E8-27657. State Technical Committees

AGENCY:

Natural Resources Conservation Service, United States Department of Agriculture.

ACTION:

Interim final rule with request for comment.

SUMMARY:

Section 1261 of the Food Security Act of 1985, as amended (the 1985 Act), requires the Secretary of Agriculture (Secretary) to establish a technical committee in each State to assist the Secretary in the considerations relating to implementation and technical aspects of the conservation programs authorized under the 1985 Act. Section 1262 of the 1985 Act describes the responsibilities of the State Technical Committees to work with the United States Department of Agriculture (USDA) in an advisory capacity. Part 610, Subpart C of title 7 of the Code of Federal Regulations contains the current regulations for State Technical Committees.

Section 2711 of the Food, Conservation, and Energy Act of 2008 (2008 Act) amended Sections 1261 and 1262 of the 1985 Act to expand agricultural and forestry involvement on the committees, expand the committees' authority related to reviewing Local Working Groups' efforts to address State program priorities, and require the Secretary to standardize committee operations. Section 246(f)(3) of the Department of Agriculture Reorganization Act of 1994 exempted State Technical Committees from the Federal Advisory Committee Act. The 2008 Act clarifies that the Local Working Groups shall be considered a subcommittee of the applicable State Technical Committee for the purposes of this exemption. This interim final rule adopts these changes.

DATES:

Effective Date: This rule is effective November 25, 2008.

Comment date: Submit comments on or before January 26, 2009.

ADDRESSES:

You may send comments (identified by Docket Number NRCS-IFR-08010) using any of the following methods:

• Government-wide rulemaking Web site: Go to http://regulations.gov and follow the instructions for sending comments electronically.
• Mail: Conservation Technical Assistance Programs Division, U.S. Department of Agriculture, Natural Resources Conservation Service, 1400 Independence Avenue, SW., Room 6015-S, Washington, DC 20250-2890.
• Fax: [phone]
• Hand Delivery Room: Room 6015-S of the USDA South Office Building, 1400 Independence Avenue, SW., Washington, DC 20250, between 9 a.m. and 4 p.m., Monday through Friday, except Federal Holidays. Please ask the guard at the entrance to the South Office Building to call 202-720-4527 in order to be escorted into the building.
• This interim final rule may be accessed via Internet. Users can access the NRCS homepage at http://www.nrcs.usda.gov/​; select the Farm Bill link from the menu; select the Interim final link from beneath the Final and Interim Final Rules Index title. Persons with disabilities who require alternative means for communication (Braille, large print, audio tape, etc.) should contact the USDA TARGET Center at: [phone] (voice and TDD).

FOR FURTHER INFORMATION CONTACT:

Lillian Woods, Acting Director, Conservation Planning and Technical Assistance Programs Division, U.S. Department of Agriculture (USDA), Natural Resources Conservation Service (NRCS), P.O. 2890, Room 6015-S, Washington, DC 20013-2890; phone: [phone]; fax: [phone]; or e-mail: [e-mail], Attn: State Technical Committees.

SUPPLEMENTARY INFORMATION:

Comments Invited

NRCS invites interested persons to participate in this rulemaking by submitting written comments or views about the changes made by this interim final rule. The most helpful comments reference a specific portion of the regulation, explain the reason for any recommended changes, and include supporting data and references to statutory language. Please send two copies of written comments. All comments received on or before the closing date for comments will be considered. This regulation may be changed because of the comments received. All comments received, as well as a report summarizing each substantive public comment received concerning this interim final rule will be filed in the docket. The docket, including any personal information provided, will be made available for public inspection.

Regulatory Certifications

Executive Order 12866

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

Regulatory Flexibility Act

The interim final rule will not have a significant environmental impact on small entities. NRCS has determined that the Regulatory Flexibility Act does not apply.

Environmental Analysis

The proposed rule involves the establishment of State Technical Committees. As provided for under 7 CFR Part 1b.3—Categorical Exclusions, the proposed rule involves administrative functions that are categorically excluded from further environmental review under the National Environmental Policy Act (NEPA). Specifically, 7 CFR Part 1b.3 states: (a) The following are categories of activities which have been determined not to have a significant individual or cumulative effect on the human environment and are excluded from the preparation of environmental assessment (EAs) or environmental impact statement (EISs), unless individual agency procedures prescribed otherwise.

(1) Policy development, planning and implementation which relate to routine activities, such as personnel, organizational changes, or similar administrative functions;

(2) Activities which deal solely with the funding of programs, such as program budget proposals, disbursements, and transfer or reprogramming of funds;

(3) Inventories, research activities, and studies, such as resource inventories and routine data collection when such actions are clearly limited in context and intensity;

(4) Educational and informational programs and activities;

(5) Civil and criminal law enforcement and investigative activities;

(6) Activities which are advisory and consultative to other agencies and public and private entities, such as legal counseling and representation; and

(7) Activities related to trade representation and market development activities abroad.

The State Technical Committee rule meets the criteria for being a categorical exclusion under Section 1b.3 (1) Policy development, planning and implementation which relate to routine activities, such as personnel, organizational changes, or similar administrative functions; and (6)-Activities which are advisory and consultative to other agencies and public and private entities, such as legal counseling and representation.

Paperwork Reduction Act

Section 2904 of the 2008 Act provides that the promulgation and administration of Title II of the Act shall be made without regard to Chapter 35 of Title 44 of the United States Codes, also know as the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Therefore, NRCS is not reporting recordkeeping or estimated paperwork burden associated with this interim final rule.

Executive Order 12988

This interim final rule has been reviewed in accordance with Executive Order 12988, Civil Justice Reform. The provisions of this interim final rule are not retroactive. The provisions of this interim final rule preempt State and local laws to the extent that such laws are inconsistent with this interim final rule. Before an action may be brought in a Federal court of competent jurisdiction, the administrative appeal rights afforded persons at parts 11, 614, and 780 of this title must be exhausted.

Unfunded Mandates Reform Act of 1995

NRCS assessed the effects of this rulemaking action on State, local, and tribal governments, and the public. This action does not compel the expenditure of $100 million or more by any State, local, or tribal governments, or anyone in the private sector; therefore, a statement under section 202 of the Unfunded Mandates Reform Act of 1995 is not required.

Discussion of State Technical Committees

Background and Purpose

The 2008 Act amended requirements regarding the composition and responsibilities of State Technical Committees. Section 1261 of the 1985 Act, as amended, establishes the membership and responsibilities for State Technical Committees (committee(s)). When first enacted, this section required that committees be composed of “professional resource managers that represent a variety of disciplines in the soil, water, wetland, and wildlife sciences.” However, the 1985 Act only required representation from Federal and State agencies. The 1985 Act directed the Secretary to include representation from the Soil Conservation Service, the Agriculture Stabilization and Conservation Service, U.S. Forest Service, Extension Service, the Farmers Home Administration, the U.S. Fish and Wildlife Service, and State Departments and agencies the Secretary deemed appropriate, including: State Fish and Wildlife agencies, State foresters or equivalent State officials, State water resources agencies, State departments of agriculture, and State associations of soil and water conservation districts. The Secretary had discretionary authority to include other agency personnel with expertise in soil, water, wetland and wildlife management. The 1996 Act (Pub. L. 104-127) expanded eligibility for State Technical Committee membership to include representatives from the private sector. In addition to the members identified under the 1985 Act, the State Technical Committee was expanded to include agricultural producers and non-profit organizations with demonstrable conservation expertise, persons knowledgeable about conservation techniques, and agribusiness. The Chief, NRCS, added the following agencies and groups based on their proven expertise with conservation programs and natural resource issues: The Environmental Protection Agency, Bureau of Indian Affairs, U.S. Geological Survey, U.S. Army Corps of Engineers, Farm Service Agency State Committee, and Federally-recognized American Indian Tribal Governments and Alaskan Native Corporations encompassing 100,000 acres or more in the State. This full representation was incorporated in a final rule that was published on August 3, 1999.

The 2008 Act amendments add “agricultural producers and other professionals that represent a variety of disciplines in the soil, water, wetland, and wildlife sciences” and “owners of nonindustrial private forest land” as members of the committee. The U.S. Fish and Wildlife Service is no longer identified in the statute as a member of the committee, and agriculture producer members are no longer required to have conservation expertise. Agriculture producer members are now required to represent a variety of crops and livestock or poultry raised within the State. These changes are reflected in § 610.22 of this regulation.

The State Technical Committee is required under section 1261(c) to include members from a wide variety of natural resource and agricultural interests. The State Conservationist should ensure that all interests are adequately represented and heard on the committee and that recommendations, when adopted, address natural resource concerns. The committee membership in § 610.22 has been modified, as described under the summary of provisions below.

To ensure that recommendations of the State Technical Committees take into account the needs of the diverse groups served by USDA, in § 610.22, committee membership shall continue to include, to the extent practicable, individuals with demonstrated ability and skills concerning natural resource conservation subjects specific to historically underserved groups and individuals; i.e. minorities, women, persons with disabilities and socially and economically disadvantaged groups.

The State Conservationist determines the membership on the State Technical Committee. Individuals or groups wanting to participate as members on a State Technical Committee may submit to the State Conservationist a request that explains their interest and outlines their relevant credentials for becoming a member of the State Technical Committee. Decisions of the State Conservationist concerning membership on the committee are final and are not subject to appeal.

Section 1261 of the 1985 Act provides that each committee is advisory and has no implementation or enforcement authority. The 2008 Act amendments continue this provision in Section 1262(c)(1). In paragraph 1262(c)(2), the committees' role is expanded to provide advice on whether Local Working Groups are addressing State priorities adopted by the State Conservationist. Section 610.24, Responsibilities of State Technical Committees, paragraph (c) has been revised to incorporate this change.

The 2008 Act amendments to Section 1261(b)(1) require the Secretary to establish standard operating procedures for committees. Standard operating procedures will be incorporated in NRCS directives made available to the public through a Federal Register notice, NRCS offices and the NRCS Web site. The standard operating procedures will outline items such as: The best practice approach to establishing, organizing, and effectively utilizing State Technical Committees and Local Working Groups; direction on publication of meeting notices, agendas, and State Technical Committee meeting summaries; how to provide feedback on State Conservationist decisions regarding State Technical Committee recommendations; and other items as determined by the Chief.

Section 1262(d) exempts State Technical Committees from the provisions of the Federal Advisory Committee Act. The 2008 Act clarifies that any Local Working Group shall be considered to be a subcommittee of the applicable State Technical Committee. Sections 610.21, Purpose and scope, and 610.25, Specialized subcommittees, are changed to incorporate this statutory provision.

Summary of Provisions

Section 610.21 Purpose and Scope

Section 610.21 is amended to indicate that Local Working Groups, as well as State Technical Committees, are exempt from the provisions of the Federal Advisory Committee Act. Prior to the 2008 Act amendments, the statute expressly exempted only the State Technical Committees from the Federal Advisory Committee Act, although the Local Working Groups were, due to their composition of representative of elected officials, exempt from the Act.

Section 610.22 State Technical Committee Membership

Paragraph (a) of this section is revised to align the membership of the State Technical Committees with the composition required in Section 2711 of the 2008 Act. Statutorily required members continue to include NRCS; the Farm Service Agency; the U.S. Forest Service; the National Institute of Food and Agriculture (formerly the Cooperative State Research Education and Extension Service); the state fish and wildlife agency; the state forester; the state water resources agency; the state department of agriculture; the state association of soil and water conservation districts; agribusiness; and nonprofits with demonstrable conservation expertise, though they now must have experience in working with agricultural producers in the State. In addition, owners of nonindustrial private forest land, as well as agricultural producers representing the variety of crops and livestock or poultry raised in the State, are now explicitly identified as being members of the State Technical Committee. However, agricultural producers are no longer required to have conservation expertise.

In addition to the statutorily required members, the regulations also continue to explicitly provide for membership for the state Farm Service Agency Committee and each federally recognized American Indian Tribal Government and Alaskan Native Corporation encompassing 100,000 acres or more in the State.

In § 610.22, the Fish and Wildlife Service has been removed from membership as required by statute. In addition, NRCS has removed several agencies from required membership because the 2008 Act eliminated Section 1261(c)(8) from the statute, which had included “other agency personnel with expertise in soil, water, wetland, and wildlife management” as members. These agencies include: USDA Rural Development; the U.S. Environmental Protection Agency; the Bureau of Land Management; the Bureau of Indian Affairs; the U.S. Geological Survey; the Bureau of Reclamation; the Army Corps of Engineers; and the state coastal zone management agency. However, the State Conservationist will invite representatives from these and other relevant Federal and State agencies, as well as the private sector, to participate as needed.

The regulations do not change paragraph (b) regarding membership of historically underserved groups and individuals or paragraph (c) regarding the process by which individuals or groups may request membership on a State Technical Committee.

Section 610.23 State Technical Committee Meetings

Paragraph (b) is a new provision that addresses the statutory requirement for NRCS to develop standard operating procedures governing the operation of State Technical Committees. Specific topics that will be addressed in the standard operating procedures are identified in the regulations. The list is not exhaustive and comments are invited on the content of the standard operating procedures. The standard operating procedures will be made available to the public in a Federal Register Notice. The remaining language of § 610.23 has been reorganized, but has not changed.

Section 610.24 Responsibilities of State Technical Committees

Paragraph (a) is amended in the regulations to clarify that State Technical Committee members may provide information, analysis and recommendations not only to NRCS, but to other USDA agencies responsible for natural resource conservation activities and programs under Title XII of the 1985 Act. This change is consistent with the provisions of the 2008 Act.

Paragraph (b) of the regulations is consistent with the language in Section 1262 (d) of the 2008 Act. The 2008 Act deleted much of the specific guidance regarding State Technical Committee responsibilities for making technical recommendations. This change does not limit the scope of State Technical Committee responsibilities, but recognizes that State Technical Committee responsibilities should not be limited to certain specified technical areas.

Paragraph (c) was added to address the language in the 2008 Act about State Technical Committee authority to review whether Local Working Groups are addressing State priorities.

Section 610.25 Subcommittees and Local Working Groups

In the current regulations, § 610.25 addresses only specialized subcommittees of the State Technical Committee. Paragraph (a) of these interim final regulations retains the language of the current regulations, but explains that members of Local Working Groups, as well as members of State Technical Committees, can serve on specialized subcommittees. The regulations differentiate between recommendations resulting from Local Working Group meetings and from specialized subcommittee recommendations in that decisions resulting from Local Working Group sessions need not be reported in a general session of the State Technical Committee. NRCS has determined that Local Working Group recommendations need not be reported in a general session of the State Technical Committee because, given the number of Local Working Groups in a state, it will be more efficient for the State Technical Committees to receive a summary report of the Local Working Groups' recommendations from the State Conservationist. This reporting requirement will be included in the standard operating procedures. Local Working Groups will follow the standard operating procedures and the public notice requirements.

The intent of paragraph (b) is to ensure the membership of Local Working Groups is as diverse as that of the State Technical Committees, but is focused on agricultural interests and natural resource issues existing in the local community. Paragraph (b) outlines the role of Local Working Groups and clarifies that they are to provide recommendations on local natural resource priorities and criteria for conservation activities and programs.

NRCS invites comments regarding the interaction of Local Working Groups with State Technical Committees and with NRCS at both the local and State levels. The NRCS also invites comments regarding the State Technical Committee review of whether Local Working Groups are addressing the priorities established by the State Technical Committee.

List of Subjects in 7 CFR Part 610

• Soil conservation
• State Technical Committee
• Technical assistance
• Water resources

For the reasons stated in the preamble, the Natural Resources Conservation Service amends Part 610 of Title 7 of the Code of Federal Regulations as follows:

PART 610—TECHNICAL ASSISTANCE

1. The authority citation for part 610 continues to read as follows:

Authority: 16 U.S.C. 590a-f, 590q, 2005b, 3861, 3862.

2. Subpart C is revised to read as follows:

Subpart C—State Technical Committees

610.21

Purpose and scope.

610.22

State Technical Committee membership.

610.23

State Technical Committee meetings.

610.24

Responsibilities of State Technical Committees.

610.25

Subcommittees and Local Working Groups.

Subpart C—State Technical Committees

§ 610.21

Purpose and scope.

This subpart sets forth the procedures for establishing and using the advice of State Technical Committees. NRCS shall establish in each State a technical committee to assist in making recommendations relating to the implementation and technical aspects of natural resource conservation activities and programs. USDA will use State Technical Committees in an advisory capacity in the administration of certain conservation programs and initiatives. Pursuant to 16 U.S.C. 3862(d), these State Technical Committees and Local Working Groups are exempt from the provisions of the Federal Advisory Committee Act (5 U.S.C. App. 2).

§ 610.22

State Technical Committee membership.

(a) State Technical Committees shall include agricultural producers, nonindustrial private forest land owners, and other professionals who represent a variety of disciplines in soil, water, wetlands, plant, and wildlife sciences. The State Conservationist in each State will serve as chairperson. The State Technical Committee for each State shall include representatives from among the following:

(1) NRCS, USDA;

(2) Farm Service Agency, USDA;

(3) State Farm Service Agency Committee, USDA;

(4) Forest Service, USDA;

(5) National Institute of Food and Agriculture, USDA;

(6) Each of the Federally recognized American Indian Tribal Governments and Alaskan Native Corporations encompassing 100,000 acres or more in the State;

(7) State departments and agencies within the State, including the:

(i) Fish and wildlife agency;

(ii) Forestry agency;

(iii) Water resources agency;

(iv) Department of agriculture;

(v) Association of soil and water conservation districts; and

(vi) Soil and water conservation agency;

(8) Agricultural producers representing the variety of crops and livestock or poultry raised within the State;

(9) Owners of nonindustrial private forest land;

(10) Nonprofit organizations, within the meaning of section 501(c)(3) of the Internal Revenue Code of 1986, with demonstrable conservation expertise and experience working with agriculture producers in the State; and

(11) Agribusiness.

(b) The State Conservationist will invite other relevant Federal agencies, and persons knowledgeable about economic and environmental impacts of conservation techniques and programs to participate as needed.

(c) To ensure that recommendations of the State Technical Committees take into account the needs of the diverse groups served by the USDA, membership shall include, to the extent practicable, individuals with demonstrated ability to represent the conservation and related technical concerns of particular historically underserved groups and individuals; i.e., minorities, women, persons with disabilities and socially and economically disadvantaged groups.

(d) In accordance with the guidelines in paragraphs (a), (b) and (c) of this section, the State Conservationist establishes membership on the State Technical Committee. Individuals or groups wanting to participate on a State Technical Committee within a specific State may submit to the State Conservationist of that particular State a request that explains their interest and outlines their credentials which they believe are relevant to becoming a member of the State Technical Committee. Decisions of the State Conservationist concerning membership on the committee are final and not appealable to any other individual or group within USDA.

§ 610.23

State Technical Committee meetings.

(a) The State Conservationist, as Chairperson, schedules and conducts the meetings, although a meeting may be requested by any USDA agency as needed.

(b) NRCS shall establish and publish in a Federal Register notice national standard operating procedures governing the operation of State Technical Committees and Local Working Groups. The standard operating procedures will outline items such as: The best practice approach to establishing, organizing, and effectively utilizing State Technical Committees and Local Working Groups; direction on publication of State Technical Committee and Local Working Group meeting notices and agendas; State Technical Committee meeting summaries; how to provide feedback on State Conservationist decisions regarding State Technical Committee recommendations; and other items as determined by the Chief of NRCS.

(c) In addition to the standard operating procedures established under paragraph (b) of this section, the State Conservationist shall provide public notice of and allow public attendance at State Technical Committee and Local Working Group meetings. The State Conservationist shall publish a meeting notice no later than 14 calendar days prior to the meeting. Notification may exceed this 14-day minimum where State open meeting laws exist and provide for a longer notification period. This minimum 14-day notice requirement may be waived in the case of exceptional conditions, as determined by the State Conservationist. The State Conservationist shall publish this notice in at least one or more newspaper(s), including recommended Tribal publications, to attain statewide circulation.

§ 610.24

Responsibilities of State Technical Committees.

(a) Each State Technical Committee established under this subpart shall meet on a regular basis, as determined by the State Conservationist, to provide information, analysis, and recommendations to appropriate officials of the Department of Agriculture who are charged with implementing and establishing priorities and criteria for natural resources conservation activities and programs under Title XII of the Food Security Act of 1985, including: the Conservation Reserve Program, Wetlands Reserve Program, Conservation Security Program, Conservation Stewardship Program, Farm and Ranch Lands Protection Program, Grassland Reserve Program, Environmental Quality Incentives Program, Conservation Innovation Grants, Agricultural Water Enhancement Program, Conservation of Private Grazing Land, Wildlife Habitat Incentive Program, Grassroots Source Water Protection Program, Great Lakes Basin Program, Chesapeake Bay Watershed Program, and the Voluntary Public Access and Habitat Incentive Program. Such recommendations may include but are not limited to recommendations about:

(1) The criteria to be used in prioritizing program applications;

(2) The state-specific application criteria; and

(3) Priority natural resource concerns in the state.

(b) The role of the State Technical Committee is advisory in nature and the committee shall have no implementation or enforcement authority. The implementing agency reserves the authority to accept or reject the Committee's recommendations. However, the implementing USDA agency shall give strong consideration to the State Technical Committee's recommendations.

(c) State Technical Committees shall review whether Local Working Groups are addressing State priorities.

§ 610.25

Subcommittees and Local Working Groups.

(a) Subcommittees. In some situations, specialized subcommittees, made up of State Technical Committee members, may be needed to analyze and examine specific issues. The State Conservationist may assemble certain members, including members of Local Working Groups, to discuss, examine, and focus on a particular technical or programmatic topic. The subcommittee may seek public participation, but it is not required to do so. Nevertheless, recommendations resulting from these subcommittee sessions, other than sessions of Local Working Groups, shall be made only in a general session of the State Technical Committee where the public is notified and invited to attend. Decisions resulting from recommendations of Local Working Groups will be communicated to NRCS in accordance with the standard operating procedures described in § 610.23(b).

(b) Local Working Groups. (1) A Local Working Group shall be composed of conservation district officials, agricultural producers representing the variety of crops and livestock or poultry raised within the local area, nonindustrial private forest land owners, and other professionals representing relevant agricultural and conservation interests and a variety of disciplines in the soil, water, plant, wetland, and wildlife sciences who are familiar with private land agricultural and natural resource issues in the local community;

(2) Local Working Groups provide recommendations on local natural resource priorities and criteria for conservation activities and programs.

(3) The Local Working Groups will follow the standard operating procedures described in § 610.23(b) and the public notice requirements set forth in § 610.23(c).

Arlen L. Lancaster,

Chief, Natural Resources Conservation Service.