[Federal Register Volume 62, Number 99 (Thursday, May 22, 1997)]
[Rules and Regulations]
[Pages 28258-28292]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13534]
[[Page 28257]]
_______________________________________________________________________
Part X
Department of Agriculture
_______________________________________________________________________
Commodity Credit Corporation
_______________________________________________________________________
7 CFR Parts 1466
Environmental Quality Incentives Program; Rule
Federal Register / Vol. 62, No. 99 / Thursday, May 22, 1997 / Rules
and Regulations
[[Page 28258]]
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DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR Part 1466
RIN 0578-AA19
Environmental Quality Incentives Program
AGENCY: Commodity Credit Corporation, United States Department of
Agriculture.
ACTION: Final rule.
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SUMMARY: The Commodity Credit Corporation (CCC) is issuing a final rule
for the Environmental Quality Incentives Program (EQIP). CCC published
a proposed rule for EQIP in the Federal Register on October 11, 1996
(61 FR 53574) and solicited comments from the public. This final rule
establishes the process by which CCC will administer EQIP, responds to
comments received from the public during the 45-day comment period, and
incorporates clarifications to improve implementation of the program.
EFFECTIVE DATE: May 22, 1997.
ADDRESSES: This final rule may be accessed via Internet. Users can
access the Natural Resources Conservation Service (NRCS) homepage at
http://www.ftw.nrcs.usda.gov; select the 1996 Farm Bill Conservation
Programs from the menu.
FOR FURTHER INFORMATION CONTACT: Jeffrey R. Loser, Conservation
Operations Division, Natural Resources Conservation Service, P.O. Box
2890, Washington, D.C. 20013-2890. Phone: 202-720-1845. Fax: 202-720-
1838.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
Pursuant to Executive Order 12866, Regulatory Planning and Review
(58 FR 51735, October 4, 1993), the Office of Management and Budget
(OMB) has determined that this final rule is an economically
significant regulatory action because it may result in an annual effect
on the economy of $100 million or more. The administrative record is
available for public inspection in Room 6029, South Building, USDA,
14th and Independence Ave, SW, Washington, D.C.
Pursuant to Executive Order 12866, NRCS conducted an economic
analysis of the potential impacts associated with this program, and
included the analysis as part of a Regulatory Impact Analysis document
prepared for this rule. The analysis estimates EQIP will have a
beneficial impact on the adoption of conservation practices and, when
installed or applied to technical standards, will increase net farm
income. In addition, benefits would accrue to society for long-term
productivity, maintenance of the resource base, non-point source
pollution damage reductions, and wildlife enhancements. As a voluntary
program, EQIP will not impose any obligation or burden upon
agricultural producers that choose not to participate. The program was
authorized at $1.3 billion over the seven-year period of FY 1996
through FY 2002, with annual amounts of $200 million per year after the
initial interim year of $130 million. During the interim administration
period in FY 1996 authorized by 16 U.S.C. 3839aa-8, the CCC used the
$130 million to continue implementation of the terms and conditions of
the superseded programs to the extent that such terms and conditions
were consistent with the statutory provisions of EQIP.
In considering alternatives for implementing the program, NRCS
followed the legislative intent to maximize environmental benefits per
dollar expended, address natural resource problems and concerns,
establish an open participatory process that emphasizes priority areas,
and provide flexible assistance to producers who apply appropriate
conservation measures while complying with Federal, State, and tribal
environmental laws. The baseline alternative recognizes that the four
former conservation programs--the Agricultural Conservation Program
(ACP), Water Quality Incentives Program (WQIP), Great Plains
Conservation Program (GPCP), and Colorado River Basin Salinity Control
Program (CRSCP)--ceased to exist on April 4, 1996, with the passage of
the authorized amendments in the Federal Agriculture Improvement and
Reform Act of 1996 (the 1996 Act) to the Food Security Act of 1985 (the
1985 Act); an interim program extended until October 4, 1996. The
baseline assumes that no new program would replace the former programs,
resulting in a substantial decrease in funding for USDA conservation
efforts. It is recognized that some conservation adoption by
agricultural producers would continue in the absence of these programs
(e.g., up to 20 percent of producers according to Cooper and Keim's
assessment of WQIP). (Reference: Cooper, J.C., R.W. Keim. ``Incentive
Payments to Encourage Farmer Adoption of Water Quality Protection
Practices.'' American Journal of Agricultural Economics, Volume 78
(February 1996), pages 54-64.) The baseline alternative further
recognizes that several other Federal conservation programs will be
implemented which will generate environmental benefits. The
Conservation Reserve Program (CRP), Wetland Reserve Program (WRP) and
the recently established Wildlife Habitat Incentive Program (WHIP) will
be implemented during the same time period as authorized for EQIP. The
highly erodible land and wetland conservation compliance requirements
will continue to be in effect.
Based on the economic analysis, assuming the level of funding
authorized by the 1996 Act, an estimated 35.7 million acres of
agricultural land would be treated over the seven years of the program,
including 18.5 million acres of cropland, 3.7 million acres of pasture,
and 13.5 million acres of rangeland. Of the total agricultural land
treated, an estimated 26.8 million acres are expected to be in priority
areas. In regards to livestock operations needing assistance with
animal waste management facilities, NRCS estimates that over 10,000
small- to medium-sized livestock operations will be assisted with EQIP;
65 percent are expected to be in priority areas.
The off-farm public benefits associated with on-farm conservation
efforts are directly dependent upon the on-farm treatment needs and
associated benefits. In the case of non-point source pollution from
agricultural sources, for instance, public benefits are not achieved
until private landuser behavior changes and on-site conservation
measures are applied. Some of the off-site benefits are attributable to
improvements made to enhance freshwater and marine water quality and
fish habitat, improved aquatic recreation opportunities, reduced
sedimentation of reservoirs, streams, and drainage channels, and
reduced flood damages. Additional benefits are from reduced pollution
of surface and groundwater from agrochemical management, improvements
in air quality by reducing wind erosion, and enhancements to wildlife
habitat. EQIP encourages participants to adopt a comprehensive approach
to solving natural resource and environmental concerns. The program is
designed to take full advantage of the relationships among and between
conservation practices and the natural resources they are designed to
protect. Unlike CRP and WRP, EQIP provides for treatment of natural
resource concerns while enabling the land to be used for the production
of food and fiber. Furthermore, by replacing the four former
conservation
[[Page 28259]]
programs, the single program will reduce the administrative costs for
both farmers or ranchers and the Federal government.
In addition to the expected disbursements for cost-share and
incentive payments, EQIP costs include staff costs for actual delivery
of technical assistance for practice application and educational
assistance to agricultural producers on appropriate conservation
methods. Technical assistance costs will vary according to the type of
expertise required, the complexity and scope of the natural resource
concerns being addressed, and the objectives of the landowner.
Technical assistance services are also needed to help producers install
conservation practices that may be partially supported by EQIP, other
Federal programs, and by State or local government, or private
financial assistance programs. In terms of public and private
investment, USDA experience indicates that private landuser costs per
acre for conservation nearly equal Federal costs when analyzed on a
consistent basis. Private landuser costs per year for conservation
averaged about $10 per acre nationally, according to a 1995-96
evaluation NRCS conducted for its conservation technical assistance and
watershed protection program activities.
Total discounted benefits on cropland for EQIP are estimated at
$1651 million. This includes on-site production benefits of $544
million, other reduced input benefits (such as irrigation savings) of
$181 million, and off-site benefits of $924 million. This compares to
estimates of $504 million and $410 million for federal and private
costs, respectively.
Total discounted benefits for pasture are estimated at $324
million. These benefits compare to Federal and private costs of $51
million and $63 million, respectively. Total discounted benefits for
rangeland are estimated at $438 million, compared to Federal and
private costs of $204 million and $83 million, respectively.
The total discounted present value of benefits for EQIP (excluding
any benefits from conservation practices for treatment of animal waste)
amount to $2.41 billion while the present value of total discounted
costs, both public and private, are estimated at $1.65 billion. The net
benefits (estimated benefits less all costs) amount to $759 million
expressed in discounted present value dollars. Providing for an
allowance for the accrual of treated acreage over time and adjusting to
an annual basis (at a 3 percent interest rate), the annualized net
benefits are estimated to be $76 million, of which 62%, or $47 million,
are on-site benefits. Other studies have determined off-site benefits
as approximately 2 to 3 times the amount of on-site benefits (Resources
Conservation Act, USDA, 1989). Assuming the net off-site benefits are a
medium level of 2.5 times that of on-site benefits, then net off-site
benefits will be $118.3 million annually, for a total on-and off-site
benefits of $165.6 million annually.
The overall benefit to cost ratio is estimated to be 1.46, even
though off-site benefits for pasture and rangeland and total benefits
for animal waste management were not estimated due to unavailability of
data. The benefit to cost ratios for the major land types are:
cropland, 1.81; pasture, 2.84; and rangeland, 1.52. Cropland treatment
will produce the largest on-site and off-site benefits. The on-site
benefit to private cost ratios for cropland, pasture, and range are
1.77, 5.12, and 5.25 respectively.
A copy of this analysis is available upon request from Jeffrey R.
Loser, Conservation Operations Division, Natural Resources Conservation
Service, P.O. Box 2890, Washington, D.C. 20013-2890.
Regulatory Flexibility Act
The Regulatory Flexibility Act is not applicable to this rule
because CCC is not required by 5 U.S.C. 533 or any other provision of
law to publish a notice of proposed rulemaking with respect to the
subject matter of this rule.
Environmental Analysis
CCC has determined through an amendment to the ``Environment
Assessment for the Environmental Quality Incentives Program, August 1,
1996'' that the issuance of this final rule will not have a significant
effect on the human environment. Copies of the Environmental
Assessment, the amendment, and the finding of no significant impact may
be obtained from Jeffrey R. Loser, Conservation Operations Division,
Natural Resources Conservation Service, P.O. Box 2890, Washington, D.C.
20013-2890.
Paperwork Reduction Act
No substantive changes have been made in this final rule which
affect the recordkeeping requirements and estimated burdens previously
reviewed and approved under OMB control number 0560-0174.
Executive Order 12998
This final rule has been reviewed in accordance with Executive
Order 12998. The provisions of this final rule are not retroactive.
Furthermore, the provisions of this final rule preempt State and local
laws to the extent such laws are inconsistent with this final rule.
Before an action may be brought in a Federal court of competent
jurisdiction, the administrative appeal rights afforded persons at 7
CFR parts 614 and 11 must be exhausted.
Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994
Pursuant to Sec. 304 of the Department of Agriculture
Reorganization Act of 1994, Pub. L. 103-354, USDA classified this final
rule as major and CCC conducted a risk assessment. Available upon
request is an environmental risk assessment including a comparison of
the relative risks managed by EQIP and other programs in the Department
which address similar risks resulting from comparable activities. One
year after the final rule is promulgated, the economic analysis based
on a risk management assessment will address the costs associated with
implementation and compliance of the regulation and qualitative and
quantitative benefits of the regulation. A copy of the risk assessment
is available upon request from Jeffrey R. Loser, Conservation
Operations Division, Natural Resources Conservation Service, P.O. Box
2890, Washington, D.C., 20013-2890.
Unfunded Mandates Reform Act of 1995
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,
Pub. L. 104-4, CCC 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 government, or the private sector; therefore a statement
under Sec. 202 of the Unfunded Mandates Reform Act of 1995 is not
required.
Small Business Regulatory Enforcement Fairness Act of 1996
Pursuant to 5 U.S.C. Sec. 808 of the Small Business Regulatory
Enforcement Fairness Act of 1996, it has been determined by CCC that it
is impracticable, unnecessary, and contrary to the public interest to
delay the effective date of this rule. Making this final rule effective
immediately will permit CCC to offer the public timely, reliable
information about funding for conservation practices as early before
the start of the spring 1997 planting season as possible. Information
about the availability of the program for establishing conservation
practices may
[[Page 28260]]
influence planting decisions and should, therefore, be disseminated to
producers before planting decisions are made. Failure to provide this
information in a timely manner may mean that the realization of
important conservation benefits available under EQIP may be delayed for
another year before the start of another planting season. Further,
since the four former conservation programs ceased to exist on April 4,
1996, and the temporary or interim authority to administer EQIP ended
on October 4, 1996, there is no program in operation nationally that
provides technical, financial, and educational assistance of this kind
to producers for natural resource conservation purposes. Accordingly,
this rule is effective upon publication in the Federal Register.
Discussion of Program
The Federal Agriculture Improvement and Reform Act of 1996 (the
1996 Act) (Pub. L. 104-127, April 4, 1996) amended the Food Security
Act of 1985 (the 1985 Act) (16 U.S.C. 3801 et seq.) to re-authorize the
Environmental Conservation Acreage Reserve Program as the umbrella
conservation program encompassing the Conservation Reserve Program
(CRP) (16 U.S.C. 3831-3836), the Wetlands Reserve Program (WRP) (16
U.S.C. 3837 et seq.), and the newly created Environmental Quality
Incentives Program (EQIP) (16 U.S.C. 3840). Under the Environmental
Conservation Acreage Reserve Program, the Secretary of Agriculture may
designate areas as conservation priority areas to assist landowners to
meet nonpoint source pollution requirements, other Federal and State
environmental laws, and to meet other conservation needs.
EQIP combines into one program the functions of several
conservation programs administered by the Secretary of Agriculture,
including the Agricultural Conservation Program (ACP), the Agricultural
Water Quality Incentives Program, the Colorado River Salinity Control
Program (CRSCP), and the Great Plains Conservation Program (GPCP),
which are rescinded by the 1996 Act. Through EQIP, flexible technical,
financial, and educational assistance is provided to farmers and
ranchers who face serious threats to soil, water, and related natural
resources on their land, including grazing lands, wetlands, forest
land, and wildlife habitat. Participation in the program is voluntary.
The assistance is provided in a manner that maximizes environmental
benefits per dollar expended, helps producers comply with the
eligibility provisions of the 1985 Act, and helps farmers and ranchers
meet Federal and State environmental requirements. A consolidated and
simplified conservation planning process will be used to reduce any
administrative burdens that would otherwise be placed on producers.
The 1985 Act provides that funds of the CCC will be used to fund
the assistance provided under EQIP. For fiscal year 1996, $130 million
was made available to administer an interim program; a minimum of $200
million is to be made available for each of fiscal years 1997 through
2002. Fifty percent of the funding available for the program will be
targeted at practices relating to livestock production.
The CCC is a government-owned and operated corporation, chartered
in the 1930's to help stabilize and support farm prices and income, and
to maintain balanced supplies and orderly distribution of agricultural
commodities. The 1996 Act expanded the mission of the CCC to include
the power to carry out conservation or environmental programs
authorized by law.
The CCC is run by a Board of Directors, and the Secretary of
Agriculture serves as the Chairman of the Board. The Administrator of
Farm Service Agency (FSA) and the Chief of NRCS serve as officers of
the corporation. The CCC does not have its own operating personnel, and
all work done on behalf of the CCC is performed by personnel of
agencies within USDA. Pursuant to CCC bylaws, the NRCS Chief and the
FSA Administrator, as officers of the corporation, may use NRCS and FSA
personnel, respectively, to conduct work for CCC.
EQIP is a CCC-funded program, as reflected by the placement of this
regulation with other CCC program regulations and the designation of
CCC throughout the regulation itself. On behalf of the CCC, the NRCS
and FSA share administration of EQIP. Where appropriate, this final
regulation describes the CCC responsibilities performed by personnel
from the two respective agencies.
On October 11, 1996, CCC published a proposed rule with request for
comments. The proposed rule described the program requirements,
administrative processes, and eligibility criteria that CCC would use
in implementation of EQIP. The proposed rule also described how
priority areas and significant statewide natural resource concerns for
program funding would be designated and what information would be
considered in making those designations. Over 800 separate responses
containing about 2500 specific comments were received during the 45-day
comment period: 360 responses from farmers, ranchers, and other
individuals, 121 from agricultural and rural community organizations,
49 from environmental organizations, 111 from conservation districts
and related groups, 66 from business entities, and 109 from State and
local agencies.
Additional responses were received from Federal agencies and
employees; their comments are not included in the following analysis of
public comments. These responses were treated as inter-and intra-agency
comments and considered along with the public comments where
appropriate.
All comments received are available for review in Room 6032-S,
South Building, 14th and Independence Ave., S.W., Washington, D.C.,
during regular business hours (8 a.m. to 5 p.m.) Monday through Friday.
Analysis of Public Comment
Overall, almost all respondents expressed appreciation for the
opportunity to comment on the EQIP proposed rule. Many offered valuable
suggestions for improving or clarifying specific sections of the
proposed rule. Some of these suggestions were group efforts, where
individual responses used similar or identical language to identify and
describe their interests, concerns, and recommended modifications to
the proposed rule.
The majority of comments centered on six major issues in the
proposed rule: definition of large confined livestock operation;
focusing the program in priority areas; local work groups; requirement
for a conservation plan and long-term contract; roles of agencies; and
delayed payments in the first fiscal year of a contract. Several
comments either commended or criticized specific statutory
requirements. These comments were considered as part of the rulemaking
record to the extent that they were relevant to the provisions of the
rulemaking. Numerous minor editorial and other changes in the text were
suggested; these comments are not included in the following analysis
but all were considered and many of the minor technical changes were
included in the final rule.
To implement the final rule, NRCS will, with concurrence from FSA,
be responsible for establishing and documenting in program guidance the
overall policies, priorities, procedures, and guidelines for EQIP. NRCS
will seek the review and input by other Federal agencies, as
appropriate, when developing the guidance document.
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General Comments on 7 CFR Part 1466
Under the proposed rule, CCC would set out EQIP regulations in 7
CFR part 1466. The following summarizes general comments received on
the proposed rule and CCC's response to them.
1. The 1996 Act
Support for the introduction of EQIP and the proposed method for
implementing its provisions was expressed in 78 comments. An additional
29 comments express general disagreement with the introduction of a new
program, its proposed method for implementation, and the elimination of
programs such as the ACP that have been in existence for many years.
The Department recognizes that EQIP provides a new direction for
natural resources conservation programs and, as such, may create
concern among those familiar with former programs. However, Congress
established EQIP to combine into a single program the functions of the
former programs and to carry out the single program in a manner that
maximizes environmental benefits per dollar expended, and the
Department is required to administer the laws as passed by Congress.
2. Preamble Language in the Proposed Rule
Nineteen comments concern the length of the public comment period.
Twelve comments request an extension of the comment period by at least
30 to 45 days. Seven of the comments appreciate the opportunity given
for input and the varied mediums by which comments would be accepted.
Over 800 responses were received from a range of interested parties
from across the Nation. CCC believes that a sufficient length of time
was provided and it has received sufficient input to proceed to a final
rule.
Five comments concern the benefit cost assessment conducted
pursuant to Executive Order 12866. These comments suggest that most
environmental benefits occur off-site, recognize the difficulty in
quantifying off-site environmental benefits, and support Federal
incentives for producers to adopt on-site practices. The comments were
considered along with other information and data to finalize the
benefit cost assessment.
The preamble to the proposed rule included a discussion of the
efforts being made to improve program outreach to all eligible citizens
and solicited suggestions regarding how program delivery can be
improved on environmentally sensitive land managed by producers who
have not participated historically in the Department's conservation
programs. There were 25 comments received in response to this request.
Five comments express general support for USDA outreach efforts. Nine
comments express concern that EQIP will primarily benefit large
agricultural operations to the detriment of smaller, family-run
operations. One comment states that it appeared the midwestern farmers
would benefit to a greater extent than those in the southeast and
recommends the program provide equal benefits all over the country.
Several other miscellaneous comments were received on outreach.
Seven comments made specific recommendations for increasing USDA's
outreach efforts. These recommendations include: permit flexible
schedules for applying practices and systems; offer low-cost
conservation practice alternatives; consider the value of a producer's
labor as the producer's share of the cost; utilize local cooperative
extension service agencies in the education efforts; conduct a survey
of producers who do not normally participate and ask them the reasons
for their non-participation; provide flexibility regarding the control
of land for American Indians and others; and, coordinate the various
conservation programs such as CRP, WRP, and EQIP. Several comments
suggest Amish and Old Order Mennonite producers, Tribes, and Pacific
Islanders are groups that have not participated historically and USDA
should encourage greater participation. The Department remains
dedicated to increasing program availability to all eligible citizens.
The recommendations made in the public comments have been incorporated
in the final rule where applicable or will be included in program
guidance and delivery activities.
Section-by-Section Comments on 7 CFR Part 1466
Section 1466.1 Applicability
The proposed rule indicated that farmers and ranchers could receive
program assistance to address soil, water and related natural resources
concerns. There were 44 comments expressing support for wildlife
habitat concerns receiving program assistance on par with soil and
water issues and many of these comments wanted the final rule to
reflect the emphasis on wildlife issues to a greater extent. Three
comments voice concern that a balance should be attempted among soil
conservation, water quality, and other natural resource concerns; one
commenter believes EQIP should not be targeted as an environmental
program; and seven commenters identify particular natural resource
concerns that EQIP should encompass. EQIP shall be implemented in a
balanced manner in accordance with the statutory purposes for which
EQIP was established, including the statutory admonition to achieve
environmental benefits in a cost-effective manner. The proposed rule
contained broad language to facilitate the identification of a broad
range of natural resource concerns at the local level and the
Department still believes that this is the appropriate approach.
Therefore, no change is made in this section's language related to
natural resource concerns. The final rule now contains, however, a new
definition for ``related natural resources'' to help clarify the broad
range of natural resource concerns that are intended.
Seven comments support cost-share assistance for the implementation
of profitable practices. Several of these comments indicate that a
practice may prove profitable for a producer to implement in the long
term but the initial cost of installation may limit the extent of its
adoption. These commenters suggest that EQIP should provide cost-share
to off-set the initial outlay. Three commenters specifically indicate
that cost-share assistance should not be provided for practices that
are locally accepted as being sound and necessary components of a
profitable agricultural operation. EQIP assistance is not to assist
producers in the performance of normal or routine farming operations,
but to encourage the adoption of practices which address particular
natural resource concerns. During program implementation, the
Department will scrutinize the profitability of certain practices,
ascertain whether such practices would likely be adopted absent program
assistance, and direct program assistance accordingly. Even though EQIP
assistance may not be available for a practice determined to be a
``profitable practice,'' other Federal, State, tribal, or local
programs may provide credit or other types of assistance to producers
for initial outlay costs. Producers can obtain information regarding
other USDA program assistance from their local USDA service center.
Five comments suggest the rule and the processes for implementation
of EQIP should be simplified, but gave no further specific examples of
how this could be accomplished. The Department will evaluate on a
continuing basis ways to improve program delivery, including making the
application process simpler
[[Page 28262]]
and removing unnecessary administrative steps for the participant.
Section 1466.2 Administration
In this section, the respective roles of the NRCS and FSA were
identified, and provided for other agencies to assist NRCS and FSA with
implementing EQIP. Five comments express approval of the roles outlined
for the two agencies. Three comments express specific disapproval of
NRCS and FSA sharing responsibility for program implementation and 3
comments believe that such an arrangement would prove cumbersome. Two
comments express the importance that the agencies administer the
program in a simple and coordinated manner. Four comments desire
further clarification of the respective roles of the agencies. One
comment notes that successful program implementation requires the
agencies to train their personnel. USDA believes that it is important
for both NRCS and FSA to share in administrative responsibilities for
the program and that the respective roles of each agency are
satisfactorily identified. The proposed arrangement takes advantage of
the proven expertise of both NRCS and FSA. USDA established the
respective roles for NRCS and FSA and continues to find this shared
responsibility for program implementation to be an effective
utilization of Department resources. Training of NRCS, FSA, and
cooperating agency employees will be conducted to ensure that employees
can perform their jobs in a highly skilled, quality manner.
Accordingly, no change has been made in the final rule concerning the
shared responsibilities of NRCS and FSA.
Fifteen comments concern NRCS leadership of the program. Ten of the
comments support the NRCS State conservationist making local program
and funding decisions. One comment supports NRCS making funding
decisions and allocation determinations with FSA concurrence as
proposed in the rule. Two comments urge that FSA should not be involved
at all except for administrative purposes. Two comments state that FSA
should not be involved in the program because of the different missions
between NRCS and FSA.
There were 45 comments regarding the roles of FSA and FSA county
committees in the program. Twenty-six comments favor the administration
of the program should be fully carried out by FSA county committees.
Nine comments state that the program should be fully carried out
through the FSA. Eight comments suggest that FSA continue to perform
their same duties as in the former ACP, with NRCS providing technical
assistance only. Two comments state that FSA and FSA county committees
should administer EQIP due to the cost-effectiveness of the CRP and the
ACP.
The Department believes that the framework identified for delivery
of the program utilizes the proven expertise of NRCS and FSA to the
fullest extent possible. This framework identifies the primary role of
NRCS to be the Department's primary agency for natural resource
conservation on private lands. It also meets a basic intent of the
Department to simplify delivery of programs and improve their
flexibility and efficiency with both agencies playing a major role in
their delivery. EQIP places a much stronger emphasis on long-term
natural resource planning and assessment than was emphasized under ACP.
The core elements of the program require a higher level of technical
expertise on a broader scale than performed under previous conservation
programs. NRCS has the technical capability to meet these strengthened
technical assistance requirements and FSA can provide efficient
administrative expertise to support the program. No change was made in
the final rule concerning the roles of the agencies in the program.
Two comments make the suggestion that NRCS attempt to
quantitatively evaluate each contract, within the context of its
watershed, in order to fulfill its responsibility to evaluate program
success. One comment notes that the benefits of the conservation
practices may be much greater off-site and NRCS should consider such
benefits when evaluating the success of a particular contract. NRCS
will evaluate the program's performance at the farm and ranch, priority
area, State, regional, and national levels to: ensure that the program
purposes are met; evaluate the net benefits of different conservation
practices; and, understand ways to improve performance of the program.
The program evaluation and assessment process will include, but not be
limited to: determination of benchmark or baseline natural resource
conditions; establishment of performance indicators; measurement of
conservation effects and outcomes; determination of financial
investment; and, compilation of program accomplishments. National
program assessments will be done by aggregating assessments, data, and
information from the farm/ranch, priority area, State, and regional
levels.
In regards to funding decisions in paragraph 1466.2(b)(6), 52
comments suggest that FSA county committees should have authority to
make all funding and allocation determinations. Twelve comments support
NRCS having authority to make funding and allocation decisions. One
comment suggests that NRCS and FSA should share responsibility for
making funding decisions and allocation determinations. One comment
states that site-specific funding decisions and ranking producer
applications are the sole responsibility of NRCS and FSA county
committees must fund ranked plans. The framework that the Secretary
approved for delivery of the program provides for an adequate
concurrence mechanism regarding funding and allocation determinations
between NRCS and FSA. NRCS, as the lead agency, is in the best position
to make initial funding recommendations and then work closely with FSA
to obtain necessary concurrence. No change was made in the final rule
regarding these comments.
There were 31 comments on paragraph 1466.2(c) regarding the use of
the local, county, and State committees established under section 8(b)
of the Soil Conservation and Domestic Allotment Act of 1936 in
administering subtitle III conservation programs. The commenters
suggest the Secretary should provide the FSA committees with the same
authorities as under the former conservation programs. The Department
believes that the local, county, and State committees are being used in
a manner that is consistent with section 8(b) of the Soil Conservation
and Domestic Allotment Act of 1936. The committees have specified
responsibilities on local work groups or State technical committees,
and in administrative processes and procedures for applications,
contracting, and financial matters. Additionally, USDA believes that
the FSA county committee system will continue to serve a vital role by
representing the resource concerns of their production agriculture
constituents. FSA county committees have built a foundation of trust
over the years with many farmers and ranchers throughout the Nation. As
a full partner on the local work groups the FSA county committees will
be able to gain the involvement of and acceptance by the farmers and
ranchers whom they represent in the locally-led conservation effort.
FSA county committees are an integral component of the local work group
and their input and judgment is important to the effort. All members of
the local work group will need to create working relationships with
others so that the collaborative efforts of the group will result in a
successful
[[Page 28263]]
program. No change was made in the final rule concerning the roles of
FSA county committees.
In reference to paragraph 1466.2(f), nineteen comments want the
State FSA Committees to have approval authority for all applications
and cooperative agreements with other entities. Eight comments support
the proposed rule language that provides for cooperative agreements
with other entities, believing that such arrangements could improve
delivery of the program and address natural resource concerns in
coordination with others. Four comments express support for the
agencies to incorporate local information and to utilize existing state
and local coalitions and partnerships. Two comments indicate that CCC
should provide funding to partnering agencies. Ten comments express
concern that such arrangements would increase the administrative costs
of the program and thus result in less conservation on the ground. The
Department believes that the opportunity to work with other Federal
agencies, local and State partners, including those in the private
sector, will improve delivery of the program and is essential to the
successful resolution of an area's natural resource concerns. The
Department currently uses cooperative agreements and other instruments
for activities other than EQIP which involve both financial and in-kind
service considerations. Such partnerships have proven to be cost-
effective. Both NRCS and FSA may enter into cooperative agreements with
others to assist with implementation of the program elements for which
the respective agency has principal responsibility. The final rule
language has not been changed regarding cooperative agreements.
A general comment recommends the dissemination of information
regarding EQIP through regular channels now in existence and via the
Internet. The commenter proposes that an Internet homepage be developed
and be placed on-line within 3 months of approval of the final rule.
The homepage would contain a copy of the final rule, National and
regional points of contact, a list of the priority areas, a list of
innovative practices and technologies in use and a point of contact for
more information, a list of NRCS offices and links to State NRCS web
sites. USDA and NRCS currently have home pages where information can be
obtained. NRCS currently has the EQIP proposed rule and several EQIP
fact sheets available, along with a list of NRCS State offices and
links to NRCS State web sites. NRCS plans to use all available avenues
of media, including the Internet, to provide the final rule, lists of
priority areas, the EQIP guidance documents, and other information to
the general public. The USDA homepage can be accessed at http://
www.usda.gov. The NRCS homepage can be accessed at http://
www.ftw.nrcs.usda.gov. No change has been made to the final rule
concerning this comment.
Section 1466.3 Definitions
Agricultural Land
Two comments on this definition: one comment suggests that the term
should mean an area on which crops or livestock are intensively
produced, while the other comment suggests including the examples given
in paragraph 1466.4(d). The definition has been modified in the final
rule to be consistent with the examples given in paragraph 1466.4(d).
Confined Livestock Operation
Three comments on this definition: one comment supports the
definition as proposed; one comment suggests that a size element be
included in the definition; the remaining comment suggests that the
days of confinement be extended from 45 days to 60 days. A definition
of confined livestock operation has been included in the final rule. It
includes the parameters regarding ``confinement'' that were included in
the proposed rule. The 45 days included in the definition is unchanged
so that it is consistent with a definition for confinement used in the
Clean Water Act. This definition is commonly understood and accepted.
The Department does not desire to create another definition that may
cause confusion or unnecessary administrative burdens on producers.
Section 1466.7 addresses how the Department intends to administer large
confined livestock operations in the program.
Conservation District
One comment suggests the term ``Native American Tribe'' not be used
in the definition but be replaced with ``Indian Tribe'' according to
the Indian Self-Determination and Education Assistance Act of 1975. The
Department agrees with the suggestion on Indian tribes and has
incorporated the change in the final rule. A definition of Indian tribe
has also been included in the final rule.
Conservation Management System
One comment requests this definition be clarified in order to
distinguish a conservation management system from a resource management
system. A resource management system is a conservation management
system that achieves or exceeds a sustainable treatment level for the
natural resources. Conservation management systems include other
systems that do not achieve sustainability for one or all the natural
resources. The definition has been clarified in the final rule.
Conservation Plan
Six comments on this definition suggest the phrase ``record of a
participant's decisions...for treatment of a unit of land or water''
unduly limits the nature and purpose of a conservation plan. Some of
these comments state that a conservation plan consists of more than a
record of decisions and that the definition should include language
such as: identified natural resource problems; a participant's own
goals; alternative solutions considered to reach those goals; and,
selected solutions to achieve cost-effective environmental management.
Additionally, the comments suggest the concept of whole-farm planning
be added. The Department believes that these concerns are addressed
adequately in Sec. 1466.6 which describes the purposes and requirements
of a conservation plan in greater detail and provides for the broader
goals expressed in the comments. No change has been made to the
definition.
Conservation Practice
One comment suggests this definition be expanded to include
integrated pest management (IPM) and that IPM should include integrated
weed management. Since the definition for conservation practice
includes reference to a land management practice, and the definition of
land management practice includes IPM, the definition of conservation
practice includes IPM. The Department believes that IPM includes
integrated weed management and further definition is unnecessary. The
definition is intended to be generic in nature and reference to
specific practices was not intended. Therefore, the definition for
conservation practice remains as proposed.
Land Management Practice
Fifty-two comments suggest changes to this definition. Thirteen
comments request ``irrigation management'' should be included under the
definition of land management practice. Efficient irrigation practices
are supported in 36 comments and most of these comments suggest the
term ``efficient irrigation'' be added to the description of eligible
conservation practices. The proposed
[[Page 28264]]
rule included irrigation management under this definition. The
Department has modified this in the final rule by referring to
``irrigation water management'' which better describes the intent of
the practices and incorporates the concept of efficient irrigation.
The other comments request additions to the example practices
listed under land management practices: two comments suggest adding
tree planting and one comment suggests adding wellhead protection, crop
rotation, cover crop management, and numerous other practices. One
comment suggests adding ``including grazing lands, wetlands, and
wildlife habitat'' after ``related natural resource concern.'' The
practices listed in the definition are illustrative and not intended to
be exhaustive. Tree planting is a vegetative practice and has been
included in that definition. A definition of ``related natural
resource'' has been included in the final rule. The Department believes
that the definition of ``land management practice'', as proposed,
encompassed the suggested concepts adequately and does not require
changes.
Livestock, Livestock Production, and Livestock-related Natural Resource
Concern
One comment suggests the definition of livestock should include
honeybees. One comment on livestock production suggests rotational
grazing, fencing, and water development practices should be included in
the definition. One comment on livestock-related natural resource
concern suggests the spread of noxious weeds via animal waste from
confined feeding operations should meet the requirements of this
definition. The Department believes that honeybees should not be
considered as livestock but honey is an agricultural food product, thus
honeybee keepers are eligible agricultural producers. The other
specific suggestions are best left to the NRCS State conservationist in
consultation with the State technical committee. No changes have been
made to the subject definitions in the final rule.
Local Work Group
Forty comments concern this definition. Most of the comments
request the membership of the local work groups be expanded to others
outside of government and provide excellent reasons why certain
individuals and organizations could provide information and ideas that
would be valuable to the program and the responsibility of the local
work groups. Membership of the local work groups is limited to Federal,
State, Indian Tribe, and local government representatives because of
restrictions applicable to private advisory panels by the Federal
Advisory Committee Act (FACA). Given that almost 3500 separate local
work groups are estimated to be established to advise on the
implementation of the program, the Department felt that it was
unfeasible and burdensome to fulfill possible FACA requirements when
establishing each local work group. The Department expects and
anticipates that these various representatives who serve on the local
work group will request and receive ample information and ideas from
the public and their respective constituents. Therefore, no changes are
made to this definition.
Private Agribusiness Sector
Five comments suggest the term ``agricultural input retail
dealers'' should be included in the definition since this term was used
in the statute. One comment recommends a very broad interpretation of
``agribusiness.'' The Department intends to have a broad interpretation
of this definition so that the largest number of private sector
professionals may provide services for the program. The final rule has
been changed to include ``agricultural input retail dealers.''
Resource Management System
Two comments request this definition include grazing lands,
wetlands, and wildlife habitat. The term ``related natural resources,''
which has been included in the final rule, includes these concerns and
further inclusion in the definition of resource management system would
be redundant. Therefore, no changes were made to this definition.
State Technical Committee
Six comments concern representation on the State technical
committee and guidelines concerning the structure and operation of such
committees. NRCS intends to publish a rule on the structure and purpose
of the State technical committee in a separate rulemaking, and shall
consider these recommendations regarding committee representation and
guidelines as it develops that rule.
Structural Practice
Four comments recommend this definition include specific mention of
``irrigation water, conveyance, and application equipment'' as examples
of structural practices. The practices listed in the definition are
illustrative and not intended to be exhaustive. The Department believes
that the definition as proposed encompassed the suggested concepts
adequately and does not require changes.
Unit of Concern
Eight comments request clarification of this definition, one of
which expresses concern that the definition had no limits, three of
which recommend inserting the concept of whole-farm planning, and the
remaining four of which recommend limiting the definition to the
portion of the property upon which the conservation practice will
occur. The Department believes that a unit of concern can vary
depending on the natural resource concerns and the objectives of the
participant. A unit of concern can be a whole farm or a portion
thereof. The conservation plan must address the conditions that cause
or influence the natural resource concern for which the plan is being
developed. Therefore, information from outside the defined unit of
concern may be considered where it is necessary to develop the best
strategy for meeting the producer's objectives and resolving the
natural resource concern. No changes have been made in the final rule
for this definition.
Vegetative Practice
Four comments concern the examples used to describe vegetative
practices, one of which recommends deleting permanent wildlife habitat
as an example and the remaining three of which recommend including tree
planting as an example. The practices listed in the definition are
illustrative and not intended to be exhaustive. Tree planting has been
added as an example in the final rule. Permanent wildlife habitat was
listed as an example in the statute and has been retained in the final
rule.
New Definitions
Several commenters suggest new definitions be included in the final
rule, including: agricultural producer (2 comments); cost-share and
incentive payments (4 comments); environmental benefits index (1
comment); Indian tribe (1 comment); Indian trust lands (2 comments);
and liquidated damages (1 comment). The Department will include a
procedure in its program guidance for determining an eligible
agricultural producer. The term ``environmental benefits index'' is not
used in the final rule and, therefore, has not been defined.
Definitions for cost-share payments, incentive payments, Indian tribe,
Indian trust lands, and liquidated damages have been included in the
final rule.
[[Page 28265]]
Section 1466.4 Program Requirements
Four comments support the voluntary aspect of the program. No
change was made in the final rule concerning the voluntary aspect of
the program.
One commenter suggests the wording of the second sentence in
paragraph 1466.4(a) should be changed to indicate a participant should
develop a conservation plan ``in accordance with'' the local
conservation district, instead of ``in cooperation with.'' As provided
in 1466.6(a), USDA agrees that the conservation plan should be approved
by the local conservation district, but the plan must also meet the
purpose of the program and be acceptable to NRCS. The Department
believes the phrase ``in cooperation with'' better reflects the role of
the local conservation district. No change was made in the final rule
regarding this comment.
There were 37 comments regarding the use of EQIP funds for
providing technical assistance. Although not included in the proposed
rule, 21 comments recommend an unspecified maximum cap be established
for the use of program funds for technical assistance, one commenter
suggests a 10 percent cap, and eight commenters suggest a 5 percent cap
to be consistent with the former ACP. One comment supports funds for
technical assistance but recommended that FSA committees should
determine the amount. One comment said that no funds should go to
technical assistance but it should all go to farmers. Four comments
support the use of funds for technical assistance noting that without
sufficient technical assistance funding it will be difficult for
farmers to satisfactorily perform the conservation work. One commenter
suggests the cooperative extension service should receive EQIP
technical assistance funding for personnel who are providing assistance
to producers. USDA believes that voluntary conservation programs are
most successful when sufficient amounts of technical assistance,
educational assistance, and financial assistance are provided to
producers to aid them in natural resource conservation activities. The
1996 Act amended the 1985 Act to provide that the Secretary of
Agriculture is authorized to provide technical, educational, and
financial assistance to eligible farmers and ranchers using EQIP. The
1996 Act further stated that the amount of technical assistance
provided should be in an amount according to the type of expertise
needed, the quantity of time involved, and other factors as determined
appropriate by the Secretary. USDA believes that EQIP will require a
greater level of technical assistance than the former ACP because EQIP
will be dealing with a broader array and more difficult natural
resource concerns. Unlike ACP, EQIP will also include conservation
plans and long-term contracts for all participants. The 5 percent
reimbursement in ACP was not intended to reflect the actual cost for
technical assistance. Further, the former GPCP and CRSCP, which were
also replaced by EQIP, required technical assistance levels in excess
of 5 percent to attain the conservation purposes of the programs. The
former conservation programs have shown USDA that a specified rate of
technical assistance funding should not be established by rule because
natural resource conditions and concerns change over time and the
Department needs the ability to adapt to those changing conditions and
concerns. USDA believes that NRCS, which will deliver much of the
technical assistance in EQIP, should determine the amount of funds
needed for this purpose. When making this determination, NRCS will
consider its available resources from all programs, and those of other
public and private sources of technical assistance. Paragraph 1466.4(b)
has not been changed in the final rule.
Two comments were received regarding control of land as provided in
paragraph 1466.4(c)(2)(i). One comment suggests a separate paragraph
should be added concerning ``Indian trust land'' because the proposed
rule does not clearly show that Indian tribes are among the eligible
parties. Another commenter suggests ``communal land'' ownership and
leasing arrangements in the Pacific Basin should be eligible for EQIP,
including those cultural situations where land assignments are given
without written leases. Program guidance will identify the type of
evidence needed to show that an applicant has an adequate control of
land. Written leases may be one of the types of evidence, as will
historical use of the land and other evidence. Paragraph 1466.4(d) has
been amended to clearly show that tribal, allotted, and Indian trust
lands are eligible lands.
One comment states it is burdensome for tribal governments
responsible for a vast and complex system of agricultural lands to be
required to list all lands under their control, and requests the
informational requirements should be lessened for tribes. The
Department believes this comment concerned the requirement for listing
agricultural lands so that it can determine if an applicant is in
compliance with the highly erodible land and wetland conservation
provisions. All applicants must comply with these provisions to be
eligible for EQIP, including Tribes that receive certain Departmental
benefits. However, the Department will work with Tribes to develop
processes which minimize the administrative burden while meeting the
requirements for eligibility. For example, an authorized representative
of the Tribe or Bureau of Indian Affairs may certify compliance with
the highly erodible land and wetland conservation provisions on behalf
of the entire Tribe.
Five commenters express concern that EQIP does not appear to
include forest lands. Two comments state a concern that tree planting
will not be eligible for program assistance. The Department believes
that forest land, like all other eligible land, must have natural
resource problems or pose a threat to natural resources to be eligible
for EQIP assistance. Tree planting and other forest land-related
conservation practices are eligible for EQIP assistance if they are
used to address or resolve the identified natural resource concern.
Paragraph 1466.4(d) of the final rule states that forest land may be
eligible for enrollment in EQIP; this has not been changed from the
proposed rule.
The Department received 13 comments about the targeting of 50
percent of EQIP funds to livestock-related natural resource concerns.
Four comments support this targeting level. One comment urges that
funding should be targeted to conservation practices other than
expensive animal waste management facilities. One comment suggests the
funds should not be targeted to livestock but should be targeted toward
encouraging new methods of crop production that reduce soil erosion and
improve water quality. One comment encourages a minimum level of $50
million annually be targeted to conservation on private grazing land.
One comment recommends the 50 percent level be distributed and measured
at the state level, not at the national or local level. Six comments
note that only the preamble to the proposed rule mentioned the 50
percent target level and the final rule should clarify the targeting of
funds toward livestock-related natural resource concerns. The 1996 Act
requires that 50 percent of available funds be targeted to conservation
practices related to livestock production. The final rule has been
clarified by adding paragraph 1466.4(e) which addresses the targeting
of available EQIP funds to livestock-related natural resource concerns,
including concerns on grazing lands and other lands directly
attributable to livestock. The target of 50 percent of the funds will
be measured at the national
[[Page 28266]]
level since livestock-related natural resource concerns are not evenly
distributed in States or at the local level. USDA believes that some
priority areas may have none or little natural resource concerns
related to livestock production, while other priority areas may have
significant concerns related to livestock production. For that reason,
no further targeting of funds will be made such as the suggestion to
target $50 million to grazing land management. Conservation practices
that could be eligible to address livestock-related natural resource
concerns include, but are not limited to, grazing land management,
livestock exclusion, animal waste management facilities, nutrient
management, and streambank and riparian area protection. Consistent
with the overall goal of maximization of environmental benefits per
dollar expended, the Department will place emphasis on low-cost
measures which result in the highest benefits; higher cost practices,
such as animal waste management facilities, will be eligible if the
investment yields substantially high environment benefits.
Four comments concerned paragraph 1466.4(d)(2) which places
restrictions on the eligibility of publicly owned land. One commenter
supports the provisions in the rule because it would allow ranchers to
use EQIP to apply conservation practices on leased public grazing
lands. One commenter suggests publicly owned school land should be
eligible if leased to farmers. One commenter suggests that sentence
1466.4(d)(2)(ii) of the proposed rule should not restrict practices
which will primarily benefit the government landowner but should permit
funding of practices that are consistent with management plans of the
public landowner. One commenter suggests that sentence
1466.4(d)(2)(iii) should be rewritten to ``conservation practices will
contribute to an improvement in the identified natural resource
concern.'' The Department believes that the program should be used to
benefit the environment, including those instances where producers use
publically owned land. The proposed rule sentence stating that
government landowners should not be primary beneficiaries of the
program has been deleted in the final rule. Paragraph 1466.4(d)(2)
allows ranchers who lease public grazing lands and producers who lease
public school land to use EQIP on the publicly owned land if the stated
criteria are met. Sentence 1466.4(d)(2)(ii) has been rewritten in the
final rule to ``conservation practices will contribute to an
improvement in the identified natural resource concern.'' USDA believes
the provision in sentence 1466.4(d)(2)(iii) requiring written
authorization from the government landowner enables the government
landowner to ensure the conservation practices are consistent with
public land management plans; this sentence has not been changed in the
final rule.
Section 1466.5 Priority Areas and Significant Statewide Natural
Resource Concerns.
USDA received 27 comments in support of focusing the program in
priority areas. One statement that typifies the comments said this
focus ``reinforces the concept these are not ``entitlement'' dollars
but funds intended to meet Congressional articulated goals of improved
water quality and natural resource conservation.'' Thirty-eight
comments disagree with the focus of the program in priority areas
mostly because it will restrict availability of funds to the specific
priority areas. Eighteen comments indicate support to continue ACP or
to use the ACP process of allocating funds to all counties to, as one
commenter stated, ``ensure that every county gets a piece of the pie.''
USDA believes that primarily offering the program in priority areas
throughout the Nation is needed to help assure that the most
environmentally sensitive areas are considered and funds are directed
to the areas in most need. The use of the priority area concept focuses
assistance on those areas that pose the most serious threats to soil,
water, and related natural resources, including wildlife habitat and
natural resources on grazing land and wetlands, and to make
environmental enhancements. The program will also provide the most
important natural resource benefits in a cost-effective manner.
Implementation of conservation measures will be accelerated in these
areas. Past experience has shown that by focusing program assistance,
greater environmental benefits are derived. Providing program
assistance to significant statewide natural resource concerns outside
of funded priority areas will result in widespread eligibility of
producer. No change was made in the final rule concerning the focusing
of the program in priority areas.
One comment indicates natural resources that are shared by multiple
counties and States merit special consideration in the program. USDA
agrees with this comment. This was addressed in large by defining
priority areas as watersheds, regions, or areas of special
environmental sensitivity or having significant soil, water, or related
natural resource concerns. Using environmental and natural resource
concerns means that political boundaries should be ignored. The NRCS
Regional conservationists will coordinate guidance for multi-state
areas and regions. No change was made in the final rule concerning
natural resources that are shared by multiple counties and states.
Several comments suggest specific natural resource concerns should
have higher priority or consideration when determining priority areas.
Five comments favor water quality. Six comments favor wildlife habitat
with one commenter suggesting that wildlife should be a required
concern in all priority areas. Urban-influenced or non-agricultural
areas are favored by three comments. Pollution prevention is favored by
two comments in lieu of clean-up or corrective measures to existing
problems. Three comments favor a balanced, comprehensive approach to
natural resource concerns instead of solely addressing water quality.
The Department believes that a balanced, comprehensive approach should
be used to address natural resource concerns to provide the greatest
net benefits to society. Soil, water, air, grazing land, wetland,
forest land, wildlife habitat, and other related natural resources are
given equal initial consideration for treatment in the program. A
definition of ``related natural resources'' has been added in the final
rule. The final rule has also been changed in several areas to better
clarify this equality of natural resource concerns.
Five comments concern the coordination of priority areas in EQIP,
the CRP, WRP, and other programs. Two of these comments recommend a
consolidated or uniform selection process for priority areas in these
programs. One comment suggests these programs should be leveraged
together to ensure successful implementation of priority areas. Two
comments said it would be beneficial if each program had its own
priority areas. USDA agrees with aspects of each of these comments.
Close coordination of priority areas in these various program is very
important. The programs can be used collectively, but without
duplication, in certain priority areas to successfully achieve the
goals of the priority area. Likewise, certain priority areas may only
need one of the individual programs. The locally led conservation
efforts will advise and assist the Department with identifying how and
where the various conservation programs can be utilized best. USDA is
working on the development of a single, coordinated, and consistent
process for
[[Page 28267]]
selection of priority areas for each of the USDA conservation programs.
Included in this process will be the ability to have specific priority
areas for each program. Therefore, no change has been made to the final
rule concerning coordination of priority areas in EQIP, CRP, WRP, and
other programs.
Two comments suggest the priority area designation process is too
encumbered, subject to too many layers and reviews, and should be
streamlined. The hallmark of the process for selection of priority
areas is the locally led conservation effort which features the
involvement of local work groups and State technical committees
providing advice and recommendations to the Department. This process
may include several layers of review and recommendations, but the
Department believes this process will result in the greatest possible
involvement of local and State stakeholders and flexible assistance to
farmers and ranchers. Further streamlining of the process may result in
a less localized decision-making process with most decisions made at
the national level. No changes have been made in the final rule
concerning the priority area designation process.
USDA received 14 comments suggesting local work groups need to have
more involvement by producers, producer organizations, the private
agribusiness sector, and other stakeholders at the local level. USDA
agrees that involvement of producers, producer organizations, the
private agribusiness sector, and other stakeholders at the local level
is important for the local work group to effectively provide advice and
recommendations concerning the program. USDA believes, however, this
involvement and input can be better achieved with local conservation
districts leading the groups which include FSA county committees. Local
work groups will be able to work efficiently as they consider the
public input and provide information to the Department and others. Some
members of the local work group already are farmers and ranchers. The
public, including producers, producer organizations, the private
agribusiness sector, and other stakeholders at the local level, are
encouraged to provide input and information to the local work group.
The final rule has been changed to encourage the public to provide
input and information to the local work group.
One comment asks if priority areas will change each year or if they
are established through fiscal year 2002. Another comment states there
should be a procedure for refining or terminating a priority area. USDA
believes priority areas can have various periods of time that they will
be designated and funded. Some priority areas may need only one to
three years to accept a sufficient number of contracts that, when fully
implemented, will achieve the natural resource goals identified for the
area, while other priority areas with extensive or complex concerns may
require a longer period to enter into contracts to achieve the natural
resource goals. Nevertheless, it is expected that EQIP assistance to a
priority area should be limited to a reasonable number of years to
enter into contracts to achieve the natural resource goals. This will
enable other priority areas to be designated and funded in a more
timely manner. The final rule has been changed to clarify that funding
may be approved for one or more years. Program guidance will be
developed on terminating or ceasing funding to a priority area.
One comment urges the Department to reconsider the maximum area to
be included in a priority area. The commenter notes that the North
Dakota prairie pothole region is a large area of the state and would
not qualify as a priority area under the proposed rule. USDA had not
specified a maximum or minimum size constraint for a priority area in
the proposed rule. USDA does not believe a rigid size constraint should
be incorporated in the rule because natural resource concerns vary
significantly in scope and extent. Program guidance will be developed
for priority areas concerning size or scope, however, so that natural
resource goals of the priority area are measurable and achievable in a
reasonable period of time. No addition was made in the final rule
concerning maximum or minimum size of priority areas.
One comment suggests the ``shall'' in the second sentence of
paragraph 1466.5(a) be changed to ``may.'' This would then indicate
that NRCS may give special consideration to applicants in priority
areas who have conservation plans that address the natural resource
concern(s) for which the priority area was designated. USDA believes
that providing special consideration to applicants that address the
natural resource concern(s) for which a priority area was designated is
consistent with Sec. 1240C of the 1985 Food Security Act, as amended by
the 1996 Act, which states ``the Secretary shall accord a higher
priority to assistance and payments that (1) Are provided in
conservation priority areas.'' Providing special consideration to
applicants that address the natural resource concern(s) for which a
priority area was designated will enable the natural resource goals in
the priority area to be achieved. No change was made in the final rule
concerning the suggested comment.
Six comments support the provision in paragraph 1466.5(b) which
allows the use of program assistance to address significant statewide
natural resource concerns that are outside of priority areas. No change
was made to the final rule concerning program assistance to address
significant statewide natural resource concerns.
The Department received 36 comments that support the use of local
work groups and the locally led conservation activities as described in
paragraph 1466.5(c). Most comments note that identification of natural
resource concerns and priorities is done best at the local, grass-roots
level. Two comments suggest the local FSA county committees should be
equal partners and have input in determining priority areas. Nine
additional comments disagree with the locally-led process. Two of these
commenters disagree because they believe the decisions should be made
at the state level; two said there are too many players or layers of
bureaucracy involved; one said that FSA county committees should make
the decisions. The Department believes that locally led conservation
efforts, including those which involve local work groups, are very
important to the success of program. Local work groups provide
information to the Department on EQIP-related items and on other
conservation programs and activities. FSA county committees are equal
members of the local work group and, as such, will have input in
developing and recommending priority area proposals. This process may
include several layers of review and recommendations, but the
Department believes this process will result in the greatest possible
involvement of local and State stakeholders and flexible assistance to
farmers and ranchers. Further streamlining of the process may result in
a less localized decision-making process with most decisions made at
the national level. The roles of the local work group have been
retained in the final rule.
Three comments concern the designation of the chair of the local
work group. One comment favors NRCS chairing the group and two comments
disagree with this approach, suggesting the local work group should
select the chair. The Department has decided that NRCS should not be
required to be the chair of the local work group and the members of the
local work group should decide who should be the chair, if one is
needed.
[[Page 28268]]
One comment suggests that because conservation districts will be
organizing local stakeholder groups to guide the delivery of Federal
conservation programs at the local level, the name of the group which
will advise USDA should be called the ``USDA Local Farm Bill Team.''
This would help to differentiate the two groups and should help dispel
the perception that the new programs, including EQIP, will not be as
locally driven as Congress intended. The Department applauds the
efforts of conservation districts to organize local stakeholder groups
to provide input into the locally led conservation effort but does not
believe the use of the term local work group will create a
misunderstanding at the local level. The local work groups may advise
the Department on EQIP-related items and on other conservation programs
and activities. They may also choose to advise other organizations and
government agencies. No change was made in the final rule concerning
this comment.
One commenter notes that conservation districts are not organized
in all areas of the Nation and that provisions should be made for
another agency or group to lead and coordinate the local work group in
the absence of a conservation district. Program guidance will include a
provision whereby NRCS shall convene the local work group in the
absence of a conservation district.
USDA received one comment that recommends that entities other than
a Federal, State, or local government agency should be able to make a
proposal for a priority area. Paragraph 1466.5(c) in the final rule has
been modified to enable private entities to identify a priority area to
the local work group.
USDA received three comments suggesting that working procedures for
local work groups should be clarified. The Department does not believe
that working procedures need to be included in the final rule. Working
procedures and other suggestions for effective organization and
operation will be provided in guidance documents.
Three comments encourage multi-county local work groups for multi-
county priority areas. One commenter supports the designation of a lead
NRCS conservationist to coordinate activities between the local work
groups in a multi-county priority area. The Department agrees with
these comments and will incorporate these recommendations in program
guidance.
One comment recommends that conservation districts should provide
public notice of intent to organize a local work group. Due to the
membership of the local work group, publishing a public notice of
intent to organize a local work group is not required by Federal law.
Conservation districts, as subdivisions of State governments, may need
to consider this recommendation if required by a State law. Also,
conservation districts may chose to publish public notices even if not
required by law but the district decides this is the best way to
proceed.
USDA received one comment suggesting that because Indian tribes are
sovereign governments, they should be on local work groups. The
definition of local work groups in the proposed rule identified Indian
tribes as members and this definition has been retained in the final
rule. A definition of Indian tribes has been included in Sec. 1466.3 of
the final rule.
Twelve comments concerned the priority area assessment. Two
comments said the assessment will be too troublesome and time-
consuming. Seven comments suggest the use of existing natural resource
assessments, studies, data, and plans to avoid duplication of work and
to increase credibility of the priority area assessment. Two commenters
ask if demographic information on population meant that EQIP would
favor an area with greater population instead of selecting areas
because of environmental conditions. One comment suggests the
assessment described in paragraph 1466.5(c) should have quantified
information ``when and where possible'' and that the ways ``and means''
to measure performance should be included. The final rule refers to
priority area ``proposals'' (instead of assessments) to better reflect
the nature of the item and to reduce confusion with other natural
resource assessments. USDA believes the proposals are needed to
adequately and correctly designate an area as a priority area, and
agrees that existing natural resource assessments, studies, data, and
plans should be incorporated into the proposal. Environmental and
natural resource conditions, as described in paragraph 1466.5(d)(1),
are the principal factors which will be considered when designating a
priority area. The recommended language change concerning use of
quantified information and ways and means to measure performance have
been included in the final rule.
Six comments suggest NRCS, State technical committees, and local
work groups should closely coordinate the process to assess natural
resource concerns and identify priority areas with existing efforts at
the local and state level. Such efforts may be water resource planning
activities, nutrient and manure management programs, or state
agricultural conservation programs. The Department agrees with the
recommendation and such guidance will be incorporated in guidance
documents being developed to assist the local work groups.
One comment suggests paragraph 1466.5(c)(4) be modified to read
``The existing staff and incentive, education, and on-farm research
programs available at the Federal, State, and local levels, both public
and private, to assist with the areawide activities.'' The suggestion
has been included in the final rule.
USDA received 25 comments in support of the State technical
committee making recommendations and the decisionmaking role of NRCS
State conservationists. Three comments disagree with the roles of the
State technical committee and the NRCS State conservationist,
suggesting the decisions should be made at the national level. USDA
believes the roles of the State technical committee and the NRCS State
conservationist are best performed at the state level and not at the
national level. No change was made in the final rule concerning these
comments.
One comment suggests the State technical committee should develop
guidance to local work groups on natural resource information, data,
and priorities. State technical committees and State conservationists
may develop guidance to assist local work groups. This will be set
forth in program guidance.
USDA received two comments suggesting the State technical committee
and State conservationist should ``concur as much as possible'' with
the input from local work groups on designations of priority areas.
Paragraph 1466.5(d) of the final rule identifies how and on what the
NRCS State conservationists shall base their decisions to designate
priority areas. State conservationists will base decisions on the
recommendation of the local work group and State technical committee,
among other factors. Only after considering the various criteria and
factors identified in this paragraph, and determining that a proposed
priority area is worthy of program assistance, will a State
conservationist designate a priority area for EQIP assistance.
Several comments address State technical committees issues that are
not EQIP-related, including: one comment suggests the ``consensus
process'' is unrealistic and that voting should be used instead; one
comment states the State technical committee should have
[[Page 28269]]
Indian tribe representation; and, three comments offer procedural and
membership suggestions for State technical committees. The Department
will consider these comments in the rulemaking process for State
technical committees.
One comment recommends State governments should be allowed to
designate their own priority areas. The Department believes that the
final rule provides State governments with the ability to make
proposals for priority areas and no further change has been made to the
final rule.
One comment supports the provision in per paragraph 1466.5(d)(1)
that enables NRCS to consider wildlife and wildlife habitat quality and
quantity in determining the significance of natural resource concerns
in a priority area. No change has been made to the final rule
concerning this comment.
Two comments suggest paragraph 1466.5(d) should state ``NRCS will
give special consideration to priority areas that contain multiple
conservation benefits.'' USDA believes that multiplicity of
conservation benefits alone does not justify special treatment. The
priority area, whether achieving a single conservation benefit or a
range of benefits, must result in significant environmental benefits to
justify the expenditure of EQIP funds. The final rule includes a
sentence reflecting this consideration.
One comment suggests 1466.5(d)(1)(v) should recognize the
importance of saline characteristics of land and water. USDA agrees
with the comment and the final rule has been revised to ``(v) Saline
characteristics of land or water.''
One comment suggests 1466.5(d)(1)(viii) should state ``Quality and
intended use of the receiving waters, including fishery habitat and
source of drinking water supply.'' USDA agrees with the comment and the
final rule has been revised as suggested.
One comment suggests 1466.5(d)(1)(xi) should indicate that natural
hazards may include pest problems which threaten natural resources.
USDA agrees with the comment and the final rule has been revised to
``(xi) Other natural hazards or other factors, including the existing
agricultural management practices of the producers in the area or pest
problems which may threaten natural resources.''
Five comments refer to consideration of the coordination with and
level of support from other programs when allocating funds to priority
areas. One comment supports the consideration of the level of support
from other State or local programs. One suggests better coordination
effort between programs is needed so that taxpayer's money is not
wasted. One suggests EQIP funds will be most effectively spent in areas
that have no other funding sources. Two suggest funding sources such as
from private programs should be considered. One comment suggests both
direct and in-kind contributions should be considered. The Department
believes that Federal program funds can be effectively spent in areas
where other sources of funding are also available, thus allowing both
the Federal and other funding sources to be stretched and made
available in other areas. It also agrees that coordination between
Federal, State, and local programs is important, and that private
funding sources, direct, and in-kind contributions should be
considered. Paragraphs 1466.5(d)(2)(vi) and 1466.5(f)(2)(vi) have been
revised in the final rule to reflect these recommendations.
One comment suggests EQIP should be used to assist producers in
complying with Tribal environmental laws as well as with Federal and
State environmental laws. USDA agrees with the comment and has included
the suggestion in 1466.5(d)(2)(vii) and 1466.5(f)(2)(vii) of the final
rule.
USDA received several other comments concerning the criteria or
factors which should be used to select or fund priority areas,
including national conservation priority areas. Two comments suggest
that clear, minimum criteria should be established to assist with the
selection process. One comment suggests the criteria should include
soil quality. One comment recommends that existence of education,
research, and demonstration farm plans should be part of the criteria.
One comment recommends that existence of monitoring and evaluation
plans be included. The Department suggested criteria or factors in the
proposed rule language in paragraphs 1466.5(d)(2) and 1466.5(f)(2) to
facilitate a broad range of considerations and still believes that this
is the appropriate approach. The specific recommendations of the
commenters will be included as illustrations of ``other factors'' in
the guidance being developed for the program. No change has been made
in the final rule to address the comments.
USDA received comments on paragraph 1466.5(e) concerning the
approval of significant statewide natural resource concerns. One
comment suggests using criteria such as adjacency to a public natural
resource, site characteristics that will affect the likelihood of
achieving conservation objectives, and cost to achieve the benefits.
One comment suggests that wellhead protection and capping abandoned
wells would be good examples of significant statewide natural resource
concerns. The Department agrees with the concepts suggested in the
comments and will include this information in program guidance. Actual
determinations of significant statewide natural resource concerns are
made by the NRCS State conservationist, in consultation with a State
technical committee. No change has been made in the final rule to
address the comments.
In regards to national conservation priority areas in 1466.5(f),
two comments specifically favor the designation process described in
the proposed rule. One comment disagrees with the process, preferring
that all decisions should be made at the state level. One comment
received by USDA said that the process for identifying national
priorities is in part only ``lip service'' to certain groups. The
commenter finds the proposed rule lacking as to the significance of
national conservation priority area designation and suggests that the
designation should result in additional funds to the area. The
Department believes the process described in the proposed rule is
appropriate, has value, and will result in greater emphasis for
assistance being placed in the designated area(s). Areas of national
significance should be designated at the national level. No change has
been made in the final rule to address the comments.
USDA received three comments which suggest use of a national
technical committee is needed to ensure participation by national level
partners. Eleven comments suggest or nominate specific areas as
national conservation priority areas, including: Colorado River basin
(5 comments), Great Lakes basin (2), Illinois River basin (2),
Chesapeake Bay basin (1), Devil's Lake basin, ND (1), Hudson River
basin (1), California pilot recharge program (1). USDA does not believe
that a national technical committee is needed to ensure participation
of national level partners. The Department has made effective use of
interagency teams throughout the development of the EQIP program and
other conservation programs and believes that an interagency team
consisting of Federal agency partners will ensure national level
participation. The Department will consider the suggestions made when
designating national conservation priority areas. Paragraph
1466.5(f)(1) has been changed in the final rule to enable nominations
for designating national
[[Page 28270]]
conservation priority areas to be made to the Chief from Federal,
State, tribal, or local government agencies, or from private groups or
entities.
USDA received two comments recommending that the national
conservation priority area designations should be subject to formal
rulemaking procedures with public input to assure that the designations
have merit. The Department believes the process established in the
final rule will assure that the public has the opportunity to provide
input into the designation and that the designations have merit. No
change has been made in the final rule to address the comments.
Concerning the criteria to be considered when selecting national
conservation priority areas, several comments were received. One
comment suggests environmental significance and multi-state natural
resource concerns should be primary selection criteria. Two comments
recommend a greater emphasis on international, interstate, or regional
concerns, such as migratory bird habitat, be considered. These comments
are consistent with the national program objectives and criteria that
the Department intends to use when designating national conservation
priority areas. These suggestions will be incorporated in national
guidance developed for the program. No change has been made in the
final rule to address the comments.
Twenty comments support the educational assistance to be provided
in the program. Of these comments, two also note that the proposed rule
did not include specific mention of how the education assistance would
be provided. Seven of the comments state the Extension system should be
the primary delivery mechanism for the educational needs. Three of the
comments state the Extension system and other public and private
education providers should be involved. One of the comments suggests
wellhead protection should be the topic of education and another
comment suggests education on control of noxious weeds. USDA's
development and delivery of high-quality educational opportunities to
farmers, ranchers, and assistance providers should enhance the public's
knowledge about the conservation opportunities available through EQIP,
will aid in implementing their conservation plans, and enhance the
overall benefits that will be realized through the implementation of
the program. Appropriate education will maximize public benefits by
creating a knowledge base (among producers, agency staff, and private
consultants) that will extend direct EQIP benefits beyond the actual
acreage and life expectancy of financial and technical assistance
programs. The final rule includes specific direction for the delivery
of education assistance in paragraph 1466.5(h). The provision specifies
that NRCS will develop an education plan for a State or priority area.
The plan will include, among other things, a description of who will be
the education providers. While USDA expects the Extension system to
play a significant role in developing the education plans and
delivering educational assistance, other public and private education
providers are also expected to have significant roles where
appropriate. Thus the need for cooperation and coordination among all
education providers. The Department believes there are many important
topics that can be the focus of educational efforts, including wellhead
protection and control of noxious weeds in an environmentally sound
manner, but the specific education topics should be determined at the
State and local level.
USDA received numerous comments concerning the funding decisions
for EQIP. Two comments support the need for fund decisions at the
national level. One comment suggests the NRCS Regional conservationist
should make the funding decisions. Eight comments recommend the funding
decisions be made at the state level and twelve comments suggest that
all funding decisions should be made at the local level. The Department
has revised the provisions for funding decisions in paragraph 1466.5(i)
to clarify how these decisions will be made to meet the purposes and
intents of the program. USDA believes EQIP must be administered
differently than the programs it replaces, including the methods for
making funding decisions.
The Department is committed to making funding decisions based on:
The environmental needs and natural resource concerns; the need to
maximize environmental benefits per dollar expended; the capability of
the partners involved in the proposal to provide flexible technical,
educational, and financial assistance; the conservation needs of
farmers and ranchers in complying with the highly erodible land and
wetland conservation provisions of part 12 of this title and Federal,
State, and tribal environmental laws; the opportunity for encouraging
environmental enhancement; the anticipated or proven performance of the
partners involved in the proposal in delivering the program; and, other
relevant information. Funding proposals for State-level approved
priority areas are reviewed and competitively ranked in consultation
with the State technical committee.
The State technical committee is comprised of professional natural
resource managers who represent a variety of disciplines in soil,
water, wetlands, plants, wildlife management, and related natural
resource and environmental sciences. Members come from agencies such
as: NRCS, FSA, Forest Service, CSREES, U.S. Fish and Wildlife Service,
Environmental Protection Agency, and other Federal agencies; State
agencies responsible for fish and wildlife, forestry, water resources,
agriculture, soil and water conservation, and conservation districts;
private groups, organizations, or individuals representing agriculture,
commodities, agribusiness, environment, land and water management; and,
persons knowledgeable about economic and environmental impacts.
After the NRCS State conservationist approves the priority areas,
the regional and National levels review the proposals to verify that
they meet program guidance and will meet program goals and objectives.
A national-level interagency team representing Federal agencies with
appropriate expertise and information assists the Chief by reviewing
the submitted proposals and making recommendations on adequacy of
proposals. The Chief determines funding levels to be allocated to the
States, with the concurrence of the FSA Administrator, considering such
information as: the environmental and natural resource conditions
across the Nation; the interagency team recommendations;
recommendations from NRCS Regional conservationists and staff; the
funding proposals; and other information identified above in this
response. The Chief will also allocate some funds each year using a
performance-based incentive reward for the anticipated or proven
performance of the partners involved in a proposal in delivering the
program in an exceptional manner, and for issues or concerns determined
to be of national importance.
After funds are allocated to the NRCS State conservationist, the
State technical committee is again consulted on which State-approved
priority areas that meet program guidance should be funded and in what
amount. The consultation process with the State technical committee in
the proposal-approval stage and the funding decision stage helps to
ensure that the best proposals are selected and funded.
Twenty-six comments disagree with priority areas receiving the
[[Page 28271]]
predominance of funds, but did not recommend a funding level. Five
believe priority areas should receive 75 percent of the funds with the
remaining 25 percent to significant statewide natural resource concerns
outside of priority areas. Three comments suggest a 60 percent priority
area to 40 percent outside priority area split. Nine comments favor a
55 percent priority area to 45 percent outside priority area split.
Seven comments support a 50 percent priority area to 50 percent outside
priority area split. Nine comments favor a 25 percent priority area to
75 percent outside priority area split. Five comments suggest a phase-
in approach, starting with more funds to outside priority area and
progressively reaching the 75 percent to priority areas in three years.
Seven comments suggest no funding percentage should be used to allocate
funds but all decisions should be based on environmental need. Two
comments suggest each state should receive at least a $2 million base
level for work throughout the state. USDA believes that primarily
offering the program in priority areas throughout the Nation is needed
to help assure that the most environmentally sensitive areas are
considered and funds are directed to the areas in most need. The use of
the priority area concept focuses assistance on those areas that pose
the most serious threats to soil, water, and related natural resources,
including wildlife habitat and natural resources on grazing land and
wetlands, and to make environmental enhancements.
The Department intends to provide more funds where the natural
resource and environmental need is greatest but does not intend on
having a prescribed percentage or formula published in the final rule
because this will limit the Department's ability to respond to changing
conditions and needs. However, for FY 1997, at least 65 percent of the
available funds nationally will be used in priority areas. To meet
future needs, the Department will move to have more funds, perhaps 75
percent or more, directed to priority areas. Providing program
assistance to significant statewide natural resource concerns outside
of funded priority areas will result in widespread eligibility of
producers on the most important natural resource concerns. No change
was made in the final rule concerning the focusing of the program in
priority areas.
One comment requests that USDA honor all existing commitments to
Indian tribes under the former Great Plains Conservation Program. All
contractual commitments to Indian tribes and other contract holders
under the former Great Plains Conservation Program, Colorado River
Salinity Control Program, Agricultural Conservation Program, and the
Water Quality Incentives Program will be honored by USDA. No change was
made in the final rule concerning the comment.
Four comments request that funds should be provided to conservation
districts for the administrative work they perform associated with the
local work group and other program aspects. The final rule does not
require conservation districts to perform administrative duties in the
program. Most of the administrative work will be performed by FSA and
the FSA county committees. The final rule enables, but does not
require, conservation districts to participate on local work groups and
to approve conservation plans which will be used as the basis for EQIP
contracts. This is done to meet the spirit of the Congressional
Conference Managers who wrote in their Conference Report ``In
particular, Congress intends for the Secretary to acknowledge and
maintain the historic role of conservation districts in assessing
natural resource priorities, approving site-specific conservation
plans, and coordinating the delivery of federal conservation programs
at the local level.'' The Department does not intend to reimburse
conservation districts for their involvement on local work groups or
their approval of conservation plans. No change was made in the final
rule concerning the comments.
One comment suggests the Chief should reject or not approve funding
to any State-approved priority area, statewide concern, or national
conservation priority area that fails to target efforts to the most
pressing environmental problems. The Department agrees with the comment
and intends on providing program funds where the natural resource and
environmental need is greatest and where the program can be used most
cost-effectively. No change was made in the final rule concerning the
comment.
USDA also received six comments on miscellaneous aspects of fund
management that were not described in the proposed rule or its
preamble. USDA will consider these comments as it develops its program
guidance documents.
Section 1466.6 Conservation Plan
USDA received nine comments supporting the development and use of
conservation plans as described in the proposed rule. One comment
opposes the development of plans as a program requirement. The 1996 Act
requires program participants to implement a plan in order to receive
program assistance. This provision was incorporated in the proposed
rule and no change was made in the final rule concerning the comments.
Two comments suggest the final rule should include more precise
criteria and definitions concerning the acceptability of conservation
plans. The Department will incorporate criteria concerning
acceptability of conservation plans in its program guidance documents.
No change was made in the final rule concerning the comments.
USDA received one comment requesting NRCS to develop all
conservation plans after a producer applies for the program. Another
comment states a farmer who must hire someone to write a detailed plan
should have some assurance they will be considered for program
payments. The 1996 Act requires program participants to submit to the
Secretary for approval a plan that incorporates conservation practices
and is based on such principles as the Secretary considers necessary to
carry out the program. Additionally, the 1996 Act requires the
Secretary to ensure that the processes of writing and developing
proposals and plans for contracts are open to individuals in the
agribusiness sector. These provisions were incorporated in the proposed
rule and the Department believes that requiring all conservation plans
to be developed by NRCS would be inconsistent with the statute. NRCS
will, however, be available to provide an eligibility assessment of the
farming or ranching operation of the producer as a basis for developing
the plan. Additionally, NRCS will be available to assist producers
develop conservation plans if requested. No changes were made in the
final rule concerning the comment.
One comment suggests the plans should be called ``EQIP plans.'' The
term ``conservation plan'' is used to reinforce the concept of a single
plan for all natural resource conservation activities on a farm or
ranch unit of concern. In the past, specific program plans have been
developed on the same farm or ranch and, occasionally, the specific
plans were in conflict or confusing to the producer. A single
conservation plan, if requested by a producer, will help to reduce the
potential conflicts and confusion, and will reduce the administrative
burdens on the producer. No changes were made in the final rule
concerning the comment.
Two comments suggest the use of the term ``unit of concern'' was
confusing. One of these commenters recommended
[[Page 28272]]
revising the wording in paragraphs 1466.6(a) and 1466.6(e) to read
``for the farm or ranch unit of concern.'' USDA agrees with the
comments and have changed paragraphs 1466.6(a) and 1466.6(e) in the
final rule.
USDA received one comment recommending a provision be made for a
participant to revise a conservation plan (and contract) if necessary
to reflect changes in the farm or ranch operation, conservation needs,
or schedule of implementation. The recommended provision is commonly
provided for in all Departmental conservation program guidance and will
be included in the program guidance documents for EQIP. No changes were
made in the final rule concerning the comment.
USDA received three comments concerning the role of conservation
districts in approving conservation plans. Two comments express
appreciation for conservation districts approving all conservation
plans used in the program. One comment opposes the conservation
district role of approving conservation plans. One comment suggests
conservation districts should have a role in approving revisions to
conservation plans and should have a role in the event a plan is
appealed by a participant at a later date. The Department believes the
provision for conservation districts approving conservation plans as a
part of the program maintains the historic role of conservation
districts approving site-specific conservation plans. Conservation
districts will also approve revisions to conservation plans. Roles of
agencies during the appeal by a participant of a determination
affecting participation are identified in parts 11 and 614 of this
title. In its role during appeals, NRCS may consult with the
conservation district. No changes were made in the final rule
concerning the comments.
USDA received one comment suggesting paragraph 1466.6(a)(1) be
revised to indicate that natural resource concerns will include crop
pest concerns. Another comment suggests paragraph 1466.6(a)(2) be
revised to indicate that that resource management systems will include
pest management systems. USDA does not believe the suggested revisions
are needed. While EQIP will not fund normal and routine farming
practices which simply protect crop production, crop pest concerns may
create natural resource concerns which EQIP may appropriately address.
Likewise, pest management systems, such as integrated pest management,
may be considered a resource management system where the adoption of
such system would not likely occur absent program assistance and its
implementation could yield significant environment benefits. Therefore,
the Department did not make changes to the final rule concerning these
comments.
USDA received two comments suggesting paragraph 1466.6(a) should
include the words ``including grazing lands, wetlands, or wildlife
habitat'' to further describe the related natural resources. USDA added
a definition of ``related natural resources'' which incorporates the
suggested words and believes this adequately addresses the comments.
USDA received one comment suggesting a provision in paragraph
1466.6(a)(2) to allow conservation plans to vary from the NRCS field
office technical guide as needed to foster higher value wildlife
habitats. A conservation plan submitted by a participant may foster
higher value wildlife habitats or other resource management system, or
some portion of that system, than identified in the applicable NRCS
field office technical guide. NRCS, as provided in paragraph
1466.6(a)(1), will consider whether the participant will use the most
cost-effective conservation practices to maximize the environmental
benefits. No change has been made to the final rule concerning this
comment.
USDA received numerous comments concerning the level of treatment
that should be required in the program. Three comments suggest total
resource management systems be required. Three comments oppose a
requirement for total resource management systems. Five comments
support encouragement to achieve a resource management system and use
of a flexible, progressive planning approach. The Department believes
that the program should provide flexibility to participants who desire
to implement one or more conservation practices which impact a range of
natural resource concerns. The program has been designed to encourage,
but not require, the voluntarily implementation of a total resource
management system. However, the number of natural resource concerns
incorporated into a conservation plan will not, in and of itself,
justify special priority treatment. The conservation plan, whether
addressing a single natural resource concern or several, must result in
significant environmental benefits to justify the expenditure of EQIP
funds. No change has been made to the final rule concerning these
comments.
One comment recommends conservation plans should not focus
exclusively on the priorities identified in a priority area or on the
significant statewide natural resource concerns, but other concerns
should also be addressed. To meet the purpose and intent of the
program, the Department believes the conservation plans submitted by
participants must address the priority natural resource concern in the
priority area or the significant statewide natural resource concern
outside a funded priority area if natural resource conservation goals
and objectives in a priority area, a State, or the Nation are to be
achieved. Directing program funds to address other concerns will divert
funds from higher priority natural resource concerns. No change has
been made to the final rule concerning this comment.
A tiered, multi-level approach to financial assistance is suggested
in two comments. This approach would establish a lesser amount of
payments (i.e. up to $5,000 per year) for participants who develop a
conservation plan with one or two practices to address a single
concern. The second level would allow more payments (i.e. up to $7,500
per year) for participants who develop a whole farm conservation plan
with resource management systems to address multiple concerns. The
highest level would allow the maximum payments (up to $10,000 per year)
for using the second level plan plus incorporating a well-designed, on-
farm demonstration or research project. The Department believes the
suggestion is a creative manner of providing financial assistance that
encourages increased level of treatment to address priority natural
resource concerns. The suggestion, however, provides for payment
restrictions that are not supported by the 1996 Act, nor do they relate
to the actual cost of implementing conservation practices. The
Department believes that the proposed rule also provides for voluntary
encouragement for increased level of treatment to address priority
natural resource concerns without restricting payments arbitrarily. The
concept of the suggestion will be incorporated in the program guidance
documents. No change has been made to the final rule concerning these
comments.
USDA received numerous comments concerning the use of whole farm or
ranch plans. Ten comments suggest that whole farm or ranch plans should
be required to be eligible for the program. One comment suggests whole
farm and ranch planning should be the focus of plans for the program
or, at the least, to reward participants who develop whole farm or
ranch plans. Eleven comments oppose requiring whole farm or ranch
[[Page 28273]]
plans. Seven comments suggest the program should be used to encourage,
but not to require, the development of whole farm or ranch plans by
providing a higher ranking to applications, payments for developing
such a plan, or providing higher payments to implement the plan. The
1996 Act enables a participant to implement one conservation practice
using EQIP. The Department believes that in order to meet this
statutory requirement a whole farm or ranch plan should not be
required. However, the program has been designed by the Department to
provide for flexibility in carrying out the program. Participants will
be encouraged, but not be required, to voluntarily develop a whole farm
or ranch plan. The conservation plan will address the conditions that
cause or influence the natural resource concern for which the plan is
being developed. Therefore, even when a whole farm or ranch plan is not
developed, information from outside the defined unit of concern may be
considered where it is necessary to develop the best strategy for
meeting the producer's objectives and resolving the natural resource
concern. Participants who submit a whole farm or ranch plan that
maximizes environmental benefits per dollar expended will likely be
assigned a higher priority for a contract than would participants who
do not submit such a plan. The likelihood of being assigned a higher
priority depends on whether the plan will result in significant
environmental benefits to justify its priority.
Ten comments concerned who may provide technical assistance to a
participant for the purposes of developing a conservation plan. Nine of
the comments support the latitude given to participants to select the
service provider. Several of these comments also suggest specific
service providers, such as professional foresters, certified crop
advisors, and other qualified organizations. One comment states no plan
should utilize the products or services sold or owned by the private
agribusiness developer of the plan to avoid bias in the plan. The
Department believes that the provisions in paragraph 1466.6(b) of the
proposed rule provide the flexibility that the participant needs to
select a service provider that is qualified. The provision refers to
cooperating agencies, private agribusinesses, and other organizations,
and the Department believes that more specific identification is not
required. The Department further believes that the program will have
sufficient safeguards and oversight so that any bias that may be
created by private agribusinesses or other organizations providing
technical assistance services will not cause a misuse of program funds.
No change was made in the final rule concerning these comments.
One comment states paragraph 1466.6(b) implies that producers must
submit a plan in order to receive technical assistance, and this should
be removed. The first sentence of paragraph 1466.6(b) of the proposed
rule stated ``Upon a participant's request, the NRCS may provide
technical assistance to a participant.'' The Department does not intend
to imply that a producer must first submit a plan to receive technical
assistance. A participant must request NRCS to provide the technical
assistance, including the development of a conservation plan, if that
is the desire of the participant. No change was made in the final rule
concerning this comment.
One comment suggests the final rule provide more clarity on the
procedures NRCS will use to address private sector requirements and
approval of assistance. Due to the varying complexities of the
technical assistance services that may be provided by non-NRCS
personnel, the Department does not believe that program regulations are
the most appropriate way to establish these procedures. The program
guidance document being developed by the Department will include
guidance concerning acceptance of conservation plans, requirements of
the private sector and other service providers, and approval of the
technical adequacy of work done by non-NRCS personnel. No change was
made in the final rule concerning this comment.
USDA received several comments concerning the use of NRCS field
office technical guides (FOTG) for conservation practices. Four
comments support the use of the FOTG for conservation practices and
methods. Nine comments state the FOTG's are either too narrow in scope
or require updating and revising in a timely manner to reflect current
conservation practices and technologies, and one of these commenters
suggest NRCS should use other documents or references which provide
more up-to-date information. Two comments suggest NRCS should assure
that FOTG information is shared and consistent across state lines and
the NRCS Regional conservationists could be used to assure this
happens. Two comments promote involvement of private industry, State,
and Federal agencies in the development of FOTG information. One
comment asks what standards are used to determine if a natural resource
has been protected or improved. The NRCS FOTG is a dynamic technical
document. The FOTG contains the standards for the conservation
practices which may be funded in the program. It also includes a
section containing many references and documents published by non-NRCS
sources, including private agribusinesses and research institutions.
NRCS intends to review, on a regular basis, the content of the FOTG to
assure that they include the most current elements of conservation
practices, including innovations and new technologies. To assist with
maintaining the most current elements of conservation practices,
including innovations and new technologies, NRCS welcomes the
information and input from producers, natural resource conservation
professionals, scientists, and the private agribusiness sector. This
review, update, and revision is a part of the overall conservation
technical assistance activities of NRCS and is not specific to EQIP. In
recognition of the rapid change of technology, paragraph 1466.7(a)(3)
of the rule provides for pilot work using new technologies or
conservation practices. No changes were made to the final rule
concerning these comments.
Ten comments concern the contents of a conservation plan. Two of
the comments support the list of conservation plan contents. Two
comments suggest the landowner's primary and secondary objectives
should be included. One comment states forest types should be included
in the plan. Five comments suggest monitoring and evaluation mechanisms
must be components of each plan so that outputs can be measured. The
Department believes that an evaluation mechanism is needed so that the
outputs and outcomes of each conservation plan, each priority area and
natural resource concern, and the entire program can be measured. Each
conservation plan will contain information which can be used in the
evaluation mechanism. NRCS and FSA will each be using automated data
collection systems to assist in the evaluation of the program at all
levels. The natural resources identified in sentence 1466.6(e)(2) are
intended to be illustrative and are not all-inclusive. Sentences
1466.6(e) (3) and (4) have been amended in the final rule to identify
the objectives as those of the participant.
On the subject of a simplified conservation planning process, seven
comments support the proposed rule provision for a single conservation
plan. One comment suggest the single plan could include government
regulatory
[[Page 28274]]
requirements. Another comment suggest that the process should assure
participants that the single plan will be recognized by other Federal
regulatory agencies. One comment encourages the use of broad-scale
planning efforts so that a separate individual plan development and
approval process would not be needed when the individual plan is
consistent with the broad-scale plan. The Department will work with
Federal regulatory agencies to provide a mechanism for a single
conservation plan which they will recognize for their purposes. USDA
agrees that the conservation plan development and approval process can
be further simplified where broad-scale plans have been developed and
is using its conservation programs to encourage the development of such
plans. The final rule has been amended to indicate that a single
conservation plan could contain government regulatory requirements, to
the extent possible.
One comment suggests paragraph 1466.6(f) be amended to indicate
that a single conservation plan could incorporate tribal program
requirements. The Department agrees and has incorporated the suggestion
in the final rule.
Twelve comments state the conservation plan and supporting
documentation must be considered as confidential information. Without
confidentiality of the records producers will be reluctant to
participate in the program. CCC has determined that conservation plans
and certain supporting documentation developed or submitted for EQIP
purposes are Federal records and, as such, are subject to the Freedom
of Information Act, 5 U.S.C. 552, and the Privacy Act of 1974, 5 U.S.C.
552a. Requests for records will be reviewed under normal rules that
apply to such information, with all due concern given to the desire for
confidentiality. No amendment was made to the final rule concerning
these comments.
Section 1466.7 Conservation Practices
USDA received 13 comments in support of providing financial
assistance for needed conservation practices. Another comment supports
financial assistance for upgrading or enhancing existing practices used
by participants. A participant may receive financial assistance for
enhancing an existing practice if the existing practice has exceeded
its useful life span or if the enhancement provides for substantive
improvement in the practice so that it provides a greater impact on the
natural resource concern and maximizes environmental benefits per
dollar expended. The program guidance document will incorporate this
provision and no change has been made to the final rule concerning
these comments.
One comment opposes providing financial assistance for vegetative
practices. The 1996 Act provides for cost-share assistance for
``structural'' practices which includes vegetative practices. The
Department believed it was confusing to describe vegetative practices
as ``structural'' and incorporated a definition of both structural
practice and vegetative practice in the proposed rule. The Department
believes the 1996 Act intended to authorize financial assistance for
vegetative practices and, therefore, included this provision in the
proposed rule. Vegetative practices often provide the most cost-
effective conservation alternative to address certain environmental
concerns and many structural practices, such as grassed waterways and
terraces, incorporate vegetative treatment in the practice. No change
has been made in the final rule concerning this comment.
Seventeen comments express support for financial assistance for
various conservation practices, including: water storage pits, pipeline
installation, cross-fencing in pastures, vegetative buffers,
conservation tillage, livestock watering facilities, pest management,
noxious weed management, riparian area protection, wellhead protection
and sealing, terraces, controlled drainage, agricultural chemical
mixing and storage facilities, oil recycling, tile set-backs, precision
farming, fuel storage containment dikes, forage storage leachate
control, waste utilization and composting equipment, composting,
sustainable farming practices, and grassed waterways. USDA believes
these are examples of conservation practices which may be eligible in
EQIP where they provide environmental benefits. To be eligible, the
practice must provide the most beneficial, cost-effective approaches
for participants to change or adapt operations to conserve or improve
natural resources or to provide for environmental enhancement.
Conservation practices must meet NRCS standards in accordance with the
applicable NRCS field office technical guide. No change has been made
in the final rule concerning the eligibility of conservation practices.
USDA received two comments in support of practices that were
eligible under the former USDA conservation programs. Conservation
practices eligible in the program to address the natural resource
concerns will be identified at the local and State level. Conservation
practices which were eligible in the former USDA conservation programs
may be eligible if determined to be appropriate to address the priority
natural resource concerns. No change has been made in the final rule
concerning eligibility of conservation practices.
USDA received 85 comments which oppose financial assistance for
construction of animal waste storage facilities. Most of these comments
oppose financial assistance specifically to open lagoons citing
problems with odors and leaks. These include 33 comments which oppose
funding lagoons for large confined livestock operations but express
support for funding other livestock-related conservation practices,
such as composting, nutrient management, rotational grazing, pasture
management, nutrient testing, and riparian area protection. Three
comments agree that financial assistance should be used for
construction of animal waste storage facilities, including lagoons. One
comment opposes providing 100 percent of the cost to construct manure
handling systems. One comment suggests reduced cost-share rates should
be given to manure storages as compared to other practices. The 1996
Act did not limit financial assistance for construction of animal waste
management facilities, except for those constructed by a producer who
owns or operates a large confined livestock operation. However, the
Department believes that placing an emphasis on low-cost practices
which yield significant environmental benefits will better achieve the
statutory goal of maximization of environmental benefits per dollar
expended than a focus on high-cost practices. The Department believes
animal waste management facilities are viable conservation practices
that, when used in combination of other conservation practices, such as
nutrient management, can provide the most cost-effective system for
managing animal wastes to address natural resource concerns. Neither
the proposed or final rule provides financial assistance of up to 100
percent of the cost of animal waste management facilities but limits
the cost-share rate at 75 percent. No change has been made in the final
rule concerning these comments.
USDA received 28 comments in support of manure and nutrient
management systems and other livestock-related conservation practices
in lieu of providing cost-sharing for manure storages such as lagoons.
Twenty-seven comments express support for financial assistance for
[[Page 28275]]
conservation practices relating to wildlife habitat, including eleven
in support of native plants to aid with wildlife habitat. USDA received
19 comments in support of tree planting, reforestation, or other
forestland management measures as eligible conservation practices and
another 22 comments were in support of windbreaks and shelterbelts. The
proposed rule provides for land management practices, such as nutrient
management, manure management, and wildlife habitat management, for
incentive payments, and for cost-sharing of vegetative practices for
critical area plantings and permanent wildlife habitat. NRCS vegetative
practice standards provide for use of native plants. The conservation
practices listed in the rule are for illustrative purposes only and are
not intended to be an exhaustive list of eligible practices.
Conservation practices eligible in the program to address the natural
resource concerns will be identified at the local and State level.
Conservation practices may be eligible if determined to be appropriate
to address the priority natural resource concerns. Tree planting is a
vegetative practice and has been included in that definition. No
further changes were made in the final rule concerning these comments.
Seven comments support the proposed rule process for determining
conservation practice eligibility, especially involving State technical
committees and local work groups. No changes were made to the final
rule concerning these comments.
One comment expresses the need to have public comment, through a
public notice procedure, on proposed eligible practices in a priority
area or state. Another comment expressed the need to involve private
agribusinesses in this process. The public and private agribusinesses
will have the opportunity to provide input to the local work group on
eligible conservation practices. No changes were made to the final rule
concerning these comments.
Twenty-four comments express support for the proposed pilot work
for new technologies and practices. Of these comments, three indicate
support for the involvement of others in the pilot testing, such as
wildlife specialists, private agribusinesses, producers, and producer
organizations. Four commenters indicate alternative livestock
practices, pilot programs and on-farm research and demonstration
components should be used in EQIP as a means to encourage the use of
innovative conservation practices. Two comments express the need to
expedite the approval procedure for interim conservation practice
standards used on pilot activities. One comment suggests incentives
should be provided to users of environmental assessment tools, such as
Farm*A*Syst. Another commenter stresses a key to successful
implementation of EQIP is flexibility in terms of allowing participants
and conservation partners to develop and implement unconventional
methods or practices that could spark enthusiasm for the program. No
change has been made in the final rule. NRCS will approve interim
conservation practice standards used for pilot work in a manner that
allows for timely implementation. The use of environmental assessment
tools are encouraged by the Department as a part of the conservation
planning process for EQIP, other conservation programs, and
conservation planning in general. NRCS State conservationists, using
the advice of State technical committees, will determine which
conservation practices are needed and are eligible for program
payments.
USDA received the most comments concerning the issue of defining
large confined livestock operations for the purposes of providing cost-
share payments for construction of an animal waste management facility.
USDA received 161 comments in favor of a national definition of
large confined livestock operations of 1,000 animal unit (AU)
equivalents. These commenters favor this option primarily because it
will provide greater funds to small and moderate farms and ranches and
it is consistent with the size requirements for non-point discharge
elimination system permits. Six of the commenters also suggest NRCS
State conservationists should be encouraged to lower the size limit to
fit circumstances in the state, such as State regulations. Three of the
commenters suggest the size limit should be less than 1,000 AU in many
circumstances.
USDA received several comments which suggest a variety of size
limits be established as the national definition. One comment suggests
limits of 400 beef cattle, 280 dairy cattle, 40,000 poultry, and 1,000
hogs. One comment favored a 500 beef cattle and 250 hog limit. One
comment suggests a 800 beef cattle and 1,000 hog limit. One comment
favors a 2,000 hog limit. One favors a single national definition but
offers no suggestion on what the definition should be.
Two comments suggest the aggregate total of animals owned by a
farmer or rancher at all locations should be the basis for defining a
large livestock operation.
USDA received 22 comments which suggest no program funds should go
to ``publicly-held'' or ``investor-owned'' corporations. Program
funding to only small and moderate farms and ranches is favored by 63
comments.
USDA received 22 comments that state NRCS State conservationists
could not or should not decide the definition. A variety of reasons
were given in these comments, including five comments about the
pressure that would come from inappropriate lobbying by livestock
producers; four comments thought the NRCS State conservationist was a
State government official; three comments express concern that unfair
competition will be created between States due to different
definitions; and three comments oppose different definitions in each
State.
USDA received 29 comments which favor the proposed rule procedure
for defining large confined livestock operation. One of the commenters
also recommends allowing exceptions to the State-level definition. One
of the commenters suggests the State conservationist could decide up to
a limit of 8,000 animals (animal type was not stated). One of the
comments also suggests that no more that 20 percent of the livestock
operations in a State should exceed the defined limit. Two of the
commenters suggest a gross income level of $2 million be used to
determine large.
USDA also received 32 comments which favor no size limits be
established for large confined livestock operations. Most of these
comments recommend the program emphasize environmental benefits rather
than size when deciding who should receive payments.
Under provisions of the 1996 Act, producers with ``large confined
livestock operations'' are not eligible for cost-share payments on
animal waste management facilities, but are eligible for technical
assistance on these facilities and program assistance on other
conservation practices. The 1996 Act leaves the determination of
``large confined livestock operation'' to the Secretary. In considering
how to define large livestock operations, CCC considered the public and
agency comments and explored a number of options.
CCC considered establishing a national 1,000 AU threshold, with
some exceptions authorized, using the consideration elements specified
in the Conference Manager's report. The 1,000-AU threshold was
considered because it is employed in the National Pollution Discharge
Elimination System (NPDES), authorized by the Clean Water
[[Page 28276]]
Act, and used by the Environmental Protection Agency (EPA). This option
offers some advantages, because it is consistent with the NPDES, and
most family and small-to moderate-size farms are under this threshold
and will be eligible for cost-sharing. This option would target more
program funds to smaller operations, reduce funds to large operations,
and provide flexibility to address State and local environmental needs
when exceptions are granted. However, CCC believes this option lacks
sufficient flexibility to address State and local variations in
operations, creates an exaggerated discrepancy between the
implementation of this provision with the overall program goal to
maximize environmental benefits per dollar expended, and relates only
indirectly to the likelihood that the livestock producer would not
otherwise construct a waste management system.
Another option considered was to base the national definition on
the amount and environmental threat of manure and other animal waste
generated in the confined livestock operation. Although this option
would allow choices more closely related to the environmental issues
and problems resulting from the animal manure, it also uses a complex
and easily challenged process of defining thresholds by weight, volume,
or environmental threat.
A third option considered was the use of an economic achievability
analysis, which considers the ability to pay for measures to meet
environmental objectives. One such analysis is that conducted by EPA,
the ``Economic Impact Analysis of National Nonpoint Source Management
Measures Affecting Confined Animal Facilities,'' which was completed in
1995. This type of analysis will most likely result in defining the
term ``large'' differently for different animal types. EPA's analysis
indicates that dairies with 98 AU or more can generally afford to
implement animal waste runoff and storage systems without cost-shares.
Thresholds for other animal types, as identified by EPA, are: beef
feedlots, 300 AU; horse stables, 400 AU; poultry broilers and layers,
150 AU for liquid manure systems, 495 AU for continuous overflow
watering; turkeys, 2,475 AU; and swine, 80 AU. This option would be
most sensitive to a producer's ability to pay for needed facilities and
would make more program funds available to small operations. It would
also provide flexibility to address State and local environmental
needs. However, there are problems inherent in translating national
level data to State and local conditions. Some operations with high
potential for environmental benefits would be eliminated from program
eligibility. It would be more restrictive toward hog and dairy
operations because of the very low threshold levels. If EPA's analysis
were used as the basis for determining eligibility, an estimated 45
percent of dairy farms and 20 percent of hog farms would not be
eligible. Another problem with this approach is that producers would be
required to provide financial records or other evidence of their
inability to pay without financial assistance.
A fourth option considered was that an operation would not be
eligible for program cost-share funds if the animal waste management
facility requires a NPDES permit. No exceptions to this limit would be
authorized because its proponents believe that the necessity for a
permit is all the incentive that a producer needs to install an animal
waste management facility. This option was not accepted because it
would provide no flexibility to address State and local environmental
needs. Further, EPA has determined that a totally enclosed animal waste
management facility with no discharge (and no anticipated or potential
discharge) of animal waste to waters of the United States is not
subject to the NPDES program. This would make certain ``large''
operations eligible for cost-shares, regardless of a person's ability
to pay.
Therefore, having considered all these options and the comments
received on the proposed rule, CCC has chosen to not use a hard and
fast animal unit number nationally to define a large livestock
operation. CCC will consider producers with 1,000 AU or less as
eligible for financial assistance for animal waste management
facilities if otherwise eligible based on the intent of the program to
maximize environmental benefits for dollars spent. The NRCS State
conservationist, in consultation with the State technical committee,
may develop criteria to use when defining a large confined livestock
operation. This State-level definition will be used to determine
eligibility for receiving cost-share payments for animal waste
management facilities. CCC will provide national guidance, developed by
NRCS in consultation with other Federal agencies, to NRCS State
conservationists to clearly specify the factors and considerations
involved in developing the requirements for program eligibility. The
criteria will provide consideration of the elements specified in the
Conference Manager's report cited above, including the cost-
effectiveness of the application, the ability of producers to pay for
such facilities without financial assistance, the significance of the
natural resource concerns resulting from the operation, and the
prevailing State, tribe or local implementation of environmental laws,
such as the Clean Water Act. In considering this definition, priority
emphasis will be placed on assisting family farmers and ranchers,
especially small- and medium-scale producers, and not meatpackers,
processors, and vertical integrators. Small- and medium-scale family
farms and ranches that have contracts with meatpackers, processors, and
vertical integrators would be eligible. A variable cost-share rate
could be considered at the State level, so that limited resource
farmers and small-scale operations would receive a higher Federal cost-
shares.
The NRCS State conservationist's definitions must be approved by
the Chief, who will consider the justification of the definition and
consistency in the definitions, to the greatest extent possible, used
between and among States.
All participants who receive cost-shares to install animal waste
management facilities must follow an approved animal waste management
plan in accordance with NRCS conservation practice standards, which may
require the use of a nutrient management plan, including the
satisfactory use, treatment, or disposal of animal wastes. When
determining the number of livestock in the participant's operation for
eligibility purposes, the total number of animals confined at all
locations of the participant's livestock operation will be used, not
just the animals at the site of the proposed animal waste management
facility. The average annual number of livestock in the operation, for
the 12-month period before making application, will be used for this
calculation. This places an emphasis on the economic factors associated
with the livestock enterprise, especially reflecting the ability to pay
for the conservation practice. Also, guidance will be provided on using
EQIP funds to cost share animal waste management facilities for
expanding and new livestock operations. While such use of funds would
be permitted, guidance will emphasize that NRCS State conservationists
should place the highest priority on the most significant natural
resource concerns and that they have the flexibility to place higher
priority on assistance to existing livestock operations. Livestock
operations that expand to the level contained in the State-defined
definition of a large confined livestock operation would not be
eligible for cost-
[[Page 28277]]
share assistance for the animal waste management facility. The Chief
will report to the Secretary periodically on the implementation of this
policy, especially on the impact that may be occurring to the
environment and to the structure of livestock agriculture. The report,
submitted to the Secretary every six months for the first two years the
program is implemented, will be based on information received from the
NRCS Regional and State conservationists, and from other sources.
CCC believes this option provides significant flexibility for State
and local decision-makers, where the needs of the environment and the
livestock operator are best determined, and thus best meets the intent
of the 1996 Act. This method will provide the program with the maximum
ability to resolve environmental problems in priority areas and other
locations where the program is delivered. It also incorporates the
consideration of a person's ability to pay, regardless of the size of
the operation. This option considers prevailing State or local
implementation of various Federal, State, and tribal environmental
authorities and requirements, including the Clean Water Act and other
water quality authorities. It will allow CCC to consider modern
livestock operation characteristics, which vary depending on types of
livestock, marketing strategies, geography, and State and local
economic factors, from a State and local perspective.
Section 1466.8 Technical and Other Assistance Provided by Qualified
Personnel Not Affiliated With USDA
USDA received 16 comments that express support for allowing the use
of technical and other assistance from entities outside of USDA. Two
comments suggest the use of planning grants as a means to obtain
assistance from other entities and one comment suggests a finder's fee
be available for any assistance provided for the identification of
potential program participants. Six additional comments urge USDA to
include specific mention of particular qualified personnel or agencies
available to provide technical assistance, such as mention of tribal
agencies, agriculture input retail dealers, biologists, and qualified
individuals. USDA believes flexibility for technical assistance will
increase the utility of the program for addressing natural resource
concerns. USDA does not have the authority to make planning grants or
provide finder's fees. USDA utilized broad language in the proposed
rule to increase the flexibility of the program and believes that
mention of particular entities is unnecessary. No changes have been
made in the final rule concerning these comments.
USDA received fourteen comments that suggest the participant's cost
for technical assistance from non-USDA sources be paid with EQIP funds.
Four additional comments indicate USDA should reflect the reduced
agency costs in overhead resulting from the use of non-USDA sources of
technical assistance. One comment states EQIP funds should not be used
for the technical assistance provided by non-USDA sources. Six comments
request USDA provide funding for the services provided in EQIP by
conservation districts and four comments simply request USDA explain in
greater detail how it will contract to pay for technical assistance
provided by non-USDA sources. USDA encourages the use of non-USDA
sources of technical assistance, including private sources, but does
not agree that EQIP technical assistance funds should be provided to
participants who chose to use technical assistance provided by non-USDA
sources. Participants have the flexibility to use the services provided
by private sources, NRCS, conservation districts, State and local
government agencies, and other qualified natural resource
professionals. Many of these sources of assistance provide the
technical assistance using other forms of tax-payer support. USDA does
not agree that conservation districts should be paid with EQIP funds
for administrative or planning services provided as a member of the
local work group. In those instances where NRCS is requested by a
participant to provide technical assistance, and NRCS is unable to
provide that technical assistance, NRCS has the ability to use
qualified non-USDA personnel through contracts with private sources or
through cooperative agreements with other Federal, State, or local
government agencies as authorized in Sec. 1466.6(b). No changes have
been made in the final rule concerning these comments.
The Department received 16 comments regarding the standards it will
use to assess the quality of technical and other assistance provided by
outside sources. The breakdown of these 16 comments is as follows: 2
comments expressly support NRCS oversight of the technical assistance
provided by outside sources; 2 comments suggest the conservation
district should assume that responsibility; 4 comments recommend
Certified Crop Advisors should be authorized to submit field and whole
farm nutrient and pest management plans for EQIP; 1 comment states
``certification, benchmark standards or other additional demonstrations
of knowledge'' do not belong in USDA rules and procedures; 2 comments
suggest the final rule provide greater clarity about any qualifications
that NRCS will require; 3 comments suggest NRCS establish a
certification process or conduct qualification workshops; and 1 comment
states technically qualified organizations should be qualified as
organizations eligible to provide technical assistance. NRCS intends to
hold personnel from non-USDA agencies and private sources of technical
and other assistance to the same standards or criteria it expects from
USDA employees. At this time, since adequate certification programs are
available from other sources, NRCS does not intend to establish a
certification process and generally will accept the certification
provided to professional conservationists by other organizations.
Qualified personnel from agencies and groups not affiliated with USDA
will be expected to have knowledge of how the program works and the
requirements of the program. NRCS may provide training to personnel
from other agencies and groups about the program and its requirements
either individually or in workshops. No changes have been made in the
final rule concerning these comments.
Section 1466.20 Application for Contracts and Selecting Offers From
Producers
USDA received one comment which suggests that ``shall'' be replaced
with ``may'' throughout this section. USDA believes the agencies have
sufficient discretion to administer EQIP in a flexible manner to meet
varied resource needs, and, therefore, sees no need to replace the word
``shall'' with ``may'' in Sec. 1466.20.
USDA received six comments regarding the submission of
applications. Of these six comments, one comment supports the ability
to sign up at the USDA service center, three support the continuous
sign-up process, one comment requests USDA clarify how often the
agencies will rank applications, and one comment inquires when the
continuous sign-up would commence. USDA believes the announcement of
sign-up periods, the timing, and frequency of application ranking is
contingent on the specific logistical requirements of each approved
priority area and significant statewide natural resource concern. It is
imperative that enough flexibility be in place to address varying
farming and ranching regimes throughout the
[[Page 28278]]
country. No changes have been made in the final rule concerning these
comments.
USDA received 13 comments regarding the application process. Of
these 13 comments, 10 raise questions and concerns regarding any
proposed ``bidding'' process, including whether there would be bidding.
Two comments raise concern regarding the length of the application and
ranking process and urge timely approval be given. One comment
indicates a producer does not become a participant until the
application has been approved, yet it is unclear at what time a
producer assumes rights and obligations under a contract. Section
1466.20(a) indicates that any producer with eligible land may submit an
application for participation in the program. The Department expects to
receive far more applications for participation than existing funding
levels can accommodate. Therefore, the Department will select projects
through a competitive process, though not necessarily a bidding
process. Applications are ranked on a number of factors, cost being
only one of the factors considered. Because the competitive process
aims to achieve maximization of environmental benefits per dollar
expended, an applicant can improve the attractiveness of the proposed
project by electing to accept lower program payments than authorized or
by developing a management system that increases the project's
environmental benefits.
It is not USDA's intention to create a process that will take an
excessive amount of time from date of application to the commencement
of work on a project. However, all practices and conservation plans are
different; some practices require an extensive investment of time in
planning, designing, and engineering a structural practice, e.g. animal
waste management structure. NRCS may contract for technical services if
the workload is such that timely approval is not otherwise possible.
The producer is a participant and has legally enforceable rights and
responsibilities under an EQIP contract when the contract is executed
by the producer and the USDA. No changes have been made in the final
rule concerning these comments.
USDA received three comments regarding the role of the State
technical committee in the ranking process. Of the three comments, one
comment supports the involvement of the State technical committee, one
comment disagrees, and the third comment requests any advice provided
by the State technical committee be available for public comment. USDA
intends to allow State technical committees to recommend to NRCS State
conservationists guidelines for developing ranking criteria for
evaluating applications that are consistent with the criteria set forth
under Sec. 1466.20. Local work groups will develop additional criteria
within these statewide parameters to address local natural resource
concerns. Guidelines developed at the state and local level will be
available for public review and opportunities will be available for
pubic input. No changes have been made in the final rule concerning
these comments.
USDA received five comments regarding the role of the local work
groups in the development of ranking criteria. Of these five, two
comments requests clarification regarding the actual role of the local
work groups and three comments request local work groups apply ranking
criteria in addition to developing the criteria. USDA feels the current
language adequately addresses the commenter's concerns. The local work
groups and their members recommend ranking criteria but do not have a
vote in the approval process. The FSA county committee, with assistance
of the NRCS designated conservationist and the FSA county executive
director, shall use the ranking criteria and grant final approval for a
contract.
USDA received 48 comments regarding the respective roles of the
agencies in the ranking and application approval process. Of these 48
comments, 45 comments express concern that the FSA county committees
were merely a rubber stamp and 3 comments recommend the county
committee system be utilized greater in concert with the NRCS ranking
system. The administration of USDA conservation programs has moved
beyond the traditional FSA committee system of approvals due to the
implementation of the 1996 Act which folded the functions of the
existing conservation programs into EQIP. USDA believes all of the
agencies and committees with roles in the program have important
responsibilities in line with their expertise, and the language in the
proposed rule adequately defines the roles of the respective agencies.
No changes have been made in the final rule concerning these comments.
USDA received 14 comments regarding the ranking criteria for the
selection of applications. Of these 14 comments, seven comments
recommend particular factors that a ranking system should address. In
particular, comments suggest including evaluating off-site and on-site
benefits, credit for applicants who have installed practices under
different programs, and applications that address several natural
resource concerns receiving a higher ranking against those that address
only one natural resource concern. Five comments discuss an
environmental benefit index, including four comments which express
support for the concept but caution against a national index, and one
comment which did not support the concept. The two remaining comments
ask how the agencies would determine cost and express the opinion that
cost was an arbitrary factor to base acceptance upon. USDA believes it
is important to allow flexibility in the selection of ranking factors,
both on the State and local level, to best address local natural
resource needs, and does not intend to establish national level ranking
factors. Ranking factors will vary between approved priority areas and
significant statewide natural resource concerns. The cost of a
conservation practice will be estimated by NRCS using knowledge of
local practice costs collected and provided by FSA. National level
direction will place emphasis on developing ranking criteria which
presents the least cost to the program since the maximization of
environmental benefits per dollar expended is an integral facet of the
program and is clearly articulated in the statute. No changes have been
made in the final rule concerning these comments.
USDA received 26 comments regarding the impact the ranking criteria
will have upon participation by tribal, minority, and limited resource
farmers. Of these 26 comments, 19 comments specifically state the
application and ranking process will discriminate against minority and
limited resource farmers. A different comment recommends that potential
discrimination could be avoided by assuring that limited resource
farmers had a voice on the local work groups. One comment states the
process was unduly burdensome upon tribal governments because of the
requirement to list all lands under their control. Three comments raise
concern that the emphasis upon cost could discourage limited resource
farmers from participating because wealthier applicants would rank
higher on that factor alone, regardless of which applicant has the more
critical resource concern. The statute mandates that USDA achieve the
greatest environmental benefit per federal dollar expended. This does
not translate into a simple calculation that applicants
[[Page 28279]]
who contribute more towards the cost of a practice will rank higher.
USDA focuses upon the environmental benefits achieved in the most cost-
efficient manner. An applicant can improve the cost-efficiency of the
proposed project in several ways, including filing a joint application
with similarly situated individuals, providing like-kind services, and
focusing upon an appropriately scaled solution to any given concern.
USDA intends to provide guidance in program guidance documents that
stresses the need to apply all program elements and activities in a
manner that does not discriminate against any farmer or rancher who are
potential participants in the program. No changes have been made in the
final rule concerning these comments.
One comment states producers who do not have bank accounts would be
excluded from EQIP participation due to the electronic funds deposit
policy of the 1996 Act and alternative methods of issuing checks should
be provided as a options. In accordance with the Debt Collection
Improvement Act of 1996 (Pub. L. 104-134), payments made in Federal
programs will be disbursed by electronic funds transfer (EFT).
Recipients of Federal payments must provide financial institution
information necessary to receive payment via EFT. Waiver of the EFT
requirement may be granted by FSA through December 31, 1998, if the
recipient provides a written certification that the recipient does not
have an account with a financial institution or an authorized payment
agent. No change was made in the final rule concerning this comment.
Section 1466.21 Contract Requirements
Of the various contract requirements outlined in Sec. 1466.21, USDA
received the greatest number of comments regarding the statutory
requirement that EQIP contracts be for not less than five years and not
more than 10 years. Of the 32 comments received on this subject, six
comments express support for the 5 to 10 year contract duration. One
comment suggests no contract at all should be required for cost-share
assistance. Three comments recommend a specific shorter duration, such
as 3-10 years or on an emergency basis. Twenty-two comments state
producers would not be receptive to 5-10 year contracts based on the
assumption that long-term contracts are cumbersome, five-year minimum
contracts are unnecessary to address single natural resource concerns,
and the duration of contracts are detrimental to small-scale and
limited resource farmers. The 1996 Act requires that payments be made
to participants through an EQIP contract, and the contracts be a
minimum of 5 years and a maximum of 10 years. The Department cannot
modify these requirements. EQIP did not combine the functions of
emergency conservation programs from either FSA or NRCS into its
programs. The emergency conservation program and the emergency
watersheds program will likely continue in some form to address these
emergency situations. No changes have been made in the final rule
concerning these comments.
USDA received eight comments that state EQIP plans should be
limited to those practices being implemented for which cost-share is
received. USDA believes some conservation plans do require
implementation of non-cost-shared conservation practices or operations
in order to ensure that cost-shared practices are functional and
accomplishing the plan's stated goals in addressing the identified
natural resource concerns. No changes have been made in the final rule
concerning these comments.
One comment states controlling noxious weeds should be added to the
list of contract requirements. Control of noxious weeds is frequently a
requirement of State or local laws and those laws can be enforced in
the normal manner. No changes have been made in the final rule
concerning this comment.
USDA received 18 comments regarding the role of FSA county
committees, seventeen of which suggest the rule explicitly state that
FSA county committees may either approve or disapprove contracts. The
remaining comment recommends county offices should have authority to
modify contracts in order to transfer money from one contract to
another to balance contract cost overruns with shortfalls on other
contracts. USDA feels the current language is sufficient and in
accordance with the reorganization decisions made within the Department
in the last two years. Program guidance will specify how unused funds
may be used. No changes have been made in the final rule concerning
these comments.
USDA received three comments regarding the limitation of one EQIP
contract at any one time for each tract of agricultural land. Of these,
one comment proposes allowing the local work group flexibility to
define areas of natural resource concerns, one comment proposes all
properties owned by a single person be counted as one, and the third
comment expresses the concern that this requirement would create a
paperwork nightmare. USDA believes the current FSA method used to
classify farm and tracts should be used to monitor where EQIP
contractual activities are undertaken as it is with other USDA
conservation programs. FSA has an existing database that will enable
this requirement to be easily tracked, thus avoiding a paperwork
burden. No changes have been made in the final rule concerning these
comments.
One comment requests CCC to commit the funds up-front that will be
needed for a 5-year contract and that such funds would be unavailable
for other purposes. When contracts are agreed to by CCC, payments
become an obligation of the CCC for the full contract period within the
limits of the CCC's borrowing authority which is fully expected to be
sufficient to cover all obligations. There is no provision in the law
specifying a special priority for EQIP, or other claims, over other
legitimate claims on CCC funds. Accordingly, it was determined that the
portion of this comment to prioritize EQIP over other uses should not
be adopted. No changes have been made in the final rule concerning
these comments.
USDA received five comments requesting Sec. 1466.21(c) be revised
to allow for a producer to complete the first practice of the contract
to be completed within 24 to 36 months, instead of 12 months. USDA
believes it is in the best interest of the program to obtain tangible
conservation benefits as soon as possible during contract periods, and
to be assured the participant intends to comply with the contract. The
best way to achieve this is to actually install or implement
conservation practices in the beginning of the contract period. No
changes have been made in the final rule concerning these comments.
Section 1466.22 Conservation Practice Operation and Maintenance
A commenter inquires if the lifespan of a conservation practice is
greater than 10 years, how will USDA ensure the participant will
continue to operate and maintain the practice in accordance with this
section. Another comment states this section should be more explanatory
in regards to participant accountability and follow-up of EQIP
contracts to ensure that taxpayer resources are accomplishing the
objectives in the contracts. Section 1466.22 has been revised in the
final rule to state that CCC may periodically inspect the conservation
practices with life spans that exceed the contract
[[Page 28280]]
period to ensure that operation and maintenance is occurring.
One commenter requests ``unless a catastrophic event occurs'' be
added to the end of the second sentence in Sec. 1466.22. Paragraph
1466.25(b)(3) of the proposed rule enables CCC to give consideration to
hardships that prevent the participant from complying with the contract
terms that are beyond the participant's control. USDA believe this
adequately addresses the comment and no change has been made to the
final rule concerning this comment.
Section 1466.23 Cost-Share and Incentive Payments
Two comments stress financial incentives are an important part in
encouraging farmers to adopt practices that work best on their land
which will provide off-site environmental benefits. Another comment
states incentives need to provide incentives for all stakeholders in a
watershed, not just the ones involved in traditional agricultural
occupations. Seven comments indicate support of EQIP payments to
livestock producers and increasing the amount of cost-share funds a
participant can receive in a multi-year contract. Four comments are
critical of EQIP concluding that small and family farmers and ranchers
will not be able to provide funds for their portion of a multi-year
contract, profitability for the family farmer is overlooked because
there is no way they can possibly comply with various environmental
regulations even with cost-share programs and a proposal to eliminate
cost-sharing for animal waste management facilities by placing the
responsibility for clean up of these problems with the State and local
government. One commenter states many tribal farmers are limited
resource farmers that should receive at least 75 percent cost-share and
also have available low-cost conservation practice alternatives. USDA
agrees that financial incentives encourage farmers to adopt
conservation practices that result in both on-and off-site benefits.
The flexibility of EQIP allows for the establishment of rates that best
address local situations. Special rates can be established to ensure
adoption of conservation practices.
Two comments suggest providing incentives to participants who
participate in educational programs. The Department will offer
information, education, and training at no cost to farmers and ranchers
to aid in implementing their conservation plan. Paragraph 1466.5(h) has
been added to the final rule concerning this educational assistance.
One comment suggests low or no-interest loans should be made
instead of payments. The 1996 Act authorizes cost-share and incentive
payments, not loans, to program participants. Other programs with these
options are available and information about them can be obtained at
local USDA service centers. No change has been made to the final rule
concerning these comments.
Two comments encourage the use of EQIP payments with State cost-
share programs if available. The Department believes a valuable way to
maximize environmental benefits per dollar expended is to encourage co-
cost-share arrangements with other State and local, public and private,
funding sources. The proposed rule contained several references to
considering support provided by State and local programs when
designating priority areas and national conservation priority areas.
This encouragement also will be incorporated in the program guidance
documents. No change has been made to the final rule concerning these
comments.
Two comments urge USDA to clarify in the final rule that the 25
percent cost-share simply must be a non-federal match, which could
include assistance by a non-governmental organization (NGO) or a State
agency. USDA will provide administrative policy in the program guidance
documents concerning situations where special interest groups or a
State agency contributes to the cost of a practice. The final rule has
been amended to indicate that the Federal share of cost-share payments
will be reduced to the extent total financial contributions from all
public and NGO sources exceed 100 percent.
Several comments address payment rates. One comment suggests the
payment rates used in prior conservation programs be re-evaluated in
regard to the policies being established for EQIP. Another commenter
encourages the use of a variable-rate incentive program for EQIP.
Another commenter states that, to be advantageous for a participant, a
realistic range of $1-4 per acre, rather than 25-50 cents per acre
should be used. The Department will estimate the local costs of
conservation practices and inform producers of the maximum payments
that will be allowed with EQIP. Rates used in a locale in a prior
conservation program should be re-evaluated and adjusted, as needed, to
reflect current conditions and needs. Variable rates may be selected
for use in a given locale. No change has been made to the final rule
concerning these comments.
Forty-three comments were received which request the following
practices be eligible for cost-share or incentive payments: riparian
zone protection, fencing to restrict livestock from sensitive wildlife
habitat areas, vegetated ditch banks, chemical free insect control,
recycling, waste utilization, fire and grazing management, precision
agriculture or variable technology services, system soil testing,
terraces, waste oil recycling, controlled drainage, tile set backs,
rinse pads, solids testing, capping abandoned wells, shelterbelts,
split application of nutrients, buffer zones around ponds or lakes for
citrus enterprises, on-farm containment dikes, fuel storage management,
and permeable mates for tree planting, efficient irrigation practices,
irrigation wheel lines, and conservation tillage including no-till.
USDA believes these are examples of some practices which may be
eligible in EQIP when used for natural resource conservation purposes.
To be eligible, the practice must provide beneficial, cost-effective
approaches for participants to change or adapt operations to conserve
or improve natural resources or to provide for environmental
enhancement. Conservation practices must meet NRCS standards and
specifications set forth in the FOTG. No change has been made in the
final rule concerning the eligibility of conservation practices.
One comment suggests that urbanization of agricultural land causes
environmental problems that should be addressed with EQIP. The statute
does not give the Department the authority to use EQIP to address
problems caused by the conversion of agricultural land to urban uses.
One commenter favors conservation tillage and suggests grants be
given to conservation districts to lease or buy equipment that could be
rented to producers at a discounted rate to encourage producers to try
the no-till method of farming. Another commenter favors program
payments for research and development. The 1996 Act does not authorize
the Secretary to use EQIP funds for grants, nor for research and
development. No change has been made to the final rule concerning these
comments. However, paragraph 1466.7(a)(3) of the final rule describes
how EQIP may be used to provide financial assistance where new
technologies or conservation practices provide a high potential for
maximizing environmental benefits per dollar expended.
[[Page 28281]]
One commenter states the language in paragraph 1466.23(a)(2)
concerning incentive payments ``at a rate necessary to encourage''
should take into consideration the total conservation plan and the
number of natural resource concerns or practices as a total package
when developing the rate structure. The 1996 Act authorized the
Secretary to make incentive payments in an amount and at a rate to be
necessary to encourage a producer to perform one or more land
management practices. The Department will provide guidance concerning
incentive payments in program guidance documents. No change has been
made to the final rule concerning this comment.
A commenter states EQIP would be more effective if incentives were
more broadly applied to farm management rather than targeting cost-
share for manure structures. Another comment expresses no one hog
producer should be allowed to receive more than $10,000 in cost-share.
The Department agrees incentives for management practices are effective
and intends on encouraging the use of incentive payments of land
management practices, which generally maximize environmental benefits
per dollar expended when compared to many structural conservation
practices. The Department will provide guidance concerning incentive
payments in program guidance documents. Cost-share and incentive limits
for conservation practices will be determined at the State or local
level. No change has been made to the final rule concerning these
comments.
Four commenters state there is a need to clarify that cost-share
payments are related to the installation of both structural and
vegetative practices, that incentive payments are related to the
development and/or maintenance of land management practices. As the
commenters suggest, cost-share payments are for establishing structural
or vegetative conservation practices, and incentive payments are to
encourage producers to adopt land management practices. USDA has
clarified and made the distinction between cost-share and incentive
payments in Sec. 1466.3 of the final rule and has added paragraph
1466.23(a)(4) in the final rule stating that both cost-share and
incentive payments may be received under the same contract.
Two commenters state FSA county committees should also help
establish the cost-share and incentive payment rates by practice within
the maximum payment limitations set by law and approve contracts. FSA
State and county committees will help to establish payment rates by
their participation on State technical committees or local work groups
which will consult with NRCS when setting payment limits. State and
county FSA offices will continue to gather supporting data for
determining cost-share rates and for establishing cost-share levels
with limitations.
A recommendation by one commenter states that paragraph
1466.23(a)(3)(i) should be revised to add the words ``and the State
technical committee'' after ``local work group.'' USDA agrees with the
comment and has included the revision in the final rule.
A proposal by a commenter states that the words ``total amount'' in
paragraph 1466.23(b) be deleted and the words ``Federal share'' be
inserted. The language used in the proposed rule is consistent with the
1996 Act. In its entirety, the paragraph reads ``Except as provided in
paragraph (c) of this section, the total amount of cost-share and
incentive payments paid to a person under this part may not exceed: * *
* '' (Emphasis added.) The Department believes the phrase ``under this
part'' provides the clarity being suggested by the comment and has made
no change in the final rule concerning this comment.
Two comments indicate the payment limitations are not workable and
limiting a producer to $10,000 per year will delay the installation of
some practices. USDA disagrees as paragraph 1466.23(c)(3)(i) allows for
the $10,000 yearly limit to be exceeded on a case-by-case basis. No
change was made in the final rule concerning these comments.
A comment states that it is unclear whether the $50,000 limitation
is a total project limit per landowner or a cap on Federal
participation per project. The commenter suggests that it be the cap on
federal participation per project, thus encouraging participants to
seek the additional funding from other non-Federal sources for the more
expensive but cost effective projects, and resulting in more cost-
effective projects from the Federal perspective. Three additional
comments state there should be waiver provisions for those
comprehensive planning efforts to exceed the $50,000 payment limitation
in order that the program can realize maximization of environmental
benefits. The 1996 Act established the $50,000 limit on a multi-year
contract. This limit refers to the maximum program payments that may be
made on any multi-year contract, not to a cap on the total cost of a
project. Contracts are commonly for one or more conservation practices
to address the natural resource concerns on a farm or ranch unit of
concern. The limit will have the effect of placing a cap on the program
payments made on a ``project.'' However, a person may enter more than
one contract, thus having the ability to receive more that $50,000 from
EQIP. The proposed rule establishes a limit of one contract at any one
time for each tract as identified with a FSA tract number. A
participant may have subsequent EQIP contracts for different natural
resource needs or concerns following completion of a previous contract
on the same tract. No change was made in the final rule concerning this
comment.
Two comments favor the $50,000 contract limitation with a
suggestion that there be a non-regulatory, incentive-based approach for
conservation of wildlife and wildlife habitat. The Department has
developed EQIP as a voluntary natural resource conservation program
that will provide financial incentives for concerns such as wildlife
and wildlife habitat. No change was made in the final rule concerning
these comments.
Another comment states that $50,000 will only pay for one-third to
one-half of the investment cost for a livestock animal waste facility.
The 1996 Act limits the cost-share payments for structural practices to
not more than 75 percent of the projected cost of the practice. The
1996 Act does not provide a guarantee that the program payment will be
75 percent of the projected cost of the practice. No change was made in
the final rule concerning this comment.
A statement from a commenter expresses that the proposed rule does
not clearly define who is eligible for EQIP funds. The proposed rule
does provide eligibility rules which will apply to define who is
eligible for EQIP funds. No change was made in the final rule
concerning this comment.
Six comments concern payment limitations and how ``person'' is
defined for EQIP. One comment suggests the use of social security
numbers rather than allowing producers to receive payments from 3
entities. One comment recommends USDA make sure all sites owned by a
single person are counted as one entity. Three of the comments state
that any recipient of EQIP funds should be actively engaged in farming.
One comment states that cash rent tenants should be exempt from payment
limitations and one commenter states that cash rent tenants should not
be exempt from payment limitations. One commenter indicates it is not
surprising that the rule proposes to use the same ``loophole-laden''
payment limitation and person definitions used by FSA for commodity
programs and CRP. However, the commenter expresses outrage that the
rule would go beyond
[[Page 28282]]
those ``weak standards'' and actually delete major payment limitation
provisions from applicability to EQIP. USDA believes that it is
important to have EQIP payment limitation provisions consistent with
other major agricultural programs to reduce paperwork burdens on the
applicant and the Department, and to reduce confusion on the part of
the producer and USDA employees that different program provisions would
create. The major provisions in 7 CFR Part 1400 being applied for EQIP
are consistent with the regulations of the Conservation Reserve Program
(CRP) and with those regulations for producers receiving production
flexibility contract payments. Moreover, CCC feels that program
administration will be eased by the fact that many producers are aware
of these provisions, have paperwork already on file that will suffice
for EQIP, and are accustomed with dealing with reporting and filing
requirements. CCC has periodically revised the provisions in 7 CFR Part
1400 to close loopholes when they are discovered and will continue to
do so in the future. CCC will not apply the provisions in part 1400,
subpart C for determining whether persons are actively engaged in
farming, subpart E for limiting payments to certain cash rent tenants,
and subpart F as the provisions apply to determining whether foreign
persons are eligible for payment because those provisions were
developed to limit payments to persons without regard to environmental
or natural resource conditions. EQIP is primarily concerned with
addressing significant environmental and natural resource concerns and
CCC believes the stated provisions would limit its ability to address
those concerns. No change was made in the final rule concerning these
comments.
Six comments request paragraph 1466.23(c)(1) be revised to indicate
that States, political subdivisions, and entities thereof, be permitted
to receive payments. One comment states this paragraph excludes school
land leased to farmers and state-enabled public corporations, such as
drainage or irrigation districts, from receiving payment; the commenter
states these entities should be eligible. Another comment states
payments should be made to these entities only if they are directly and
financially involved with an EQIP project established around a weed
management area as defined in the guidelines for coordinated management
of noxious weeds in the Greater Yellowstone area. CCC believes that
excluding States, political subdivisions, and agencies thereof, from
receiving payments will make more funding available for private
producers that generally do not have the financial resources that
governmental entities have. Paragraph 1466.4(d)(2) of the proposed rule
enables publicly owned land to be eligible if the land is under private
control for the contract period and is included in the participant's
operating unit; the conservation practices will contribute to an
improvement in the identified natural resource concerns; and the
participant has written authorization from the government landowner to
apply the conservation practices. CCC believes this provision meets the
intent of several of the comments. No change was made in the final rule
concerning these comments.
Three commenters express support for the language in paragraph
1466.23(c)(3)(i) which authorizes the NRCS State conservationist to
exceed the $10,000 annual limitation when it is necessary to meet the
conservation objectives of the participant's plan. One of the above
commenters urges broad interpretation of the criteria necessary to be
met in order to exceed the limitation to provide cost-effective
salinity control. Two other comments state the authority to exceed the
annual limitation of $10,000 should be given to the local level for
their determination. Another comment states it is important that
authorization of larger payments in a shorter time period should be
given as an option to the State conservationist as accelerated
disbursement of funds within one to two years is needed to provide the
most cost-effective assistance to participants. CCC believes that these
annual payment limitation waivers are best made on a case-by-case basis
by the State conservationist considering the input and recommendations
received from the local level. CCC believes the language in the
proposed rule provides for sufficient latitude and flexibility that
waivers may be granted, when justified, that will enable payments up to
the contract limits. A provision of the EQIP contract is to provide the
most cost-effective conservation assistance. No change was made in the
final rule. Program guidance will be developed concerning justification
of the annual limitation waiver.
Three commenters state support for the proposed rule provision for
a payment limit exemption for tribal ventures, one noting that an
Indian tribe may be the beneficial owner of hundreds of thousands of
acres of agricultural lands held in trust status by the United States.
The vast majority of tribal agricultural lands could be excluded from
financial assistance programs unless tribes are exempted from funding
ceilings. Another comment suggests paragraph 1466.23(c)(3)(iii) should
specify that the payment limitations do not apply to contracts on
tribal land or BIA allotted lands. The Department must adhere to the
EQIP payment limitation as set by statute. To accommodate the unique
situation of tribal, allotted, and Indian trust lands, the regulation
provides that a tribal venture can receive payments in excess of the
limitations if an official of the Bureau of Indian Affairs and/or a
tribal official can certify that no one person, as defined in 7 CFR
Part 1400, will receive in excess of the limitations.
One comment supports the exception to the payment limitation
included in the proposed rule for a producer with a current EQIP
contract who inherits land subject to another EQIP contract. No change
was made in the final rule concerning the comment.
A recommendation by a commenter states a producer should be
eligible for EQIP payments during the last 2 years of a CRP contract to
allow the CRP participant to implement a conservation practice in
advance of returning the CRP land to production, thereby maintaining
the maximum environmental benefit achieved under the CRP contract. The
1996 Act states that a producer shall not be eligible for cost-share
payments for structural practices if the producer receives cost-share
payments or other benefits for the same land under CRP or the Wetlands
Reserve Program (WRP). However, there is nothing that precludes a
producer from beginning the planning and paperwork process for EQIP
while the land is still under CRP or WRP contract. The EQIP contract
would not be approved and considered binding until such time as the
land was no longer covered by either CRP or WRP contractual authority.
No change was made in the final rule concerning the comment.
Three comments recommend EQIP participants should be given the
option of being paid as the practice is being implemented, with as much
as one-half of the payment being made following the technical
certification that the project has been completed. The program guidance
documents will detail procedures for making partial payments to
participants. Partial payments for completion of part of a conservation
practice may be made if the participant will complete the entire
practice, with or without EQIP assistance, within the time prescribed
by the FSA county committee, with NRCS concurrence. No change was made
in the final rule concerning these comments.
[[Page 28283]]
One hundred and four comments express that paragraph 1466.23(e)
needs to be changed to provide payments as soon as the conservation
practice is complete and technically certified. Two of the commenters
ask whether the deferred payment is referring to the calendar year or
the fiscal year. Paragraph 1466.23(e) of the proposed rule indicates
that payments will not be made until the fiscal year following the
fiscal year in which the contract was entered into. For illustration
purposes, a contract entered into from October 1, 1996 through
September 30, 1997 cannot have payments made on completed practices
until after October 1, 1997, the beginning of the next fiscal year.
Except for payments earned during the first fiscal year of the
contract, all other payments will be made after the practice is
certified to be in accordance with technical specifications. This
provision is based on the 1996 Act and the Department cannot change
this provision, thus no change was made in the final rule concerning
these comments.
Section 1466.24 Contract Modifications and Transfers of Land
Four comments concern contract modifications. One comment states
this section must provide provisions for reasonable modification of
contracts. A second comment indicates concern that a producer will not
have enough flexibility in a long-term contract in order to be
permitted to modify a contract several years into its implementation.
Another comment proposes the local NRCS district conservationist should
be allowed to modify the contract if a planned practice is not
practical. One comment suggests the local work group should be able to
approve or deny contract modifications, in accordance with NRCS
requirements, because requiring CCC approval of every modification may
result in unnecessary administrative delays. The contract modification
provisions for EQIP are similar to those in other USDA conservation
programs, including the former programs which EQIP replaces. The
program guidance documents will provide procedural guidance for
modifying contracts, and will have the flexibility that will enable a
participant to apply to modify a contract several years into its
implementation as long as the conservation plan is revised in
accordance with NRCS requirements and approved by the conservation
district. Local work groups are advisory bodies and cannot approve/
disapprove contracts or contract modifications. Approval/disapproval of
contract modifications will be done in the same manner as contracts;
FSA and NRCS will serve as representatives of CCC at the local level.
It is not anticipated that requests for contract modifications will
result in unnecessary delays. No change was made in the final rule
concerning these comments.
One comment states paragraph 1466.24(c) should have the words
``loses control of the land'' removed. The commenter believes that if a
producer loses control through bankruptcy, it would be unfair to
require repayment of cost-share funds. CCC disagrees with the comment.
If a participant loses control of the land, through bankruptcy or other
manner, and cannot complete the contract, the environmental benefits
that had been expected using program assistance may not be achieved. No
change was made in the final rule concerning this comment.
Section 1466.25 Contract Violations and Termination
Five comments suggest the local conservation district should be
involved in the consultation process referred to in Sec. 1466.25. CCC
agrees with this suggestion because of the role conservation districts
have on the local work group and in approving conservation plans used
as the basis for program contracts. The final rule has been amended to
enable NRCS to consult with the local conservation district.
Three comments concern the time a participant should be given if
they are found to be violating the terms of the contract. One comment
recommends that ``reasonable time'', used in paragraph 1466.25(a)(1),
should be defined in Sec. 1466.3 Definitions. Another comment
recommends all violations be corrected as soon as possible with a
maximum of one year to get back into compliance with the terms of the
EQIP contract. Another comment suggests a waiver process be provided
for those participants who cannot meet the time requirements of an EQIP
plan. CCC does not agree that the term ``reasonable time'' needs to be
defined in regulation, nor that a maximum of one year should be
regulated. Establishing a specific amount of time does not permit
flexibility for the implementation of locally guided conservation
measures. Depending on the circumstances of the situation, a reasonable
time in one instance may be unreasonable in another instance. The FSA
county committee, in consultation with NRCS and the local conservation
district, are in the best position to determine what is reasonable. The
program guidance documents being developed will indicate that,
generally, a participant should be given one year, or some other
reasonable time, to correct the violation and comply with the terms of
the contract. No change was made in the final rule concerning these
comments.
One comment suggests language should be added to protect producers
from being considered to be in noncompliance if problems are discovered
during a technical assistance visit by NRCS, similar to provisions
relating to highly erodible land compliance. CCC does not agree with
this suggestion since EQIP is entirely a voluntary program. Program
participants voluntarily request program assistance to implement
conservation practices according to a conservation plan and schedule
that the producer develops. CCC believes that Sec. 1466.25 of the
proposed rule provides sufficient flexibility to enable a participant
who is found to be in violation of a contract to again comply with the
contract and to achieve the expected environmental benefits. No change
was made in the final rule concerning this comment.
Several comments concern specific, hypothetical examples of
potential violations of contracts. One comment asks if soil, water or
other natural resources are not protected in a cost-effective manner,
will the participant be subject to breach of contract. Another example
relates to a participant who appeals a determination that the goals and
objectives were not achieved, will payments be withheld pending a
review of the appeal. All applicants are required to submit a
conservation plan that is acceptable to NRCS and approved by the
conservation district. NRCS will likely find the plan unacceptable if
it is not cost-effective or does not achieve the goal and objectives.
Therefore, the applicant will need to revise the plan to make it
acceptable. Once a plan is acceptable and a participant has a contract,
the participant will be in compliance with the contract as long as the
conservation practices are being established, operated, and maintained
in accordance with the contract. No change was made in the final rule
concerning these comments.
One comment states the penalties and/or repayment obligations for a
participant who is in violation of a contract should be included in the
rule. Another comment states violators of compliance ``must'' be
penalized, not ``may'' be as the proposed rule states, otherwise EQIP
will lose its credibility and effectiveness. A third comment states the
penalties for noncompliance should be proportional to the degree of
violation. CCC believes the proposed
[[Page 28284]]
rule language in paragraphs 1466.25(b) (1) and (2) satisfactorily
provides for the assessment of repayment obligations and liquidated
damages, and provides for flexibility in determining the amount of
repayment or liquidated damages, considering the degree of the
violation. No change was made in the final rule concerning these
comments.
Four comments concern good faith and hardship considerations. One
comment states no penalty should be assessed for conservation practices
already completed in a contract if a good faith effort can be
determined. Two other comments express an opposite point of view and
request the good faith and hardship clause should be eliminated. These
commenters suggest if an applicant is unable to carry out a
conservation plan, that should be determined before a contract is
commenced and participation in EQIP should be denied. One comment
states that hardship criteria should be provided in this section. USDA
has knowledge and experience from administering other conservation
programs that there are many factors which can alter a participant's
ability to implement a long-term contract that are not known at the
time of application. Factors such as natural disasters, economic
hardship, or a producer's ill-health, all of which may be beyond the
participant's control, may necessitate the need to determine good faith
efforts in order to make appropriate contract adjustments. The criteria
for determining hardship and its applicability will be provided in the
program guidance documents. Paragraph 1466.25(b)(3) provides sufficient
latitude in regard to determining good faith effort for all contract
decisions. No change was made in the final rule concerning these
comments.
One comment states there should be an ``escape clause'' for a
participant to withdraw from a contract for reasons beyond their
control. CCC feels that the language in paragraph 1466.25(b)(4) of the
proposed rule is adequate to enable a participant to voluntarily
terminate a contract if CCC agrees. No change was made in the final
rule concerning this comment.
Section 1466.32 Access to Operating Unit
A commenter asks if NRCS will need access to the farm to obtain the
necessary resources inventory information or will the property owner be
permitted to bring that information to the NRCS office. The commenter
has the impression NRCS will collect data for the whole farm and is
opposed to this approach. The final rule provides that a participant
shall develop and submit a conservation plan for the farm or ranch unit
of concern. An inventory of natural resource conditions is a component
of the conservation plan. The participant may use technical assistance
from NRCS or other government or private agribusiness sector qualified
professionals to develop the conservation plan. If NRCS provides the
technical assistance, it will inventory the natural resources only to
the extent it is needed to determine the natural resource concerns and
their causes for the farm or ranch unit of concern. If the producer
requests a whole farm or ranch assessment, NRCS will collect the
resource inventory information for the entire farm or ranch. NRCS may
need to have access to the farm or ranch to determine the acceptability
of the conservation plan submitted by a participant. The final rule
clarifies in paragraph 1466.21(b)(3)(iv) that, in addition to access,
the producer is required to supply information needed to determine
compliance with the program.
One comment asks who will be considered an authorized CCC
representative for the purposes of having access to an operating unit
or tract. NRCS, FSA, and the FSA county committee will serve as the
authorized representatives of CCC at the local level for the purposes
of this section. No change was made in the final rule concerning this
comment.
Two comments concern the notification of the participant prior to
gaining access to a farm or ranch. One comment states there is no
reason for an inspection without the participant first being notified,
therefore the language ``make a reasonable effort'' should be removed.
Another comment suggests new language for this section, stating ``a
participant must be notified 30 days prior to inspection is mandatory
by CCC.'' CCC believes there are numerous cases where a participant may
be absent from the property for a lengthy period of time, or the
participant is an absentee landowner or tenant who may not be easily
contacted. In order to conduct its business in a timely manner in these
cases, USDA believes that CCC should make a reasonable effort to
contact the participant prior to accessing the property to enable the
participant to attend at the same time. The program guidance documents
will stipulate that the CCC representatives must document in the
participant's file the efforts made to notify the participant before
accessing the operating unit. It will be suggested in the guidance that
the CCC representative begin efforts to contact the participant no
later than 15 days before making the planned visit. No change was made
in the final rule concerning these comments.
List of Subjects in 7 CFR Part 1466
Administrative practices and procedures, Conservation, Natural
resources, Water resources, Wetlands, Payment rates.
Accordingly, Title 7 of the Code of Federal Regulations is amended
by adding a new part 1466 to read as follows:
PART 1466--ENVIRONMENTAL QUALITY INCENTIVES PROGRAM
Subpart A--General Provisions
Sec.
1466.1 Applicability.
1466.2 Administration.
1466.3 Definitions.
1466.4 Program requirements.
1466.5 Priority areas and significant statewide natural resource
concerns.
1466.6 Conservation plan.
1466.7 Conservation practices.
1466.8 Technical and other assistance provided by qualified
personnel not affiliated with USDA.
Subpart B--Contracts
1466.20 Application for contracts and selecting offers from
producers.
1466.21 Contract requirements.
1466.22 Conservation practice operation and maintenance.
1466.23 Cost-share and incentive payments.
1466.24 Contract modifications and transfers of land.
1466.25 Contract violations and termination.
Subpart C--General Administration
1466.30 Appeals.
1466.31 Compliance with regulatory measures.
1466.32 Access to operating unit.
1466.33 Performance based upon advice or action of representatives
of CCC.
1466.34 Offsets and assignments.
1466.35 Misrepresentation and scheme or device.
Authority: 15 U.S.C. 714b and 714c; 16 U.S.C. 3839aa-3839aa-8.
Subpart A--General Provisions
Sec. 1466.1 Applicability.
Through the Environmental Quality Incentives Program (EQIP), the
Commodity Credit Corporation (CCC) provides technical, educational, and
financial assistance to eligible farmers and ranchers to address soil,
water, and related natural resources concerns, and to encourage
environmental enhancements, on their lands in an environmentally
beneficial and cost-effective manner. The purposes of the program are
achieved through the implementation of structural, vegetative,
[[Page 28285]]
and land management practices on eligible land.
Sec. 1466.2 Administration.
(a) Administration of EQIP is shared by the Natural Resources
Conservation Service (NRCS) and the Farm Service Agency (FSA) as set
forth below.
(b) NRCS shall:
(1) Provide overall program management and implementation
leadership for EQIP;
(2) Establish policies, procedures, priorities, and guidance for
program implementation, including determination of priority areas;
(3) Establish cost-share and incentive payment limits;
(4) Determine eligibility of practices;
(5) Provide technical leadership for conservation planning and
implementation, quality assurance, and evaluation of program
performance; and
(6) Make funding decisions and determine allocations of program
funds.
(c) FSA shall:
(1) Be responsible for the administrative processes and procedures
for applications, contracting, and financial matters, including
allocation and program accounting; and
(2) Provide leadership for establishing, implementing, and
overseeing administrative processes for applications, contracts,
payment processes, and administrative and financial performance
reporting.
(d) NRCS and FSA shall concur in establishing policies, priorities,
and guidelines related to the implementation of this part.
(e) No delegation herein to lower organizational levels shall
preclude the Chief of NRCS, or the Administrator of FSA, or a designee,
from determining any question arising under this part or from reversing
or modifying any determination made under this part that is the
responsibility of their respective agencies.
(f) CCC may enter into cooperative agreements with other Federal or
State agencies, Indian tribes, conservation districts, units of local
government, and public and private not for profit organizations to
assist CCC with implementation of this part.
Sec. 1466.3 Definitions.
The following definitions shall apply to this part and all
documents issued in accordance with this part, unless specified
otherwise:
Administrator means the Administrator of the FSA, United States
Department of Agriculture (USDA), or designee.
Agricultural land means cropland, rangeland, pasture, forest land,
and other land on which crops or livestock are produced.
Animal unit means 1,000 pounds of live weight of any given
livestock species or any combination of livestock species.
Animal waste management facility means a structural practice used
for the storage or treatment of animal waste.
Applicant means a producer who has requested in writing to
participate in EQIP. Producers who are members of a joint operation
shall be considered one applicant.
Chief means the Chief of NRCS, USDA, or designee.
Confined livestock operation means a livestock facility that
stables, confines, feeds, or maintains animals for a total of 45 days
or more in any 12-month period and does not sustain crops, vegetation,
forage growth, or post-harvest residues within the confined area in the
normal growing season over any portion of the confinement facility.
Conservation district means a political subdivision of a State,
Indian tribe, or territory, organized pursuant to the State or
territorial soil conservation district law, or tribal law. The
subdivision may be a conservation district, soil conservation district,
soil and water conservation district, resource conservation district,
natural resource district, land conservation committee, or similar
legally constituted body.
Conservation management system (CMS) means any combination of
conservation practices and management practices that, if applied, will
protect or improve the soil, water, or related natural resources. A CMS
may treat one or all of the natural resources to the sustainable level,
or to a greater or lesser extent than the sustainable level.
Conservation plan means a record of a participant's decisions, and
supporting information, for treatment of a unit of land or water, and
includes the schedule of operations, activities, and estimated
expenditures needed to solve identified natural resource problems.
Conservation practice means a specified treatment, such as a
structural or vegetative practice or a land management practice, which
is planned and applied according to NRCS standards and specifications
as a part of a CMS.
Contract means a legal document that specifies the rights and
obligations of any person who has been accepted for participation in
the program.
Cost-share payment means the monetary or financial assistance from
CCC to the participant to share the cost of installing a structural or
vegetative practice.
County executive director means the FSA employee responsible for
directing and managing program and administrative operations in one or
more FSA county offices.
Designated conservationist means a NRCS employee whom the State
conservationist has designated as responsible for administration of
EQIP. In the case of a priority area or other area that crosses State
borders, the Chief or the Chief's designee will designate the NRCS
official responsible for administration of EQIP in the priority area.
Farm Service Agency county committee means a committee elected by
the agricultural producers in the county or area, in accordance with
Section 8(b) of the Soil Conservation and Domestic Allotment Act, as
amended, or designee.
Farm Service Agency State committee means a committee in a State or
the Caribbean Area (Puerto Rico and the Virgin Islands) appointed by
the Secretary in accordance with Section 8(b) of the Soil Conservation
and Domestic Allotment Act, as amended.
Field office technical guide means the official NRCS guidelines,
criteria, and standards for planning and applying conservation
treatments and conservation management systems. It contains detailed
information on the conservation of soil, water, air, plant, and animal
resources applicable to the local area for which it is prepared.
Incentive payment means the monetary or financial assistance from
CCC to the participant in an amount and at a rate determined
appropriate to encourage the participant to perform a land management
practice that would not otherwise be initiated without program
assistance.
Indian tribe means any Indian tribe, band, nation, or other
organized group or community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant
to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.)
which is recognized as eligible for the special programs and services
provided by the United States to Indians because of their status as
Indians.
Indian trust lands means real property in which:
(1) The United States holds title as trustee for a Indian or tribal
beneficiary, or
(2) A Indian or tribal beneficiary holds title and the United
States maintains a trust relationship.
Land management practice means conservation practices that
primarily require site-specific management techniques and methods to
conserve,
[[Page 28286]]
protect from degradation, or improve soil, water, or related natural
resources in the most cost-effective manner. Land management practices
include, but are not limited to, nutrient management, manure
management, integrated pest management, integrated crop management,
irrigation water management, tillage or residue management,
stripcropping, contour farming, grazing management, and wildlife
habitat management.
Life span means the period of time specified in the contract or
conservation plan during which the conservation management systems or
component conservation practices are to be maintained and used for the
intended purpose.
Liquidated damages means a sum of money stipulated in the contract
which the participant agrees to pay if the participant breaches the
contract. The sum represents an estimate of the anticipated or actual
harm caused by the breach, and reflects the difficulties of proof of
loss and the inconvenience or nonfeasibility of otherwise obtaining an
adequate remedy.
Livestock means animals produced for food or fiber such as dairy
cattle, beef cattle, poultry, turkeys, swine, sheep, horses, fish and
other animals raised by aquaculture, or animals the State
conservationist identifies in consultation with the State technical
committee.
Livestock production means farm and ranch operations involving the
production, growing, raising, breeding, and reproduction of livestock
or livestock product.
Livestock-related natural resource concern means any environmental
condition, either on-site or off-site, that is directly related to
livestock activity or to livestock manure or waste.
Local work group means representatives of FSA, the Cooperative
State Research, Education, and Extension Service (CSREES), the
conservation district, and other Federal, State, and local government
agencies, including Tribes and Resource Conservation and Development
councils, with expertise in natural resources who consult with NRCS on
decisions related to EQIP implementation.
National conservation priority area means a watershed, multi-state
area, or region of specific environmental sensitivity designated by the
Chief.
Operation and maintenance means work performed by the participant
to keep the applied conservation practice functioning for the intended
purpose during its life span. Operation includes the administration,
management, and performance of non-maintenance actions needed to keep
the completed practice safe and functioning as intended. Maintenance
includes work to prevent deterioration of the practice, repairing
damage, or replacement of the practice to its original condition if one
or more components fail.
Participant means an applicant who is a party to an EQIP contract.
Priority area means a watershed, area, or region that is designated
under this part because of specific environmental sensitivities or
significant soil, water, or related natural resource concerns.
Private agribusiness sector means agricultural producers, certified
crop advisors, professional crop consultants that are certified or
certified and independent, agricultural cooperatives, integrated pest
management coordinators and scouts, agricultural input retail dealers,
and other technical consultants.
Producer means a person who is engaged in livestock or agricultural
production.
Regional conservationist means the NRCS employee authorized to
direct and supervise NRCS activities in a NRCS region.
Related natural resources means those natural resources that are
associated with soil and water, including air, plants, and animals, and
the land or water on which they may occur, including grazing land,
wetland, forest land, and wildlife habitat.
Resource management system means a conservation management system
that, when implemented, achieves sustainable use of the soil, water,
and related natural resources.
Secretary means the Secretary of the United States Department of
Agriculture.
State conservationist means the NRCS employee authorized to direct
and supervise NRCS activities in a State, the Caribbean Area, or the
Pacific Basin Area.
State executive director means the FSA employee authorized to
direct and supervise FSA activities in a State or the Caribbean Area
(Puerto Rico and the Virgin Islands).
State technical committee means a committee established by the
Secretary in a State pursuant to 16 U.S.C. 3861.
Structural practice means a conservation practice which primarily
involves the establishment, construction, or installation of a site-
specific measure to conserve, protect from degradation, or improve
soil, water, or related natural resources in the most cost-effective
manner. Examples include, but are not limited to, animal waste
management facilities, terraces, grassed waterways, tailwater pits,
livestock water developments, and capping of abandoned wells.
Technical assistance means the personnel and support resources
needed to conduct conservation planning; conservation practice survey,
layout, design, installation, and certification; training,
certification, and provide quality assurance for professional
conservationists; and evaluation and assessment of the program.
Unit of concern means a parcel of agricultural land that has
natural resource conditions that are of concern to the participant.
Vegetative practice means a conservation practice which primarily
involves the establishment or planting of a site-specific vegetative
measure to conserve, protect from degradation, or improve soil, water,
or related natural resources in the most cost-effective manner.
Examples include, but are not limited to, contour grass strips,
filterstrips, critical area plantings, tree planting, and permanent
wildlife habitat.
Sec. 1466.4 Program requirements.
(a) Program participation is voluntary. The participant, in
cooperation with the local conservation district, develops a
conservation plan for the farm or ranching unit of concern. The
participant's conservation plan serves as the basis for the EQIP
contract. CCC provides cost-share or incentive payments to apply needed
conservation practices and land use adjustments within a time schedule
specified by the conservation plan.
(b) The Chief determines the funds available to NRCS for technical
assistance according to the purpose and projected cost for which the
technical assistance is provided by NRCS or designee in a fiscal year.
The Chief allocates an amount according to the type of expertise
required, the quantity of time involved, the timeliness required, the
technology needed, and other factors as determined appropriate by the
Chief. Funding shall not exceed the projected cost to NRCS of the
technical assistance provided in a fiscal year.
(c) To be eligible to participate in EQIP, an applicant must:
(1) Be in compliance with the highly erodible land and wetland
conservation provisions found at part 12 of this title;
(2) Have control of the land for the life of the proposed contract
period.
(i) An exception may be made by the Chief in the case of land
allotted by the Bureau of Indian Affairs (BIA), tribal land, or other
instances in which the
[[Page 28287]]
Chief determines that there is sufficient assurance of control;
(ii) If the applicant is a tenant of the land involved in
agricultural production the applicant shall provide CCC with the
written concurrence of the landowner in order to apply a structural or
vegetative practice.
(3) Submit a conservation plan that is acceptable to NRCS, is
approved by the conservation district, and is in compliance with the
terms and conditions of the program;
(4) Comply with the provisions at Sec. 1412.304 of this chapter for
protecting the interests of tenants and sharecroppers, including
provisions for sharing, on a fair and equitable basis, payments made
available under this part, as may be applicable; and
(5) Supply information as required by CCC to determine eligibility
for the program.
(d) Land used as cropland, rangeland, pasture, forest land, and
other land on which crops or livestock are produced, including
agricultural land that NRCS determines poses a serious threat to soil,
water, or related natural resources by reason of the soil types;
terrain; climate; soil, topographic, flood, or saline characteristics;
or other factors or natural hazards, including the existing
agricultural management practices of the applicant, may be eligible for
enrollment in EQIP. Additionally, land may only be considered for
enrollment in EQIP if NRCS determines that the land is:
(1) Privately owned land;
(2) Publicly owned land where:
(i) The land is under private control for the contract period and
is included in the participant's operating unit;
(ii) Conservation practices will contribute to an improvement in
the identified natural resource concern; and
(iii) The participant has provided CCC with written authorization
from the government landowner to apply the conservation practices; or
(3) Tribal, allotted, or Indian trust land.
(e) Fifty percent of available EQIP funds will be targeted to
livestock-related natural resource concerns, including concerns on
grazing lands and other lands directly attributable to livestock,
measured at the national level.
Sec. 1466.5 Priority areas and significant statewide natural resource
concerns.
(a)(1) Consistent with maximizing the overall environmental
benefits per dollar expended by the program, NRCS may:
(i) Designate a watershed, an area, or a region of special
environmental sensitivity or having significant soil, water, or related
natural resource concern as a priority area and give special
consideration to applicants who have conservation plans that address
the natural resource concern(s) for which the priority area was
designated;
(ii) Designate national conservation priority areas where the
nature or scope of a natural resource concern necessitates greater
coordination of efforts across boundaries; and
(iii) Identify significant statewide natural resource concerns
outside a priority area.
(2) In addition to other factors identified in this section,
priority areas, national conservation priority areas, and significant
statewide natural resource concerns shall emphasize off-site benefits
to the environment and coordination with other Federal and non-Federal
conservation programs, including the Conservation Reserve Program and
the Wetlands Reserve Program.
(b) CCC may approve technical, educational, and financial
assistance under this part to participants with significant statewide
natural resource concerns outside a priority area.
(c) To be considered for approval of a priority area, a Federal,
State, or local government agency, Indian tribe, or a private group or
entity shall work cooperatively with a respective local work group and
State technical committee in identifying potential priority areas. The
local work group shall obtain input from private individuals, groups,
and organizations when considering and identifying potential priority
areas. Proposals developed at the local level shall be reviewed by the
State technical committee which makes a recommendation to the NRCS
State conservationist. The priority area proposal shall include:
(1) A description, quantified when and where possible, of the
nature and extent of natural resource concerns in the proposed area;
(2) A description, quantified when and where possible, of how the
proposed goals, objectives, and solutions for the natural resource
problems would maximize the environmental benefits that would be
delivered with the requested Federal dollars, both within the priority
area and as part of the overall program provided under this part;
(3) Background information such as science-based data on
environmental status and needs, soils information, demographic
information, and other available technical data that illustrate the
nature and extent of natural resource concerns in the priority area or
the appropriateness of the proposed solution to those natural resource
concerns.
(4) The existing human resources, incentive programs, education
programs, and on-farm research programs available at the Federal,
State, Indian tribe, and local levels, both public and private, to
assist with the areawide activities;
(5) The technical, educational, and financial assistance needed
from EQIP to help meet the areawide goals and objectives;
(6) Ways and means to measure performance and success, quantified
when and where possible, and plans to use existing or obtain additional
science-based information; and
(7) An explanation, quantified when and where possible, of the
degree of difficulty producers face in complying with environmental
laws.
(d) The NRCS State conservationist, in consultation with the State
technical committee and based on recommendations of local work groups,
will approve the designation of a priority areas and make funding
recommendations to the Chief. NRCS will evaluate proposals for priority
area designations according to natural resource and environmental
factors as identified in paragraph (d)(1) of this section, the economic
significance of the factors, the incorporation of conservation
practices that best address the factors, and the ability to obtain
multiple conservation benefits relative to the significance of these
natural resource factors.
(1) NRCS shall consider the following factors in determining the
significance of the natural resource concern(s) identified in the
proposal:
(i) Soil types and characteristics;
(ii) Terrain and topographic features;
(iii) Climatic conditions;
(iv) Flood hazards;
(v) Saline characteristics of land or water;
(vi) Environmental sensitivity of the land, such as wetlands and
riparian areas;
(vii) Quality and intended use of the land;
(viii) Quality and intended use of the receiving waters, including
fishery habitat and source of drinking water supply;
(ix) Wildlife and wildlife habitat quality and quantity;
(x) Quality of the air; or
(xi) Other natural hazards or other factors, including the existing
agricultural management practices of the producers in the area or pest
problems which may threaten natural resources.
[[Page 28288]]
(2) NRCS will consider the following factors in its allocation of
funds:
(i) Condition of the natural resources;
(ii) Significance of the natural resource concern;
(iii) Improvements that NRCS expects will result from
implementation of the conservation plan;
(iv) Expected number of producers who will participate and the time
and financial commitment that the producers will provide;
(v) Estimated program cost to provide technical, educational, and
financial assistance;
(vi) Level of coordination with and support from existing Federal,
State, tribal, and local programs, including private sources, and both
direct and in-kind contributions;
(vii) Ways the program can best assist producers in complying with
Federal, State, and tribal environmental laws, quantified where
possible; and
(viii) Other factors the NRCS determines will result in
maximization of environmental benefits per dollar expended.
(e) A NRCS State conservationist, in consultation with a State
technical committee and based on recommendations of a local work group,
may approve program assistance to participants with significant
statewide natural resource concerns outside a funded priority area.
(f)(1) The Chief may designate national conservation priority areas
using the identified national program objectives and criteria. The
Chief may receive nominations from Federal, State, or local government
agencies, Indian tribes, or private groups or entities, and may consult
with other Federal agencies in selecting national conservation priority
areas. Consistent with maximizing the overall environmental benefits
per dollar expended by the program, the Chief may designate national
conservation priority areas under this part to provide technical
assistance, cost-share payments, incentive payments, and education for
producers to comply with nonpoint source pollution requirements, other
Federal, State, tribal or local environmental laws, or to meet other
conservation needs.
(2) NRCS will consider the following factors in deciding whether to
designate a national conservation priority area in which program
assistance will be provided:
(i) Condition of the natural resources;
(ii) Significance of the natural resource concern;
(iii) Improvements that NRCS expects will result from
implementation of the conservation plan;
(iv) Expected number of producers who will participate and the time
and financial commitment that the producers will provide;
(v) Estimated program cost to provide technical, educational, and
financial assistance;
(vi) Level of coordination with and support from existing State and
local programs, including private sources, and both direct and in-kind
contributions;
(vii) Ways the program can best assist producers in complying with
Federal, State, and tribal environmental laws, quantified where
possible; and
(viii) Other factors that will assist CCC in maximizing the overall
environmental benefit per dollar expended under this part.
(g) NRCS will establish program outreach activities at the
national, State, and local levels in order to ensure that producers
whose land has environmental problems and natural resource concerns are
aware, informed, and know that they may be eligible to apply for
program assistance. Special outreach will be made to eligible producers
with historically low participation rates, including but not restricted
to limited resource producers, small-scale producers, Indian tribes,
Alaska natives, and Pacific Islanders.
(h) NRCS State conservationists shall develop an education plan
that describes the educational assistance that will be provided to
enhance program participant's knowledge about conservation
opportunities, will aid in implementing their conservation plan, and
enhance environmental benefits that will be realized through
implementation of the program. In the development of the education
plan, NRCS will design a coordinated approach, including national,
State, and local components depending on the similar or unique
education needs identified. NRCS will encourage cooperation among
education providers, such as the Extension system, conservation
districts, State agencies, and other public and private education
providers, as well as the use of existing educational resources,
material, or programs that deal with natural resource related issues.
(i) The Chief, with FSA concurrence, will make funding decisions
for national conservation priority areas, State-approved priority
areas, and significant statewide natural resource concerns outside a
funded priority area.
(1) After review of funding requests, the Chief may base funding
decisions on an allocation process which considers:
(i) The significance of the environmental and natural resources
conditions;
(ii) Factors used and considered in accordance with paragraphs (d)
and (f) of this section;
(iii) The need to maximize environmental benefits per dollar
expended;
(iv) The capability of the partners involved in the proposal to
provide flexible technical, educational, and financial assistance;
(v) The conservation needs of farmers and ranchers in complying
with the highly erodible land and wetland conservation provisions of
part 12 of this title and Federal, State, and tribal environmental
laws;
(vi) The opportunity for encouraging environmental enhancement;
(vii) The anticipated or proven performance of the partners
involved in the proposal in delivering the program; and
(viii) Other relevant information to meet the purposes of the
program as found in this part.
(2) In evaluating the considerations described in paragraph (i)(1)
of this section, the Chief may consult other Federal agencies with the
appropriate expertise and information.
(3) The approval of a priority area at the State level does not
necessarily mean that funds will be allocated to that area. Funding may
be allocated to a priority area for one or more years. Proposals that
are not funded may be resubmitted to the Chief for subsequent review
and consideration to determine if the resubmitted proposal meets
Federal priorities for funding.
Sec. 1466.6 Conservation plan.
(a) The participant shall develop and submit a conservation plan
for the farm or ranch unit of concern that, when implemented, protects
the soil, water, or related natural resources in a manner that meets
the purpose of the program, is acceptable to NRCS, and is approved by
the conservation district. This plan forms the basis for an EQIP
contract.
(1) When considering the acceptability of the plan, NRCS will
consider whether the participant will use the most cost-effective
conservation practices to solve the natural resource concerns and
maximize environmental benefits per dollar expended.
(2) As determined by NRCS, the conservation plan must allow the
participant to achieve a cost-effective resource management system, or
some appropriate portion of that system, identified in the applicable
NRCS field office technical guide, for the priority natural resource
condition of concern in
[[Page 28289]]
the priority area or the significant statewide natural resource concern
outside a funded priority area.
(b) Upon a participant's request, the NRCS may provide technical
assistance to a participant. NRCS may utilize the services of qualified
personnel of cooperating Federal, State, or local agencies, Indian
tribes, or private agribusiness sector or organizations, in performing
its responsibilities for technical assistance. Participants may use the
services of qualified non-NRCS professionals to provide technical
assistance. NRCS retains approval authority over the technical adequacy
of work done by non-NRCS personnel for the purpose of determining EQIP
contract compliance.
(c) Participants are responsible for implementing the conservation
plan. A participant may seek additional assistance from other public or
private organizations or private agribusiness sector as long as the
activities funded are in compliance with this part.
(d) All conservation practices scheduled in the conservation plan
are to be carried out in accordance with the applicable NRCS field
office technical guide.
(e) The conservation plan, or supporting documentation, for the
farm or ranch unit of concern shall include:
(1) A description of the prevailing farm or ranch enterprises and
operations that may be relevant to conserving and enhancing soil,
water, or related natural resources;
(2) A description of relevant natural resources, including soil
types and characteristics, rangeland types and conditions, proximity to
water bodies, wildlife habitat, or other relevant characteristics
related to the conservation and environmental objectives of the plan;
(3) A description of the participant's specific conservation and
environmental objectives to be achieved;
(4) To the extent practicable, the quantitative or qualitative
goals for achieving the participant's conservation and environmental
objectives;
(5) A description of one or more conservation practices in the
conservation management system to be implemented to achieve the
conservation and environmental objectives;
(6) A description of the schedule for implementing the conservation
practices, including timing and sequence; and
(7) Information that will enable evaluation of the effectiveness of
the plan in achieving the conservation and environmental objectives.
(f) To simplify the conservation planning process for the
participant, the conservation plan may be developed, at the request of
the participant, as a single plan that incorporates, to the extent
possible, any or all other Federal, State, tribal, or local government
program or regulatory requirements. Participants do not need to replace
existing plans developed by natural resource professionals if such
plans meet the resource management objectives under this part. NRCS may
accept an existing conservation plan developed and required for
participation in any other USDA program if the conservation plan
otherwise meets the requirements of this part. When a participant
develops a single conservation plan for more than one program, the
participant shall clearly identify the portions of the plan that are
applicable to the EQIP contract. It is the responsibility of the
participant to ascertain and comply with any and all applicable program
or regulatory requirements, and the NRCS development or approval of a
conservation plan shall not be deemed to constitute compliance with
program or regulatory requirements administered or enforced by another
agency.
Sec. 1466.7 Conservation practices.
(a)(1) The NRCS, with FSA consultation, shall provide guidance for
determining structural, vegetative, and land management practices
eligible for program payments. To be considered as an eligible
conservation practice, the practices must provide beneficial, cost-
effective approaches for participants to change or adapt operations to
conserve or improve soil, water, or related natural resources or to
provide for environmental enhancement.
(2) The designated conservationist, in consultation with the State
technical committee or local work group, shall determine the
conservation practices eligible for program payments for the priority
area or for significant statewide natural resource concerns outside a
priority area.
(3) Where new technologies or conservation practices that provide a
high potential for maximizing the environmental benefits per dollar
expended have been developed, NRCS may approve interim conservation
practice standards and financial assistance for pilot work to evaluate
and assess the performance, efficacy, and effectiveness of the
technology or conservation practices at maximizing environmental
benefits per dollars expended. NRCS may involve other entities in the
pilot testing, including conservation districts, extension and research
agencies and institutions, private agribusiness sector, and others.
(b)(1) CCC cannot provide cost-share assistance to construct an
animal waste management facility on a large confined livestock
operation. CCC may fund other structural, vegetative, or land
management practices needed in the conservation management system to
address the livestock-related natural resource concerns on a large
confined livestock operation. Except as provided by paragraph (b)(2) of
this section, CCC will consider a producer with confined livestock
operations of more than 1,000 animal unit equivalents to be a large
confined livestock operation and ineligible for financial assistance
for construction of an animal waste management facility. When
determining the number of livestock in the participant's operation for
eligibility purposes, the total number of animals confined at all
locations of the participant's livestock operation will be used.
(2) The NRCS State conservationist may develop a definition for a
large confined livestock operation as it applies to that particular
State using criteria recommended by the State technical committee. The
criteria will consider but not be limited to such factors as:
(i) The cost-effectiveness of the facility and its potential to
maximize environmental benefits per dollar expended;
(ii) The ability of the producer to pay for the cost of animal
waste management facilities;
(iii) The significance of the natural resource concern resulting
from the operation;
(iv) The prevailing State, Tribe, or local implementation of
various Federal, Tribal, and State environmental laws and regulations,
including regulations promulgated pursuant to the Clean Water Act (33
U.S.C. 1251 et seq.) and guidance developed under Sec. 6217 of the
Coastal Zone Act Reauthorization Amendments of 1990 (16 U.S.C. 1455b);
(v) The particular characteristics of modern livestock operations;
and
(vi) The size of the operation in relation to other confined
livestock operations in the State or region.
(3) The NRCS State conservationist, in consultation with the State
technical committee, shall place emphasis on the considerations
contained in paragraphs (b)(2)(i) and (b)(2)(ii) of this section when
developing the criteria to define a large confined livestock operation.
(4) The definitions developed by NRCS State conservationists must
be approved by the Chief, who will also provide oversight on their
[[Page 28290]]
implementation. In approving the definitions the Chief will consider:
(i) The justification for the definition; and
(ii) The need for consistency in the definitions used between and
among States, to the greatest extent possible.
(5) The Chief will report semiannually to the Secretary during the
first two years of the program on the implementation of paragraph (b)
of this section, including the impact that may have occurred to the
environment and to the structure of livestock agriculture.
Sec. 1466.8 Technical and other assistance provided by qualified
personnel not affiliated with USDA.
(a) A NRCS State conservationist may utilize technical and other
assistance from qualified personnel of other Federal, State, and local
agencies, or Indian tribes, and will encourage producers to use the
most cost-effective technical assistance available, including if
appropriate, using the services of the private agribusiness sector to
carry out the assigned responsibilities of the program.
(b) Technical and other assistance provided by qualified personnel
not affiliated with USDA may include, but is not limited to:
conservation planning; conservation practice survey, layout, design,
installation, and certification; information, education, and training
for producers; and training, certification, and quality assurance for
professional conservationists.
(c) NRCS shall provide technical coordination and leadership for
the program, regardless of who provides technical and other assistance,
and shall assure that the quality of the assistance obtained from other
Federal, State, and local agencies, Indian tribes, and the private
agribusiness sector is acceptable for purposes of this part. Non-NRCS
assistance shall not be deemed to satisfy an EQIP contract entered into
under subpart B of this part until the assistance has been approved by
NRCS.
Subpart B--Contracts
Sec. 1466.20 Application for contracts and selecting offers from
producers.
(a) Any producer who has eligible land may submit an application
for participation in the EQIP to a USDA service center. Producers who
are members of a joint operation shall file a single application for
the joint operation.
(b) CCC will accept applications throughout the year. NRCS shall
rank and select the offers of applicants periodically, as determined
appropriate by NRCS after consultation with the State technical
committee and on the recommendation of the local work groups.
(c) The designated conservationist, in consultation with the local
work group, will develop ranking criteria to prioritize applications
within a priority area. NRCS shall prioritize applications from the
same EQIP-funded priority area using the criteria specific to the area.
The FSA county committee, with the assistance of the designated
conservationist and the FSA county executive director, shall approve
for funding the applications in a priority area based on eligibility
factors of the applicant and the NRCS ranking.
(d) The NRCS State conservationist, in consultation with the State
technical committee, and using quality criteria in the NRCS field
office technical guide, will develop criteria to prioritize
applications from applicants with significant statewide natural
resource concerns outside a priority area. The FSA county committee,
with assistance of the designated conservationist and FSA county
executive director, shall approve for funding these applications based
on the eligibility factors of the applicant and the NRCS ranking.
(e) The designated conservationist will work with the applicant to
collect the information necessary to evaluate the application using the
ranking criteria. A participant has the option of offering and
accepting less than the maximum program payments allowed.
(f) NRCS will rank all applications using criteria that will
consider:
(1) The environmental benefits per dollar expended;
(2) A reasonable estimate of the cost of the conservation
practices, the program payments that will be paid to the applicant, and
other factors for determining which applications will present the least
cost to the program;
(3) The environmental benefits that will be derived by applying the
conservation practices in the conservation plan which will meet the
purposes of the program;
(4) The extent to which the contract will assist the applicant in
complying with Federal, State, tribal, or local environmental laws;
(5) Whether the land in the application is located in a priority
area and the extent to which the contract will assist the priority area
goals and objectives.
(g) If two or more applications have an equal rank, the application
that will result in the least cost to the program will be given greater
consideration.
Sec. 1466.21 Contract requirements.
(a) In order for a participant to receive cost-share or incentive
payments, the participant shall enter into a contract agreeing to
implement a conservation plan or portions thereof. FSA shall determine
the eligibility of participants. The FSA county committee, with NRCS
concurrence, shall use the NRCS ranking consistent with the provisions
of Sec. 1466.20 and grant final approval of a contract.
(b) An EQIP contract shall:
(1) Incorporate by reference all portions of a conservation plan
applicable to EQIP;
(2) Be for a duration of not less than 5 years nor more than 10
years;
(3) Incorporate all provisions as required by law or statute,
including participant requirements to:
(i) Not conduct any practices on the farm or ranch unit of concern
that would tend to defeat the purposes of the contract;
(ii) Refund any program payments received with interest, and
forfeit any future payments under the program, on the violation of a
term or condition of the contract, consistent with the provisions of
Sec. 1466.25;
(iii) Refund all program payments received on the transfer of the
right and interest of the producer in land subject to the contract,
unless the transferee of the right and interest agrees to assume all
obligations of the contract, consistent with the provisions of
Sec. 1466.24; and
(iv) Supply information as required by CCC to determine compliance
with the contract and requirements of the program.
(4) Specify the participant's requirements for operation and
maintenance of the applied conservation practices consistent with the
provisions of Sec. 1466.22; and
(5) Any other provision determined necessary or appropriate by CCC.
(c) The participant must apply a financially assisted practice
within the first 12 months of signing a contract.
(d) There is a limit of one EQIP contract at any one time for each
tract of agricultural land, as identified with a FSA tract number,
determined at the time of the application for EQIP assistance. Subject
to the payment limitation set out elsewhere in this part, a participant
may have subsequent EQIP contracts for different natural resource needs
or concerns following completion of a previous EQIP contract on the
same tract.
Sec. 1466.22 Conservation practice operation and maintenance.
The contract shall incorporate the operation and maintenance of
conservation practices applied under the contract. The participant
shall operate and maintain the conservation
[[Page 28291]]
practice for its intended purpose for the life span of the conservation
practice, as identified in the contract or conservation plan, as
determined by CCC. Conservation practices installed before the
execution of a contract, but needed in the contract to obtain the
environmental benefits agreed upon, are to be operated and maintained
as specified in the contract. NRCS may periodically inspect the
conservation practice during the life span of the practice as specified
in the contract to ensure that operation and maintenance is occurring.
Sec. 1466.23 Cost-share and incentive payments.
(a)(1) The maximum direct Federal share of cost-share payments to a
participant shall not be more than 75 percent of the projected cost of
a structural or vegetative practice. The direct Federal share of cost-
share payments to a participant shall be reduced proportionately below
75 percent, or the cost-share limit as set in paragraph (a)(3) of this
section, to the extent that total financial contributions for a
structural or vegetative practice from all public and private entity
sources exceed 100 percent of the projected cost of the practice.
(2) CCC shall provide incentive payments to participants for a land
management practice in an amount and at a rate necessary to encourage a
participant to perform the land management practice that would not
otherwise be initiated without government assistance.
(3) CCC shall set the cost-share and incentive payment limits, as
determined by:
(i) The designated conservationist, in consultation with the local
work group and State technical committee, for a priority area; or
(ii) The NRCS State conservationist, in consultation with the State
technical committee, for participants subject to environmental
requirements or with significant statewide natural resource concerns
outside a funded priority area.
(4) Cost-share payments and incentive payments may both be included
in a contract.
(5) Cost-share and incentive payments will not be made to a
participant who has applied or initiated the application of a
conservation practice prior to approval of the contract.
(b) Except as provided in paragraph (c) of this section, the total
amount of cost-share and incentive payments paid to a person under this
part may not exceed:
(1) $10,000 for any fiscal year; and
(2) $50,000 for any multi-year contract.
(c) To determine eligibility for payments, CCC shall use the
provisions in 7 CFR part 1400 related to the definition of person and
the limitation of payments, except that:
(1) States, political subdivisions, and entities thereof will not
be persons eligible for payment.
(2) For purposes of applying the payment limitations provided for
in this section, the provisions in part 1400, subpart C for determining
whether persons are actively engaged in farming, subpart E for limiting
payments to certain cash rent tenants, and subpart F as the provisions
apply to determining whether foreign persons are eligible for payment,
will not apply.
(3)(i) The NRCS State conservationist may authorize, on a case-by-
case basis, payments in excess of $10,000 in any fiscal year, up to the
$50,000 limitation in paragraph (b) of this section. However, such
increase in payments for a certain year shall be offset by reductions
in the payments in subsequent years. A decision to approve payments in
excess of the annual limit will consider whether:
(A) The practices in the system need to be applied at once so that
the system is fully functioning to resolve the natural resource
problem;
(B) The natural resource problem is so severe that resolving the
problem immediately is needed;
(C) The producer needs to complete the practices in one year so
that the farming operation is not interrupted or disturbed by the
practice installation over a 5-10 year period; or
(D) The producer can install the practices at a lower total cost
when installed in one year, thereby reducing the program payments.
(ii) With respect to land under EQIP contract which is inherited in
the second or subsequent years of the contract, the $10,000 fiscal year
limitation shall not apply to the extent that the payments from any
contracts on the inherited land cause an heir, who was party to an EQIP
contract on other lands prior to the inheritance, to exceed the annual
limit.
(iii) With regard to contracts on tribal land, Indian trust land,
or BIA allotted land, payments exceeding one limitation may be made to
the tribal venture if an official of the BIA or tribal official
certifies in writing that no one person directly or indirectly will
receive more than the limitation.
(4) Any cooperative association of producers that markets
commodities for producers shall not be considered to be a person
eligible for payment.
(5) The status of an individual or entity on the date of
application shall be the basis on which the determination of the number
of persons involved in the farming operation is made.
(6) A participant shall not be eligible for cost-share or incentive
payments for conservation practices on eligible land if the participant
receives cost-share payments or other benefits for the same land under
the Conservation Reserve Program (16 U.S.C. 3831-3836) or the Wetlands
Reserve Program (16 U.S.C. 3837 et seq.).
(d) The participant and NRCS must certify that a conservation
practice is completed in accordance with the contract before the CCC
will approve the payment of any cost-share or incentive payments.
(e) CCC expenditures under a contract entered into during a fiscal
year shall not be made until the subsequent fiscal year.
Sec. 1466.24 Contract modifications and transfers of land.
(a) The participant and CCC may modify a contract if the
participant and CCC agree to the contract modification and the
conservation plan is revised in accordance with NRCS requirements and
is approved by the conservation district.
(b) The parties may agree to transfer a contract with the agreement
of all parties to the contract. The transferee must be determined by
CCC to be eligible and shall assume full responsibility under the
contract, including operation and maintenance of those conservation
practices already installed and to be installed as a condition of the
contract.
(c) CCC may require a participant to refund all or a portion of any
assistance earned under EQIP if the participant sells or loses control
of the land under an EQIP contract and the new owner or controller is
not eligible to participate in the program or refuses to assume
responsibility under the contract.
Sec. 1466.25 Contract violations and termination.
(a)(1) If CCC determines that a participant is in violation of the
terms of a contract or documents incorporated by reference into the
contract, CCC shall give the participant a reasonable time, as
determined by the FSA county committee, in consultation with NRCS, to
correct the violation and comply with the terms of the contract and
attachments thereto. If a participant continues in violation, the FSA
county committee may, in consultation with NRCS, terminate the EQIP
contract.
(2) Notwithstanding the provisions of paragraph (a)(1) of this
section, a
[[Page 28292]]
contract termination shall be effective immediately upon a
determination by the FSA county committee, in consultation with NRCS,
that the participant has submitted false information or filed a false
claim, or engaged in any act for which a finding of ineligibility for
payments is permitted under the provisions of Sec. 1466.35, or in a
case in which the actions of the party involved are deemed to be
sufficiently purposeful or negligent to warrant a termination without
delay.
(b)(1) If CCC terminates a contract, the participant shall forfeit
all rights for future payments under the contract and shall refund all
or part of the payments received, plus interest determined in
accordance with part 1403 of this chapter. The FSA county committee, in
consultation with NRCS, has the option of requiring only partial refund
of the payments received if a previously installed conservation
practice can function independently, are not affected by the violation
or other conservation practices that would have been installed under
the contract, and the participant agrees to operate and maintain the
installed conservation practice for the life span of the practice.
(2) If CCC terminates a contract due to breach of contract or the
participant voluntarily terminates the contract before any contractual
payments have been made, the participant shall forfeit all rights for
further payments under the contract and shall pay such liquidated
damages as are prescribed in the contract. The FSA county committee, in
consultation with NRCS, will have the option to waive the liquidated
damages depending upon the circumstances of the case.
(3) When making all contract termination decisions, CCC may reduce
the amount of money owed by the participant by a proportion which
reflects the good faith effort of the participant to comply with the
contract, or the hardships beyond the participant's control that have
prevented compliance with the contract.
(4) The participant may voluntarily terminate a contract if CCC
agrees based on CCC's determination that termination is in the public
interest.
(5) In carrying out its role in this section, NRCS may consult with
the local conservation district.
Subpart C--General Administration
Sec. 1466.30 Appeals.
(a) A participant may obtain administrative review of an adverse
decision under EQIP in accordance with parts 11 and 614 of this title,
except as provided in paragraph (b) of this section.
(b) The following decisions are not appealable:
(1) Payment rates, payment limits, and cost-share percentages;
(2) The designation of State-approved priority areas, national
conservation priority areas, or significant statewide natural resource
concerns;
(3) NRCS funding allocations to States or priority areas;
(4) Eligible conservation practices; and
(5) Other matters of general applicability.
Sec. 1466.31 Compliance with regulatory measures.
Participants who carry out conservation practices shall be
responsible for obtaining the authorities, rights, easements, or other
approvals necessary for the implementation, operation, and maintenance
of the conservation practices in keeping with applicable laws and
regulations. Participants shall be responsible for compliance with all
laws and for all effects or actions resulting from the participant's
performance under the contract.
Sec. 1466.32 Access to operating unit.
Any authorized CCC representative shall have the right to enter an
operating unit or tract for the purpose of ascertaining the accuracy of
any representations made in a contract or in anticipation of entering a
contract, as to the performance of the terms and conditions of the
contract. Access shall include the right to provide technical
assistance and inspect any work undertaken under the contract. The CCC
representative shall make a reasonable effort to contact the
participant prior to the exercise of this provision.
Sec. 1466.33 Performance based upon advice or action of
representatives of CCC.
If a participant relied upon the advice or action of any authorized
representative of CCC, and did not know or have reason to know that the
action or advice was improper or erroneous, the FSA county committee,
in consultation with NRCS, may accept the advice or action as meeting
the requirements of the program and may grant relief, to the extent it
is deemed desirable by CCC, to provide a fair and equitable treatment
because of the good-faith reliance on the part of the participant.
Sec. 1466.34 Offsets and assignments.
(a) Except as provided in paragraph (b) of this section, any
payment or portion thereof to any person shall be made without regard
to questions of title under State law and without regard to any claim
or lien against the crop, or proceeds thereof, in favor of the owner or
any other creditor except agencies of the U.S. Government. The
regulations governing offsets and withholdings found at part 1403 of
this chapter shall be applicable to contract payments.
(b) Any producer entitled to any payment may assign any payments in
accordance with regulations governing assignment of payment found at
part 1404 of this chapter.
Sec. 1466.35 Misrepresentation and scheme or device.
(a) A producer who is determined to have erroneously represented
any fact affecting a program determination made in accordance with this
part shall not be entitled to contract payments and must refund to CCC
all payments, plus interest determined in accordance with part 1403 of
this chapter.
(b) A producer who is determined to have knowingly:
(1) Adopted any scheme or device that tends to defeat the purpose
of the program;
(2) Made any fraudulent representation; or
(3) Misrepresented any fact affecting a program determination,
shall refund to CCC all payments, plus interest determined in
accordance with part 1403 of this chapter, received by such producer
with respect to all contracts. The producer's interest in all contracts
shall be terminated.
Paul W. Johnson,
Vice President, Commodity Credit Corporation.
[FR Doc. 97-13534 Filed 5-20-97; 11:39 am]
BILLING CODE 3410-16-P
