would be
eliminated from program eligibility. It would be more restrictive
toward poultry, hog, and dairy operations due to the very low threshold
levels.
Therefore, having considered all these options, this proposed rule
states that the State technical committee will advise the NRCS State
conservationist on criteria to use to determine eligibility for
receiving cost-share payments for animal waste management facilities.
The criteria will include consideration of the elements specified in
the Conference Manager's report cited above. In considering this
definition, emphasis will be placed on assisting family farmers and
ranchers, and not meatpackers, processors, and vertical integrators.
CCC will provide national guidance, developed by NRCS in consultation
with other national agencies and partners, to the State technical
committee and NRCS State conservationist to clearly specify the factors
and considerations involved in developing the requirements for program
eligibility. The NRCS regional conservationist will provide oversight
to achieve consistency between States.
CCC believes that this option provides maximum flexibility for
State and local decision-makers, where the needs of the environment and
the livestock operator are best determined, and thus best meets the
intent of the 1996 Act. This method will provide the program with the
maximum ability to resolve environmental problems in priority areas. It
also incorporates the consideration of a person's ability to pay,
regardless of the size of the operation. This option considers local,
State, and Federal environmental authorities and requirements, not just
the Clean Water Act or water quality. It will allow CCC to consider
modern livestock operation characteristics, which vary depending on
types of livestock, marketing strategies, geography, and State and
local economic factors, from a State and local perspective. This
approach is consistent with recommendations made by the Secretary's
Advisory Committee on Agricultural Concentration in June, 1996, which
emphasized the need to help the family farm. A copy of this report is
available from the Agricultural Marketing Service, P.O. Box 96456,
Washington, D.C. 20090-6456.
C. Outreach Efforts
The Administration and USDA endeavor to make Government programs
accessible to all eligible citizens. In past conservation programs,
some land was not adequately treated because limited-resource
producers, small-scale producers, Tribes, Alaska natives, Pacific
Islanders, and other producers have had low levels of participation for
various reasons. In some cases, the economies and efficiencies of scale
weighed against individuals who did not have large tracts of land.
Additionally, some communities receive the bulk of their information
from sources other than the traditional media services, and information
about program benefits often did not reach the widest possible
audience.
To address these deficiencies, CCC will establish special program
outreach activities at the national, State, and local levels in order
to ensure that producers whose land has environmental problems are
aware, informed, and know that they are eligible to apply for program
assistance. In its goal to offer assistance to those unlikely to adopt
practices without Federal support, CCC will target its efforts to best
achieve the greatest environment benefit per dollar by additional focus
on limited resource farmers and others with historically low
participation rates. CCC is exploring new possibilities to increase its
outreach to these communities that historically have not participated
extensively in CCC and other USDA programs. For
[[Page 53580]]
example, CCC is examining options such as permitting flexible schedules
for limited-resource producers to apply practices and systems; offering
low-cost conservation practice alternatives; and considering the value
of a producer's labor as the producer's share of the cost. CCC welcomes
any suggestions about how the agencies can improve program delivery on
environmentally sensitive land managed by producers who have not
participated historically in the conservation programs in order to
increase the coverage and environmental benefits of the program.
D. Educational Efforts and Technical Assistance
Section 1240 of the 1985 Act charges the Secretary to implement
EQIP as an integrated program of education, technical assistance, and
financial assistance that focuses on targeted environmental and
conservation issues. The success of EQIP as a conservation program
depends largely on the quality of decisions made by farmers, ranchers,
and the public and private providers of technical assistance.
USDA's development and delivery of high-quality educational
opportunities to farmers, ranchers, and assistance providers should
enhance the public's knowledge about the conservation opportunities
available through EQIP and enhance the overall benefits that will be
realized through the implementation of EQIP. Appropriate education will
maximize public benefits by creating a knowledge base (among producers,
agency staff, and private consultants) that will extend direct EQIP
benefits beyond the actual acreage and life expectancy of financial and
technical assistance programs.
USDA will develop a program education plan, including
identification of customers and educational needs, development of
educational goals and objectives, design of appropriate educational
responses, delivery of educational programs, and evaluation of
educational outcomes. USDA will extensively utilize existing
educational materials and programs, and will focus efforts to areas and
producers where EQIP is implemented. In the development of its program
education plan, USDA will design a coordinated approach, including
national, State, and local components, depending on the similar or
unique educational needs identified.
CCC will encourage cooperation among education providers as well as
the use of existing educational resources and programs that deal with
EQIP-related issues. Although it will require more time initially for
program planning and coordination, CCC believes that this coordinated
approach will enable efficient use of resources in meeting broad
educational needs; provide for local program assessments and
development; maximize sharing between groups; and provide sufficient
flexibility to shift educational efforts as priority conservation
problems are solved and new priorities are identified.
Section 1240 of the 1985 Act also requires the program to provide
flexible technical assistance. The quality and availability of
technical assistance is essential to the successful implementation of
EQIP because technical assistance contributes to informed decision-
making and the implementation of sound and appropriate practices. Under
EQIP, CCC will allocate funding to NRCS to provide technical
assistance, ensure that technical assistance is open to individuals in
agribusiness, and request the services of other public and private
entities in the delivery of technical assistance to producers when
deemed appropriate. NRCS will work directly with producers, local work
groups, and State technical committees in carrying out their respective
roles and responsibilities.
Under EQIP, NRCS will provide technical leadership for conservation
planning, implementation, and assurance of quality service in the
delivery of technical assistance. NRCS personnel will work directly
with producers to help solve their natural resource concerns. NRCS will
also draw upon the expertise of natural resource professionals in all
sectors in its delivery of technical assistance to the producer.
A producer may seek technical assistance from NRCS or from other
qualified sources. These qualified sources may include agricultural
producers, certified crop advisors, agricultural cooperatives, and
other technical consultants. These other sources can help a producer
develop an EQIP conservation plan or assist with the layout, design,
and installation of conservation practices. CCC will accept work
performed by others if the work meets program requirements.
In this manner, producers have a variety of options available to
them to address significant natural resource concerns on their farms or
ranches. CCC shall assure that the quality of the assistance obtained
from all sources will meet the requirements of the program.
E. Payment Limitations
The 1996 Act specifies that the total amount of cost-share and
incentive payment paid to a producer under this chapter may not exceed
$10,000 for any fiscal year or $50,000 for any multiyear contract. An
exception to the annual limit is provided to allow payments to exceed
the limitation on the annual amount of a payment on a case-by-case
basis if it is determined that a larger payment is essential to
accomplish the land management practice or structural or vegetative
practice for which the payment is made and it is consistent with the
maximization of environmental benefits per dollar expended and the
purposes of EQIP. The 1996 Act further defines a producer as ``a person
who is engaged in livestock or agricultural production (as defined by
the Secretary).''
Congress, in the EQIP statute, required the maximization of
environmental benefits per dollar expended, provided for interim
administration of EQIP pending final regulations, and required that
payments under an EQIP contract entered into during a fiscal year not
be made until the subsequent fiscal year.
CCC reviewed several options for implementing the payment
limitation provisions of EQIP, including the definition of a person.
One option considered the use of a definition of landowner that is used
in the Stewardship Incentives Program for the definition of a person.
This was not chosen because most producers would have the additional
burden of submitting additional information to FSA. Other options
considered limiting the number of contracts a person may enter and
limiting the number of entities in which an individual may be involved
and receive payments. These options were not chosen because they
provided little value or savings to the program but would have
complicated the administration of the program.
It is proposed that similar payment limitation provisions as those
set forth in 7 CFR part 1497 be used for EQIP. These provisions are
currently used for CRP and Agriculture Market Transition Act
participants. The consistent use of the provisions in part 1497, will
result in the least burden to producers and the most fair and equitable
administration of the program because persons who are currently
participating, or who have participated in recent years, in the
commodity program or CRP would not have to complete additional forms
for payment limitation purposes. Further, in cases where producers may
enroll in the CRP and EQIP at the same time, the confusion of different
``person'' definitions would be eliminated.
Specifically CCC proposes, the provisions in 7 CFR Part 1400
related to the definition of person and the
[[Page 53581]]
limitation of payments will be used, except that:
(1) States, political subdivisions, and entities thereof will not
be persons eligible for payment.
(2) The provisions in part 1400, subpart C for determining whether
persons are actively engaged in farming, subpart E for limiting
payments to certain cash rent tenants, and subpart F for determining
whether foreign persons are eligible for payment, will not be used as
they are not consistent with the intent and language of the EQIP
statute.
(3) An exemption to the $10,000 fiscal year limitation would apply
in cases where a producer with a current EQIP contract inherits land
subject to another contract, because CCC recognizes that with EQIP
contracts having 5- to 10-year terms, there may be complications when a
producer already enrolled in EQIP inherits land subject to another EQIP
contract.
(4) Payments in excess of the limitation may be made to a tribal
venture if an official of the Bureau of Indian Affairs or a tribal
official certifies that no one tribal member directly or indirectly
will receive more than the limitation.
CCC welcomes public comment on this proposed manner for addressing
the payment limitation provisions of the program.
Public Listening Forums
In April 1996, USDA held nine listening forums to provide
opportunities for public comment in advance of rulemaking. USDA held
these forums at Sacramento, California; Longmont, Colorado; Columbus,
Georgia; Springfield, Illinois; Wyomissing, Pennsylvania; Sioux Falls,
South Dakota; Abilene, Texas; Spokane, Washington; and Washington, D.C.
More than 850 people attended these forums, including 206 speakers. In
addition, USDA accepted written comments. USDA considered these public
comments in the preparation of this proposed rule. The following is a
brief summary of the issues raised in these comments and how the agency
responded to those comments:
USDA received 357 comments on the roles of NRCS and FSA in
implementing EQIP. Section 1466.2 of the rule discusses the roles of
NRCS and FSA in the program.
USDA received 21 comments expressing general concerns about EQIP.
Four commenters emphasized that EQIP needs to be flexible in how the
program is delivered. One of the four said that flexibility will allow
local people to creatively address conservation problems. A definition
of technical assistance is provided in Sec. 1466.3.
USDA received 59 comments on conservation plans under EQIP. Twelve
commenters favored the whole-farm approach to designing conservation
plans. Six commenters said that conservation districts should be
involved in approving conservation plans. Section 1466.6 sets forth
provisions relating to EQIP and conservation plans.
USDA received 63 comments about how EQIP funds should be used. Six
commenters expressed concern that EQIP funds were only available to
certain parts of the country. Six others wanted to know more about how
EQIP funds were to be divided between technical assistance and cost
shares. Section 1466.5 sets forth the manner in which CCC will set
priorities for funding.
USDA received 17 comments on EQIP and the support and roles of
conservation districts. Four commenters expressed support for local
conservation districts' roles in EQIP. The provisions in Section 1466.3
address these issues.
USDA received 12 comments on how EQIP should give greater
flexibility to State-level USDA managers in managing programs. Six
commenters stressed the importance of this flexibility. These
commenters wanted greater flexibility for the State-level managers to
exercise more creativity in addressing environmental problems; other
commenters indicated that greater flexibility will allow State-level
managers to compensate for differences among agricultural operations
and resource conditions. Section 1466.5 describes the input provided by
the agency managers at the State and local levels.
USDA received 23 comments about the roles of State technical
committees under EQIP. Five commenters suggested that State technical
committee membership be expanded to include representatives of other
conservation agencies, managers of resource management projects, and
private conservation organizations. Section 1466.3 provides that the
State technical committees are established in 16 U.S.C. 3861 and
provides additional information about the committees.
USDA received 13 comments on EQIP contracts. Two commenters felt
that the contract period set in the authorizing legislation is too
long. Two others stated that EQIP projects should be based on their
environmental merits and not on funding equations. Section 1466.21
addresses requirements for EQIP contracts.
USDA received 38 comments on EQIP and CRP. Three commenters
expressed interest in how annual payments for EQIP and CRP should be
dispersed. Three commenters suggested not allowing early releases on
land with an erosion index of 15 or greater. Section 1466.23(b)(ii)
sets forth the statutory requirement that a person cannot receive
assistance under CRP, WRP, and EQIP for the same tract of land.
USDA received 36 comments on animal limits under EQIP, specifically
the provisions in the EQIP legislation that provide that large confined
livestock operations, as defined by the Secretary, will not be eligible
for EQIP assistance with respect to waste treatment facilities. Most
commenters said that herd size limits should be decided at the State
level of NRCS. Six commenters said that Clean Water Act standards for
animal waste management structures should apply to EQIP. Two commenters
expressed concern about how animal limits may effect family farms and
small operations. Section 1466.7 sets forth how the CCC will address
size limitations.
USDA received 37 comments related to EQIP priority areas and
program prioritization. Thirteen commenters expressed concern that
equity for EQIP prioritization is needed nationwide. Seven commenters
stated that conservation districts should play roles in EQIP
prioritization. Section 1466.5 addresses priority area approval and
areawide assessment.
USDA received five comments on EQIP and its relationship to
wildlife. Three commenters said that the impacts on wildlife must be
considered at each stage of EQIP's implementation. USDA also received
seven comments about EQIP and riparian zone protection. Two stated that
incentives should be provided for riparian zone protection.
USDA received seven comments on planting trees under EQIP. Three
commenters suggested that incentives be offered to establish native
warm-season grasses. Section 1466.4 sets forth eligibility criteria and
Section 1466.7 sets forth the criteria for eligible practices.
Summary of Provisions
The rule is organized in three subparts. Subpart A contains general
provisions related to the program.
Section 1466.1 sets forth the purpose, scope, and objectives of
EQIP. The purposes of the program will be achieved by farmers and
ranchers who voluntary develop conservation plans and enter into
contracts with CCC to carry out the needed conservation
[[Page 53582]]
practices and land-use adjustments within a specified time schedule.
Section 1466.2 describes the roles of NRCS, FSA, and other
agencies.
Section 1466.3 sets forth definitions for terms used throughout
the part.
CCC particularly solicits public comment on the definition of
``large confined livestock operation.'' Under provisions of the 1996
Act, producers with large confined livestock operations are not
eligible for cost-share payments on animal waste management facilities,
but are eligible for payments on other conservation practices. The 1996
Act leaves the determination of large confined livestock operation to
the Secretary. This rule does not establish a specific number of
livestock as a standard for determining when a livestock operation will
be regarded as ``large'' for the purpose of exclusion from eligibility
for cost sharing on animal waste facilities. As discussed above, CCC
proposes to use State technical committees to advise the State
conservationist on eligibility criteria for cost-share payments for
animal waste management facilities. CCC will base the criteria to make
this decision on several factors. A focus will be placed on the needs
for maximizing environmental benefits in targeted watersheds affected
by animal agriculture and the ability of operations to pay for the cost
of facilities. Other such factors include the requirements of other
Federal and State laws, producer obligations under environmental
authorities, and characteristics of modern livestock operations, as
well as a desire to have a wide distribution of benefits among those
enterprises that are generally, at least locally, small or medium sized
operations which presumably may not have the same access to management
techniques that protect the environment.
Section 1466.4 sets forth the requirements for participant
eligibility and eligible land. It also describes the criteria CCC will
consider in allocating funds for technical assistance.
Section 1466.5 describes the procedures and criteria for approving
priority areas. Priority areas are identified through the priority area
assessment process using local work groups, State technical committees,
and State conservationists.
Paragraph (b) addresses providing technical, educational, and
financial assistance to producers whose land has natural resource
concerns outside of a priority area. Some EQIP funds will be used
outside of funded priority areas for significant statewide natural
resource concerns. Local work groups and State technical committees
will provide advice to the State conservationist concerning the natural
resource concerns where program assistance is needed, consistent with
the advice provided for assistance in priority areas.
Section 1466.6 describes the requirements of the conservation plan
that will be the basis of EQIP contracts. Producers will be required to
develop and apply a conservation plan on the farm or ranch unit that
addresses natural resource problems. The plan will be reviewed to
ensure that it includes the most cost-effective conservation practices
to solve the natural resource concerns and maximize environmental
benefits per dollar expended in conformity with area-wide planning. CCC
will provide technical assistance and will encourage producers to use
the services of qualified personnel of cooperating Federal, State, or
local agencies, or private entities who can provide technical
assistance.
Paragraph (g) lists the components of a conservation plan. At the
producer's request, the plan may also include other CCC and USDA
programs, such as CRP, WRP, Wildlife Habitat Incentives Program, Forest
Stewardship Program, and requirements relating to the highly erodible
land and wetland conservation provisions of the 1985 Act. A producer
may also include to the extent possible all other natural resource
conservation objectives from State and local governments in a single
conservation plan. Existing plans developed by natural resource
professionals would not need to be replaced if the resource management
objectives of EQIP are met and plans are not redundant.
Section 1466.7 describes eligible practices. Based on guidance
provided by the Chief of NRCS, NRCS state conservationists, after
consultation with State technical committees and local work groups,
will determine which conservation practices should be eligible in the
State. Designated conservationists will determine which conservation
practices should be eligible in a priority area or for producers with
significant statewide natural resource concerns. CCC will encourage the
use of the most cost-effective conservation practices to solve natural
resource problems and to encourage widespread adoption of measures that
maximize environmental benefits per dollar expended. Practices whose
primary purpose is to enhance productivity would not be eligible, nor
would practices that the producer has already applied or that the
producer is likely to apply without EQIP financial assistance.
Paragraph (a)(3) permits NRCS to approve interim conservation
practice standards and financial assistance for pilot testing new
technology or innovations. NRCS will involve other entities in the
pilot testing, including extension and research agencies and
institutions, conservation districts, universities, private industry,
and others to evaluate and assess the practices.
Paragraph (b) specifies that large confined livestock operations
are excluded from eligibility for cost-share payments to construct
animal waste management facilities. As noted above, CCC particularly
welcomes comments on how to define and implement this requirement of
the 1996 Act. In the public listening forums that preceded this
rulemaking, USDA received many comments regarding this topic, most of
which advised USDA on the importance of making eligible various types
of enterprises. Few commenters provided suggestions on the number of
livestock head that should be considered ``large'' for purposes of this
rule, or provided other suggestions on formulas or other criteria to
substitute for a specific number. CCC invites comment on making this
definition more specific or more equitable in the context of the law.
Section 1466.8 addresses the sources of technical assistance to
carry out EQIP. CCC will use technical and other assistance from other
qualified Federal, State, and local agencies and will encourage
producers to also use the private sector to carry out the program. As
determined by the State conservationist, CCC may contract with private
enterprises or enter cooperative agreements with other Federal, State,
or local entities for services related to EQIP implementation. The vice
president of CCC, who is the Chief of NRCS, retains the responsibility
for ensuring that technical program standards are met.
Subpart B addresses administration of EQIP contracts.
Section 1466.20 addresses applications for contracts and selecting
offers from producers. CCC will accept applications for EQIP throughout
the year but will rank the applications and select the participants
periodically as determined at the local and/or State level. CCC will
announce in advance the period to begin evaluation and ranking of
applications.
Before evaluating individual applications, the local work group
will develop ranking criteria to prioritize producer's applications.
NRCS State staff provides oversight for consistency of ranking
criteria. The NRCS designated conservationist and FSA county executive
director will assist the FSA county committee with applying the
criteria. The FSA county committee,
[[Page 53583]]
with concurrence of NRCS, will approve applications based on the
developed criteria. Each application will be ranked according to the
criteria.
The producer's application will include any structural, vegetative,
and land management practices proposed under the contract. CCC will
evaluate applications based on future environmental benefits which are
expected with the contract and the program payments. CCC will give
additional consideration if the contract will assist the producer in
complying with environmental laws.
Section 1466.21 addresses the requirements for EQIP contracts.
Only the land that meets the purpose and goals of the program and is to
be treated under EQIP will be included in the contract, and no tract
will have more than one EQIP contract at a time.
Section 1466.22 addresses the participant's responsibility for
conservation practice operation and maintenance.
Section 1466.23 addresses rates for cost-share and incentive
payments. Subject to the national direct Federal funding cap of 75
percent of the projected cost of a structural or vegetative practice,
State conservationists, with FSA State committee concurrence and the
advice of local work groups and the State technical committee, can set
cost-share rates and incentive payment limits as determined appropriate
to encourage a producer to perform the land management practice that
would not otherwise be initiated without such assistance.
Paragraph (b) of this section addresses payment limitations.
Section 1466.25 addresses the procedures to be followed for
contract violations and terminations.
Subpart C describes administrative remedies available to
participants, such as appeal rights and provisions for relief if a
participant relies on advice or action of a CCC representative. It also
addresses the responsibilities of the participant in obtaining
necessary easements and complying with other laws and regulations and
in providing USDA representatives access to land to verify compliance
with the terms and conditions of a contract.
List of Subjects in 7 CFR part 1466
Administrative practices and procedures, Conservation, Natural
Resources, Water Resources, Wetlands, Payment rates.
Accordingly, Title 7 of the Code of Federal Regulations is amended
by adding a new part 1466 to read as follows:
PART 1466--ENVIRONMENTAL QUALITY INCENTIVES PROGRAM
Subpart A--General Provisions
Sec.
1466.1 Applicability.
1466.2 Administration.
1466.3 Definitions.
1466.4 Program requirements.
1466.5 Priority areas and significant statewide natural resource
concerns.
1466.6 Conservation plan.
1466.7 Conservation practices.
1466.8 Technical and other assistance provided by qualified
personnel not affiliated with USDA.
Subpart B--Contracts
1466.20 Application for contracts and selecting offers from
producers.
1466.21 Contract requirements.
1466.22 Conservation practice operation and maintenance.
1466.23 Cost-share and incentive payments.
1466.24 Contract modifications and transfers of land.
1466.25 Contract violations and termination.
Subpart C--Administrative Remedies
1466.30 Appeals.
1466.31 Compliance with regulatory measures.
1466.32 Access to operating unit.
1466.33 Performance based upon advice or action of representatives
of CCC.
Authority: 16 U.S.C. 3839aa-3839aa-8.
Subpart A--General Provisions
Sec. 1466.1 Applicability.
Through the Environmental Quality Incentives Program (EQIP), the
Commodity Credit Corporation (CCC) provides technical, educational, and
financial assistance to eligible farmers and ranchers to address soil,
water, and related natural resources concerns on their lands in an
environmentally beneficial and cost-effective manner. The purposes of
the program are achieved through the implementation of structural and
land management practices on eligible land.
Sec. 1466.2 Administration.
(a) Administration of EQIP is shared by the Natural Resources
Conservation Service (NRCS) and the Farm Service Agency (FSA) as set
forth below.
(b) NRCS shall:
(1) Provide overall program management and implementation
leadership for EQIP;
(2) Establish policies, procedures, priorities, and guidance for
program implementation, including determination of priority areas;
(3) Establish cost-share and incentive payment limits;
(4) Determine eligibility of practices;
(5) Provide technical leadership for conservation planning and
implementation, quality assurance, and evaluation of program
performance; and
(6) Make funding decisions and determine allocations of program
funds.
(c) FSA shall:
(1) Be responsible for the administrative processes and procedures
for applications, contracting, and financial matters, including
allocation and program accounting; and
(2) Provide leadership for establishing, implementing, and
overseeing administrative processes for applications, contracts,
payment processes, and administrative and financial performance
reporting.
(d) NRCS and FSA shall concur in establishing policies, priorities,
and guidelines related to the implementation of this part.
(e) No delegation herein to lower organizational levels shall
preclude the Chief of NRCS, or the Administrator of FSA, or a designee,
from determining any question arising under this part or from reversing
or modifying any determination made under this part that is the
responsibility of their respective agencies.
(f) CCC may enter into cooperative agreements with other Federal
agencies, State agencies, conservation districts, units of local
government, and public and private not for profit organizations to
assist CCC with implementation of this part.
Sec. 1466.3 Definitions.
The following definitions shall apply to this part and all
documents issued in accordance with this part, unless specified
otherwise:
Administrator means the Administrator of the FSA, United States
Department of Agriculture (USDA), or designee.
Agricultural land means an area on which crops or livestock are
produced.
Animal waste management facility means a structural practice used
for the storage or treatment of animal waste.
Applicant means a producer who has requested in writing to
participate in EQIP. Producers who are members of a joint operation
shall be considered one applicant.
Chief means the Chief of NRCS, USDA, or designee.
Confined livestock operation means a livestock facility that
stables, confines, feeds, or maintains animals for a total of 45 days
or more in any 12-month period and does not sustain crops, vegetation,
forage growth, or post-harvest residues within the confined area in the
normal growing season over any portion of the confinement facility.
Conservation district means a political subdivision of a State,
Native American
[[Page 53584]]
Tribe, or territory, organized pursuant to the State or territorial
soil conservation district law, or Tribal law. The subdivision may be a
conservation district, soil conservation district, soil and water
conservation district, resource conservation district, natural resource
district, land conservation committee, or similar legally constituted
body.
Conservation management system (CMS) means any combination of
conservation practices and management practices that, if applied, will
protect or improve the soil, water, or related natural resources.
Conservation plan means a record of a participant's decisions, and
supporting information, for treatment of a unit of land or water, and
includes the schedule of operations, activities, and estimated
expenditures needed to solve identified natural resource problems.
Conservation practice means a specified treatment, such as a
structural or vegetative practice or a land management practice, which
is planned and applied according to NRCS standards and specifications
as a part of a CMS.
Contract means a legal document that specifies the rights and
obligations of any person who has been accepted for participation in
the program.
County executive director means the FSA employee responsible for
directing and managing program and administrative operations in one or
more FSA county offices.
Designated conservationist means a NRCS employee whom the State
conservationist has designated as responsible for administration of
EQIP. In the case of a priority area or other area that crosses State
borders, the Chief or the Chief's designee will designate the NRCS
official responsible for administration of EQIP in the priority area.
Farm Service Agency county committee means a committee elected by
the agricultural producers in the county or area, in accordance with
Section 8(b) of the Soil Conservation and Domestic Allotment Act, as
amended, or designee.
Farm Service Agency State committee means a committee in a State or
the Caribbean Area (Puerto Rico and the Virgin Islands) appointed by
the Secretary in accordance with Section 8(b) of the Soil Conservation
and Domestic Allotment Act, as amended.
Field office technical guide means the official NRCS guidelines,
criteria, and standards for planning and applying conservation
treatments and conservation management systems. It contains detailed
information on the conservation of soil, water, air, plant, and animal
resources applicable to the local area for which it is prepared.
Land management practice means conservation practices that
primarily require site-specific management techniques and methods to
conserve, protect from degradation, or improve soil, water, or related
natural resources in the most cost-effective manner. Land management
practices include, but are not limited to, nutrient management, manure
management, integrated pest management, integrated crop management,
irrigation management, tillage or residue management, stripcropping,
contour farming, grazing management, and wildlife habitat management.
Life span means the period of time specified in the contract or
conservation plan during which the conservation management systems or
component conservation practices are to be maintained and used for the
intended purpose.
Livestock means animals produced for food or fiber such as dairy
cattle, beef cattle, poultry, turkeys, swine, sheep, horses, fish and
other animals raised by aquaculture, or animals the State
conservationist identifies in consultation with the State technical
committee.
Livestock production means farm and ranch operations involving the
production, growing, raising, breeding, and reproduction of livestock
or livestock product.
Livestock-related natural resource concern means any environmental
condition, either on-site or off-site, that is directly related to
livestock activity or to livestock manure or waste.
Local work group means representatives of FSA, the Cooperative
State Research, Education, and Extension Service (CSREES), the
conservation district, and other Federal, State, and local government
agencies, including Tribes, with expertise in natural resources who
consult with NRCS on decisions related to EQIP implementation.
National conservation priority area means a watershed, multi-state
area, or region of specific environmental sensitivity designated by the
Chief.
Operation and maintenance means work performed by the participant
to keep the applied conservation practice functioning for the intended
purpose during its life span. Operation includes the administration,
management, and performance of non-maintenance actions needed to keep
the completed practice safe and functioning as intended. Maintenance
includes work to prevent deterioration of the practice, repairing
damage, or replacement of the practice to its original condition if one
or more components fail.
Participant means an applicant who is a party to an EQIP contract.
Priority area means a watershed, area, or region that is designated
under this part because of specific environmental sensitivities or
significant soil, water, or related natural resource concerns.
Private agribusiness sector means agricultural producers, certified
crop advisors, professional crop consultants that are certified or
certified and independent, agricultural cooperatives, integrated pest
management coordinators and scouts, and other technical consultants.
Producer means a person who is engaged in livestock or agricultural
production.
Regional conservationist means the NRCS employee authorized to
direct and supervise NRCS activities in a NRCS region.
Resource management system means a conservation management system
that, when implemented, achieves sustainable use of the soil, water,
and related natural resources.
Secretary means the Secretary of the United States Department of
Agriculture.
State conservationist means the NRCS employee authorized to direct
and supervise NRCS activities in a State, the Caribbean Area, or the
Pacific Basin Area.
State executive director means the FSA employee authorized to
direct and supervise FSA activities in a State or the Caribbean Area
(Puerto Rico and the Virgin Islands).
State technical committee means a committee established by the
Secretary in a State pursuant to 16 U.S.C. 3861.
Structural practice means a conservation practice which primarily
involves the establishment, construction, or installation of a site-
specific measure to conserve, protect from degradation, or improve
soil, water, or related natural resources in the most cost-effective
manner. Examples include, but are not limited to, animal waste
management facilities, terraces, grassed waterways, tailwater pits,
livestock water developments, and capping of abandoned wells.
Technical assistance means the personnel and support resources
needed to conduct conservation planning; conservation practice survey,
layout, design, installation, and certification; training,
certification, and provide quality assurance for professional
conservationists; and evaluation and assessment of the program.
[[Page 53585]]
Unit of concern means a parcel of agricultural land that has
natural resource conditions that are of concern to the participant.
Vegetative practice means a conservation practice which primarily
involves the establishment or planting of a site-specific vegetative
measure to conserve, protect from degradation, or improve soil, water,
or related natural resources in the most cost-effective manner.
Examples include, but are not limited to, contour grass strips,
filterstrips, critical area plantings, and permanent wildlife habitat.
Sec. 1466.4 Program requirements.
(a) Program participation is voluntary. The participant, in
cooperation with the local conservation district, develops a
conservation plan for the farm or ranching unit of concern. The
participant's conservation plan serves as the basis for the EQIP
contract. CCC provides cost-share or incentive payments to apply needed
conservation practices and land use adjustments within a time schedule
specified by the conservation plan.
(b) The Chief determines the funds available to NRCS for technical
assistance according to the purpose and projected cost for which the
technical assistance is provided by NRCS or designee in a fiscal year.
The Chief allocates an amount according to the type of expertise
required, the quantity of time involved, the timeliness required, the
technology needed, and other factors as determined appropriate by the
Chief. Funding shall not exceed the projected cost to NRCS of the
technical assistance provided in a fiscal year.
(c) To be eligible to participate in EQIP, an applicant must:
(1) Be in compliance with the highly erodible land and wetland
conservation provisions found at part 12 of this title;
(2) Have control of the land for the life of the proposed contract
period.
(i) An exception may be made by the Chief in the case of land
allotted by the Bureau of Indian Affairs (BIA), tribal land, or other
instances in which the Chief determines that there is sufficient
assurance of control and the lack of current control for the full
contract period is beyond the control of the participant;
(ii) If the applicant is a tenant of the land involved in
agricultural production the applicant shall obtain the concurrence of
the landowner in order to apply a structural or vegetative practice.
(3) Submit a conservation plan that is acceptable to NRCS and is
approved by the conservation district and is in compliance with the
terms and conditions of the program; and
(4) Comply with the provisions at Sec. 1412.304 of this chapter for
protecting the interests of tenants and sharecroppers, including
provisions for sharing, on a fair and equitable basis, payments made
available under this part, as may be applicable.
(d) Land used as cropland, rangeland, pasture, forest land, and
other land on which crops or livestock are produced, including
agricultural land that NRCS determines poses a serious threat to soil,
water, or related natural resources by reason of the soil types;
terrain; climate; soil, topographic, flood, or saline characteristics;
or other factors or natural hazards, including the existing
agricultural management practices of the applicant, may be eligible for
enrollment in EQIP. Land may only be considered for enrollment in EQIP
if NRCS determines that the land is:
(1) Privately owned land; or
(2) Publicly owned land where:
(i) The land is under private control for the contract period and
is included in the participant's operating unit;
(ii) Installation of conservation practices will not primarily
benefit the government landowner;
(iii) Conservation practices will benefit nearby natural resources;
and
(iv) The participant has written authorization from the government
landowner to apply the conservation practices.
Sec. 1466.5 Priority areas and significant statewide natural resource
concerns.
(a) Consistent with maximizing the overall environmental benefits
per dollar expended by the program, NRCS may designate a watershed, an
area, or a region of special environmental sensitivity or having
significant soil, water, or related natural resource concern as a
priority area. NRCS shall give special consideration to applicants in
priority areas who have conservation plans that address the natural
resource concern(s) for which the priority area was designated.
(b) CCC may approve technical, educational, and financial
assistance under this part to participants with significant statewide
natural resource concerns outside a priority area.
(c) To be considered for approval of a priority area, a Federal,
State, or local government agency, working cooperatively with a
respective local work group and State technical committee, shall make a
proposal to CCC in the form of a priority area assessment. The priority
area assessment shall include:
(1) A description, quantified when possible, of the nature and
extent of natural resource concerns in the assessment area;
(2) A description, quantified when possible, of how the proposed
goals, objectives, and solutions for the natural resource problems
would maximize the environmental benefits that would be delivered with
the requested Federal dollars, both within the priority area and as
part of the overall program provided under this part;
(3) Background information such as science-based data on
environmental status and needs, soils information, demographic
information, and other available technical data that illustrate the
nature and extent of natural resource concerns in the priority area or
the appropriateness of the proposed solution to those natural resource
concerns.
(4) The existing staff and incentive programs available at the
Federal, State, and local levels, both public and private, to assist
with the areawide activities;
(5) The technical, educational, and financial assistance needed
from EQIP to help meet the areawide goals and objectives;
(6) Ways to measure performance and success, quantified where
possible; and
(7) An explanation, quantified where possible, of the degree of
difficulty producers face in complying with environmental laws.
(d)(1) NRCS State conservationists will base their decisions to
designate an area as a priority area upon a priority area assessment,
the significance of the natural resource concern(s) in the proposed
priority area, and the conservation practices that best address the
identified concern(s). NRCS shall consider the following factors in
determining the significance of the natural resource concern:
(i) Soil types and characteristics;
(ii) Terrain and topographic features;
(iii) Climatic conditions;
(iv) Flood hazards;
(v) Saline characteristics;
(vi) Environmental sensitivity of the land, such as wetlands and
riparian areas;
(vii) Quality and intended use of the land;
(viii) Quality and intended use of the receiving waters, including
fishery habitat;
(ix) Wildlife and wildlife habitat quality and quantity;
(x) Quality of the air; or
(xi) Other natural hazards or factors, including the existing
agricultural management practices of the producers in the area; and
(xii) The economic significance of these factors.
[[Page 53586]]
(2) NRCS will consider the following factors in its allocation of
funds:
(i) Condition of the natural resources;
(ii) Significance of the natural resource concern;
(iii) Improvements that NRCS expects will result from
implementation of the conservation plan;
(iv) Expected number of producers who will participate and the time
and financial commitment that the producers will provide;
(v) Estimated program cost to provide technical, educational, and
financial assistance;
(vi) Level of support from existing State and local programs;
(vii) Ways the program can best assist producers in complying with
Federal and State environmental laws, quantified where possible; and
(viii) Other factors the NRCS determines will result in
maximization of environmental benefits.
(3) A NRCS State conservationist, in consultation with a State
technical committee and based on recommendations of a local work group,
may approve an area as a priority area.
(e) A NRCS State conservationist, in consultation with a State
technical committee and based on recommendations of a local work group,
may approve program assistance to participants with significant
statewide natural resource concerns outside a funded priority area.
(f)(1) The Chief may designate national conservation priority areas
using the identified national program objectives and criteria. The
Chief may consult with other Federal agencies in selecting national
conservation priority areas. Consistent with maximizing the overall
environmental benefits per dollar expended by the program, the Chief
may designate national conservation priority areas under this part to
provide technical assistance, cost-share payments, incentive payments,
and education for producers to comply with nonpoint source pollution
requirements, other Federal, State, or local environmental laws, or to
meet other conservation needs.
(2) NRCS will develop criteria to select the national conservation
priority areas where program assistance will be provided. The criteria
will consider:
(i) Condition of the natural resources;
(ii) Significance of the natural resource concern;
(iii) Improvements that NRCS expects will result from
implementation of the conservation plan;
(iv) Expected number of producers who will participate and the time
and financial commitment that the producers will provide;
(v) Estimated program cost to provide technical, educational, and
financial assistance;
(vi) Level of support from existing State and local programs;
(vii) Ways the program can best assist producers in complying with
Federal and State environmental laws, quantified where possible;
(viii) The ability to coordinate EQIP with the Conservation Reserve
Program, Wetland Reserve Program, or other programs in common areas to
further maximize the environmental benefits per dollar expended in each
program; and
(ix) Other factors that will assist CCC in maximizing the overall
environmental benefit per dollar expended under this part.
(g) The Chief, with FSA concurrence, will make funding decisions
for national conservation priority areas, State-approved priority
areas, and significant statewide natural resource concerns outside a
funded priority area. The Chief may base funding decisions, after a
review of priority area assessments, using the criteria developed in
accordance with paragraphs (d) and (f) of this section, and considering
other relevant information. The approval of a priority area at the
State level does not necessarily mean that funds will be allocated to
that area. Proposals that are not funded may be resubmitted to the
Chief for subsequent review and consideration to determine if the
resubmitted proposal meets Federal priorities for funding.
Sec. 1466.6 Conservation plan.
(a) The participant shall develop and submit a conservation plan
for the unit of concern that, when implemented, protects the soil,
water, or related natural resources in a manner that meets the purpose
of the program and is acceptable to NRCS and is approved by the
conservation district. This plan forms the basis for an EQIP contract.
(1) When considering the acceptability of the plan, NRCS will
consider whether the participant will use the most cost-effective
conservation practices to solve the natural resource concerns and
maximize environmental benefits per dollar expended.
(2) As determined by NRCS, the conservation plan must allow the
participant to achieve a cost-effective resource management system, or
some appropriate portion of that system, identified in the applicable
NRCS field office technical guide, for the priority natural resource
condition of concern in the priority area or the significant statewide
natural resource concern outside a funded priority area.
(b) Upon a participant's request, the NRCS may provide technical
assistance to a participant. NRCS may utilize the services of qualified
personnel of cooperating Federal, State, or local agencies, or private
agribusiness sector or organizations, in performing its
responsibilities for technical assistance. Participants may, at their
own cost, use qualified professionals to provide technical assistance.
NRCS retains approval authority over the technical adequacy of work
done by non-NRCS personnel for the purpose of determining EQIP contract
compliance.
(c) Participants are responsible for implementing the conservation
plan. A participant may seek additional assistance from other public or
private organizations or private agribusiness sector as long as the
activities funded are in compliance with this part.
(d) All conservation practices scheduled in the conservation plan
are to be carried out in accordance with the applicable NRCS field
office technical guide.
(e) The conservation plan, or supporting documentation, for the
unit of concern shall include:
(1) A description of the prevailing farm or ranch enterprises and
operations that may be relevant to conserving and enhancing soil,
water, or related natural resources;
(2) A description of relevant natural resources, including soil
types and characteristics, rangeland types and conditions, proximity to
water bodies, wildlife habitat, or other relevant characteristics
related to the conservation and environmental objectives of the plan;
(3) A description of specific conservation and environmental
objectives to be achieved;
(4) To the extent practicable, the quantitative or qualitative
goals for achieving the conservation and environmental objectives;
(5) A description of one or more conservation practices in the
conservation management system to be implemented to achieve the
conservation and environmental objectives;
(6) A description of the schedule for implementing the conservation
practices, including timing and sequence; and
(7) Information that will enable evaluation of the effectiveness of
the plan in achieving the conservation and environmental objectives.
(f) To simplify the conservation planning process for the
participant, the conservation plan may be developed, at the request of
the participant, as a single plan that incorporates, to the extent
[[Page 53587]]
possible, any or all other Federal, State, or local government program
requirements. Participants do not need to replace existing plans
developed by natural resource professionals if such plans meet the
resource management objectives under this part. NRCS may accept an
existing conservation plan developed and required for participation in
any other USDA program if the conservation plan otherwise meets the
requirements of this part. When a participant develops a single
conservation plan for more than one program, the participant shall
clearly identify the portions of the plan that are applicable to the
EQIP contract.
Sec. 1466.7 Conservation practices.
(a)(1) The NRCS, with FSA consultation, shall provide guidance for
determining eligible structural, vegetative, and land management
practices. To be considered as an eligible practice, the practices must
provide beneficial, cost-effective approaches for participants to
change or adapt operations to conserve or improve soil, water, or
related natural resources or to provide for environmental enhancement.
(2) The designated conservationist, in consultation with the State
technical committee or local work group, shall determine the eligible
conservation practices for the priority area or for significant
statewide natural resource concerns outside a priority area.
(3) Where new technologies or conservation practices that provide a
high potential for maximizing the environmental benefits per dollar
expended have been developed, NRCS may approve interim conservation
practice standards and financial assistance for pilot work to evaluate
and assess the performance, efficacy, and effectiveness of the
technology or conservation practices at maximizing environmental
benefits per dollars expended. NRCS may involve other entities in the
pilot testing, including conservation districts, extension and research
agencies and institutions, private agribusiness sector, and others.
(b)(1) CCC shall not provide cost-share assistance to construct an
animal waste management facility on a large confined livestock
operation. CCC may fund other structural, vegetative, or land
management practices needed in the conservation management system to
address the livestock-related natural resource concerns on a large
confined livestock operation.
(2) The NRCS State conservationist, in consultation with the State
technical committee, shall develop criteria to use to define a large
confined livestock operation. The criteria will consider but not be
limited to such factors as:
(i) The cost-effectiveness of the application and its potential to
maximize environmental benefits per dollar expended;
(ii) The ability of producers to pay for the cost of animal waste
management facilities;
(iii) The significance of the natural resource concern resulting
from the operation;
(iv) Regulations promulgated pursuant to the Clean Water Act (33
U.S.C. 1251 et seq.) and guidance developed under section 6217 of the
Coastal Zone Act Reauthorization Amendments of 1990 (16 U.S.C. 1455b);
(v) The obligations of operations under other environmental
authorities;
(vi) The particular characteristics of modern livestock operations;
(vii) Other Federal and State environmental laws, and laws
affecting the structure of agriculture; and
(viii) The size of the operation in relation to other confined
livestock operations in the State or Nation.
(3) The NRCS State conservationist, in consultation with the State
technical committee, shall place focus on paragraphs (b)(2)(i) and
(b)(2)(ii) of this section when developing the criteria to define a
large confined livestock operation.
Sec. 1466.8 Technical and other assistance provided by qualified
personnel not affiliated with USDA.
(a) A NRCS State conservationist may utilize technical and other
assistance from qualified personnel of other Federal, State, and local
agencies, and will encourage producers to use the most cost-effective
technical assistance available, including if appropriate, using the
services of the private agribusiness sector to carry out the assigned
responsibilities of the program.
(b) Technical and other assistance provided by qualified personnel
not affiliated with USDA may include, but is not limited to:
conservation planning; conservation practice survey, layout, design,
installation, and certification; information, education, and training
for producers; and training, certification, and quality assurance for
professional conservationists.
(c) NRCS shall provide technical coordination and leadership for
the program, regardless of who provides technical and other assistance,
and shall assure that the quality of the assistance obtained from other
Federal, State, and local agencies, and the private agribusiness sector
is acceptable for purposes of this part. Non-NRCS assistance shall not
be deemed to satisfy an EQIP contract entered into under subpart B of
this part until the assistance has been approved by NRCS.
Subpart B--Contracts
Sec. 1466.20 Application for contracts and selecting offers from
producers.
(a) Any producer who has eligible land may submit an application
for participation in the EQIP to a USDA service center. Producers who
are members of a joint operation shall file a single application for
the joint operation.
(b) CCC will accept applications throughout the year. NRCS shall
rank and select the offers of applicants periodically, as determined
appropriate by NRCS after consultation with the State technical
committee and on the recommendation of the local work groups.
(c) The designated conservationist, in consultation with the local
work group, will develop ranking criteria to prioritize applications
within a priority area. NRCS shall prioritize applications from the
same EQIP-funded priority area using the criteria specific to the area.
The FSA county committee, with the assistance of the designated
conservationist and the FSA county executive director, shall approve
for funding the applications in a priority area based on eligibility
factors of the applicant and the NRCS ranking.
(d) The NRCS State conservationist, in consultation with the State
technical committee, and using quality criteria in the NRCS field
office technical guide, will develop criteria to prioritize
applications from applicants with significant statewide natural
resource concerns outside a priority area. The FSA county committee,
with assistance of the designated conservationist and FSA county
executive director, shall approve for funding these applications based
on the eligibility factors of the applicant and the NRCS ranking.
(e) The designated conservationist will work with the applicant to
collect the information necessary to evaluate the application using the
ranking criteria. A participant has the option of offering and
accepting less than the maximum program payments allowed.
(f) NRCS will rank all applications using criteria that will
consider:
(1) The environmental benefits per dollar expended;
(2) A reasonable estimate of the cost of the conservation
practices, the program payments that will be paid to the applicant, and
other factors for determining which applications will present the least
cost to the program;
(3) The environmental benefits that will be derived by applying the
[[Page 53588]]
conservation practices in the conservation plan which will meet the
purposes of the program;
(4) The extent to which the contract will assist the applicant in
complying with Federal, State, or local environmental laws;
(5) Whether the land in the application is located in a priority
area and the extent to which the contract will assist the priority area
goals and objectives.
(g) If two or more applications have an equal rank, the application
that will result in the least cost to the program will be given greater
consideration.
Sec. 1466.21 Contract requirements.
(a) In order for a participant to receive cost-share or incentive
payments, the participant shall enter into a contract agreeing to
implement a conservation plan or portions thereof. FSA shall determine
the eligibility of participants. The FSA county committee may only
approve the contract, with NRCS concurrence.
(b) An EQIP contract shall:
(1) Incorporate all portions of a conservation plan applicable to
EQIP;
(2) Be for a duration of not less than 5 years nor more than 10
years;
(3) Include all provisions as required by law or statute;
(4) Specify the participant's requirements for operation and
maintenance of the applied conservation practices consistent with the
provisions of Sec. 1466.22;
(5) Include participant reporting requirements to determine
compliance with the contract and program; and
(6) Any other provision determined necessary or appropriate by CCC.
(c) The participant must apply a financially assisted practice
within the first 12 months of signing a contract. If the participant
does not apply a financially assisted practice within the first 12
months, CCC may determine that the contract has been breached,
terminate the contract, and seek appropriate remedies.
(d) There is a limit of one EQIP contract at any one time for each
tract of agricultural land, as identified with a FSA tract number,
determined at the time of the application for EQIP assistance. Subject
to the payment limitation set out elsewhere in this part, a participant
may have subsequent EQIP contracts for different natural resource needs
or concerns following completion of a previous EQIP contract on the
same tract.
Sec. 1466.22 Conservation practice operation and maintenance.
The contract shall incorporate the operation and maintenance of
conservation practices applied under the contract. The participant
shall operate and maintain the conservation practice for its intended
purpose for the life span of the conservation practice, as identified
in the contract or conservation plan, as determined by CCC.
Conservation practices installed before the execution of a contract,
but needed in the contract to obtain the environmental benefits agreed
upon, are to be operated and maintained as specified in the contract.
Sec. 1466.23 Cost-share and incentive payments.
(a)(1) The maximum direct Federal share of cost-share payments to a
participant shall not be more than 75 percent of the projected cost of
a structural or vegetative practice.
(2) CCC shall provide incentive payments to participants for land
management practices in an amount and at a rate necessary to encourage
a participant to perform the land management practice that would not
otherwise be initiated without government assistance.
(3) CCC shall set the cost-share and incentive payment limits, as
determined by:
(i) The designated conservationist, in consultation with the local
work group, for a priority area; or
(ii) The NRCS State conservationist, in consultation with the State
technical committee, for participants subject to environmental
requirements or with significant statewide natural resource concerns
outside a funded priority area.
(b) Except as provided in paragraph (c) of this section, the total
amount of cost-share and incentive payments paid to a person under this
part may not exceed:
(1) $10,000 for any fiscal year; and
(2) $50,000 for any multi-year contract.
(c) CCC shall use the provisions in 7 CFR Part 1400 related to the
definition of person and the limitation of payments, except that:
(1) States, political subdivisions, and entities thereof will not
be persons eligible for payment.
(2) For purposes of applying the payment limitations provided for
in this section, the provisions in part 1400, subpart C for determining
whether persons are actively engaged in farming, subpart E for limiting
payments to certain cash rent tenants, and subpart F as the provisions
apply to determining whether foreign persons are eligible for payment,
will not apply.
(3)(i) The NRCS State conservationist may authorize, on a case-by-
case basis, payments in excess of $10,000 in any fiscal year, up to the
$50,000 limitation in paragraph (b) of this section. However, such
increase in payments for a certain year shall be offset by reductions
in the payments in subsequent years. CCC will base approval for
payments in excess of $10,000 in a fiscal year on the NRCS State
conservationist's determination that the approval is justified because:
(A) The practices in the system need to be applied at once so that
the system is fully functioning to resolve the natural resource
problem;
(B) The natural resource problem is so severe that resolving the
problem immediately is needed;
(C) The producer needs to complete the practices in one year so
that the farming operation is not interrupted or disturbed by the
practice installation over a 5-10 year period; or
(D) The producer can install the practices at a lower total cost
when installed in one year, thereby reducing the program payments.
(ii) With respect to land under EQIP contract which is inherited in
the second and subsequent years of the contract, the $10,000 fiscal
year limitation shall not apply to the extent that the payments from
any contracts on the inherited land cause an heir, who was party to an
EQIP contract on other lands prior to the inheritance, to exceed the
annual limit.
(iii) With regard to contracts on tribal land or BIA allotted land,
payments exceeding one limitation may be made to the tribal venture if
an official of the BIA or tribal official certifies that no one
``person'' directly or indirectly will receive more than the
limitation.
(4) Any cooperative association of producers that markets
commodities for producers with respect to the commodities so marketed
for producers shall not be considered to be a person eligible for
payment.
(5) The status of an individual or entity on the date of
application shall be the basis on which the determination of the number
of persons involved in the farming operation is made.
(6) A participant shall not be eligible for cost-share or incentive
payments for conservation practices on eligible land if the participant
receives cost-share payments or other benefits for the same land under
the Conservation Reserve Program (16 U.S.C. 3831-3836) or the Wetlands
Reserve Program (16 U.S.C. 3837 et seq.).
(d) The participant and NRCS must certify that a conservation
practice is completed in accordance with the contract before the CCC
will approve the payment of any cost-share or incentive payments.
[[Page 53589]]
(e) CCC expenditures under a contract entered into during a fiscal
year shall not be made until the subsequent fiscal year.
Sec. 1466.24 Contract modifications and transfers of land.
(a) The participant and CCC may modify a contract if the
participant and CCC agree to the contract modification and the
conservation plan is revised in accordance with NRCS requirements and
is approved by the conservation district.
(b) The parties may agree to transfer a contract with the agreement
of all parties to the contract. The transferee shall assume full
responsibility under the contract, including operation and maintenance
of those conservation practices already installed and to be installed
as a condition of the contract.
(c) CCC may require all or a portion of any assistance earned under
EQIP to be refunded if a participant sells or loses control of the land
under an EQIP contract and the new owner or controller refuses to
assume responsibility under the contract.
Sec. 1466.25 Contract violations and termination.
(a)(1) If CCC determines that a participant is in violation of the
terms of a contract or attachments thereto, CCC shall give the
participant a reasonable time, as determined by the FSA county
committee, in consultation with NRCS, to correct the violation and
comply with the terms of the contract and attachments thereto. If a
participant continues in violation, the FSA county committee may, in
consultation with NRCS, terminate the EQIP contract.
(2) If the FSA county committee determines, in consultation with
NRCS, that a participant has submitted false information or filed a
false claim, the FSA county committee may terminate the EQIP contract.
(b)(1) If FSA terminates a contract, the participant shall forfeit
all rights for future payments under the contract and shall refund all
or part of the payments received with interest. The FSA county
committee, in consultation with NRCS, has the option of requiring only
partial refund of the payments received if a previously installed
conservation practice can function independently, are not affected by
the violation or other conservation practices that would have been
installed under the contract, and the participant agrees to operate and
maintain the installed conservation practice for the life span of the
practice.
(2) If CCC terminates a contract due to breach of contract or the
participant voluntarily terminates the contract before any contractual
payments have been made, the participant shall forfeit all rights for
further payments under the contract and shall pay such liquidated
damages as are prescribed in the contract. The FSA county committee, in
consultation with NRCS, will have the option to waive the liquidated
damages depending upon the circumstances of the case.
(3) When making all contract termination decisions, CCC may, in
addition, give consideration to good faith on the part of the
participant and hardships that prevent the participant from complying
with the contract terms that are beyond the participant's control, and
make additional adjustments accordingly.
(4) The participant may voluntarily terminate a contract if CCC
agrees based on CCC's determination that termination is in the public
interest.
Subpart C--Administrative Remedies
Sec. 1466.30 Appeals.
(a) A participant in EQIP may obtain a review of a determination
affecting participation in accordance with parts 11, 614, and 780 of
this title, except as provided in (b), as appropriate.
(b) In accordance with the provisions of the Department of
Agriculture Reorganization Act of 1994, Pub. L. 103-354, the following
decisions are not appealable:
(1) Payment rates, payment limits, and cost-share percentages;
(2) The designation of State-approved priority areas, national
conservation priority areas, or significant statewide natural resource
concerns;
(3) NRCS funding decisions to make allocations to States or
priority areas;
(4) Eligible conservation practices; and
(5) Other matters of general applicability.
Sec. 1466.31 Compliance with regulatory measures.
Participants who carry out conservation practices shall be
responsible for obtaining the authorities, rights, easements, or other
approvals necessary for the implementation, operation, and maintenance
of the conservation practices in keeping with applicable laws and
regulations. Participants shall be responsible for compliance with all
laws and for all effects or actions resulting from the participant's
performance under the contract.
Sec. 1466.32 Access to operating unit.
Any authorized CCC representative shall have the right to enter an
operating unit or tract for the purpose of ascertaining the accuracy of
any representations made in a contract or in anticipation of entering a
contract, as to the performance of the terms and conditions of the
contract. Access shall include the right to provide technical
assistance and inspect any work undertaken under the contract. The CCC
representative shall make a reasonable effort to contact the
participant prior to the exercise of this provision.
Sec. 1466.33 Performance based upon advice or action of
representatives of CCC.
If a participant relied upon the advice or action of any authorized
representative of CCC, and did not know or have reason to know that the
action or advice was improper or erroneous, the Farm Service Agency
county committee, in consultation with NRCS, may accept the advice or
action as meeting the requirements of the program and may grant relief,
to the extent it is deemed desirable by CCC, to provide a fair and
equitable treatment because of the good-faith reliance on the part of
the participant.
Thomas A. Weber,
Deputy Vice President, Commodity Credit Corporation.
[FR Doc. 96-26265 Filed 10-9-96; 10:45 am]
BILLING CODE 3410-16-P