[Federal Register Volume 74, Number 8 (Tuesday, January 13, 2009)]
[Rules and Regulations]
[Pages 1587-1590]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-492]



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 Rules and Regulations
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  Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Rules 
and Regulations  

[[Page 1587]]



DEPARTMENT OF AGRICULTURE

Natural Resources Conservation Service

7 CFR Part 662

RIN 0578-AA44


Regional Equity

AGENCY: Natural Resources Conservation Service, United States 
Department of Agriculture.

ACTION: Interim final rule with request for comments.

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SUMMARY: Section 2703 of Title II of the Food, Conservation, and Energy 
Act of 2008 (the 2008 Act) (Pub. L. 110-246) reauthorizes the 
subsection on Regional Equity established under section 1241(d) of the 
Food Security Act of 1985 (16 U.S.C. 3841(d)), as amended (Regional 
Equity provision). The purpose of this provision is to give priority to 
certain states for certain conservation program funding. States 
eligible to receive funding through the Regional Equity provision are 
those that have not received, for a given fiscal year, an aggregate 
allocation of at least $15,000,000 from programs specified in the 
Regional Equity provision. In addition, States must have approved 
applications for financial and technical assistance under the specified 
programs in order to be eligible to receive funding. The Regional 
Equity programs are all of the conservation programs authorized by 
subtitle D, Title XII of the Food Security Act of 1985, 16 U.S.C. 3801 
et seq., except for the Conservation Reserve Program, the Wetland 
Reserve Program, and the Conservation Security Program, which are 
excluded from the conservation programs affected by the Regional Equity 
provision. This interim final rule sets forth how the Natural Resources 
Conservation Service (NRCS), an agency of the U.S. Department of 
Agriculture (USDA), will implement the Regional Equity provision.

DATES: Effective Date: This rule is effective January 13, 2009.
    Comment Date: Submit comments on or before March 16, 2009.

ADDRESSES: You may send comments (identified by the subject of Regional 
Equity) using any of the following methods:
     Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending your 
comments electronically.
     Mail: U.S. Department of Agriculture, Natural Resources 
Conservation Service, Attn: Program Allocations and Management Support 
Team, Regional Equity Comments, P.O. Box 2890, Room 5212-S, Washington, 
DC 20013.
     Fax: 1-202-690-2378.
     Hand Delivery: Room 5212 of the USDA South Office 
Building, 1400 Independence Avenue, SW., Washington, DC 20250, between 
9 a.m. and 4 p.m., Monday through Friday, except Federal Holidays. 
Please ask the guard at the entrance to the South Office Building to 
call 202-720-4527 in order to be escorted into the building.
     This interim final rule may be accessed via the Internet. 
Users can access the NRCS homepage at http://www.nrcs.usda.gov/; select 
the Farm Bill link from the menu; select the Interim final link from 
beneath the Final and Interim Final Rules Index title.
     For more information on the rulemaking process, see the 
SUPPLEMENTARY INFORMATION section of this document.
    Persons with disabilities who require alternative means for 
communication (Braille, large print, audiotape, etc.) should contact 
the USDA Target Center at (202) 720-2600 (voice and TDD).

FOR FURTHER INFORMATION CONTACT: Team Leader, Program Allocations and 
Management Support Team, NRCS, P.O. Box 2890, Room 5212-S, Washington, 
DC 20013; telephone (202) 690-0547; submit e-mail to: 
[email protected], Attention: Regional Equity comments.

SUPPLEMENTARY INFORMATION:

Comments Invited

    The NRCS invites interested persons to participate in this 
rulemaking by submitting written comments, data, or views. Comments are 
also invited relating to the economic or environmental impacts that 
might result from adopting this regulation. The most helpful comments 
reference a specific portion of the rule, explain the reason for any 
recommended changes, and include supporting data. Please send two 
copies of written comments. All comments received will be filed in the 
docket, as well as a report summarizing each substantive public comment 
concerning this interim final rule. The docket, including any personal 
information provided, is made available for public inspection. All 
comments received on or before the closing date for comments will be 
considered. The regulation may be changed because of the comments 
received.

Regulatory Certifications

Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
interim final rule is not significant and will not be reviewed by OMB 
under Executive Order 12866.

Regulatory Flexibility Act

    It has been determined that the Regulatory Flexibility Act is not 
applicable to this interim final rule because NRCS is not required by 5 
U.S.C. 553, or any other provision of law, to publish a notice of 
proposed rulemaking with respect to the subject matter of this rule.

Environmental Analysis

    The Regional Equity interim final rule establishes procedures for 
implementing this provision at part 662 of this title and will not 
directly impact the environment. This interim final rule falls within 
the categories of activities that have been determined not to have a 
significant individual or cumulative effect on the human environment 
and are excluded from the preparation of environmental assessment or 
environmental impact statement as set forth in the U.S. Department of 
Agriculture's (USDA) National Environmental Policy Act regulations in 7 
CFR part 1b.3. Regional Equity is an administrative function that 
relates to the funding of programs and fund disbursements. These 
activities are categorically excluded based upon 7 CFR part 1b.3(a)(1) 
and 7 CFR part 1b.3(a)(2) of USDA regulations.

[[Page 1588]]

Paperwork Reduction Act

    Section 2904 of the 2008 Act requires that implementation of 
programs authorized by Title II of the Act be made without regard to 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). 
Therefore, NRCS is not reporting recordkeeping or estimated paperwork 
burden associated with this interim final rule.

Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, requires Federal agencies to assess the effects of their 
regulatory actions on State, local, and tribal governments or the 
private sector of $100 million or more in any one year. When such a 
statement is needed for a rule, section 205 of the UMRA requires NRCS 
to prepare a written statement, including a cost benefit assessment, 
for proposed and final rules with ``Federal mandates'' that may result 
in such expenditures for State, local, or tribal governments, in the 
aggregate, or to the private sector. UMRA generally requires agencies 
to consider alternatives and adopt the more cost effective or least 
burdensome alternative that achieves the objectives of the rule.
    This rule contains no Federal mandates, as defined under Title II 
of the UMRA, for State, local, and tribal governments or the private 
sector. Thus, this rule is not subject to the requirements of sections 
202 and 205 of UMRA.

Executive Order 12988

    This interim final rule has been reviewed in accordance with 
Executive Order 12988. The provisions of this interim final rule are 
not retroactive. Furthermore, the provisions of this interim final rule 
preempt State and local laws to the extent such laws are inconsistent 
with this interim final rule.

Executive Order 13132

    NRCS has considered this interim final rule in accordance with 
Executive Order 13132, issued August 4, 1999. NRCS has determined that 
the interim final rule conforms with the Federalism principles set out 
in this Executive Order; would not impose any compliance costs on the 
States; and would not have substantial direct effects on the States, on 
the relationship between the national government and the States, nor on 
the distribution of power and responsibilities among the various levels 
of government. Therefore, NRCS concludes that this interim final rule 
does not have Federalism implications.

Background

    The Regional Equity provision (16 U.S.C. 3841(d)) was first 
introduced in the Farm Security and Rural Investment Act of 2002 (the 
2002 Act) (Pub. L. 107-171), which amended the Food Security Act of 
1985 (Pub. L. 99-198) to add the provision as section 1241(d), 16 
U.S.C. 3841(d). Regional Equity, as established in the 2002 Act, 
required the Secretary to give priority for funding under certain 
conservation programs in subtitle D of the Food Security Act of 1985. 
The conservation programs listed under subtitle D (in the 2002 Act) 
included: Farm and Ranch Lands Protection Program, Grassland Reserve 
Program, Environmental Quality Incentives Program, Conservation 
Innovation Grants, Ground and Surface Water Conservation Program, 
Conservation of Private Grazing Land, Wildlife Habitat Incentive 
Program, Grassroots Source Water Protection Program, and Great Lakes 
Basin Program. The Conservation Reserve Program, the Wetlands Reserve 
Program, and the Conservation Security Program were excluded from the 
Regional Equity provision. Under that Regional Equity provision, those 
States (Regional Equity States) that did not receive an aggregate 
allocation, from the conservation programs specified in the statute, 
greater than $12,000,000 were eligible to receive additional funding. 
The additional funding made available to Regional Equity States, in 
order to reach the $12,000,000 requirement, was taken from those States 
that had initial aggregate funding allocations of specified 
conservation programs greater than $12,000,000. In addition, Regional 
Equity States were required to have approved applications for the 
specified conservation programs in order to receive Regional Equity 
funding. The 2002 Act set an April 1st deadline for Regional Equity 
States to have priority for the funding. NRCS implemented the Regional 
Equity provision utilizing multiple funding procedures from fiscal year 
2004 through fiscal year 2008.

Statutory Authority and Interim Final Rule

    The 2008 Act amended the Regional Equity provision. The 2008 Act 
increased the funding level used to identify Regional Equity States 
from $12,000,000 to $15,000,000, established new conservation programs 
under subtitle D that are subject to the Regional Equity provision 
(Agricultural Water Enhancement Program, Conservation Stewardship 
Program, Chesapeake Bay Watershed Program, and Voluntary Public Access 
and Habitat Incentive Program), and added language requiring the 
consideration of the respective demand in a Regional Equity State. NRCS 
is developing this regulation to establish consistency and certainty in 
implementation procedures for the Regional Equity provision.

Section-by-Section Overview

    Section 662.1 describes the general purpose of the regulations, 
which is to establish NRCS implementation procedures for the Regional 
Equity provision. Section 662.2 defines terms used in this part. 
Section 662.3 describes applicability of the Regional Equity provision.
    Finally, section 662.4 outlines the procedures for priority funding 
and allocation of program funds, in accordance with the Regional Equity 
provision. The Regional Equity provision requires the Secretary to give 
priority for funding to approved applications in Regional Equity 
States. NRCS will give priority for funding to approved applications in 
Regional Equity States by establishing program-specific drawing 
accounts for each covered program, sufficient to bring all Regional 
Equity States to $15,000,000 (funding opportunity). A Regional Equity 
State can request funds from the program-specific drawing accounts 
after the State has obligated at least 90 percent of its initial 
program allocation. This process enables NRCS to monitor the use of 
drawing account funds and ensure that funds are used in the most 
effective and timely manner. NRCS used a similar funding allocation 
procedure in fiscal year 2008. In fiscal year 2008, some Regional 
Equity States were unable to use all of their Regional Equity funding. 
By holding Regional Equity funds in program-specific drawing accounts, 
NRCS was able to reallocate these funds earlier in the fiscal year and 
was able to identify States that could obligate the funds toward high 
priority needs. This approach positions the Agency to ensure that 
program funds are directed to the highest-ranked applications.
    The 2008 Act added a requirement that the Secretary consider the 
respective demand in each Regional Equity State for each program 
covered by the Regional Equity provision. NRCS will consider the 
respective demand in each Regional Equity State in each program by 
having State Conservationists in Regional Equity States cooperatively 
determine the funding opportunity for each state's program-specific 
drawing account. State Conservationists will consult with their 
respective State Technical Committees in evaluating the demand in their 
State

[[Page 1589]]

for funding from the drawing accounts. In evaluating the demand for 
Regional Equity funding opportunities, State Conservationists will 
consider how applications address national program priorities; historic 
trends in program interest; and priority State natural resource 
concerns. This will enable additional funds to be allocated in a way 
that meets the natural resource conservation needs of each state's 
producers, meets the demand of each State's program needs, and helps 
ensure that States do not receive additional funding when there is 
insufficient demand.

List of Subjects in 7 CFR Part 662

    Administrative practice and procedure, Agriculture, Soil 
conservation.


0
For the reasons stated in the preamble, the Natural Resources 
Conservation Service is adding a new part 662 in chapter VI of Title 7 
of the Code of Federal Regulations to read as follows:

PART 662--REGIONAL EQUITY

Sec.
662.1 General.
662.2 Definitions.
662.3 Applicability.
662.4 Regional Equity implementation procedure.

    Authority: 16 U.S.C. 3841(d).


Sec.  662.1  General.

    This part sets forth the procedures that the Natural Resources 
Conservation Service (NRCS) will use to implement the Regional Equity 
provision of the Food, Security Act of 1985, 16 U.S.C. 3841(d).


Sec.  662.2  Definitions.

    The following definitions are applicable to this part:
    Chief means the Chief of the Natural Resources Conservation Service 
or the person delegated authority to act on behalf of the Chief.
    Contribution programs means Regional Equity programs that 
contribute funding to Regional Equity States, as determined by the 
Chief each fiscal year, consistent with the limitations established in 
16 U.S.C. 3841(d).
    Drawing account means the aggregated amount of contribution program 
funds required to bring all States to the Regional Equity threshold.
    Funding opportunity means the amount of funding needed to bring a 
State to the $15,000,000 Regional Equity threshold for the aggregate of 
the Regional Equity programs.
    Initial allocation means the amount of conservation program 
allocation funding provided to all States through a merit-based, 
natural resource focused process.
    Obligated means a specific binding agreement, in writing, for the 
purpose authorized by law and executed while the funding is available.
    Regional Equity provision means the statutory requirement to give 
priority funding before April 1st for approved applications for 
specific programs within States that have not received a $15,000,000 
aggregate level of funding.
    Regional Equity programs means conservation programs under subtitle 
D (excluding the Conservation Reserve program, the Wetlands Reserve 
Program, and the Conservation Security Program) of the Food Security 
Act of 1985. These programs include: Conservation Stewardship Program, 
Farm and Ranch Lands Protection Program, Grassland Reserve Program, 
Environmental Quality Incentives Program, Conservation Innovation 
Grants, Agricultural Water Enhancement Program, Conservation of Private 
Grazing Land, Wildlife Habitat Incentive Program, Grassroots Source 
Water Protection Program, Great Lakes Basin Program, Chesapeake Bay 
Watershed Program, and the Voluntary Public Access and Habitat 
Incentive Program. Regional Equity programs will be aggregated to 
determine whether a State meets the $15,000,000 Regional Equity 
threshold. However, not all Regional Equity programs will be considered 
contribution programs.
    Regional Equity threshold means the $15,000,000 minimum aggregate 
amount of Regional Equity program funds.
    Regional Equity States means any State not meeting the Regional 
Equity threshold of $15,000,000 through the initial allocation for 
Regional Equity programs.
    Respective demand means the mix of contribution program funds that 
each State Conservationist in a Regional Equity state requests to fill 
that State's funding opportunity.
    State means all 50 States, the District of Columbia, the 
Commonwealth of Puerto Rico, Guam, the Virgin Islands of the United 
States, American Samoa, the Commonwealth of the Northern Marianna 
Islands, and the Freely Associated States.
    State Conservationist means the NRCS employee authorized to 
implement Regional Equity programs and direct and supervise NRCS 
activities in a State, the Caribbean Area, or the Pacific Islands Area.


Sec.  662.3  Applicability.

    The regulation in this part sets forth the policies and procedures 
for the Regional Equity provision as administered by the NRCS. This 
regulation applies to the Regional Equity programs defined in this 
part. The Chief of NRCS will implement the Regional Equity provision by 
identifying programs that contribute to the establishment of program-
specific drawing accounts for priority funding in Regional Equity 
states.


Sec.  662.4  Regional Equity implementation procedure.

    The following procedures will implement the Regional Equity 
provision:
    (a) Determine initial allocations. NRCS will determine initial 
conservation program funding levels for each State through a merit-
based, natural resource focused allocation process, as determined by 
the Chief.
    (b) Determine the funding opportunity. The combined initial 
allocation funding level for Regional Equity programs by State will be 
compared to the Regional Equity threshold to determine each Regional 
Equity State's funding opportunity.
    (c) Establish contribution program fund levels. Subject to 
availability of funds, contribution program fund levels are determined 
by:
    (1) Identifying which programs contribute funds, as determined by 
the Chief, consistent with the limitations established in 16 U.S.C. 
3841(d); and
    (2) Each State's respective demand.
    (i) State Conservationists in Regional Equity States, in 
consultation with State Technical Committees, will evaluate and 
determine their respective program demands based on the following 
criteria:
    (A) Program applications and how they address national program 
priorities;
    (B) Historic trends in program interest; and
    (C) State priority natural resource concerns.
    (ii) The State Conservationist's identified respective demand will 
assist the Chief in determining the composition of contribution program 
funds within the established drawing account.
    (d) Establish the drawing account. NRCS will establish a drawing 
account for each contribution program, as determined in (c)(1) and 
(c)(2) of this section, and will give priority before April 1st of each 
fiscal year, for such funds to be used to fund applications in Regional 
Equity States, sufficient to bring each of the Regional Equity States 
to the Regional Equity threshold of $15,000,000.
    (e) Access the drawing account. State Conservationists in Regional 
Equity

[[Page 1590]]

States may request access to that State's assigned portion of the 
drawing account once that State has obligated at least 90 percent of 
its initial allocation for that same program.
    (f) Re-allocation of funds. The program-specific drawing accounts 
for Regional Equity States will be available until April 1st of each 
fiscal year, after which date the remaining funds may be re-allocated 
at the discretion of the Chief.

    Dated: January 6, 2009.
Arlen L. Lancaster,
Chief, Natural Resources Conservation Service.
[FR Doc. E9-492 Filed 1-12-09; 8:45 am]
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