[Federal Register Volume 85, Number 207 (Monday, October 26, 2020)]
[Rules and Regulations]
[Pages 67637-67648]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23437]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 85, No. 207 / Monday, October 26, 2020 /
Rules and Regulations
[[Page 67637]]
DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR Part 1466
[Docket ID NRCS-2019-0009]
RIN 0578-AA68
Environmental Quality Incentives Program
AGENCY: Natural Resources Conservation Service (NRCS) and the Commodity
Credit Corporation (CCC), United States Department of Agriculture
(USDA).
ACTION: Final rule.
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SUMMARY: This final rule adopts, with minor changes, an interim rule
published in the Federal Register on December 17, 2019, that made
changes to the NRCS's Environmental Quality Incentives Program (EQIP).
The changes were made to be consistent with the Agriculture Improvement
Act of 2018 (the 2018 Farm Bill) and implemented administrative
improvements and clarifications. NRCS received input from 197
commenters who provided 598 comments in response to the interim rule.
This final rule makes permanent those changes appearing in the interim
rule, responds to comments, and makes further adjustments in response
to some of the comments received.
DATES: Effective: October 26, 2020.
FOR FURTHER INFORMATION CONTACT: Michael Whitt; phone: (202) 690-2267;
or email: [email protected]. Persons with disabilities who require
alternative means for communication should contact the USDA Target
Center at (202) 720-2600 (voice).
SUPPLEMENTARY INFORMATION:
Background
On December 17, 2019, NRCS published an interim rule with request
for comments in the Federal Register (84 FR 69272-69293) to implement
mandatory changes made by the 2018 Farm Bill and administrative
improvements and clarifications. This final rule adopts, with minor
changes, the amendments made by the interim rule. These changes are in
response to public comment as explained in the summary of EQIP comments
below.
Discussion of EQIP (7 CFR Part 1466)
Through EQIP, NRCS incentivizes agricultural producers to conserve
and enhance soil, water, air, plants, animals (including wildlife),
energy, and related natural resources on their land. EQIP promotes
agricultural production, forest management, and environmental quality
as compatible goals, and optimizes environmental benefits by assisting
producers in addressing resource concerns on their operations. EQIP
also helps agricultural producers meet Federal, State, and local
environmental requirements and avoid the need for new requirements.
Eligible lands include cropland, grassland, rangeland, pasture,
wetlands, nonindustrial private forest land, and other land on which
agricultural or forest-related products or livestock are produced and
natural resource concerns may be addressed. Participation in EQIP is
voluntary.
The Secretary of Agriculture delegated authority to the Chief,
NRCS, to administer EQIP on behalf of CCC.
The interim rule:
Incorporated the addition of new or expected resource
concerns to EQIP program purposes, adapting to and mitigating against
increasing weather volatility, and drought resiliency measures.
Amended how EQIP interacts with the Regional Conservation
Partnership Program (RCPP) since RCPP is now a stand-alone program.
Amended some definitions and added others to address
changes made by the 2018 Farm Bill, including--
[cir] Animal feeding operation (AFO);
[cir] Eligible land;
[cir] Estimated income foregone;
[cir] Forest management plan;
[cir] High priority area;
[cir] Incentive practice;
[cir] Priority resource concern;
[cir] Semipublic;
[cir] Soil remediation;
[cir] Soil testing; and
[cir] Water management entity (WME).
Added ``increased weather volatility'' as a resource
concern under the national priorities identified in the regulation.
Added to outreach responsibilities the requirement to
notify historically underserved producers about the availability to
elect to receive advance payments.
Addressed EQIP contract provisions associated with WMEs
and certain water conservation projects.
Removed the requirement that a participant must implement
and develop a comprehensive nutrient management plan (CNMP) by the end
of the contract and replaced it with the following: Any conservation
practices in the EQIP plan of operation must be implemented consistent
with a CNMP.
Incorporated the ability to waive the $450,000 regulatory
contract limitation and establish a $900,000 regulatory contract
limitation for certain projects with joint operations, group projects,
or contracts where NRCS has waived the payment limitation for a WME.
Increased payment rates for certain high-priority
practices and increased payment rates for practices that address source
water protection.
Updated the statutory payment limitations for general EQIP
contracts and contracts entered into under the National Organic
Initiative.
Clarified provisions related to contract administration,
including procedures for contract modification and termination.
Relocated provisions related to administration of
Conservation Innovation Grants (CIGs) to its own subpart and
incorporated the addition of On-farm Conservation Innovation Trials
(On-farm Trial), which include the Soil Health Demonstration (SHD)
Trial.
Added a new subpart to address EQIP incentive contracts,
which are a new enrollment option created by section 2304 of the 2018
Farm Bill.
Relocated the General Administration provisions from
subpart C to a new subpart E and updated language addressing
environmental markets to reflect changes made by the 2018 Farm Bill.
Summary of EQIP Comments
The interim rule had a 60-day comment period ending February 18,
2020. NRCS received 598 comments from 197 commenters in response to the
rule. In addition, one organization submitted a spreadsheet with 12,852
comments. NRCS reviewed these comments and categorized and
[[Page 67638]]
summarized them according to the topics identified below. The topics
that generated the greatest response include conservation practices,
contract limits, and national priorities.
In this rule, the comments have been organized in alphabetic order
by topic. The topics include:
Administration;
Advance payments;
Applicability;
CIG--On-farm Trials, Other, and SHD Trials;
Conservation Practices--High Priority Practices, Incentive
Practices, Other, Prairie Pothole Wildlife Practice, Soil Health, and
Source Water Protection;
Contract Administration;
Contract Limits Unrelated to WMEs;
Contract Requirements;
Contracts with WMEs--Adjusted Gross Income (AGI) and
Payment Limitation Waiver, Land Eligibility Criteria, and Other;
Definitions--Eligible Land, High Priority Area, Priority
Resource Concern, Soil Testing, and WMEs;
Eligibility;
Environmental Assessment;
EQIP Plan of Operations--Comprehensive Nutrient Management
Plan;
Fund Allocations;
General;
Incentive Contracts--Selection Criteria;
National Priorities;
Outreach Activities;
Payment Limits;
Payment Rates; and
Ranking.
Of the 598 comments raised by the 197 commenters, 47 were general
in nature and most expressed support for EQIP or how EQIP has
benefitted particular operations. NRCS also received 21 comments that
were not relevant to the EQIP interim rule. Seven comments criticized
the regulation for not strengthening EQIP's impact on climate
resilience or soil health. Six comments requested NRCS technical
assistance for existing and potential projects. Several of these
comments conveyed frustration with the process or specific working
relationships. NRCS is committed to providing the highest quality
service to its customers and partners, and these comments have been
forwarded to the appropriate staff.
In general, comments focusing on topics that were outside the scope
of the regulation will not be addressed. In response to the request
that public comment be submitted through email, NRCS reminds the public
that all comments should be submitted to the agency dockets on
Regulations.gov and any comments that are received by another method
will be posted on regulations.gov for public access to all of the
comments in one place. In following the rulemaking process, NRCS seeks
to provide equal consideration to all who wish to provide feedback.
Submission of public comment through Regulations.gov provides a more
equitable and reliable system by which to collect comments within the
stated timeframes.
NRCS also received 24 comments that expressed nonspecific
dissatisfaction with EQIP or the interim rule and 47 comments that
supported EQIP or the interim rule. These comments do not include any
recommendations for change. This final rule responds to the comments
received by the public comment deadline and makes minor clarifying and
related changes.
Administration
Comment: NRCS received comment related to EQIP administration,
including comment addressing outreach, organic production, input from
State advisory committees, funding targets, expanding the Working Lands
for Wildlife model, additional training to employees, and allowing
grazing on all land uses.
Response: NRCS appreciates the suggestions for improving outreach
and operations and will incorporate suggestions when updating outreach
plans and EQIP policies. No change is being made to the regulation in
response to this issue.
Advance Payments
Comment: NRCS received comment recommending making advance payments
mandatory or changing their timing, including making the advance
payment when the producer is ready to begin the practice or to begin
the 90-day clock upon practice installation.
Response: NRCS built criteria into business tools that must be met
prior to approving an advance payment, including verification that the
request is for an immediate need and that a final design has been
accepted by the participant. NRCS cannot change the start time for the
90-day clock since statute specifies that the clock starts on the date
that the advance payment is received by the participant. The
participant's receipt of the advance payment, and NRCS's expenditure of
funds, commences the 90-day clock. NRCS offers advance payments to all
historically underserved producers and records, by contract item, the
producer decision to receive advance payments on the EQIP schedule of
operations. No change is being made to the regulation in response to
this issue.
Applicability
Comment: NRCS received comment recommending changes to EQIP's
purpose, scope, and objectives as discussed in the Applicability
section, Sec. 1466.1, including identifying that EQIP participation
should also avoid the need for regulatory programs, identifying that
the EQIP purpose includes financial and technical assistance to organic
producers, adding that new or expected resource concerns relate also to
organic producers, and suggesting that assisting producers with
transitioning from an expiring Conservation Reserve Program (CRP)
contract should be an EQIP priority in order to keep land in grass and
maintain financial and resource investments.
Response: The final rule focuses on the purposes spelled out in
statute, including referencing assistance related to organic production
and helping producers transition from CRP and, in doing so, keeping
land in grass and thereby maintaining financial and resource
investments. The regulatory text has been modified at Sec. 1466.1(a)
and Sec. 1466.20(b) to address these concerns. No other changes are
being made to the regulation in response to this issue.
CIGs
CIG On-Farm Trials
Comment: NRCS received comment supporting CIG On-farm Trials
testing of new technologies at the field level, including recommending
that NRCS clearly state that on-farm conservation research is
authorized under CIG, and that soil health testing be required of all
On-farm Trials to determine impacts to soil health.
Response: On-farm Trials ``facilitate and incentivize
experimentation and testing of new and innovative conservation
approaches.'' If research falls within the scope of ``experimentation
and testing,'' it is an authorized activity for On-farm Trials. Soil
health testing is not a required part of every On-farm Trials project,
although NRCS may apply the extent to which an On-farm Trial seeks to
measure or improve soil health as a ranking consideration in the
context of funding opportunities. No change is being made to the
regulation in response to this issue.
Other
Comment: NRCS received comment recommending changes to other
aspects of CIG, requesting NRCS waive its one-
[[Page 67639]]
to-one match requirement for grants that assist historically
underserved producers, reword the 10 percent funding for grants that
assist historically underserved producers to require that no less than
10 percent of CIG funding be awarded to historically underserved
producers, expand the purpose of CIG to specifically mention on-farm
practical field research as a purpose, and directing a CIG study for
new and innovative manure management.
Response: This final rule allows a reduction of match requirements
for historically underserved producers on a case-by-case basis and sets
forth the criteria for granting such a match reduction. NRCS has
consistently met the 10 percent funding goal for historically
underserved producers and is committed to improving outreach to this
demographic. No changes are made regarding the funding goal in the
final rule. This rule is expanding the purposes language in the
regulation to include practical field research and is continuing to
work with producers and partners to develop innovative practices for
manure management through multiple avenues, including CIG.
SHD Trials
Comment: NRCS received comment recommending that NRCS add language
to the rule to diversify participation in SHD Trials--for example, by
farm type, size, location, and underrepresented producers. Comment also
recommended funding for soil testing.
Response: The final rule provides for a process that results in
diverse CIG participation. NRCS is developing a soil test activity
which could be utilized in CIG contracts with producers. If an SHD
Trial results in a reliable, efficient, and cost-effective process for
soil health testing, NRCS will consider it in developing the soil test
activity noted above. No additional language was added to the
regulation in response to this issue.
Conservation Practices
High-Priority Practices
Comment: NRCS received comment recommending specific targets and
specific habitat and area restoration plans (such as prioritizing
practices with a high environmental benefit but low adoption rate or
offering longer contracts with additional payments for foregone income
for practices that benefit wildlife).
Response: The EQIP regulation gives States the greatest flexibility
to adapt to local needs and determine high-priority practices in
consultation with State technical committees and local working groups.
States currently have the authority to prioritize practices that have a
high environmental benefit but low adoption rate to increase practice
adoption. In addition, EQIP provides the opportunity for producers to
enter into contracts of up to 10 years, and NRCS currently allows
States to assign higher significance to wildlife habitat development
and other natural resource concerns when determining rates for
estimated foregone income. No change is being made to the regulation in
response to this issue.
Incentive Practices
Comment: NRCS received comment recommending prioritizing EQIP
incentive practices that are compatible with ecosystem services
markets; prioritizing applications with at least two priority resource
concerns; allowing EQIP grazing practices on cover crops and other
grass-based practices that have wildlife benefits; prioritizing
payments for management practices to encourage long-term, beneficial
changes to production systems; and using longer-term incentive
contracts in certain circumstances, such as with wildlife projects.
Response: Incentive practices are a relatively new area for NRCS,
and NRCS is continuing to work with State, local, and Tribal groups to
develop practices that are best suited for incentive payments in each
high-priority area. As NRCS develops those practices, it is considering
compatibility with ecosystem services markets, multiplicity of
benefits, wildlife benefits, long-term benefits, and term length where
appropriate and within the bounds of statute. No change is being made
to the regulation in response to this issue.
Other
Comment: NRCS received comment recommending incorporating new
technologies and advancements in conservation practice standards,
creating interim standards where beneficial, and encouraging
flexibility to better address State and local needs.
Response: NRCS will continue to adapt and innovate the application
of science and technology to provide the best resource conservation
possible through each of its programs, including EQIP. These
adaptations and innovations will be reflected in future NRCS practice
standards. No change is being made to the regulation in response to
this issue.
Prairie Pothole Wildlife Practice
Comment: NRCS received comment recommending prioritizing longer
wildlife habitat contracts to benefit such areas as the Prairie Pothole
Region and rice-producing areas. The EQIP statute (section
1240B(g)(3)), provides for longer-term (up to 10 year) contracts that
benefit wildlife and includes postharvest flooding practices or
practices that maintain the hydrology of temporary and seasonal
wetlands.
Response: NRCS recognizes the importance of wildlife protection in
the Prairie Pothole Region and rice-producing areas. State and regional
priorities determine how best to implement strategies for ensuring the
most appropriate contract terms are in place to protect wildlife. No
change is being made to the regulation in response to this issue.
Soil Health
Comment: NRCS received comment requesting that NRCS provide more
soil health practice options, including suites or bundles of soil
health practices through outreach efforts and asked that NRCS consider
additional ranking points for applicants using suites or bundles of
soil health practices. Comment also asked that NRCS develop soil health
planning protocols for cropland, grazing land, and other agricultural
lands; that these protocols be widely available through EQIP technical
and financial assistance; and that soil health testing be required for
any contract supporting the adoption of soil health practices and that
grazing of cover crops be permitted to enhance soil health conditions.
Response: Improving and maintaining soil function is a priority
for, and a foundation of, NRCS's programs and maintaining or developing
relevant measures to promote soil health is a focus of the agency.
Regarding the overall process of additional soil health
conservation practice options, NRCS follows a formal process to review
each national conservation practice standard at least once every 5
years from its date of issuance or review. Interim conservation
practice standards serve as mechanisms for field testing new
technology. Interim conservation practices that prove successful are
either developed into national conservation practice standards or
incorporated into existing practice standards, as appropriate. States
may modify national practice standards to meet State or local needs.
The National Technical Guide Committee publishes a notice in the
Federal Register requesting comments on all additions or revisions to
conservation practices in the NRCS National Handbook of Conservation
Practice Standards. The comment
[[Page 67640]]
period is not less than 30 days from the date of notice publication.
The NRCS Conservation Practice Standard Cover Crop (Code 340)
provides guidance for grazing cover crops. Grazing of cover crops may
be permitted depending on such factors as the soil condition and growth
state of the cover crop. When addressing conditions such as soil health
and organic matter content, cover crop species will be selected on the
basis of producing higher volumes of organic material and root mass to
maintain or increase soil. Grazing must not cause negative impact to
the site (for example, erosion or compaction).
No change is being made to the regulation in response to these
issues.
Source Water Protection
Comment: NRCS received comment suggesting that wetland practices,
such as wetland restoration and buffers, count as source water
protection practices. Comment noted the importance of involving State
technical committees in designating source water protection areas and
eligible source water protection practices.
Response: NRCS will continue to work closely with State technical
committees, which are crucial in designating source water protection
areas and eligible source water protection practices. As determined by
NRCS in collaboration with the State technical committees, wetland
restoration and buffers will be source water protection practices. No
change is being made to the regulation in response to this issue.
Contract Administration
Comment: NRCS received comment encouraging that NRCS use the
longest possible contract lengths (up to 10 years) for wildlife
conservation, especially for wildlife practices that require high
levels of site preparation and maintenance. Comment also highlighted
that EQIP requires applicants to obtain the written concurrence of the
landowner to apply a conservation practice, while Colorado state law
allows ditch owners to install water pipelines to replace open-air
ditches without the landowner's consent.
Response: States already may offer contracts with a term of up to
10 years with one or more annual management practices to restore,
develop, protect, and improve wildlife habitat. Regarding the
difference between State law and Federal regulation, the EQIP
requirement to obtain landowner permission to apply a conservation
practice cannot be waived. However, if the holder of the right of way
has the property rights necessary to install water pipelines without
consent of the fee title landowner, then NRCS considers the holder of
the right of way the landowner for consent purposes. No change is being
made to the regulation in response to this issue.
Contract Limits Unrelated to Water Management Entities
Comment: NRCS received comment recommending removing joint
operations and confined animal feed operations (CAFOs) from the list of
operations for which a waiver can be requested to exceed the $450,000
contract limit. The specific change requested was to amend the rule by
striking Sec. 1466.21(e)(1)(ii)(A) and the words or individual member
thereof from Sec. 1466.6(d)(3)(iii).
While the higher contract limit does not relate specifically to
CAFOs, the comment associated CAFOs with joint operations and the
availability of higher levels of program assistance. Comment also
recommended that EQIP not fund CAFOs at all.
Response: By statute, EQIP has an aggregate $450,000 payment
limitation per person or legal entity, directly or indirectly, for all
contracts entered into during fiscal years (FYs) 2019 through 2023. The
overall program payment limitation may not be waived; further, NRCS
does not have the discretion to automatically disqualify CAFOs from
EQIP assistance. Under payment limitation requirements that apply to
NRCS and Farm Service Agency programs, joint operations are able to
receive a payment up to the maximum amount specified for a person or
legal entity multiplied by the number of persons or legal entities that
comprise ownership of that joint operation (see 7 CFR part 1400). When
a joint operation consisting of two or more members enters into an EQIP
contract, the EQIP contract with the joint operation may receive
funding of up to $900,000. Without a contract limit, joint operations
could receive very large payments under an EQIP contract.
To address concerns related to large contracts with joint
operations, NRCS in 2009 imposed a regulatory contract limit that
corresponded with the EQIP payment limit. The 2009 interim rule did not
adjust the contract limit for joint operations, and this system was
maintained in the EQIP regulation through the 2014 Farm Bill. The
$450,000 limit does not, therefore, represent a change to EQIP brought
about in the 2019 interim rule.
To clarify, the overall program payment limitation may not be
waived. No member of a joint operation may receive more than $450,000
in payment through EQIP for program years 2019 through 2023. But, when
a joint operation consisting of two or more members enters into an EQIP
contract, the EQIP contract with the joint operation may receive
funding of up to $900,000. EQIP is using this flexibility to help
streamline contract administration for these types of arrangements.
Unlike the Conservation Stewardship Program (CSP), EQIP does not
require enrollment of the entire operation. Each operation may receive
multiple contracts for EQIP; therefore, the purpose of contract limits
in EQIP differs from that in CSP.
No change is being made to the regulation in response to these
issues.
Contract Requirements
Comment: NRCS received comment recommending provisions for NRCS to
incorporate into the EQIP contracts with producers, including requiring
participants to report EQIP environmental outcomes to NRCS; ensuring
that the eligibility of irrigation districts for EQIP contracts does
not alter the annual funding allocation to States; strengthening
support for best grazing management practices; limiting contracts to
only 1 year; and requiring consideration as to how irrigation projects
and practices could inadvertently negatively impact wildlife habitats
and wetlands and increase water consumption by bringing additional land
into production or converting land to more water-intensive crops.
Response: NRCS provides an assessment of resource concerns,
including impacts to wildlife and water conservation, before a practice
or activity is implemented, and determines any potential effects and
expected environmental outcomes through the ranking process prior to
approving EQIP contracts. In accordance with statutory limitations,
NRCS does not provide supplemental allocations to States for WME
projects. Contract terms are up to 10 years with the actual term
determined by the producer and agreed to by NRCS. No change is being
made to the regulation in response to this issue.
Contracts With Water Management Entities
Adjusted Gross Income and Payment Limitation Waiver
Comment: NRCS received comment related to AGI and payment
limitation waiver criteria with respect to contracts with WMEs,
including: General support
[[Page 67641]]
for the $900,000 payment limit; support for increasing the payment
limitation amount to over $900,000 as long as it adheres to specific,
narrow cases allowed by statute; and support for increasing the payment
limit to at least 10 times the individual limit (over $4.5 million) to
address large-scale irrigation infrastructure projects. Other comment
suggested waiver criteria, such as if the contract addressed multiple
natural resource concerns outlined in statute, service to multiple farm
operations, or benefitted historically underserved producers. Some
comment expressed a desire that individual producers maintain access to
funds within State EQIP allocations, either by maintaining the $900,000
payment limit, reducing it to the standard $450,000, by establishing a
separate national allocation pool for WME projects or continuing to
fund WMEs thorough RCPP. Other comment recommended separating the AGI
waiver and payment limitation waiver.
Response: NRCS appreciates the diverse array of views. When a WME
establishes through its program application that it deserves an AGI
waiver using the criteria established in the interim rule (and retained
in this final rule), it also establishes that it needs an increased
contract limit. The contract limit of $900,000 is an appropriate size
to draw a distinction between EQIP and other programs that may protect
watersheds, such as RCPP or Watershed Operation Assistance under public
law 83-566. No change is being made to the regulation in response to
this issue.
Land Eligibility Criteria
Comment: NRCS received comment expressing general support for
contracts with WMEs; recommending expanding the definition of adjacent
land to include lands that create a direct connection between the
infrastructure under the control of a WME and the producer's land
(i.e., any land over which the WME holds an easement); limiting the
scope of adjacent land to land that abuts an EQIP-eligible farm or
ranch and is necessary for the practice or system being implemented by
the WME; limiting recipients of EQIP funds to existing agricultural
producers; and, ensuring that EQIP contracts do not enable water
spreading, increase consumptive use, or put new land into agricultural
production.
Response: The term ``adjacent'' is not defined in the interim rule
or in this final rule. However, the adjacent land must meet several
criteria in order to be eligible for enrollment in a contract with a
WME, including that it must be ``necessary to support the installation
of a conservation practice or system on eligible land.'' This supports
an expansive interpretation of ``adjacent'' while ensuring that the
adjacent land's enrollment supports the installation of a practice or
system on eligible land. No change is being made to the regulation in
response to this issue.
Other
Comment: NRCS received comment supporting the expansion of EQIP
eligibility to WMEs, including land grant--mercedes, and recommended
streamlined processes, clarification on eligibility, and guidance for
WMEs on application.
Response: Streamlining and clarification will be addressed through
additional outreach and communication to stakeholders. No change is
being made to the regulation in response to this issue. The regulation
in Sec. 1466.6, ``Program requirements,'' includes additional criteria
for WME eligibility, consistent with statutory direction, to ensure
water conservation projects typical of land grant--mercedes can be
considered for assistance.
Definitions
Eligible Land
Comment: NRCS received comment recommending including reference to
wildlife under the definition for eligible land to incentivize
stewardship of land managed for wildlife and expanding the definition
of associated agricultural lands to include neighboring properties as
eligible lands to both support agriculture and wildlife habitat.
Response: NRCS appreciates the interest in EQIP from wildlife and
conservation stakeholders. The purpose of EQIP is to provide financial
and technical assistance to agricultural producers on eligible
agricultural and nonindustrial private forest land. No change is being
made to the regulation in response to this issue.
High-Priority Area
Comment: NRCS received comment on the definition of high-priority
areas, including recommending how to conduct a robust consultation
process with the State technical committees and other stakeholders,
selecting areas that cover broad and diverse areas of agricultural
production and resource concerns, and also selecting areas based on a
narrower, prioritized implementation approach.
Response: NRCS will continue to work cooperatively with State
technical committees through the local working group process to select
high-priority areas consistent with national, State, and local
priorities. No change is being made to the regulation in response to
this issue.
Priority Resource Concern
Comment: NRCS received comment supporting the local role of the
State in setting priority resource concerns, including wildlife
practices and high-priority practices.
Response: NRCS will continue to work cooperatively with State
technical committees to select priority resource concerns consistent
with national, State, and local priorities. No change is being made to
the regulation in response to this issue.
Soil Testing
Comment: NRCS received comment that supported identifying
appropriate soil health testing protocols, requiring the protocols in
all EQIP contracts related to soil health, and quantifying the
environmental outcomes of EQIP contracts on soil health.
Response: NRCS appreciates the attention that the public has given
to soil health. NRCS continues to develop activities designed around
soil health and soil testing, which are likely to receive recognition
in local, State, or national priorities for ranking or other purposes.
No change is being made to the regulation in response to this issue.
Water Management Entities
Comment: NRCS received comment recommending that the definition of
``water management entity'' include mutual ditch, irrigation, and canal
companies as ``similar entities'' due to their similarities to acequias
in their purpose, size, legal status, and organizational structure.
Comment also supported limiting EQIP funding for WMEs to contracts
where the water users are farmers and ranchers.
Response: NRCS will keep the current definition of WME in Sec.
1466.3, since this definition does not exclude ditch and related
companies. Ditch and related companies may be eligible WMEs if they are
a semipublic organization with the purpose of assisting private
agricultural producers manage water distribution or conservation
systems. No change is being made to the regulation in response to this
issue.
Eligibility
Comment: NRCS received comment recommending EQIP eligibility
language reflect grazing rights on public lands better, make entities
that do not have direct control of the land and members of Internal
Revenue Code (IRC) Section
[[Page 67642]]
501(d) religious organizations eligible for participation, and expand
eligibility for On-farm Trials to organizations that conduct business
related to conservation on agricultural lands.
Response: Control of land is a necessary requirement for
participant eligibility. The participant must be able to implement the
requirements of the EQIP contract, which is demonstrated through
control of the land.
Regarding publicly-owned land, NRCS considers whether the land is
within the applicant's control (in other words, that the applicant can
implement the terms of the EQIP contract), whether the land is a
working component of the producer's agricultural or forestry operation
(for example, that the producer uses the land for grazing), and whether
conservation practices to be implemented on the public land are
necessary and will contribute to an improvement in the identified
resource concern. If all three criteria are met, the land may be
eligible.
Religious organizations are not excluded from eligibility. A legal
entity organized under IRC Section 501(d) meets the definition of legal
entity in Sec. 1466.3 provided it owns land or an agricultural
commodity, product, or livestock or produces an agricultural commodity,
product, or livestock.
An eligible entity for the purposes of On-farm Trials includes a
third-party private entity, the primary business of which is related to
agriculture. This includes organizations that conduct business related
to conservation on agricultural lands.
No change is being made to the regulation in response to this
issue.
Environmental Assessment
Comment: NRCS received comment related to the Programmatic
Environmental Assessment (EA). Comment asserted: The current ``no
action'' alternative is not a legally permissible outcome; the
Programmatic EA must indicate which decisions are discretionary or
mandatory; for discretionary decisions, NRCS must list at least two
legally permissible alternatives; and because the Programmatic EA is
insufficient, the Finding of No Significant Impact (FONSI) is also
insufficient.
Comment also indicated that data collection is a key input to
assessing environmental impact, suggesting that NRCS incentivize
producer participation in third-party data collection services to track
environmental benefits of conservation practices.
Response: NRCS prepares its programmatic National Environmental
Policy Act (NEPA) documents to provide broad-scale analyses to which
site-specific program actions may tier, when appropriate, for purposes
of complying with NEPA. NEPA does not require Federal agencies to
consider alternatives that have substantially similar consequences;
rather, it is clearly intended to help agencies avoid significant
adverse impacts. The ``no action'' alternative describes continuation
of EQIP under its previous regulations. NEPA regulations require
analysis of a no action alternative for comparative reasons.
Conservation activities associated with each EQIP contract undergo
additional site-specific environmental review and analysis designed to
avoid, minimize, rectify, reduce, eliminate, or compensate for any
potential adverse impacts. No change is being made to the regulation in
response to this issue.
EQIP Plan of Operations--Comprehensive Nutrient Management Plan
Comment: NRCS received comment about progressive implementation of
a CNMP, asserting that the interim rule only requires development of a
CNMP and does not require progressive implementation and thus is
contrary to the intent of Congress.
Response: NRCS understands these comments to suggest that the
interim rule is ambiguous regarding CNMP implementation. This rule
revises the regulation to add clarity. From a practical standpoint, a
producer implementing EQIP-funded conservation practices consistent
with CNMP is progressively implementing CNMP. However, some EQIP
contracts are for development of CNMP as a conservation activity plan
only. There are no practices to implement progressively under these
contracts other than the plan itself. In addition, this rule clarifies
that CNMP will address all ``applicable'' natural resources since
natural resource issues are site-specific. In this manner, NRCS hopes
to avoid any confusion about the scope of CNMP while maintaining core
aspects that have been in the CNMP definition since 2003.
Fund Allocations
Comment: NRCS received comment recommending that NRCS address the
funding allocation for wildlife conservation practices, including that
NRCS: Ensure the 10 percent allocation is a ``floor'' and not a
``ceiling'' for wildlife practice funding; set the 10 percent
allocations at the State rather than national level; make a narrower
list of practices that count toward the 10 percent allocation or
including State partners in determining which practices should count in
that State; and exclude EQIP contracts from the 10 percent allocation
that involve either the Working Lands for Wildlife model or interagency
cooperation with the U.S. Fish and Wildlife Service. Comment also
expressed a desire for increased collaboration with State and local
partners for targeting wildlife habitat and conservation.
Other comment addressed the funding allocation for livestock
practices, including disapproval of the statutory change from 60
percent to 50 percent, opinion that the 50 percent mandate was far too
high, and request about how the national mandate is implemented on a
State-by-State basis.
Comment also addressed other fund allocation topics as follows:
Concern over whether NRCS was making equitable allocations
to States by citing a 2017 U.S. Government Accountability Office report
suggesting that NRCS was using historical allocation data rather than
seeking to optimize environmental benefits.
Recommendation to create a national initiative for
targeted funding for small-scale operations based on existing State-
level initiatives.
Concern that allocations of funds to WMEs would take
conservation dollars away from producers, so they requested that NRCS
add language ensuring that producers would be the ultimate
beneficiaries of EQIP funding for contracts with WMEs.
Note that Congress did not want contracts with irrigation
districts to adjust State funding allocations.
Suggestion that contracts with WMEs should increase
allocations for western States.
Request that NRCS link funding allocations to
accountability mechanisms so that activities with limited conservation
benefits are not funded.
Response: NRCS will consider these comments in its allocation
process. The breadth and depth of these comments indicate the
importance of fund allocations to EQIP stakeholders and partners. EQIP
implementation, including the allocation of funding, is complex in
nature because the statute provides for multiple goals and
requirements. All statutory goals must be addressed even though some
desired outcomes are difficult or impossible to quantify given current
information availability. Through local input, combined with the use of
the Conservation Effect Assessment Project (CEAP) and other important
data, USDA seeks to enable program managers and
[[Page 67643]]
leaders to achieve the most effective and efficient program outcomes
across the entire range of statutory goals.
State technical committees and local work groups, with the
knowledge and expertise of their members, also provide additional
sources of data and information. Their membership includes leaders in
agriculture, conservation, producers, and other stakeholders and their
input provides a means of ensuring EQIP allocations are made according
to the resource concern, targeted to the local conditions, and relevant
to and contributing to national resource priorities. These State and
local sources provide valuable information and data on environmental
concerns not otherwise available, thus giving allocation decisions far
more depth and granularity. The State technical committee regulation
and standard operating procedures address this process and thus no
change is being made to the EQIP regulation in response to this issue.
General
Comment: NRCS received comment requesting a modification to how the
changes made by the 2018 Farm Bill appear in the interim rule preamble.
Response: The interim rule preamble provides a summary and is not
intended to represent a comprehensive description of the 2018 Farm Bill
changes. NRCS encourages reviewers to read the 2018 Farm Bill if
additional perspective is sought. No change is being made to the
regulation in response to this issue.
Incentive Contracts--Selection Criteria
Comment: NRCS received comment recommending NRCS modify the
incentive contract selection criteria, giving priority to applications
aiming to make the participant eligible for CSP at the end of the
contract period.
Response: Incentive contracts are designed to serve as a bridge
between EQIP and CSP. State technical committees and other local
stakeholders designate priority resource concerns and high-priority
areas and assist in determining priority resource concerns for CSP. The
final rule maintains language in the interim rule to maximize local
control over what EQIP practices are best suited for the applicant to
transition to CSP. No change is being made to the regulation in
response to this issue.
National Priorities
Comment: NRCS received comment recommending the addition of soil
health, climate resilience, and drought resiliency to the list of
national priorities in Sec. 1466.4(a), indicating that Congress made
soil testing and soil health planning qualified activities for EQIP
support in the 2018 Farm Bill, and that Congress spoke to the need to
focus on climate resilience by making addressing weather variability
and drought resilience new purposes for EQIP.
Response: Rather than increasing the number of national priorities
from 8 to 10, this rule adds concepts of soil health and climate
resiliency to existing national priorities. In particular NRCS
incorporates concepts of climate resiliency through the addition of the
language ``increased resilience against drought and weather
volatility'' in Sec. 1466.4(a)(4) and incorporates ``improvement of
soil health'' in Sec. 1466.4(a)(6).
Outreach Activities
Comment: NRCS received comment recommending a variety of different
actions with respect to its outreach activities, including: Requesting
a focus on the conservation benefits of wildlife practices; targeting
diverse farming operations; additional outreach at the local level;
adding information on advance payment options in outreach to
historically underserved producers to increase EQIP participation; and
using USDA and other data to inform producers of the potential economic
impact of adopting conservation practices. Comment recommended that
NRCS track and provide annual information to the public on the results
of the allocations for wildlife practices and the use of native plants.
Other comment offered general support for NRCS activities.
Response: NRCS is committed to providing high-quality service
across the Nation. Outreach strategies and efforts are in place at the
national, State, and local levels, with those at the State and local
level tailored to the needs of the specific area. In addition, targeted
outreach efforts are underway for historically underserved producers
and Tribes. In the regulation, Sec. 1466.5 contains special outreach
authorization for historically underserved producers and a paragraph
including outreach and documentation to historically underserved
producers pertaining to advance payments. Regarding economic impacts,
NRCS considers estimated economic impact in its conservation planning
process, including in the development of conservation practice
standards. The 2018 Farm Bill also requires the Secretary to identify
available data sets within USDA that link the use of conservation
practices to farm and ranch profitability (including crop yields, soil
health, and other risk-related factors).
NRCS tracks EQIP investment and performance. In addition to the
2018 Farm Bill's emphasis on reporting EQIP outcomes, the agency has an
interest in understanding the impact of the statutory increase of the
wildlife allocation from 5 to 10 percent. Regarding publicly available
reports, the Soil and Water Resources Conservation Act (RCA) provides
broad natural resource strategic assessment and planning authority for
USDA. Information about NRCS's conservation programs at the State,
regional, and national level, is available on the RCA interactive data
viewer (https://www.nrcs.usda.gov/wps/portal/nrcs/detail/national/technical/nra/rca/ida/).
No changes have been made to the regulation in response to these
comments.
Payment Limits
Comment: NRCS received comment related to payment limits, including
opposition to the increased payment limit for participants in the
organic initiative, request for removal of the $200,000 payment limit
for incentive contracts, and support for keeping the aggregate payment
limit of $450,000.
Response: NRCS provides financial and technical assistance, through
the National Organic Initiative, to help organic or transitioning-to-
organic producers. In the interim rule, in Sec. 1466.24, NRCS updated
the payment limitations for organic production from annual limits to an
aggregate limit from FY 2019 through 2023, as required by the 2018 Farm
Bill. Economic analysis indicates little impact as organic initiative
contracts are usually well below the multiyear payment limit of $80,000
previously set by the 2014 Farm Bill. In the past, organic participants
who exceed the organic initiative payment limit use other EQIP funding
mechanisms. With the increased limit, more organic applicants will be
able to make use of the organic initiative and consequently need only
compete with other organic operations for funding.
The 2018 Farm Bill's introduction of EQIP incentive contracts
provides a new option for participation. In Sec. 1466.44 of the
interim rule NRCS established criteria for incentive payments,
including establishing a regulatory $200,000 payment limit similar to
CSP, and ensuring that incentive contracts support a participant's
ability to transition to CSP eligibility. While there were no comments
submitted that opposed the $200,00 payment limit in this section, NRCS
may consider setting
[[Page 67644]]
a contract limit on EQIP incentive contracts in the future.
No change is being made to the regulation in response to this
issue.
Payment Rates
Comment: NRCS received comment on the topic of payment rates,
including adding the cost of third-party measurement of environmental
benefits of adopted practices to payment rates as well as soil testing
and data collection costs associated with using emerging sustainability
tools and platforms and emerging ecosystem markets; using additional
financial incentives (for example, through increased foregone income
payments or higher cost-share percentages for high-priority practices)
to meet the funding goal for wildlife practices; concern that payments
received by participants may exceed the actual costs associated with
the practice; and recommending that States, not regions, set payment
rates, as project costs can vary widely from State to State.
Response: NRCS follows a methodical approach and will consider each
comment in developing payment schedules. The 2018 Farm Bill authorized
increased payment rates for certain high-priority practices and for
practices that address source water protection. Further, States can
designate high-priority practices that will be eligible for higher
payment rate at the State level. Policy requires soliciting input from
State technical committees and the posting of payment schedules on a
public website. In addition, as NRCS develops the functionality of
digital tools, such as the Conservation Assessment and Ranking Tool
(CART), the process of determining payment rate alignment with
statutory factors will be refined. NRCS incorporates all statutory
payment factors into regulations and ensures that payment rates are
consistent between EQIP and CSP. No change is being made to the
regulation in response to this issue.
Ranking
Comment: NRCS received comment recommending criteria changes to
ranking and the weighting of ranking factors including that: Ranking
focus on the net benefit to stream flows; preference be given to
operators who have demonstrated ``best practices'' (with a focus on
nonpoint source pollution); accountability mechanisms be built to
ensure practices are achieving the maximum benefit; States prioritize
practices addressing multiple resource concerns; and priority for EQIP
enrollment be provided to land transitioned through the CRP Transition
Incentive Program (CRP-TIP) (see 16 U.S.C. 3835(f)(1)(E)).
Response: NRCS will continue to work cooperatively with its State
and local partners to develop ranking criteria that fit national,
State, and local priorities. These priorities may include net benefit
to stream flows, nonpoint source pollution, the feasibility of
requiring accountability mechanisms in contract implementation, or
multiplicity of conservation benefits. However, NRCS is not requiring
these specific ranking factors in every situation.
State Conservationists, in consultation with State technical
committees, determine how many extra points to provide CRP-TIP in
ranking. NRCS is committed to protecting CRP-TIP land in transition to
a covered farmer or rancher and has incorporated this statutory
priority in this final rule by adding language to Sec. Sec. 1466.1 and
1466.20(b). No other changes are made to the regulation in response to
this issue.
Paperwork Reduction Act and Effective Date
In general, the Administrative Procedure Act (APA) (5 U.S.C. 553)
requires that a notice of proposed rulemaking be published in the
Federal Register and interested persons be given an opportunity to
participate in the rulemaking through submission of written data,
views, or arguments with or without opportunity for oral presentation,
except when the rule involves a matter relating to public property,
loans, grants, benefits, or contracts. This rule involves matters
relating to benefits and therefore is exempt from the APA requirements.
Further, the regulations to implement the programs of chapter 58 of
title 16 of the U.S. Code, as specified in 16 U.S.C. 3846, and the
administration of those programs, are--
To be made as an interim rule effective on publication,
with an opportunity for notice and comment,
Exempt from the Paperwork Reduction Act (44 U.S.C. ch.
35), and
To use the authority under 5 U.S.C. 808 related to
Congressional review.
Consistent with the use of the authority under 5 U.S.C. 808 related
to Congressional review for the immediate effect date of the interim
rule, this rule is also effective on the date of publication in the
Federal Register.
Executive Orders 12866, 13563, 13771, and 13777
Executive Order 12866, ``Regulatory Planning and Review,'' and
Executive Order 13563, ``Improving Regulation and Regulatory Review,''
direct agencies to assess all costs and benefits of available
regulatory alternatives and, if regulation is necessary, to select
regulatory approaches that maximize net benefits (including potential
economic, environmental, public health and safety effects, distributive
impacts, and equity). Executive Order 13563 emphasized the importance
of quantifying both costs and benefits, reducing costs, harmonizing
rules, and promoting flexibility. The requirements in Executive Orders
12866 and 13573 for the analysis of costs and benefits apply to rules
that are determined to be significant. Executive Order 13777,
``Enforcing the Regulatory Reform Agenda,'' established a Federal
policy to alleviate unnecessary regulatory burdens on the American
people.
The Office of Management and Budget (OMB) designated this rule as
economically significant under Executive Order 12866, and therefore,
OMB has reviewed this rule. The costs and benefits of this rule are
summarized below in the next section of this rule. The full regulatory
impact analysis is available on https://www.regulations.gov/.
Executive Order 13771, ``Reducing Regulation and Controlling
Regulatory Costs,'' requires that, to manage the private costs required
to comply with Federal regulations for every new significant or
economically significant regulation issued, the new costs must be
offset by the savings from deregulatory actions. This rule involves
transfer payments and is not required to comply with Executive Order
13771.
In general response to the requirements of Executive Order 13777,
USDA created a Regulatory Reform Task Force, and USDA agencies were
directed to remove barriers, reduce burdens, and provide better
customer service both as part of the regulatory reform of existing
regulations and as an on-going approach. NRCS reviews regulations and
makes changes to improve any provision that was determined to be
outdated, unnecessary, or ineffective.
Cost Benefit Analysis
Most of this rule's impacts consist of transfer payments to
producers for completed conservation practices under EQIP contracts.
There are also costs and benefits, which are described after a
discussion of the transfers. The 2018 Farm Bill increases EQIP funding
over 2014 Farm Bill funding by 15 percent on average to $1.84 billion
per year. From FY 2014 through 2018, EQIP was authorized at $8.0
billion, but annual funding restrictions resulted in actual authority
being $7.51 billion, for an
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annual average amount of $1.50 billion. In contrast, the authorized
level for EQIP for FY 2019 through 2023 is $9.18 billion (assuming
future funding is set at authorized amounts). Additionally, EQIP funds
remain available until expended, meaning that any unobligated balance
at the end of a fiscal year is available for obligation in the
subsequent year.
NRCS recognizes that a participant incurs costs in gaining access
to EQIP. These costs are in addition to the participant's share of the
cost of implementing conservation activities under EQIP. NRCS estimates
the total cost of accessing the program over 5 years to be $17.7
million. The cost to participants of implementing conservation
practices over 5 years is estimated at $4.46 billion and total
transfers (NRCS funds) over 5 years are estimated at $9.18 billion.
Given a 3 percent discount rate, this translates into a projected
annualized real cost to producers for implementing conservation
practices of $855.10 million and projected annualized real transfers of
$1.76 billion (Table 1). In addition, participants incur $3.5 million
in access costs in nominal terms.
Table 1--Annual Estimated Costs, Benefits, and Transfers
------------------------------------------------------------------------
Category Annual estimate
------------------------------------------------------------------------
Participant costs:
Access a............................................. $3,549,676.
Implementation b..................................... 855,100,000.
Benefits............................................... Qualitative.
Transfers c............................................ $1,760,000,000.
------------------------------------------------------------------------
a All estimates are discounted at 3 percent to 2019 $ except for the
participant access cost, which is nominal.
b Imputed cost of applicant time to gain access to EQIP.
c Participant share of the cost of implementing conservation practices
under EQIP.
The costs associated with this rule consist of the administrative
costs of applying for EQIP funding and are described in the full
regulatory impact analysis. The benefits of this rule are the
environmental improvements that are due to the increased conservation
practices over and above those that farmers privately undertake.
Conservation practices funded through EQIP will continue to: Contribute
to improvements in soil health and reductions in water and wind erosion
on cropland, pasture and rangeland; reduce nutrient losses to streams,
rivers, lakes and estuaries; increase wildlife habitat; and provide
other environmental benefits. Further, continued implementation of
practices which treat and manage animal waste through EQIP will
directly contribute to improvements in water quality and improvements
in air quality (such as reduced risk of algal blooms or reduction in
methane emissions, respectively). NRCS estimates that the expenditures,
from both public and private sources, of implementing EQIP conservation
practices will be $13.6 billion dollars (FY 2019 through 2023),
assuming a historical average participant cost of 40 percent and a
technical assistance share of 27 percent.
Changes in funding levels for EQIP livestock and wildlife practices
will alter to a minor extent the types of conservation practices that
are funded. From FY 2014 through 2018, wildlife practices accounted for
7.6 percent of EQIP funds through wildlife and landscape initiatives
and 16 designated wildlife conservation practices. The 2.4 percent
increase in funding for wildlife to meet the new 10 percent level will
likely occur through greater support for existing wildlife initiatives
and may target additional wildlife habitat development efforts through
new initiatives. With respect to livestock, over 60 percent of EQIP
funds went to livestock-related practices during FY 2014 through 2018,
but the 2018 Farm Bill reduced this target to 50 percent for each of
fiscal years 2019 through 2023. With greater EQIP funding overall, the
amount of funding being provided for the implementation of livestock
conservation practices should not change significantly.
To address increasing demands on the nation's water supply, the
2018 Farm Bill expands EQIP eligibility to WMEs like irrigation
districts, ground water management districts, and acequias, along with
providing the Secretary with the authority to waive AGI and payment
limits to encourage continued efforts in agricultural water
conservation. In some states, particularly in the West, these WMEs may
increase competition for funding and enhance conservation benefits per
dollar spent. The impacts, however, on the allocation of EQIP funding
will be limited. The 2018 Farm Bill directs NRCS to maintain current
funding allocations to states, limiting the impact nationally. Also,
NRCS in the interim rule established a payment limit of $900,000 on all
contracts with WMEs.
The 2018 Farm Bill establishes conservation incentive contracts to
address up to three priority resource concerns for each land use within
a given watershed, or other region, or area. Contracts will range from
a minimum of 5 years to up to 10 years in length and provide an annual
payment and incentive practice payments. NRCS has established a payment
limit of $200,000 to align with CSP. The impact of these new
conservation incentive contracts is uncertain, particularly regarding
benefits per dollar. Overall, given the current demand for regular
enrollment in EQIP, and the currently uncertain impacts that
conservation incentive contracts will have, the aggregate benefits from
these new conservation incentive contracts may be limited.
Increasing the payment limit for participants in the organic
initiative to $140,000 over the period FY 2019 through 2023, will
likely have little impact on EQIP performance. This is because existing
organic initiative contracts are usually well below the existing multi-
year payment limit of $80,000 set by 2014 Farm Bill. Currently, organic
participants who exceed the organic initiative payment limit use other
EQIP funding mechanisms. The increase in the organic initiative limit
to $140,000 may attract producers who have higher organic practice
costs or perhaps larger operations, and EQIP participants may make
greater use of the organic initiative and designated funding pool.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA), generally requires an agency to prepare a regulatory analysis
of any rule whenever an agency is required by APA or any other law to
publish a proposed rule, unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. This rule is not subject to the Regulatory Flexibility Act
because this rule is exempt from notice and comment rulemaking
requirements of the APA and no other law requires that a proposed rule
be published for this rulemaking initiative.
Environmental Review
The environmental impacts of this rule have been considered in a
manner consistent with the provisions of NEPA (42 U.S.C. 4321-4347),
the regulations of the Council on Environmental Quality (40 CFR 1500
through 1508), and the NRCS regulations for compliance with NEPA (7 CFR
part 650). NRCS conducted an analysis of the EQIP interim rule, which
determined there will not be a significant impact to the human
environment and as a result, an environmental impact statement (EIS) is
not required to be prepared (40 CFR 1508.1(l)). The 2018 Farm Bill
requires minor changes to NRCS conservation programs, and there are no
[[Page 67646]]
changes to the basic structure of the programs. The analysis has
determined there will not be a significant impact to the human
environment and as a result, an EIS is not required to be prepared (40
CFR 1508.1(l)). While OMB has designated this rule as ``economically
significant'' under Executive Order 12866, ``. . . economic or social
effects are not intended by themselves to require preparation of an
environmental impact statement'' (40 CFR 1502.16(b)), when not
interrelated to natural or physical environmental effects. The EA and
FONSI were available for review and comment for 30 days from the date
of publication of the interim rule in the Federal Register. NRCS
considered this input and updated the EA and FONSI with information
relevant to environmental concerns and bearing on the proposed action.
Executive Order 12372
Executive Order 12372, ``Intergovernmental Review of Federal
Programs,'' requires consultation with State and local officials that
would be directly affected by proposed Federal financial assistance.
The objectives of the Executive Order are to foster an
intergovernmental partnership and a strengthened Federalism, by relying
on State and local processes for State and local government
coordination and review of proposed Federal financial assistance and
direct Federal development. For reasons specified in the final rule-
related notice regarding 7 CFR part 3015, subpart V (48 FR 29115, June
24, 1983), the program and activities in this rule are excluded from
the scope of Executive Order 12372.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, ``Civil
Justice Reform.'' This rule will not preempt State or local laws,
regulations, or policies unless they represent an irreconcilable
conflict with this rule. Before any judicial actions may be brought
regarding the provisions of this rule, the administrative appeal
provisions of 7 CFR part 11 are to be exhausted.
Executive Order 13132
This rule has been reviewed under Executive Order 13132,
``Federalism.'' The policies contained in this rule do not have any
substantial direct effect on States, on the relationship between the
Federal Government and the States, or on the distribution of power and
responsibilities among the various levels of government, except as
required by law. Nor does this rule impose substantial direct
compliance costs on State and local governments. Therefore,
consultation with the States is not required.
Executive Order 13175
This rule has been reviewed in accordance with the requirements of
Executive Order 13175, ``Consultation and Coordination with Indian
Tribal Governments.'' Executive Order 13175 requires federal agencies
to consult and coordinate with Tribes on a Government-to-Government
basis on policies that have Tribal implications, including regulations,
legislative comments or proposed legislation, and other policy
statements or actions that have substantial direct effects on one or
more Indian Tribes, on the relationship between the Federal Government
and Indian Tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes.
The USDA's Office of Tribal Relations (OTR) has assessed the impact
of this rule on Indian Tribes and determined that this rule does not,
to their knowledge, have Tribal implication that require Tribal
consultation under Executive Order 13175. Tribal consultation for this
rule was included in the two 2018 Farm Bill Tribal consultations held
on May 1, 2019, at the National Museum of the American Indian, in
Washington, DC, and on June 26-28, 2019, in Sparks, NV. For the May 1,
Tribal consultation, the portion of the Tribal consultation relative to
this rule was conducted by Bill Northey, USDA Under Secretary for the
Farm Production and Conservation mission area, as part of the Title II
session. There were no specific comments from Tribes on the EQIP rule
during the Tribal consultation. If a Tribe requests consultation, NRCS
will work with OTR to ensure meaningful consultation is provided where
changes, additions, and modifications identified here in this rule are
not expressly mandated by legislation. OTR has determined that Tribal
consultation for this rule is not required at this time.
Separate from Tribal consultation, communication, and outreach
efforts are in place to assure that all producers, including Tribes (or
their members), are provided information about the regulation changes.
Specifically, NRCS obtains input through Tribal Conservation Advisory
Councils. A Tribal Conservation Advisory Council may be an existing
Tribal committee or department and may also constitute an association
of member Tribes organized to provide direct consultation to NRCS at
the State, regional, and national levels to provide input on NRCS
rules, policies, programs, and impacts on Tribes. Tribal Conservation
Advisory Councils provide a venue for agency leaders to gather input on
Tribal interests. Additionally, NRCS held several sessions with Indian
Tribes and Tribal entities across the country in FY 2019 to describe
the 2018 Farm Bill changes to NRCS conservation programs, obtain input
about how to improve Tribal and Tribal member access to NRCS
conservation assistance, and make any appropriate adjustments to the
regulations that will foster such improved access. NRCS will continue
to conduct these sessions with Indian Tribes and Tribal entities.
Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub.
L. 104-4), requires federal agencies to assess the effects of their
regulatory actions on State, local, and Tribal Governments or the
private sector. Agencies generally must prepare a written statement,
including cost-benefits analysis, for proposed and final rules with
Federal mandates that may result in expenditures of $100 million or
more in any 1 year 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 UMRA,
for State, local, and Tribal Governments or the private sector.
Therefore, this rule is not subject to the requirements of UMRA.
Federal Assistance Programs
The title and number of the Federal Domestic Assistance Programs in
the Catalog of Federal Domestic Assistance to which this rule applies:
10.912--Environmental Quality Incentives Program.
E-Government Act Compliance
NRCS and CCC are committed to complying with the E-Government Act,
to promote the use of the internet and other information technologies
to provide increased opportunities for citizen access to Government
information and services, and for other purposes.
List of Subjects in 7 CFR Part 1466
Administrative practice and procedure, Animal welfare, Natural
resources, Soil conservation, Water resources.
Accordingly, for the reasons stated above, the interim rule
amending 7 CFR part 1466, which was published at 84
[[Page 67647]]
FR 69272 on December 17, 2019, is adopted as final with the following
changes:
PART 1466--ENVIRONMENTAL QUALITY INCENTIVES PROGRAM
0
1. The authority citation for part 1466 continues to read as follows:
Authority: 15 U.S.C. 714b and 714c; and 16 U.S.C. 3839aa-3839-8.
0
2. Amend Sec. 1466.1 by revising paragraphs (a)(2) through (4) to read
as follows:
Sec. 1466.1 Applicability.
(a) * * *
(2) Through EQIP, NRCS provides technical and financial assistance
to eligible agricultural producers, including nonindustrial private
forest (NIPF) landowners and Indian Tribes, to help implement
conservation practices that address resource concerns related to
organic production; soil, water, and air quality; wildlife habitat;
nutrient management associated with crops and livestock; pest
management; ground and surface water conservation; irrigation
management; drought resiliency measures; adapting to and mitigating
against increasing weather volatility; energy conservation; and related
resource concerns.
(3) EQIP's financial and technical assistance helps:
(i) Producers comply with environmental regulations and enhance
agricultural and forested lands in a cost-effective and environmentally
beneficial manner; and
(ii) To the maximum extent practicable, avoid the need for resource
and regulatory programs.
(4) The purposes of EQIP are achieved by planning and implementing
conservation practices on eligible land to address identified, new, or
expected resource concerns, including such resource concerns related to
lands enrolled under a Conservation Reserve Program contract that are
transitioning into production as specified in 16 U.S.C. 3835(f).
* * * * *
0
3. Amend Sec. 1466.3 by revising the definition for ``Comprehensive
nutrient management plan (CNMP)'' to read as follows:
Sec. 1466.3 Definitions.
* * * * *
Comprehensive nutrient management plan (CNMP) means a conservation
plan that is specifically for an AFO. A CNMP identifies conservation
practices and management activities that, when implemented as part of a
conservation system, will manage sufficient quantities of manure, waste
water, or organic by-products associated with a waste management
facility. A CNMP incorporates practices to use animal manure and
organic by-products as a beneficial resource while protecting all
applicable natural resources including water and air quality associated
with an AFO. A CNMP is developed to assist an AFO owner or operator in
meeting all applicable local, Tribal, State, and Federal water quality
goals or regulations. For nutrient-impaired stream segments or water
bodies, additional management activities or conservation practices may
be required by local, Tribal, State, or Federal water quality goals or
regulations.
* * * * *
0
4. Amend Sec. 1466.4 by revising paragraph (a) to read as follows:
Sec. 1466.4 National priorities.
(a) The national priorities in paragraphs (a)(1) through (8) of
this section, consistent with statutory resources concerns, include
soil quality, water quality and quantity, plants, energy, wildlife
habitat, air quality, increased weather volatility, and related natural
resource concerns, that may be used in EQIP implementation are:
(1) Reductions of nonpoint source pollution, such as nutrients,
sediment, pesticides, or excess salinity in impaired watersheds
consistent with total maximum daily loads (TMDL) where available;
(2) The reduction of ground and surface water contamination;
(3) The reduction of contamination from agricultural sources, such
as animal feeding operations;
(4) Conservation of ground and surface water resources, including
improvement of irrigation efficiency and increased resilience against
drought and weather volatility;
(5) Reduction of emissions, such as particulate matter, nitrogen
oxides, volatile organic compounds, and ozone precursors and depleters
that contribute to air quality impairment violations of the National
Ambient Air Quality Standards;
(6) Reduction in soil erosion and sedimentation from unacceptable
levels and improvement of soil health on eligible land;
(7) Promotion of at-risk species habitat conservation including
development and improvement of wildlife habitat; and
(8) Energy conservation to help save fuel, improve efficiency of
water use, maintain production, and protect soil and water resources by
more efficiently using fertilizers and pesticides.
* * * * *
0
5. Amend Sec. 1466.6 by revising paragraph (d)(1) to read as follows:
Sec. 1466.6 Program requirements.
* * * * *
(d) * * *
(1) Notwithstanding paragraphs (b) and (c) of this section, NRCS
may enter into an EQIP contract with a water management entity provided
the criteria in paragraphs (d)(1)(i), (ii), and (iii) of this section
can be met:
(i) The entity is a public or semipublic agency or organization,
(ii) Its purpose is to assist private agricultural producers manage
water distribution or conservation systems, and
(iii) The water conservation or irrigation practices support a
water conservation project under Sec. 1466.20(c) that will effectively
conserve water, provide fish and wildlife habitat, or provide for
drought-related environmental mitigation, as determined by the Chief.
* * * * *
0
6. Amend Sec. 1466.7 by revising paragraph (d) to read as follows:
Sec. 1466.7 EQIP plan of operations.
* * * * *
(d) If an EQIP plan of operations includes an animal waste storage
or treatment facility to be implemented on an AFO, the participant must
agree to:
(1) Develop a CNMP by the end of the contract period; and
(2) Implement any applicable conservation practices in the EQIP
plan of operation consistent with an approved CNMP.
* * * * *
0
7. Amend Sec. 1466.20 as follows:
0
a. In paragraph (b)(2)(viii), remove the word ``and'';
0
b. Add paragraph (b)(2)(ix); and
0
c. Redesignate paragraph (b)(2)(xi) as paragraph (b)(2)(x).
The addition reads as follows:
Sec. 1466.20 Application for contracts and selecting applications.
* * * * *
(b) * * *
(2) * * *
(ix) The land is enrolled under a CRP contract transitioning to a
covered farmer or rancher as specified in 16 U.S.C. 3835(f); and
* * * * *
0
8. Amend Sec. 1466.31 by revising paragraph (a) to read as follows:
[[Page 67648]]
Sec. 1466.31 Purpose and scope.
(a) The purpose of Conservation Innovation Grants (CIG) is to
stimulate the development and adoption of innovative conservation
approaches and technologies, including field research, while leveraging
Federal investment in environmental enhancement and protection in
conjunction with agricultural production. Notwithstanding any
limitation of this part, NRCS administers CIG in accordance with this
subpart. Unless otherwise provided for in this subpart, grants under
CIG are subject to the provisions of 2 CFR part 200, Uniform
Administrative Requirements, Cost Principles, and Audit Requirements
for Federal Awards.
* * * * *
0
9. Amend Sec. 1466.32 by redesignating paragraphs (c) and (d) as
paragraphs (d) and (e), respectively, and by adding a new paragraph (c)
to read as follows:
Sec. 1466.32 Conservation innovation grant funding.
* * * * *
(c) Authority to reduce matching requirement. The Chief may reduce
the matching requirements of paragraphs (b)(1) and (2) of this section,
provided that the applicant is:
(1) An historically underserved producer;
(2) A community-based organization comprised of, representing, or
exclusively working with historically underserved producers on a CIG
project;
(3) Developing an innovative conservation approach or technology
specifically targeting historically underserved producers' unique needs
and limitations; or
(4) An 1890 or 1994 land grant institution (7 U.S.C. 3222 et seq.),
Hispanic-serving institution (20 U.S.C. 1101a), or other minority-
serving institution, such as an historically Black college or
university (20 U.S.C. 1061), a tribally controlled college or
university (25 U.S.C. 1801), or Asian American and Pacific Islander-
serving institution (20 U.S.C. 1059g).
* * * * *
Kevin Norton,
Acting Chief, Natural Resources Conservation Service.
Robert Stephenson,
Executive Vice President, Commodity Credit Corporation.
[FR Doc. 2020-23437 Filed 10-23-20; 8:45 am]
BILLING CODE 3410-16-P