[Federal Register Volume 74, Number 232 (Friday, December 4, 2009)]
[Rules and Regulations]
[Pages 63537-63541]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29001]
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DEPARTMENT OF AGRICULTURE
Natural Resources Conservation Service
7 CFR Part 662
RIN 0578-AA44
Regional Equity
AGENCY: Natural Resources Conservation Service, United States
Department of Agriculture.
ACTION: Final rule.
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SUMMARY: The Natural Resources Conservation Service (NRCS) is issuing a
final rule on the procedures for implementing the Regional Equity
provision of section 1241(d) of the Food Security Act of 1985, 16
U.S.C. 3841(d). The Regional Equity provision ensures that each State
receives a $15 million minimum annual aggregate level of conservation
program funding. NRCS published an interim final rule for Regional
Equity in the Federal Register on January 13, 2009, with request for
public comment. This final rule responds to comments received on the
January 13, 2009, interim final rule, and makes minor adjustments to
the Regional Equity regulation at 7 CFR part 662 in response to these
comments.
DATES: Effective December 4, 2009.
FOR FURTHER INFORMATION CONTACT: Geno Bulzomi, Acting Team Leader,
Program Allocations and Management Support Team, Department of
Agriculture, Natural Resources Conservation Service, 1400 Independence
Avenue, SW., Room 5208 South Building, Washington, DC 20250; telephone
(202) 690-0547; e-mail: [email protected], Attention: Regional Equity.
Persons with disabilities who require alternative means for
communication (Braille, large print, audiotape, etc.) should contact
the USDA Target Center at (202) 720-2600 (voice and TDD).
SUPPLEMENTARY INFORMATION:
Regulatory Certifications
Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
rule is not significant and will not be reviewed by OMB under Executive
Order 12866.
Regulatory Flexibility Act
It has been determined that the Regulatory Flexibility Act is not
applicable to this final rule because NRCS is not required by 5 U.S.C.
553, or any other provision of law, to publish a notice of final
rulemaking with respect to the subject matter of this rule.
Civil Rights Assessment
NRCS has determined through a Civil Rights Impact Analysis that the
issuance of this final rule discloses no disproportionately adverse
impact for minorities, women, or persons with disabilities. The data
presented indicates producers who are members of the historically
underserved groups have participated in NRCS programs at parity with
other producers. Extrapolating from historical participation data, it
is reasonable to conclude that NRCS programs, including Regional
Equity, will continue to be administered in a non-discriminatory
manner. Outreach and communication strategies are in place to ensure
all producers will be provided the same information to allow them to
make informed compliance decisions regarding the use of their lands
that will affect their participation in the Department of Agriculture
(USDA) programs. Regional Equity funding applies to all persons equally
regardless of their race, color, national origin, gender, sex, or
disability status. Therefore, the Regional Equity rule portends no
adverse civil rights implications. Copies of the Civil Rights Impact
Analysis may be obtained from Geno Bulzomi, Acting Team Leader, Program
Allocations and Management Support Team, Department of Agriculture,
Natural Resources Conservation Service, 1400 Independence Avenue, SW.,
Room 5208 South Building, Washington, DC 20250.
Environmental Analysis
The Regional Equity final rule establishes procedures for
implementing this provision at part 662 of this title and will not
directly impact the environment. This rule falls within the categories
of activities that have been determined not to have a significant
individual or cumulative effect on the human environment and are
excluded from the preparation of an environmental assessment or
environmental impact statement as set forth in the USDA National
Environmental Policy Act regulations in 7 CFR part 1b.3. Regional
Equity is an administrative function that relates to the funding of
programs and fund disbursements. These activities are categorically
excluded based upon 7 CFR 1b.3(a)(1) and 7 CFR 1b.3(a)(2) of USDA
regulations.
Paperwork Reduction Act
Section 2904 of the Food, Conservation, and Energy Act of 2008
(2008 Act) requires that implementation of programs authorized by Title
II of the
[[Page 63538]]
2008 Act be made without regard to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.). Therefore, NRCS is not reporting
recordkeeping or estimated paperwork burden associated with this rule.
Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, requires Federal agencies to assess the effects of their
regulatory actions on State, local, and Tribal governments or the
private sector of $100 million or more in any one year. When such a
statement is needed for a rule, section 205 of UMRA requires NRCS to
prepare a written statement, including a cost benefit assessment, for
proposed and final rules with ``Federal mandates'' that may result in
such expenditures for State, local, or Tribal governments, in the
aggregate, or to the private sector. UMRA generally requires agencies
to consider alternatives and adopt the more cost effective or least
burdensome alternative that achieves the objectives of the rule.
This rule contains no Federal mandates, as defined under Title II
of UMRA, for State, local, and Tribal governments or the private
sector. Thus, this rule is not subject to the requirements of sections
202 and 205 of the UMRA.
Executive Order 12988
This final rule has been reviewed in accordance with Executive
Order 12988. The provisions of this rule are not retroactive.
Furthermore, the provisions of this final rule preempt State and local
laws to the extent such laws are inconsistent with the rule.
Executive Order 13132
NRCS has considered this final rule in accordance with Executive
Order 13132, issued August 4, 1999. NRCS has determined that the rule
conforms to the Federalism principles set out in this Executive Order;
would not impose any compliance costs on the States; and would not have
substantial direct effects on the States, on the relationship between
the Federal Government and the States, or on the distribution of power
and responsibilities among the various levels of government. Therefore,
NRCS concludes that this rule does not have Federalism implications.
Executive Order 13175
This final rule has been reviewed in accordance with the
requirements of Executive Order 13175, Consultation and Coordination
with Indian Tribal governments. USDA has assessed the impact of this
final rule on Indian Tribal governments and has concluded that this
final rule will not negatively affect communities of Indian Tribal
governments. The rule will neither impose substantial direct compliance
costs on Tribal governments, nor preempt Tribal law.
Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994
Pursuant to section 304 of the Department of Agriculture
Reorganization Act of 1994, Public Law 104-354, USDA classified this
final rule as ``not major.''
Background
NRCS is issuing a final rule on the Regional Equity provision,
implementing section 1241(d) of the Food Security Act of 1985, as
amended, (16 U.S.C. 3841(d)) that requires minimum annual levels of
conservation program funding to each State. Section 2703 of the 2008
Act amended the Regional Equity provision by: Increasing the minimum
annual aggregate funding level from $12 million to $15 million;
establishing new conservation programs that are subject to the Regional
Equity provision (Agricultural Water Enhancement Program, Chesapeake
Bay Watershed Initiative, Conservation Stewardship Program, and
Voluntary Public Access and Habitat Incentive Program); and requiring
consideration of the respective demand in each Regional Equity State.
On January 13, 2009, NRCS published an interim final rule setting
forth how it intended to implement the Regional Equity provision. Under
the Regional Equity regulation at 7 CFR part 662, NRCS identifies the
States that will not receive through the normal program allocation
process a minimum aggregate level of funding of $15 million, known as
``Regional Equity States,'' and also identifies programs that will
contribute funds to meeting this threshold known as ``contribution
programs.'' NRCS then establishes program-specific drawing accounts for
each contribution program sufficient to bring all Regional Equity
States to an allocation of $15 million. A Regional Equity State can
request funds from the program-specific drawing accounts after the
State has obligated at least 90 percent of its initial allocation for
that program. The Chief, however, has the discretion to waive this
requirement to meet the specific need of a particular program.
This process enables NRCS to monitor the use of drawing account
funds and ensure that funds are used in the most effective and timely
manner. NRCS used a similar funding allocation procedure in fiscal year
(FY) 2008, when some Regional Equity States were unable to use all of
their Regional Equity funding. By holding Regional Equity funds in
program-specific drawing accounts, NRCS reallocated these funds earlier
in the fiscal year than the statutory April 1 deadline and identified
States that could obligate the funds toward high-priority needs. NRCS
believes this approach positions the agency to ensure that program
funds are directed to the highest-ranked applications.
Under the interim final rule, NRCS identified that it considers the
respective demand in each Regional Equity State in each program by
having State Conservationists in Regional Equity States cooperatively
determine the funding opportunity for each State's program-specific
drawing account. State Conservationists consult with their respective
State Technical Committees in evaluating the demand in their State for
funding from the drawing accounts. In evaluating the demand for
Regional Equity funding opportunities, State Conservationists consider
how applications address national program priorities, historic trends
in program interest, and the State's priority natural resource
concerns. This process enables additional funds to be allocated in a
way that meets the natural resource conservation needs of each State's
producers, meets the demand of each State's program needs, and ensures
that States do not receive additional funding when there is
insufficient demand.
Public Comments and Agency Response
NRCS published the Regional Equity interim final rule on January
13, 2009, and invited public comment on the rule as well as on any
economic or environmental impacts that might result from implementation
of the regulation. The deadline for comments was March 16, 2009. NRCS
received 7 responses containing more than 20 comments.
After consideration of those comments, as described herein, NRCS is
issuing this final rule to establish consistency and certainty in
implementation procedures for the Regional Equity provision.
The Allocation Process
Comment. Although most respondents were supportive of the general
approach and most of the specific implementation measures, one
respondent objected to the process of giving initial threshold
allocations based on a formula allocating shares across States. The
respondent argued that time is lost by insisting on an initial
allocation of funds to States that cannot
[[Page 63539]]
spend the full amount, and recommended that States able to use larger
allocations should get access to the money well before the end of the
fiscal year.
Response. Regional Equity for all States is a statutory
requirement. However, NRCS is taking measures, as detailed above, to
ensure that funds are available in a timely manner to other States when
a Regional Equity State does not use its available allocation. By
establishing program-specific drawing accounts for each covered
program, NRCS is able to monitor the use of drawing account funds,
determine early whether a Regional Equity State is able to use all its
Regional Equity funding, and reallocate funds in a timely manner to
other States with high-priority needs.
Comment. One respondent submitted two comments recommending that
NRCS establish a single conservation drawing account rather than
program-specific accounts, thus allowing each State Conservationist,
with input from the State Technical Committee, to choose the mix of
program funding for itself as well as to indicate early how much of a
particular program allocation it would not use. The amount of program
funding ``turned back'' would then be credited to the State's drawing
account.
Response. Currently, NRCS receives a separate fund apportionment
for each conservation program, which it tracks and reports separately.
NRCS then allocates funding to the States for each program through a
formula based upon natural resource and performance criteria. States
work within the program-specific available funding. NRCS is working to
simplify the apportionment process and allow for better management of
the NRCS workforce.
Comment. Two respondents expressed explicit support for the
allocation formula process identified above, but requested that the
formulas include a monitoring and evaluation component to determine how
well State projects or programs were meeting State and national
priorities, goals, and objectives.
Response. This comment is not specific to the Regional Equity
regulation, and thus no change is made in the Regional Equity final
rule. The allocation formula is not a monitoring tool, but the formula
includes performance factors including whether States are meeting
national priorities.
Determination of Contribution Programs
Comment. NRCS received two responses regarding the discretion given
to the Chief in Sec. 662.2 of the interim final rule to determine
which potential conservation programs will be considered ``contribution
programs'' in any given year. The respondents recommended that the
Chief's annual determination be made ``on the basis of the respective
demand for each program in Regional Equity States.''
Response. Since NRCS uses an allocation formula based upon natural
resource and performance criteria, Regional Equity allocation
determinations based solely on the demand for each program would
disproportionately reduce access by non-Regional Equity States to
funding they earn on the basis of the allocation formula. Regional
Equity States have the opportunity to work with other Regional Equity
States for the funding that best addresses their needs, thus increasing
their flexibility in accessing funds. In exercising discretion with
respect to determining the contribution programs, the Chief is limited
by which programs have sufficient available funding in any given year
and the fact that some programs are restricted by legislative intent
(e.g., specific geographic area or specific resource concern).
Moreover, not all Regional Equity programs are administered by NRCS.
For example, the Voluntary Access and Habitat Incentive Program is
administered by the Farm Service Agency.
Comment. In determining ``respective demand,'' State
Conservationists should rely on more than the three criteria detailed
in the interim final rule: program applications and how they address
national program priorities, historic trends in program interest, and
State priority natural resource concerns (see Sec. 662.4(c)(2)(i)). In
particular, the respondents identified additional criteria they believe
should be added, including: (1) The need in each State to address gaps
in participation in specific programs by Federally recognized Indian
Tribes and socially disadvantaged and historically underserved
producers; and (2) the degree to which a State has implemented
initiatives and demonstrated results with respect to such populations.
The respondents recommended that these criteria be applied both in the
determination of respective demand and in the exercise of the Chief's
discretion in Sec. 662.4(f) with respect to reallocation decisions.
Response. Regional Equity funds must be obligated in the same
manner as normal allocations, and thus all policy and statutory
requirements for ensuring equal access for historically underserved
producers (limited resource farmers and ranchers, beginning farmers and
ranchers, and socially disadvantaged producers) remain in effect. There
is no need for additional criteria for Regional Equity funds, and thus
no change is made in this rule.
Obligation Threshold
Comment. Two respondents proposed reducing the 90 percent
obligation threshold in Sec. 662.4(e) of the interim final rule to 75
percent and giving the Chief discretion to reduce further the
obligation threshold. Under the interim final rule, once a Regional
Equity State has obligated 90 percent of its original allocation, it
may request access to its portion of the Regional Equity drawing
account for that program. However, the funds are only available until
April 1 of each fiscal year, after which they may be reallocated at the
discretion of the Chief. The respondents argued that meeting this 90
percent threshold by April 1 will be difficult for all programs in
years when the congressional budget process runs late, and will be
difficult for some programs in any year because of the particular
requirements that some programs must meet before they can obligate
funds.
Response. The purpose of the high threshold requirement is for
Regional Equity States to demonstrate their capacity to obligate their
funding. However, NRCS agrees that for some programs, this may be a
difficult level of obligation to attain in a timely manner because of a
particular program's internal requirements. Therefore, NRCS amended the
language in Sec. 662.4(e) of this final rule to give the Chief the
ability to waive the threshold requirement with respect to specific
programs.
April 1 Deadline
Comment. The April 1 deadline elicited two kinds of comments: (1) A
request that NRCS commit to reallocating funds in response to State
requests within 60 days after April 1, and (2) a request for
clarification that the Chief has discretion to extend the April 1
deadline in order to provide States with access to the drawing account
even after that date.
Response. The Chief has the discretion to extend the April 1
deadline, as indicated in the regulation in Sec. 662.4(e). The Chief
may reallocate funds not obligated, but does not require such
reallocation. NRCS recognizes that the Federal appropriations process
can be unpredictable and may leave NRCS unable to provide initial
allocations early in the fiscal year. Thus, NRCS cannot commit to a
firm timeline for the reallocation of Regional Equity funding. The
Chief has the discretion to extend
[[Page 63540]]
the April 1 date to accommodate such delays in the appropriation
process or other circumstances that might make it difficult for States
to meet the date. In FY 2009, the Chief extended the deadline to August
15 when a continuing resolution left NRCS uncertain about what the
funding levels would be for various programs. No further rule change is
required.
List of Subjects in 7 CFR Part 662
Administrative practice and procedure, Agriculture, and Soil
conservation.
0
For the reasons stated in the preamble, NRCS revises part 662 in
chapter VI of Title 7 of the CFR to read as follows:
PART 662--REGIONAL EQUITY
Sec.
662.1 General.
662.2 Definitions.
662.3 Applicability.
662.4 Regional Equity implementation procedure.
Authority: 16 U.S.C. 3841(d).
Sec. 662.1 General.
This part sets forth the procedures that NRCS will use to implement
the Regional Equity provision of the Food Security Act of 1985, 16
U.S.C. 3841(d).
Sec. 662.2 Definitions.
The following definitions are applicable to this part:
Chief means the Chief of NRCS or the person delegated authority to
act on behalf of the Chief.
Contribution programs means Regional Equity programs that
contribute funding to Regional Equity States, as determined by the
Chief each fiscal year, consistent with the limitations established in
16 U.S.C. 3841(d).
Drawing account means the aggregated amount of contribution program
funds required to bring all States to the Regional Equity threshold.
Funding opportunity means the amount of funding needed to bring a
State to the $15,000,000 Regional Equity threshold for the aggregate of
Regional Equity programs.
Initial allocation means the amount of conservation program
allocation funding provided to all States through a merit-based,
natural resource focused process.
Obligated means a specific binding agreement, in writing, for the
purpose authorized by law and executed while the funding is available.
Regional Equity programs mean conservation programs under Subtitle
D (excluding the Conservation Reserve Program, Wetlands Reserve
Program, and the Conservation Security Program) of the Food Security
Act of 1985. These programs include: Conservation Stewardship Program,
Farm and Ranch Lands Protection Program, Grassland Reserve Program,
Environmental Quality Incentives Program, Conservation Innovation
Grants, Agricultural Water Enhancement Program, Conservation of Private
Grazing Land, Wildlife Habitat Incentive Program, Grassroots Source
Water Protection Program, Great Lakes Basin Program, Chesapeake Bay
Watershed Initiative, and the Voluntary Public Access and Habitat
Incentive Program. Regional Equity programs will be aggregated to
determine whether a State meets the $15,000,000 Regional Equity
threshold. However, not all Regional Equity programs will be considered
contribution programs.
Regional Equity provision means the statutory requirement to give
priority funding before April 1 for approved applications for specific
programs within States that have not received a $15,000,000 aggregate
level of funding.
Regional Equity States means any State not meeting the Regional
Equity threshold of $15,000,000 through the initial allocation for
Regional Equity programs.
Regional Equity threshold means the $15,000,000 minimum aggregate
amount of Regional Equity program funds.
Respective demand means the mix of contribution program funds that
each State Conservationist in a Regional Equity State requests to fill
that State's funding opportunity.
State means all 50 States, the District of Columbia, Commonwealth
of Puerto Rico, Guam, Virgin Islands, American Samoa, Commonwealth of
the Northern Mariana Islands, and the Freely Associated States.
State Conservationist means the NRCS employee authorized to
implement Regional Equity programs and direct and supervise NRCS
activities in a State, the Caribbean Area, or the Pacific Islands Area.
Sec. 662.3 Applicability.
The regulation in this part sets forth the policies and procedures
for the Regional Equity provision as administered by the NRCS. This
regulation applies to the Regional Equity programs defined in this
part. The Chief will implement the Regional Equity provision by
identifying programs that contribute to the establishment of program-
specific drawing accounts for priority funding in Regional Equity
States.
Sec. 662.4 Regional Equity implementation procedure.
The following procedures will implement the Regional Equity
provision:
(a) Determine initial allocations. NRCS will determine initial
conservation program funding levels for each State through a merit-
based, natural resource focused allocation process as determined by the
Chief.
(b) Determine the funding opportunity. The combined initial
allocation funding level for Regional Equity programs, by State, will
be compared to the Regional Equity threshold to determine each Regional
Equity State's funding opportunity.
(c) Establish contribution program fund levels. Subject to
availability of funds, contribution program fund levels are determined
by:
(1) Identifying which programs contribute funds, as determined by
the Chief, consistent with the limitations established in 16 U.S.C.
3841(d); and
(2) Each State's respective demand.
(i) State Conservationists in Regional Equity States, in
consultation with State Technical Committees, will evaluate and
determine their respective program demands based on the following
criteria:
(A) Program applications and how they address national program
priorities;
(B) Historic trends in program interest; and
(C) State priority natural resource concerns.
(ii) The State Conservationist's identified respective demand will
assist the Chief in determining the composition of contribution program
funds within the established drawing account.
(d) Establish the drawing account. NRCS will establish a drawing
account for each contribution program, as determined in paragraphs
(c)(1) and (c)(2) of this section, and will give priority before April
1 of each fiscal year for such funds to be used to fund applications in
Regional Equity States sufficient to bring each of the Regional Equity
States to the Regional Equity threshold of $15,000,000.
(e) Access the drawing account. State Conservationists in Regional
Equity States may request access to that State's assigned portion of
the drawing account once that State has obligated at least 90 percent
of its initial allocation for that same program. The Chief may waive
the 90 percent threshold requirement for a specific program in response
to specific program needs.
(f) Re-allocation of funds. The program-specific drawing accounts
for
[[Page 63541]]
Regional Equity States will be available until April 1 of each fiscal
year, after which date the remaining funds may be re-allocated at the
discretion of the Chief.
Signed this 30th day of November, 2009, in Washington, DC.
Dave White,
Chief, Natural Resources Conservation Service.
[FR Doc. E9-29001 Filed 12-3-09; 8:45 am]
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