Environmental Quality Incentives Program, 67637-67648 [2020-23437]
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67637
Rules and Regulations
Federal Register
Vol. 85, No. 207
Monday, October 26, 2020
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.
DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR Part 1466
[Docket ID NRCS–2019–0009]
RIN 0578–AA68
Environmental Quality Incentives
Program
Natural Resources
Conservation Service (NRCS) and the
Commodity Credit Corporation (CCC),
United States Department of Agriculture
(USDA).
ACTION: Final rule.
AGENCY:
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: michael.whitt@usda.gov.
Persons with disabilities who require
alternative means for communication
should contact the USDA Target Center
at (202) 720–2600 (voice).
SUPPLEMENTARY INFORMATION:
SUMMARY:
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
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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—
Æ Animal feeding operation (AFO);
Æ Eligible land;
Æ Estimated income foregone;
Æ Forest management plan;
Æ High priority area;
Æ Incentive practice;
Æ Priority resource concern;
Æ Semipublic;
Æ Soil remediation;
Æ Soil testing; and
Æ Water management entity (WME).
• Added ‘‘increased weather
volatility’’ as a resource concern under
the national priorities identified in the
regulation.
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• 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
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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
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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
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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,
§ 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 § 1466.1(a)
and § 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-
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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
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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
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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 riceproducing 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
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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
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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 § 1466.21(e)(1)(ii)(A) and the
words or individual member thereof
from § 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.
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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
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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
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‘‘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 § 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
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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 highpriority 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 § 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
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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
§ 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
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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
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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
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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
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priorities in § 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
§ 1466.4(a)(4) and incorporates
‘‘improvement of soil health’’ in
§ 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, § 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
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crop yields, soil health, and other riskrelated 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
§ 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 § 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
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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
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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 §§ 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
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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.
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
TABLE 1—ANNUAL ESTIMATED COSTS, each of fiscal years 2019 through 2023.
With greater EQIP funding overall, the
BENEFITS, AND TRANSFERS
amount of funding being provided for
Category
Annual estimate the implementation of livestock
conservation practices should not
Participant costs:
change significantly.
Access a ..........................
$3,549,676.
To address increasing demands on the
Implementation b .............
855,100,000.
nation’s water supply, the 2018 Farm
Benefits ...............................
Qualitative.
Transfers c ........................... $1,760,000,000. Bill expands EQIP eligibility to WMEs
like irrigation districts, ground water
a All estimates are discounted at 3 percent
management districts, and acequias,
to 2019 $ except for the participant access along with providing the Secretary with
cost, which is nominal.
the authority to waive AGI and payment
b Imputed cost of applicant time to gain aclimits to encourage continued efforts in
cess to EQIP.
c Participant share of the cost of impleagricultural water conservation. In some
menting conservation practices under EQIP.
states, particularly in the West, these
The costs associated with this rule
WMEs may increase competition for
consist of the administrative costs of
funding and enhance conservation
applying for EQIP funding and are
benefits per dollar spent. The impacts,
described in the full regulatory impact
however, on the allocation of EQIP
analysis. The benefits of this rule are the funding will be limited. The 2018 Farm
environmental improvements that are
Bill directs NRCS to maintain current
due to the increased conservation
funding allocations to states, limiting
practices over and above those that
the impact nationally. Also, NRCS in
farmers privately undertake.
the interim rule established a payment
Conservation practices funded through
limit of $900,000 on all contracts with
EQIP will continue to: Contribute to
WMEs.
The 2018 Farm Bill establishes
improvements in soil health and
conservation incentive contracts to
reductions in water and wind erosion
address up to three priority resource
on cropland, pasture and rangeland;
reduce nutrient losses to streams, rivers, concerns for each land use within a
given watershed, or other region, or
lakes and estuaries; increase wildlife
habitat; and provide other
area. Contracts will range from a
environmental benefits. Further,
minimum of 5 years to up to 10 years
continued implementation of practices
in length and provide an annual
which treat and manage animal waste
payment and incentive practice
through EQIP will directly contribute to payments. NRCS has established a
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67645
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
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Federal Register / Vol. 85, No. 207 / Monday, October 26, 2020 / Rules and Regulations
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
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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
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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 costbenefits 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 costeffective 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
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Federal Register / Vol. 85, No. 207 / Monday, October 26, 2020 / Rules and Regulations
FR 69272 on December 17, 2019, is
adopted as final with the following
changes:
PART 1466—ENVIRONMENTAL
QUALITY INCENTIVES PROGRAM
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.
2. Amend § 1466.1 by revising
paragraphs (a)(2) through (4) to read as
follows:
■
§ 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 costeffective 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).
*
*
*
*
*
■ 3. Amend § 1466.3 by revising the
definition for ‘‘Comprehensive nutrient
management plan (CNMP)’’ to read as
follows:
§ 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
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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.
*
*
*
*
*
■ 4. Amend § 1466.4 by revising
paragraph (a) to read as follows:
§ 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
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67647
and water resources by more efficiently
using fertilizers and pesticides.
*
*
*
*
*
■ 5. Amend § 1466.6 by revising
paragraph (d)(1) to read as follows:
§ 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 § 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.
*
*
*
*
*
■ 6. Amend § 1466.7 by revising
paragraph (d) to read as follows:
§ 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.
*
*
*
*
*
■ 7. Amend § 1466.20 as follows:
■ a. In paragraph (b)(2)(viii), remove the
word ‘‘and’’;
■ b. Add paragraph (b)(2)(ix); and
■ c. Redesignate paragraph (b)(2)(xi) as
paragraph (b)(2)(x).
The addition reads as follows:
§ 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
*
*
*
*
*
■ 8. Amend § 1466.31 by revising
paragraph (a) to read as follows:
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§ 1466.31
Federal Register / Vol. 85, No. 207 / Monday, October 26, 2020 / Rules and Regulations
Purpose and scope.
DEPARTMENT OF TRANSPORTATION
(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.
*
*
*
*
*
9. Amend § 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:
■
§ 1466.32
funding.
Conservation innovation grant
*
*
*
*
*
(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
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Federal Aviation Administration
14 CFR Part 71
[Docket No. FAA–2020–0505; Airspace
Docket No. 20–ASW–1]
RIN 2120–AA66
Amendment of V–63 in the Vicinity of
Texoma, OK
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule.
AGENCY:
This action amends VHF
Omnidirectional Range (VOR) Federal
airway V–63 due to the planned
decommissioning of the VOR portion of
the Texoma, OK, VOR/Distance
Measuring Equipment (VOR/DME)
navigation aid (NAVAID). The Texoma
VOR provides navigation guidance for a
portion of V–63 and is being
decommissioned as part of the FAA’s
VOR Minimum Operational Network
(MON) program.
DATES: Effective date 0901 UTC,
December 31, 2020. The Director of the
Federal Register approves this
incorporation by reference action under
Title 1 Code of Federal Regulations part
51, subject to the annual revision of
FAA Order 7400.11 and publication of
conforming amendments.
ADDRESSES: FAA Order 7400.11E,
Airspace Designations and Reporting
Points, and subsequent amendments can
be viewed online at https://
www.faa.gov/air_traffic/publications/.
For further information, you can contact
the Rules and Regulations Group,
Federal Aviation Administration, 800
Independence Avenue SW, Washington,
DC 20591; telephone: (202) 267–8783.
The Order is also available for
inspection at the National Archives and
Records Administration (NARA). For
information on the availability of FAA
Order 7400.11E at NARA, email:
fedreg.legal@nara.gov or go to https://
www.archives.gov/federal-register/cfr/
ibr-locations.html.
FOR FURTHER INFORMATION CONTACT:
Colby Abbott, Rules and Regulations
Group, Office of Policy, Federal
Aviation Administration, 800
Independence Avenue SW, Washington,
DC 20591; telephone: (202) 267–8783.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Authority for This Rulemaking
The FAA’s authority to issue rules
regarding aviation safety is found in
Title 49 of the United States Code.
Subtitle I, Section 106 describes the
authority of the FAA Administrator.
PO 00000
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Fmt 4700
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Subtitle VII, Aviation Programs,
describes in more detail the scope of the
agency’s authority. This rulemaking is
promulgated under the authority
described in Subtitle VII, Part A,
Subpart I, Section 40103. Under that
section, the FAA is charged with
prescribing regulations to assign the use
of the airspace necessary to ensure the
safety of aircraft and the efficient use of
airspace. This regulation is within the
scope of that authority as it modifies the
route structure as necessary to preserve
the safe and efficient flow of air traffic
within the National Airspace System.
History
The FAA published a notice of
proposed rulemaking for Docket No.
FAA–2020–0505 in the Federal Register
(85 FR 38340; June 26, 2020), amending
VOR Federal airway V–63 in the
vicinity of Texoma, OK. The proposed
action was due to the planned
decommissioning of the VOR portion of
the Texoma, OK, VOR/DME. Interested
parties were invited to participate in
this rulemaking effort by submitting
written comments on the proposal. No
comments were received.
VOR Federal airways are published in
paragraph 6010(a) of FAA Order
7400.11E dated July 21, 2020, and
effective September 15, 2020, which is
incorporated by reference in 14 CFR
71.1. The VOR Federal airways listed in
this document will be subsequently
published in the Order.
Availability and Summary of
Documents for Incorporation by
Reference
This document amends FAA Order
7400.11E, Airspace Designations and
Reporting Points, dated July 21, 2020,
and effective September 15, 2020. FAA
Order 7400.11E is publicly available as
listed in the ADDRESSES section of this
document. FAA Order 7400.11E lists
Class A, B, C, D, and E airspace areas,
air traffic service routes, and reporting
points.
The Rule
The FAA is amending Title 14 Code
of Federal Regulations (14 CFR) part 71
to modify VOR Federal airway V–63 due
to the planned decommissioning of the
VOR portion of the Texoma, OK, VOR/
DME. The VOR Federal airway action is
described below.
V–63: V–63 extends between the
Bowie, TX, VORTAC and the Texoma,
OK, VOR/DME; between the Razorback,
AR, VORTAC and the Oshkosh, WI,
VORTAC; and between the Wausau, WI,
VORTAC and the Houghton, MI, VOR/
DME. The airway segment between the
Bowie, TX, VORTAC and the Texoma,
E:\FR\FM\26OCR1.SGM
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Agencies
[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]
========================================================================
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.
========================================================================
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.
-----------------------------------------------------------------------
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
[[Page 67645]]
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