|
| |
Environmental Quality Incentives
Program Final Rule
Federal Register: May 30, 2003
(Volume 68, Number 104)
[Rules and Regulations]
[Page 32337-32355]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30my03-5]
________________________________________________________________
DEPARTMENT OF AGRICULTURE
Natural Resources Conservation Service
7 CFR Part 1466
Environmental Quality Incentives
Program
AGENCY: Natural Resources Conservation Service and Commodity Credit
Corporation, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Natural Resources Conservation Service (NRCS) is issuing a
final rule for the Environmental Quality
Incentives Program (EQIP).
NRCS published a proposed rule for EQIP in the Federal Register on
February 10, 2003, (68 FR 6655) and solicited comments from the public.
This final rule establishes the process by which NRCS will administer
EQIP, responds to comments received from the public during the 30-day
comment period, and incorporates clarifications to improve
implementation of the program.
EFFECTIVE DATE: May 30, 2003.
ADDRESSES: This final rule may be accessed via Internet. Users can
access the Natural Resources Conservation Service (NRCS) homepage at
http://www.nrcs.usda.gov/programs/eqip/. Select the EQIP rule from the
menu.
FOR FURTHER INFORMATION CONTACT: Anthony J. Esser, Conservation
Operations Division, Natural Resources Conservation Service, PO Box
2890, Washington, DC 20013-2890. e-mail:
anthony.esser@usda.gov. Phone:
202-720-1840. Fax: 202-720-4265.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
Pursuant to Executive Order 12866, Regulatory Planning and
Review,
the Natural Resources Conservation Service has conducted a benefit cost
analysis of the Environmental Quality
Incentives Program (EQIP) as
formulated for the final rule. The Department of Agriculture
Reorganization Act of 1994 and the Unfunded Mandates Reform Act of 1995
also require analysis of costs, benefits and risks associated with
major regulation. These requirements provide decision-makers with the
opportunity to develop and implement a program that is
beneficial, cost
effective and that minimizes negative impacts to health, human safety
and the environment.
The analysis finds EQIP will have a beneficial impact on the
adoption of conservation practices and, when installed or applied
according to technical standards, will achieve economic and
environmental gains. In addition, benefits would accrue to
society for
long-term productivity maintenance of the resource base, reductions in
non-point source pollution damage, and wildlife enhancements. As a
voluntary program, EQIP will not impose any obligation or
burden upon
agricultural producers that choose not to participate. In the Farm
Security and Rural Investment Act of 2002 (FSRIA), EQIP funding was
authorized at $6.16 billion over the six-year period of FY 2002 through
FY 2007, with annual amounts for the base program and the
ground and
surface water conservation provisions increasing to $1.36 billion in FY
2007 after the initial authorization in FY 2002 of $425 million. In
addition, the 2002 Act authorizes a total of $50 million for the
Klamath Basin in California and Oregon.
In considering alternatives for implementing the
program, NRCS
followed the legislative intent to optimize environmental
benefits,
address natural resource problems and concerns, establish an open
participatory process, and provide flexible assistance to producers who
apply appropriate conservation measures while complying with Federal,
State, and tribal environmental laws. The analysis recognizes
that
several other Federal conservation programs will be implemented which
will generate environmental benefits as well.
The analysis initially compared the 2002 NOFA (with certain
changes
required by the 2002 Farm Bill) to the original EQIP program as
established in 1996. Then, benefits and costs for all alternatives for
the rule were compared to the NOFA, which was used as the analytical
baseline. Lastly, the new EQIP program as formulated for the
final
rule, is compared to the NOFA together with a display of how benefits
compared with the original 1996 program.
Confined Animal Feeding Operations (CAFOs) may participate in
the
new program and it is estimated that $563 million (12.5 percent
of the
total) of EQIP funds will be allocated for that purpose. CAFOs are
generally defined as those operations with greater than 1,000 animal
units, subject to some exceptions. However, since the Environmental
Protection Agency published its final rule for ``National Pollutant
Discharge Elimination System Permit Regulation and Effluent Limitation
Guidelines and Standards for Concentrated Animal Feeding Operations''
(EPA CAFO) on December 15, 2002, benefits from treatment of those CAFOs
are attributed to that rule rather than to EQIP, regardless of the
extent to which EQIP funds may be used to assist the CAFO managers with
rule compliance. The economic analysis shows estimates from two
perspective alternatives: (1) with CAFO benefits and costs included,
and (2) with CAFO benefits and costs excluded.
The Final Rule--Its Major Features and Effects
Decisions leading to the final rule were made after
consideration
of all comments on the proposed rule and a review of their effects on
program benefits and costs. Program benefits
and costs under
alternative scenarios in the main body of this report were available to
guide decision-makers. Decision-makers reviewed these alternatives as
the final rule was defined.
The final rule allows for adoption of a combination of the
alternatives to the NOFA that are described in the report. The
following scenarios are recommended as a result of the benefit-cost
analysis in order to achieve benefits described. In particular, the
final rule incorporates a scenario with the following features:
(1) Twenty five percent of livestock funds are allocated to
each
AFO/CAFO size class;
(2) A $450,000 payment ceiling to any contract and to any
program
participant over a six year period;
[[Page 32338]]
(3) An average cost share rate of 65 percent on any practice;
(4) National Priority targeting that implies lower cost share
rates
(55 percent) for practices linked to grazing, wind erosion, and
wildlife habitats (since the benefits computed for the latter two do
not match the specifications in the rule for air quality and
at-risk
species);
(5) Fund allocation that varies as a function of cost-share
(practice/benefit categories with higher priorities are the ones with
higher cost share rates); and
(6) A spatial evaluation process focusing on environmentally
sensitive areas such as impaired watersheds that improves benefits by
10 percent in all categories except grazing.
(7) Performance incentive for efficient implementation of
EQIP.
The new EQIP program in the final rule has a
substantial beneficial
effect on the environment compared to continuation of the 1996 program.
A total of 96 million acres of agricultural land will be treated over
the six years of the program with the final rule, compared to
41
million acres under the 1996 program. This includes 70.3
million acres
of cropland, 15.5 million acres of grazing land (pasture and
rangeland), and 10.3 million acres for wildlife habitat improvement.
Resource treatment increases compared to the 1996 rules include an
additional 2.9 million acres for sheet and rill water erosion (USLE)
reduction, 3.5 million acres for wind erosion, 14.7 million acres for
non-waste nutrient management, 22.0 million acres for net irrigation
water reduction, 6.2 million acres for grazing productivity, and 5.5
million acres for wildlife habitat will occur on the landscape. Also,
an additional, 31,000 animal feeding operations (5.6 million animal
units) will be treated under the final rule, as compared to continuing
the 1996 program, excluding CAFO treatments (34,000 animal
feeding
operations) and 11.4 million animal units if the CAFOs are included.
Also, compared to the 1996 rules, an additional 12.8 million animal
units and 39,468 animal feeding operations will be treated, and water
induced soil loss from agricultural land will decrease by 24.5 million
tons/year.
The Table below shows the costs and benefits (in $ million)
of the
final rule compared to the NOFA and the 1996 program.
----------------------------------------------------------------------------------------------------------------
Rules and funding Final
EQIP rule
according to the 2002 -------------------------
1996 EQIP with legislation and NOFA
$200 million -------------------------- Include
Exclude
per year 2002- Include Exclude
CAFO CAFO
2007 CAFO
CAFO benefits & benefits &
benefits & benefits & costs \b\ costs
\c\
costs \b\ costs \c\
----------------------------------------------------------------------------------------------------------------
Benefits:
Animal Waste Management (Total) a...........
322 3,608
1,928 4,085
2,405
By Operation Size Class (AUs):
1000 b.......................
0 1,680
0 1,680
0
500-1000................................
142 705
705 871
871
300-500.................................
98 620
620 773
773
<300....................................
82 602
602 761
761
Land Treatment Total........................
2,444 4,284
4,284 5,828
5,828
USLE Reductions...........................
640 827
827 1,243
1,243
Grazing Improvement.......................
671 934
934 1,078
1,078
Irrigation Improvement/Water Savings......
716 1,803
1,803 2,519
2,519
Wind Erosion Reductions...................
115 156
156 198
198
Non-waste Nutrient Management.............
167 320
320 482
482
Wildlife..................................
135 244
244 309
309
Benefits from non-analyzed practices d......
587 1,005
791 1,263
1,049
-----------------
Grand Total Benefits................
3,353 8,897
7,003 11,176
9,282
-----------------
Costs:
EQIP Funds................................
978 4,480
3,917 4,480
3,917
-----------------
Grand Total Costs e.................
2,374 6,600
5,673 7,620
6,626
-----------------
Benefit Cost (BC) Ratios................
1.4 1.3
1.2 1.5
1.4
-----------------
Net Benefits (Benefits--Total Costs)....
979 2,296
1,329 3,555
2,656
----------------------------------------------------------------------------------------------------------------
a Assumes 7.5 percent of EQIP funds for each small livestock class in
``Old'' and 12.5 percent for each class in
``New''.
b Benefits and costs of treating large CAFO benefits and costs are
accounted for, even though the benefits are
attributable to the EPA CAFO rule rather than EQIP.
c Benefits and Costs of large CAFOs not accounted for.
d Assumes that benefits per EQIP dollar for practices not assigned to
a benefit category are on average the same
as the practices analyzed.
e Total costs are calculated based on 74 percent of EQIP funds for
cost sharing and 26 percent of EQIP funds for
Technical Assistance (TA). Note that the costs here are not the sum of
costs from analysis of individual
benefit categories, since that would involve double counting. Total costs
include both the EQIP funding as
well as producers' cost-share.
Conclusions
As described in the above paragraphs, implementation of the
final
rule will generate significant environmental and economic
benefits. The
final rule benefit cost ratio is equal to the 1996 rule when the costs
and benefits of CAFOs are excluded and is slightly higher when the
costs and benefits of CAFOs are included. The final rule has higher net
benefits than the NOFA because of the prioritization based on natural
resource concerns.
This benefit cost analysis represents a comprehensive study
of
alternative ways to implement the new EQIP authorities contained in the
2002 farm bill. The best available data, including selected data on
EQIP experiences, and economic and natural resource effects
[[Page 32339]]
analytical models were used in its development.
Natural Resources Conservation Service decision-makers
reviewed the
findings of the analysis and chose a combination of the elements
described in the report as they are formulated for the final rule. For
example, the significant benefits achievable by focusing on reducing
water erosion and sedimentation from otherwise excessive levels on
agricultural land resulted in it becoming a National priority. In
addition, a definition of cost effectiveness was introduced in the
final rule and will be used selecting conservation practices and
emphasizing their adoption.
The complete analysis addressed several issues critical to
the
implementation of the final EQIP rule. These included the impacts of
selected alternatives concerning: (1) Fund allocations among different
sized livestock facilities; (2) payment ceiling limits; (3) cost share
rates; (4) National priority targeting; (5) variable cost-share rates
to address higher priority problems; and (6) a spatial evaluation
process to improve benefits.
A copy of this analysis is available upon request from
Anthony J.
Esser, Conservation Operations Division, Natural Resources Conservation
Service, PO Box 2890, Washington, DC 20013-2890 or on the Internet at
http://www.nrcs.usda.gov/programs/eqip.
Regulatory Flexibility Act
The Regulatory Flexibility Act is not applicable to this rule
because NRCS 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
NRCS has determined through an amendment to the ``Environment
Assessment for the Environmental Quality
Incentives Program, April
2003'' 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 Anthony J. Esser, Conservation Operations Division,
Natural Resources Conservation Service, PO Box 2890, Washington, DC
20013-2890 or on the Internet at
http://www.nrcs.usda.gov/programs/eqip
.
Paperwork Reduction Act
Section 2702(b)(1)(a) of the 2002 Act provides that the
promulgation of regulations and the administration of Title II
of the
Act shall be made without regard to chapter 35 of Title 44 of the
United State Code, the Paperwork Reduction Act. Accordingly, these
regulations and the forms, and other information collection
activities
needed to administer the program authorized by these
regulations, are
not subject to provisions of the Paperwork Reduction Act, including
review by the Office of Management and Budget.
NRCS is committed to compliance with the Government Paperwork
Elimination Act (GPEA) and with the Freedom to E-File Act, which
require Government agencies in general and NRCS in particular to
provide the public the option of submitting information or transacting
business electronically to the maximum extent possible. The forms and
other information collection activities required for participation in
the program proposed under this rule are not yet fully
developed for
the public to conduct business with NRCS electronically. However, the
application form will be available electronically through the USDA
eForms Web site at
http://www.sc.egov.usda.gov for downloading.
Applications may be submitted at the local USDA Service Centers, by
mail, or by facsimile. Currently, electronic submission is not
available because signatures from multiple producers with shares in
agricultural operations are required.
Executive Order 12998
This proposed rule has been reviewed in accordance with
Executive
Order 12988, Civil Justice Reform. The provisions of this proposed rule
are not retroactive. The provisions of this proposed rule preempt State
and local laws to the extent such laws are inconsistent with this
proposed 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, 780, and 11 must be exhausted.
Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994
Pursuant to Section 304 of the Federal Crop Insurance Reform
and
Department of Agriculture Reorganization Act of 1994 (Pub. L. 103-354),
USDA classified this proposed rule as major and NRCS conducted a risk
analysis. The risk analysis establishes that the EQIP proposed rule
will produce benefits and reduce risks to human health, human safety,
and the environment in a cost-effective manner. A copy of the risk
analysis is available upon request from Anthony J. Esser, Conservation
Operations Division, Natural Resources Conservation Service, PO Box
2890, Washington, DC 20013-2890, and electronically at
http://www.nrcs.usda.gov/programs/eqip
.
Unfunded Mandates Reform Act of 1995
Pursuant to Title II of the Unfunded Mandates Reform Act of
1995
(Pub. L. 104-4), NRCS assessed the effects of this rulemaking action on
State, local, and Tribal government, and the public. This action does
not compel the expenditure of $100 million or more by any State, local,
or Tribal governments, or anyone in the private sector; therefore, a
statement under Section 202 of the Unfunded Mandates Reform Act of 1995
is not required.
Small Business Regulatory Enforcement Fairness Act of 1996
Pursuant to 5 U.S.C. Section 808 of the Small Business
Regulatory
Enforcement Fairness Act of 1996, it has been determined by NRCS 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 NRCS to offer the public timely,
reliable information about funding for conservation practices as early
before the start of the spring 2003 planting season as possible.
Information about the availability of the program for
establishing
conservation practices 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. Accordingly, this rule is effective upon publication
in the Federal Register.
Discussion of Program
The Farm Security and Rural Investment Act of 2002 (the 2002
Act)
(Pub. L. 107-171, May 13, 2002) re-authorized and amended the
Environmental Quality Incentives
Program, which had been added to the
Food Security Act of 1985 (the 1985 Act) (16 U.S.C. 3801 et seq.) by
the Federal Agriculture Improvement and Reform Act of 1996 (the 1996
Act) (Pub. L. 104-127). The 2002 Act also amended the Environmental
Conservation Acreage Reserve Program by changing the section
name to
the Comprehensive Conservation Enhancement Program and removing
the
authority for the Secretary of Agriculture to designate areas as
conservation priority areas.
[[Page 32340]]
As provided by section 1241 of the 1985 Act (16 U.S.C. 3841),
as
amended by the 2002 Act, the funds, facilities, and authorities of the
Commodity Credit Corporation (CCC) are available to NRCS for carrying
out EQIP. (The Chief of the NRCS is a vice-president of the CCC.)
Accordingly, where NRCS is mentioned in this rule, it also refers to
the CCC's funds, facilities, and authorities where applicable.
Through EQIP, NRCS provides assistance to farmers and
ranchers who
face threats to soil, water, air, and related natural resources on
their land. These include grazing lands, wetlands, private non-
industrial forest land, and wildlife habitat. Participation in the
program is voluntary. Under EQIP, NRCS will provide assistance
in a
manner that will promote agricultural production and environmental
quality as compatible goals, optimize environmental
benefits, and help
farmers and ranchers meet Federal, State, and local environmental
requirements. NRCS will offer the program throughout the Nation
using
the services of NRCS and Technical Service Providers. NRCS will
implement a consolidated and simplified process to reduce any
administrative burdens that would otherwise be placed on producers.
In this rule, NRCS proposes to incorporate changes in the
EQIP
regulations, 7 CFR 1466, resulting from the passage of the 2002
Act.
Several important changes were made in the 2002 Act that require
changes to the regulation. These include:
(1) Changing the maximum payment limitation from $50,000 per
person
per contract to $450,000 per individual or entity for all contracts
entered into in fiscal years 2002 through 2007;
(2) Revising the purpose from ``maximize
environmental benefits per
dollar expended'' to ``optimize environmental benefits'';
(3) Eliminating the competitive bidding by applicants;
(4) Allowing payments to be made in the first year of the
contract;
(5) Removing language authorizing targeting of funds to
Conservation Priority Areas;
(6) Removing the provision prohibiting a producer from
receiving
cost-shares for an animal waste facility on an animal operation with
more than 1,000 animal units;
(7) Allowing cost-share rates of up to 90 percent for limited
resource farmers or ranchers and beginning farmers or ranchers;
(8) Reducing the minimum length of a contract from five years
to
one year after installation of the last practice;
(9) Increasing funding from $200 million per year to $400
million
in FY 2002 and increasing to $1.3 billion per year in FY 2007; and,
(10) Imposing an average adjusted gross income (AGI)
limitation.
In an effort to make the program more
effective and efficient, the
Department has initiated several streamlining changes, including:
(1) Eliminating the program's dual
administration by changing Farm
Service Agency (FSA) participation from concurrence to consultation;
(2) Reducing the planning requirements needed to develop the
contract; and
(3) Allowing producers to have more than one contract per
tract at
any given time.
The fundamental philosophy of the program,
assisting agricultural
producers install conservation practices to provide environmental
benefits, has not changed. The statutory and Departmental changes
respond to limitations and restrictions identified by agency staff and
participants. Agricultural producers who are interested in
participating in the program will apply as they have in the
past and
should experience a quicker turn-around on their application. Producers
also have some expanded financial opportunities with higher contract
limits and the ability to receive payments earlier in the contract
period.
On February 10, 2003, NRCS published a proposed rule with
request
for comments. The proposed rule described the program
requirements,
administrative processes, and eligibility criteria that NRCS would use
in implementation of EQIP. The proposed rule also described how NRCS
would manage the program to optimize environmental
benefits and what
information would be considered in designating program funds
for
natural resource concerns to states and to contracts. Over 1,250
separate responses containing about 4,900 specific comments were
received during the 30-day comment period: 608 responses from farmers,
ranchers, and other individuals, 175 from agricultural and rural
community organizations, 54 from environmental organizations,
268 from
conservation districts and related groups, 37 from business entities,
118 from State and local agencies, 24 from tribes and tribal
organizations, and nine from congressional representatives.
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 5229
South
Building, 14th and Independence Ave., SW., Washington, DC, 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: (1) Funding, payments and cost-share rates; (2) setting
priorities, ranking of applications and contract approval; (3) use of
EQIP assistance for CAFO/AFO; (4) locally-led conservation; (5) limited
resource producer/ranchers and beginning farmer or rancher; and (6) use
of conservation planning in the EQIP program. 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 language clarification changes 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 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 documentation.
General Comments on 7 CFR Part 1466
Under the proposed rule, NRCS would set out EQIP
regulations in 7
CFR part 1466. The following summarizes general comments received on
the proposed rule and NRCS's response to them.
1. The 1996 Act
Support for both the legislative and Departmental changes to
EQIP
was expressed in two-thirds of the comments received. One-third of the
comments expressed concern that proposed rule removed the conservation
planning requirement from EQIP,
[[Page 32341]]
provided for unrestricted cost-share assistance to new and expanding
animal operations and CAFOs in flood plains. The Department recognizes
that Congress made adjustments to the EQIP legislation in response to
concerns from their constituents. The Department included those
concerns when developing the proposed rule. The Department is required
to administer the laws as passed by Congress and provide EQIP
assistance to all producers. Also, the Department feels EQIP, as
proposed, fully supports the NRCS progressive planning policy by
allowing producers to request assistance for only those conservation
practices they are ready to implement.
2. Preamble Language in the Proposed Rule
Two comments received were concerned with the length of the
public
comment period and requested an extension of the comment period.
Several hundred comments appreciated the opportunity given for input
and the varied mediums by which comments would be accepted. Over 1,250
responses were received from a range of interested parties from across
the Nation. NRCS believes that a sufficient length of time was provided
and it has received sufficient input to proceed to a final rule.
A basic element of EQIP implementation throughout the
proposed rule
is the use of the locally-led process to adapt EQIP to local
conditions. The Department received 176 comments in support of locally-
led conservation, frequently commenting that the process in the
proposed rule over-rides local decision making and is a top down
process. NRCS believes that the locally-led process is the optimal
mechanism for implementation of EQIP and believes that the proposed
rule strengthens the process. The locally-led process utilizing the
State Technical Committees and Local Work Groups has been discussed in
detail in the preamble to the 1997 EQIP final rule (FR 28258, vol. 62,
no. 99, May 22, 1997) and does not need to be reiterated.
In the preamble NRCS requested comments on eight specific
issues.
Where applicable the public comments and recommendations have been
incorporated in the final rule or will be included in program
guidance
and delivery activities.
One of the questions in the proposed rule asked for comments
on
adopting a limited waiver program, as well as on innovative
mechanisms
that NRCS could consider to institutionalize alternatives for
encouraging conservation implementation. NRCS received 46 comments
regarding credits and credit trading. Twenty-seven respondents
suggested pilot programs to resolve the issues discussed, three
suggested proceeding with caution, seven respondents did not support
the concept, 4 suggested that the waiver should apply to all previously
applied practices, and three respondents stated that USDA does not have
any interest in credits a producer might receive from applying
conservation practices with EQIP assistance. Some respondents
interpreted the discussion in the proposed rule that NRCS would
initiate, support and administer an environmental credit
trading
program. The actual intent is that NRCS would waive all
financial
interest to any environmental credits that accrue to a
participant
implementing conservation practices using EQIP assistance. NRCS has
determined that NRCS does not have any financial interest in any
environmental credits that may accrue to a participant who
implements
conservation practices with EQIP assistance.
The proposed EQIP rule also asked for comments regarding how
to
administer a loan program in accordance with the Ground and
Surface
Water Provisions of the 2002 Farm Bill. NRCS received 13 comments
suggesting looking into existing funding programs such as the Nonpoint
Source Partnership, which is a collaborative effort between the state
and EPA. The Department believes that the 2002 Farm Bill authorizes the
implementation of a loan program and does not need to address
the issue
in the final rule. NRCS will reserve the option to utilize a loan
program in the future and will do so with policy and
program guidance
in appropriate manuals and handbooks.
The proposed rule also requested comments regarding how the
Klamath
Basin water conservation provisions should be implemented. NRCS
received 10 comments; five suggesting that the Klamath Basin issue was
more than agriculture and that NRCS should cooperate with other
stakeholders in the development of a basin plan; 4 recommending water
quality improvements should be considered as ``net savings''
because
the end result is more water available for wildlife purposes; and one
comment that the administrative costs should not be borne by the
Klamath Basin allocation. NRCS reaffirms the language of the proposal
rule that the two Klamath Basin State Conservationists will lead a
basin planning effort that may require additional funding from sources
other than EQIP funding. NRCS also believes that there is sufficient
water in certain times of the year that can be captured with on-farm
storage allowing participants to accomplish the statutory intent of
``net-savings'' without reducing irrigation water usage. NCRS will
provide guidance through the EQIP Program Manual that
``net-savings''
in the Klamath Basin can be accomplished in three ways; reduced
irrigation water usage, improved off-site water quality, and
increased
on-farm storage of water.
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, air, and related
natural
resources concerns, and to encourage enhancements on their lands in an
environmentally beneficial and cost-effective manner. There were seven
comments expressing support to include language that another purpose of
the program is to assist producers in complying with
environmental
regulations. Several other comments suggested that wildlife
should be
specifically stated as a resource issue and that NRCS should explicitly
state which land uses are eligible. EQIP shall be implemented in a
balanced manner in accordance with the statutory purposes for which
EQIP was established, including the objective to optimize environmental
benefits. The proposed rule contained broad language to facilitate the
identification of a range of priority natural resource concerns at the
state and local level based on National priorities and the Department
believes that this is the appropriate approach. The final rule now
contains, however, compliance with environmental
regulations as a
purpose of the program.
Section 1466.2 Administration
In this section, NRCS is identified as an agent of CCC and
that
NRCS will consult with FSA at the National level in the development of
policies, priorities and guidelines. This section also reaffirms NRCS's
commitment to locally-led conservation through the State Technical
Committees and Local Work Groups. One hundred and sixty-six comments
express support for locally-led conservation. One comment suggest
including private landowners on Local Work Groups. USDA believes that
it is important for both NRCS and FSA to consult on program
implementation and that the proposed arrangement takes advantage of the
proven expertise of both agencies. USDA strongly supports locally-led
conservation and
[[Page 32342]]
recommends that Local Work Groups include public comment periods in
their meetings but must limit membership to representatives of state
and local governments and political subdivisions and agencies thereof
in accordance with the Federal Advisory Committee Act (FACA).
Section 1466.3 Definitions
Agricultural Operation
NRCS received 23 comments in response. Ten respondents
suggested it
should be limited to the field where the practice is being implemented,
whereas one respondent suggested the field plus any contiguous parcels,
and 13 respondents suggested all the land operated by the producer. The
definition has been modified in the final rule to include all parcel or
parcels of land, both contiguous and non-contiguous.
At-Risk Species
The proposed rule identified at-risk species habitat recovery
as a
National priority. Eight respondents suggested the need for a
definition of at-risk species. One respondent suggested the definition
to include invertebrate pollinators, one suggested imperiled species
and seven respondents suggested to include Federally listed and
candidate species as well as species of local concern. The Department
agrees with the suggestion to define at-risk species and a definition
has been included in the final rule.
Beginning Farmer and Rancher
Six comments suggesting the 10-year time frame is too long.
Three
respondents recommended five years and one recommended a maximum of
three years. The Department has an established definition for Beginning
Farmer and will continue to use the existing definition in the final
rule.
Confined Livestock Feeding Operation
Two respondents recommended this definition was not necessary
for
implementation of EQIP. The Department does not use confined livestock
feeding operation in the implementation of EQIP and has removed the
definition from the final rule.
Indian Tribe
Four respondents commented on the definition of Indian tribe
and
how there appeared to be some inconsistency in how it was used in the
Proposed Rule, including the lack of reference to Conservation District
established under tribal law. No change to the definition of Indian
Tribe is proposed because it reflects the definition provided by 25
U.S.C. 3701. However, the rule has been clarified to reflect the
appropriate use of Indian Tribe in the text. Conservation Districts
established under Tribal law has been added to the definition of
Conservation Districts.
Limited Resource Farmer and Rancher
Six comments were received; three respondents suggesting that
the
gross farm sales value was too low and three respondents suggesting it
was deficient by not identifying future year adjustments. The
Department's interagency task force reviewed the comments and modified
the definition for the final rule.
Priority Natural Resource Concern
Three comments were received. One respondent supported the
definition of priority natural resource concern as written and two
respondents suggested including a resource objective that is being
addressed through an environmental regulation. NRCS believe
that
optimization of environmental benefits can be achieved through
a
prioritization process. The definition in the final rule is not
changed.
Producer
Fifty-one comments were received. Seventeen suggested that
this
definition specifically include private non-industrial forest land, 17
want assurance that the definition does not preclude agroforestry, and
36 suggested language that provides assurance that private non-
industrial forest land is eligible for EQIP assistance. The Department
recognizes forest products as an agricultural commodity and forest land
as agricultural land. The definition in the final rule is not changed.
Wildlife
NRCS received 10 comments to revise the definition of
wildlife;
five suggest a rewording and five respondents suggested crafting the
definition to allow for exclusion of exotic species. The Department
believes that the National Invasive Species Council operating under the
authority of Executive Order 13112 provides sufficient direction and
guidance for USDA to implement EQIP without specifically including
invasive species concerns in the definition. In the past, many state
and local decision-makers have identified invasive species as a
priority natural resource concern and used EQIP resources to support
control.
New Definitions
Several respondents suggest new definitions be included in
the
final rule, including: at-risk species (eight comments). One respondent
suggested the definition to include invertebrate pollinators, one
suggested imperiled species and seven respondents suggest the
definition to include Federally listed and candidate species as well as
species of local concern. The Department agrees with the suggestion to
define at-risk species and a definition has been included in the final
rule.
The 2002 Farm Bill established an earnings limit for an
individual
or entity. For purposes of consistency, the Department uses FSA's
Payment Limitation and Payment Eligibility rule (7 CFR 1400) for
definitions of entities and joint ventures. This rule, however, does
not contain a definition of individual. The Department added
definitions of entity and joint operation to the final EQIP rule and
utilizes the definition of person for individual. NRCS has adjusted
usage of these terms throughout the EQIP rule to assure the final rule
is consistent with 7 CFR1400 and the statutory earnings limit.
During the review process the Department recognized a concern
that
cancellation of EQIP contracts results in a loss of financial
assistance and an expenditure of unproductive technical assistance. In
an effort to minimize these losses, NRCS will include a Liquidated
Damages policy in EQIP for producers who cancel contracts without
proper cause and include a definition of liquidated damages in the
final rule.
Three comments on the Indian trust land definition were
considered
restrictive and there is a need for more land inclusion. To be more
inclusive a definition for Indian Land, consistent with 25 CFR part
150, has been included in the final rule and the definition for Indian
Trust Land was removed from the final rule.
Section 1466.4 National Priorities
NRCS received 378 comments regarding National priorities; 141
regarding water resources, 60 related to air resources, 45 regarding
soil erosion, 56 comments related to at-risk species and wildlife and
71 of a general nature.
Of the 141 comments related to water resource; 52 recommended
separating water quality and water quantity into two
priorities; 93
respondents recommended removing the focus on Total Maximum Daily Loads
(TMDL), 82 because TMDL does not always include drinking water
supplies, nine because including TMDL is analogous to targeting, and
two for including 305(b) reaches (non-TMDL); and one respondent
suggested the Gulf of Mexico hypoxia and contributing factors
[[Page 32343]]
should be included as a specific National priority.
Forty four respondents recommended adjusting the air
quality
National priority by adding ``atmospheric concentration'' before or
emissions and 16 recommended that national air quality
priorities
should not apply to Indian Tribes.
NRCS received 60 comments that the soil erosion National
priority
limited use of EQIP to land with lower rates of erosion that are of a
particular concern. Additionally, NRCS has determined that the
reference to highly erodible land could be misleading with regards to
providing assistance for compliance with the Highly Erodible Land (HEL)
provisions of the 1985 Farm Bill.
The fourth National priority, at-risk species habitat
recovery,
received 56 comments. Thirty two respondents recommended that this
priority be directed to wildlife and wildlife habitat. Six respondents
recommended defining at-risk to include Federally listed as well as
species of regional concern with one of these misinterpreting the
proposed rule to be Federally listed species only. Four respondents
supported the priority as presented and 14 respondents suggested
removing at-risk species priority with two suggesting there were other
programs to accomplish this objective.
In addition, NRCS received recommendations to emphasize or
add
National priorities; five suggested EQIP is the implementation vehicle
for salinity control measures authorized by the Colorado River Basin
Control Act; five recommended adding quail restoration; eight suggested
emphasizing grassland, grazing land and rangeland, 13 wanted the
National priorities to support private non-industrial forest land, and
three wanted the priorities to include promoting agricultural
production.
NRCS received five comments that the National priorities
appeared
to be a compliance assistance program for laws and
regulations of other
agencies. Fifty comments supported the establishment of state level
conservation priority areas at the state's discretion, three
respondents suggested that there should not be National priorities but
national guidance in support of state and local priority resource
concerns, and two suggested that legislative requirement for 60 percent
for livestock practices be applied at the state level and not the
national level. The Department believes that the National priorities in
the proposed rule meets Congressional intent in providing direction and
flexibility to the state and local decision-makers to utilize EQIP
resources to address locally identified priorities and optimize
environmental benefits. The National priorities in the proposed
rule
are focused on natural resources and resource issues. These priorities
are sufficient to guide local program delivery and only the
soil
erosion priority will change in the final rule to remove any potential
conflict with Highly Erodible Land provisions of the 1985 Farm Bill.
Although the fundamental philosophy of the program,
assisting
agricultural producers to install conservation practices to provide
environmental benefits, has not changed; the 2002 Farm Bill
removed the
authority of the Department to establish priority areas to which
program resources are focused. NRCS eliminated the requirement
that a
portion of the funds allocated to the states would be focused into
Conservation Priority Areas. The Department believes that NRCS
methodology to optimize environmental benefits through an
approach that
integrates consideration of National Priorities in four key program
components: (1) The allocation of financial resources to States; (2)
the allocation of financial resources within states; (3) the selection
of conservation practices and the establishment of cost-share and
incentive payment levels; and (4) the application ranking process will
provide the same level of environmental conservation as
targeting to
conservation priority areas. The intent of EQIP is to provide maximum
flexibility to local decision-makers to implement the program.
The
identification of National priorities is the first step to accomplish
this and is the basis for the allocation for funds from the National
NRCS to state-level NRCS.
Two respondents commented on the need to include the use of
EQIP to
mitigate the impact of natural disasters in the National priorities. No
changes to the rule were made because EQIP is not intended to be a
disaster program.
Section 1466.5 National Allocation and Management
This section of the proposed rule contains information
regarding
allocation of funds from the national level to the state level, the
establishment of an incentive payment, reviewing progress and
accountability, and delegation of authority to the State
Conservationists to implement the program to achieve National
priorities.
USDA received 37 comments related to the National allocation.
Nine
respondents suggested including the amount of tribal land in the
allocation formula, three suggested adding unmet need based on previous
year's number of applications, 4 recommended using regulatory
compliance as a factors, two suggested forest land as a factor, and six
suggested directing more funding to crop base agriculture and less to
animal agriculture. Several respondents also recommended adjusting the
allocation based on the intensity of agriculture in each state. Another
five respondents suggested that National Association of Conservation
Districts (NACD) and the Forest Service (USFS) should be consulted when
making allocation decisions and one respondent supported making
National Allocation task force report strategy available to the public.
NRCS is in full support of reviewing and revising, as necessary, the
National EQIP allocation formula on a regular basis. NRCS intends to
incorporate a wide variety of partners and customers in this process
and intends to fully disclose the strategy of the task force to the
public.
NRCS also received 10 comments regarding the use and reuse of
EQIP
funds, suggesting that funds made available from cancelled contracts
should be able to be re-used to fund new contracts. The Department
understands the position of the respondents, however, the re-use of
funds is a limitation associated with the authorization language in the
2002 Farm Bill.
In the proposed rule, NRCS specifically asked for comments
regarding implementation of an incentive award; ``what approaches NRCS
can use to efficiently and effectively implement this award
incentive''. NRCS received over 472 comments regarding this item, the
majority of which, 415, supported the concept and suggested that the
incentive be substantial but did not offer other specifics. Eleven
respondents suggested that accomplishments with Indian tribes should be
considered as a factor for determining the incentive award; three
recommended using only how local conservation needs were addressed; and
one suggested using leveraging, use of TSPs, and multiple resource and
long-term benefits. Forty one respondents were against the incentive
award because they felt it would penalize states for not having
National priorities, penalizing farmers for reasons beyond their
control, or establish a bidding competition between states to compete
for available funds. One respondent suggested using pervious year
performance to allow the award to be made early in the year. NRCS
believes there is a potential confusion between the term ``incentive
award'' used in the proposed rule and the incentive
[[Page 32344]]
payment level established for a producer to implement a land management
practice and therefore will revise the term to ``performance
incentive''. NRCS will use the performance incentive as one of its
approaches to optimize environmental benefits by supporting the
state
decision-makers with additional EQIP resources based on performance.
The guidelines for administering this award will be developed and made
available in EQIP program guidance. NRCS is committed to full
disclosure of program implementation policy and will make this
information publicly available as it is finalized.
NRCS received 422 comments in response to the request for
comments
on how best to evaluate the performance of the EQIP program.
How should
environmental changes be measured, and what methodologies would
best
identify environmental effects due to contract activities? What
kind of
output measures and data collection strategies should NRCS consider?
What approaches could NRCS use to evaluate cost-effectiveness? Four
hundred and one responders commented on NRCS's intent to move toward
actual environmental outcomes and benefits rather than the
number of
contracts and practices. Seven respondents suggested a national team to
develop a framework for monitoring and reporting, 4 respondents wanted
assurance that NRCS would include forestry performance measures in any
process that is used, 10 respondents recommended encouraging scientific
measurement of conservation practices, and seven respondents did not
support Technical Service Providers as a measure of performance. One
respondent suggested a crucial element of performance evaluation is
consideration of the cumulative impact. NRCS is actively developing
approaches to evaluate performance for EQIP as well as all other
conservation programs administered by NRCS. NRCS is committed to public
disclosure and transparency as evidenced by the posting of data and
information on the NRCS Web site at
http://www.nrcs.usda.gov and the
NRCS Performance and Results Measurement System (PRMS) at
http://prms.nrcs.usda.gov/prms/index.html.
NRCS will continue to refine its
accountability system to make performance data available to the public.
In the final rule, NRCS removed those incentive payment
factors
that are an iteration of the National measures identified in the
preamble of the proposed rule. The measures: Increasing overall
environmental benefits, addressing multiple resource concerns,
ensuring
more durable environmental benefits and limiting adverse
ancillary
impacts, encouraging innovation, supporting the statutory mandate to
apply nationally 60 percent of available financial assistance to
livestock-related conservation practices, and employing appropriate
tools to more comprehensively serve EQIP purposes will be reviewed
periodically and adjusted as necessary. The National measures will be
provided in the program guidance in the EQIP Manual and will be
made
available to the public.
Section 1466.6 State Allocation and Management
The proposed rule provides that the State Conservationist
with
advice from the State Technical Committee will determine how EQIP will
be implemented in the state, identify the priority resource concerns,
and determine how EQIP funds will be utilized. NRCS received 47
comments regarding state level fund allocation and program
management.
Twelve respondents recommended that tribal land should be a State
allocation factor, 4 recommend using regulatory compliance needs, and
18 suggested multi-tribal collaborative efforts. Another 12 respondents
wanted assurance that the state and local decision-makers will consider
forestry issues and private non-industrial forest land as eligible for
EQIP. NRCS also received one comment raising a concern that if the
State Conservationist, in support of locally-led conservation,
allocates EQIP funds to counties in smaller amounts the needs of the
large animal facilities and large agricultural operations will not be
satisfied. The Department defines row crop, rangeland, specialty crop,
animal and agroforestry as agricultural land. The state allocation
process, which uses locally led conservation through advice from the
State Technical Committee, is based on state identified priority
resource concerns and is the second component of NRCS's optimizing
environmental benefits process. EQIP has been over subscribed
since
1997 and will continue to be so in the future. The economic analysis
conducted to evaluate the impact of EQIP has determined that EQIP will
treat approximately 10 percent of crop and grazing land. The final rule
will provide specific direction to State Conservationist's to
prioritize resource concerns and to do so in accordance with the
National priorities.
Four respondents commented that State allocations should
consider
Indian lands. Two respondents commented that a Tribal Conservation
Advisory Council should be at the same level as the State Technical
committee in terms of providing advice to the State Conservationist. No
rule change has been made because allocations made by the State
Conservationist consider the natural resource concerns identified with
advice from the State Technical Committee and Local Work Group. Indian
tribes are represented on State Technical Committee under 7 CFR 610.
Section 1466.7 Outreach Activities
One hundred and eighty-seven comments made specific
recommendations
supporting USDA's outreach efforts to assist limited resource
producers/ranchers, beginning farmers or ranchers and under-served
populations. 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. The Department remains dedicated
to increasing program availability to all eligible producers.
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.
Two respondents asked that NRCS include Tribal level in the
description of where NRCS will conduct outreach activities. The rule
has not been amended because the language referred to the NRCS
organizational structure and Indian tribes are specifically included as
a targeted group for outreach.
Section 1466.8 Program Requirements
One respondent recommended that the State Conservationist
instead
of the Chief of NRCS be given the authority to grant waivers for having
control of the land allotted by the Bureau of Indian Affairs, Tribal
land and other instances. The rule has not been amended because
definition of Chief includes a designee.
NRCS received one comment expressing concern that a complete
comprehensive nutrient management plan (CNMP) was required to be
submitted in entirety during the initial
[[Page 32345]]
planning phase of the EQIP application in response to NRCS's request
for comments regarding how incentive payments to develop a CNMP should
be implemented. The proposed rule did not require that a full CNMP
needed to be developed during the initial planning process, the
proposed rule stated that a participant who receives EQIP assistance
for an animal waste storage or treatment facility will provide for the
development and implementation of a CNMP. This provision will remain
unchanged in the final rule in support of the legislative intent for
implementation of CNMPs in the 2002 Farm Bill.
The use of EQIP assistance for new and expanding large animal
facilities received 520 comments two of which supported using EQIP for
all animal facilities regardless of size and 518 respondents suggest
that the final EQIP rule that prohibit funding of new and expanding
large animal facilities and of large animal facilities in floodplains
except to move the facility out of the floodplain. The Department
removed the restriction on providing EQIP assistance to waste storage
or treatment facilities for large animal facilities in accordance with
the 2002 Farm Bill. The Department supports the concept that the
program assistance should be available to all operations and
should be
awarded to those operations that provide the optimal environmental
benefits. Section 1466.20 and program direction will provide
state and
local decision-makers guidance for ranking of applications and
selecting contracts to achieve this objective.
NRCS received 4 comments to remove the provision to start or
complete a conservation practice within the first twelve months of an
EQIP contract. NRCS believes that the purpose of EQIP is to implement
conservation activities. Producers who are not ready to implement
practices should not apply for assistance. However, NRCS also
understands that there often are extraneous circumstances that can
delay implementation, therefore, the final EQIP rule will provide an
opportunity for the participant to request a waiver from the State
Conservationist to delay implementation.
NRCS received five comments regarding allowing more than one
contract on a tract of land at the same time; 4 in support and one
against. The proposed EQIP rule removed this eligibility requirement
from the previous rule. NRCS believes that allowing producers to have
two or more contracts on a parcel supports the concept of ``progressive
planning'' which allows producers to implement practices in accordance
with their ability.
NRCS received two comments recommending that marketing
facilities
be eligible for EQIP contract. The Department believes that the
statutory intent is to direct EQIP assistance to producers for
implementation of conservation practices on working agricultural land.
NRCS will provide guidance with the EQIP Program Manual that
non-
production ancillary businesses such as agricultural supply buyers and
sellers are not eligible to participate in EQIP. This interpretation
also applies to producer organizations and cooperatives that provide
support but do not operate working land for the production of food or
fiber.
NRCS received two comments that a producer who prematurely
terminates an EQIP contract should be eligible to reapply for a new
contract. NRCS believes that the proposed rule does not prevent a
participant from reapplying after prematurely terminating a contract.
NRCS's objectives are to implement cost-effective conservation and
optimize environmental benefits and will award contracts to
those
applications that best achieve these goals. Since funds released by
termination of an EQIP contract are not available for reuse on another
contract, NRCS has provided, in the final rule, an option for
reimbursement of administrative and assistance expenses (liquidated
damages) incurred. NRCS will provide guidance in the EQIP Program
Manual regarding the nature and extent of liquidated damages.
Section 1466.9 EQIP Plan of Operations
The EQIP plan of operations identifies the time and place of
the
conservation practices that the applicant has decided to implement. The
Department has received 485 comments requesting NRCS to reinstate the
provision for conservation planning that was removed from the 1997 EQIP
rule. One additional comment was received in support of the reduced
planning requirements but with a caveat that a level of planning should
be maintained to assure that the implementation of one conservation
practice that addresses one resource concern will not have a negative
impact on another resource concern. The Department fully supports the
comment and feels the policy guidance of NRCS adequately addresses the
issue. NRCS planning policy contained in the NRCS General Manual and
NRCS National Planning Procedures Handbook require the assessment of
positive and negative impacts as part of the technical assistance
provided to producers. The objective of NRCS planning policy is a whole
farm resource management plan and NRCS policy incorporates the
philosophy of ``progressive planning'' that includes development and
analysis of alternatives and documentation of the producer's decisions.
The EQIP final rule supports the ``progressive planning'' philosophy
and allows EQIP assistance to be used to help a producer implement
conservation practices as they make resource conservation decisions.
NRCS received 19 comments related to the definition of
net-water
savings. The Department will not create a National definition of ``net
water savings'' due to the complexity of state and local water rights
laws, and water programs and policies. In the final rule the
responsibility for establishing a definition for ``net water savings''
is delegated to the State Conservationist.
Section 1466.10 Conservation Practices
NRCS received 67 comments which did not support the provision
in
the proposed rule to consider only land irrigated in three out of the
last five years as eligible for EQIP assistance for irrigation
practices. Sixty one respondents identified that NRCS recommended crop
rotations for certain crops only required irrigation two years in a
five year rotation. Six comments supported assistance for irrigation on
land with no irrigation history to reduce production risk and in
support of farm viability. The Department believes EQIP resources
should be utilized to reduce the environmental impacts of
irrigation on
water resources. The Department has changed the restriction in the
final rule to provide opportunities for irrigation assistance for those
crops that are irrigated two out of five years.
NRCS received eight comments opposing the availability of
incentive
payments to participants for development of a CNMP especially when they
are required to do so by EPA regulation. The Department supports the
statutory intent to encourage the development of comprehensive nutrient
management plans and provides the state and local decision-makers the
authority to offer incentive payments and to determine incentive
payment levels.
NRCS received 10 comments supporting allowing NRCS to approve
interim conservation practices and financial assistance for pilot
testing new technologies or innovations. Ten respondents recommended
that state-of-the-art technology should not be the only basis for
defining innovation and that innovation could also be defined as
[[Page 32346]]
a particular group of producers who have not adopted a commonly
accepted technology. The Department believes that innovative approaches
should be supported. NRCS has agency policy to provide for the
development and implementation of innovative technology. NRCS also
believes that unproven innovative technology that has not been field
tested should be used cautiously until its utility is proven for a
specific or wide spread application. NRCS will provide program
guidance
that innovation is more than state-of-the-art technology; innovation
could also mean new techniques to certain groups or could also mean
application evaluation approaches that consider the benefits of
grouping practices rather than a scattered approach.
Several general comments were received regarding lack of
access to
USDA programs and need for special considerations for Indian lands. One
respondent commented about the types of practices to be cost shared.
Consideration must be given to those large blocks of land that have
basic conservation practice needs or needs differing from those who
have had access to programs since inception. Recommend that NRCS: (1)
Develop ``special project'' areas that warrant the prioritization of
conservation practices differing from those of the state. (2) Develop
``allowable rates'' for construction, labor, and material specific to
the special project areas. The final rule has not changed. The process
in the proposed rule allows for implementation of EQIP at the local
level to adapt program delivery for varying resource issues,
costs of
implementation and other unique circumstances.
Section 1466.11 Technical and Other Assistance Provided by Qualified
Personnel Not Affiliated With USDA
Four comments were received related to the inclusion of the
private
sector as qualified personnel who can provide EQIP assistance. The
final rule added individuals who are certified by NRCS as a Technical
Service Provider (TSP) to the list of providers an EQIP participant may
select from to provide assistance.
Selection of appropriate TSP by EQIP participants was a
concern of
two respondents. The proposed EQIP rule allows participants to select a
TSP. Participants may choose any qualified TSP or NRCS to provide EQIP
related technical assistance.
Seven respondents asked to add 1994 Land Grant Colleges to
the list
of potential TSPs. The rule has been edited to show the inclusiveness
of possible TSP rather than exclusiveness by naming various groups or
individuals. ``Participants may use technical and other assistance from
qualified personnel who are certified as Technical Service Providers by
NRCS.''
A total 46 comments on Technical Service Provider liability,
certification, confidentiality and training were received. At the time
the proposed EQIP rule was developed the specifics of TSP were not
known. The TSP interim final rule was promulgated in 7 CFR part 652 and
it addresses the issues of liability, certification, confidentiality,
and training.
Section 1466.20 Application for Contracts and Selecting Offers From
Producers
NRCS received 58 comments suggesting the objective of cost-
effectiveness was to reinstate competitive bidding and 466 respondents
suggested rewriting the rule to prohibit competitive bidding. Another
14 responders recommended reinstating competitive bidding. NRCS does
not believe using cost-effectiveness means competitive bidding since
the cost refers to the total cost, not just the federal cost-share.
Cost-effectiveness can be interpreted two ways. First in terms of
greater environmental benefits for the same cost or second,
providing
EQIP assistance for the least-cost alternative. NRCS believes that the
first interpretation will be accomplished by the ranking processes
developed by state and local decision-makers. NRCS will provide program
direction that in EQIP cost-effectiveness means NRCS will provide
assistance to implement the least-cost alternative that would achieve
the desired resource benefits. Participants may choose to adopt more
costly alternatives but they would have to bear the additional costs.
The proposed rule will not be changed.
Two respondents commented that the ranking factors should
include
recognition of the need for outreach or targeting of populations and
areas with historically low participation rates. Additional comments
recommended the insertion of tribal law compliance requirements into
this section and include a reference to consulting with Tribal
Conservation Advisory Councils. The EQIP ranking criteria consider the
significance of the resource concerns, not the type of land ownership.
However, any unique resource concerns identified by underserved
populations may be added as a priority natural resource concern through
participation in the State Technical Committees. NRCS also intends to
conduct outreach to increase program accessibility for
underserved
populations.
The Department received 56 comments that suggest EQIP
assistance
should not be used for large animal facilities. EQIP should prioritize
funding to small and medium size producers and two of which supported
using EQIP for all animal facilities regardless of size. Another 94
respondents suggest that EQIP should be targeted to small and medium
farms and 560 recommend language to prevent discrimination against
small and medium sized farms. The Department has reviewed the economic
benefits of several alternatives and determined that EQIP can treat the
waste from the largest number of animal units for the least cost by
allowing funding for large facilities. However, the Department also
recognizes that small and medium producers may be least able to afford
the adoption of conservation practices in their operation, and that
EQIP may assist these producers avoid future regulations. NRCS
has
therefore included a provision in the final rule that the ranking
process used to select application for contracts will be size neutral,
that is, the process will not give preferential treatment to an
application based on the size of the agricultural operation.
Additionally NRCS received 466 comments that the EQIP
application
ranking process should explicitly reward sustainable practices and
exceptional performance and that will prioritize the best solutions not
the biggest problems. NRCS believes that the state and local decision-
makers will develop processes that achieve both cost-effectiveness and
optimal environmental benefits. NRCS will provide full public
disclosure by providing the EQIP ranking processes used at the state
and local level on the NRCS Web site at
http://www.nrcs.usda.gov/programs/eqip.
NRCS intends to reward exceptional performance through
the performance incentive funding.
NRCS received 162 comments on the approval of EQIP contracts
by the
Regional Conservationist when the contract totals more than $100,000.
The comments related to the increased administrative burden and delay
this requirement will have on the development of EQIP contracts and in
producers implementing practices. The Department feels this is a
necessary component of EQIP to assure that the program is
implemented
to achieve the stated EQIP program objective. Therefore, the
requirement is maintained in the final EQIP rule.
More than 175 comments were received on the requirement that
State
Conservationist approved EQIP
[[Page 32347]]
contracts that included practices with cost share rates greater than 50
percent. The concern was the delay this would have on EQIP contract
development and practice implementation. This requirement changed in
the final rule (1466.23(d)) to allow the State Conservationist, with
concurrence of the Regional Conservationist, to approve state and local
EQIP practice cost lists that include any structural practice with a
cost share rate greater than 50 percent. This change maintains the
program objective of optimizing environmental
benefits and improves
program delivery compared to the proposed rule.
Section 1466.21 Contract Requirements
NRCS received 31 comments regarding the amount of an EQIP
contract.
Eight respondents support a $50,000 contract cap, 16 support a $450,000
contract limit and seven respondents support no limit. Another 34
responders suggested the $450,000 contract limit was an injustice
against small farmers since only large farmers can afford 25 percent of
$450,000. NRCS believes that, due to the large demand for the limited
resources which have been made available for EQIP, a contract limit is
appropriate at this time. The final rule will establish the maximum
amount of financial assistance for an EQIP contract is $450,000.
NRCS also received 19 comments regarding statutory language.
Three
respondents opposed attribution of payments to individuals and support
tracking payments to tax identification number of entities. Another 16
supported payments in the first year of a contract. The Department does
not have flexibility to change either of these provisions. The
statutory limit for payments to any individual or entity, directly or
indirectly, for all EQIP contracts between 2002 and 2007 of $450,000
requires NRCS to track EQIP payments to an individual. NRCS has removed
compliance with the triple entity rule (7 CFR 1400.301(a)) as an EQIP
eligibility requirement.
Section 1466.22 Conservation Practice Operation and Maintenance
The Department received no comments relative to this section
of the
proposed rule.
Section 1466.23 Cost-Share Rates and Incentive Payment Levels
NRCS received a total of 638 comments related to the setting
of
cost-share rates and incentive payment levels. The proposed rule's
preamble stated that NRCS intends to fund most structural practices at
no more than 50 percent cost-share. Over 545 respondents recommended
that cost-shares for structural practices should be no less than 75
percent as permitted by the 2002 Farm Bill. They suggested that this
provision was analogous to a ``buy-down'' which was removed from the
previous rule; is contrary to locally-led conservation philosophy, and
detrimental to the producers who have suffered severe economic
hardships over the last few years. Another 177 respondents identified
that the requirement in section 1466.20 of the proposed rule that
established the State Conservationist as the approving authority for
any EQIP contract with a structural practice with a cost-share greater
than 50 percent is an administrative burden. Another 10 respondents
suggested providing 90 to 100 percent cost-share rates to limited
resource producers/ranchers and beginning farmers/ranchers, or 75
percent cost-share for specific practices such as salinity control,
diesel engine emission control, or wildlife plant species pollinators.
Two respondents suggested that a practice cap could be used
in
place of a reduced cost-share rate, 4 respondents expressed concern
that the state and local decision-makers should be allowed to establish
differential cost-share rates for practice that offer more
environmental benefits, and three respondents suggested that
producers
required to develop a CNMP under the EPA CAFO/AFO rule should not be
eligible for incentive payments for the development of a CNMP.
The setting of cost-share rates and incentive payment levels
is the
third component of optimizing environmental benefits. The
guidance for
optimizing environmental benefits in the proposed rule directs
state
and local decision-makers to identify the priority natural resource
concerns and then select the most appropriate practices that will
address those concerns and set rates to encourage the implementation of
the best suited practices. The Department fully supports using locally-
led conservation to identify the practices that will be used and
setting the cost-share rates. Except for 100 percent cost-share, the
final rule does not prohibit any of the recommendations received and
allows for local innovation to structure a cost-effective program
delivery. The Department feels the proposed rule provides the
flexibility necessary for the state and local decision-makers to
optimize program delivery. However, the final rule will require
that
the State Conservationist, with the Regional Conservationist's
concurrence, must approve the EQIP cost-share lists used in the state.
NRCS received 11 comments opposing the guidance provided in
the
preamble of the proposed rule that ``no payments will be made for land
management practices that are currently accepted and practiced in the
agricultural community''. The Department believes that EQIP should
provide cost-effective conservation. Producers who have not adopted
commonly accepted techniques for their operation are in the minority
and therefore the funds would most likely have a greater benefit when
used for other practices. If, however, the particular circumstances
warrant the implementation of these practices, the proposed rule does
not prohibit the State Conservationist from offering assistance for
them. The guidance will continue to be provided in the EQIP Program
Manual.
An additional six respondents wanted assurance that the
provision
in the proposed rule to adjust EQIP cost-share to ensure that the
combined financial contributions (all public and private sources) for a
structural conservation practice will not exceed 100 percent and would
not restrict additional cost-shares from non-USDA sources. It is not
the intent of the Department to restrict additional cost-shares that a
participant may receive from non-USDA sources but to achieve cost-
effectiveness, USDA will reduce EQIP assistance when non-USDA
assistance together with USDA assistance for a practice exceeds 100
percent. The Department does not support providing maximum cost-share
to a participant when other source of assistance bring the total to
more than 100 percent of the cost of installing a structural
conservation practice.
Six respondents commented that State Tribal Conservation
Advisory
Council (TCAC) should be included in the setting of cost-share rates
and determination of cost-share rates and incentive payment levels.
Five commented that cost-share should remain at 75 percent for
structural practices on Indian Nations because of the economic
hardships for Indian Nations. The rule has not been amended. Under
existing rules, TCAC can be a part of the State Technical Committee
that provides advice to the State Conservationist for setting cost-
share rates incentive payments.
Section 1466.24 EQIP Payments
Ten respondents commented that a social security number
should not
be the only number used to keep track of EQIP payments to individuals
because it would create a burden for many Indians
[[Page 32348]]
who do not have them. Additional comments expressed concern for the
requirement to collect all Tribal member names and numbers within the
entity because Indian Tribes entering into EQIP contracts frequently
have thousands of members who actually will not receive any portion of
the EQIP payment. The rule has been amended to allow the use of
individual Tribal enrollment numbers or other unique identification
numbers in lieu of a social security number and only for those members
who will receive a pro rata share of the EQIP payment. Tribal
enrollment numbers (TEN) are unique to each individual tribal member.
If the Tribal member does not have a TEN, then a social security number
or other unique identifier will be used. Tribal member using the TEN
identifier for payments received on tribal land will also use the TEN
identified for all other EQIP contracts.
Six respondents did not want to be classified as an entity
because
of the perception that the Adjusted Gross Income (AGI) limitation would
apply to Indian Tribes. Under 7 CFR 1400, Indian Tribes are exempt from
the AGI qualifications.
Section 1466.25 Contract Modifications and Transfers of Land
The Department received no comments relative to this section
of the
proposed rule.
Section 1466.26 Contract Violations and Termination
The Department received no comments relative to this section
of the
proposed rule.
Section 1466.27 Conservation Innovation Grants
This section is reserved for future regulations
that address
implementation of Conservation Innovation Grants.
Section 1466.30 Appeals
The Department received no comments relative to this section
of the
proposed rule.
Section 1466.31 Compliance With Regulatory Measures
NRCS received 15 comments supporting using EQIP funds to
assist
private non-industrial forest land owners develop and prepare Habitat
Conservation Plans (HCP). NRCS policy requires that all NRCS assistance
must be compliant with all Federal, State and local laws. EQIP does not
provide any authority to do otherwise. Therefore private landowners,
corporations, State or local governments, or other non-Federal
landowners who wish to conduct activities on their land that might
incidentally harm (or ``take'') a species listed as endangered or
threatened must first obtain an incidental take permit from the U.S.
Fish and Wildlife Service. To obtain a permit, the applicant must
develop a HCP, designed to offset any harmful effects the proposed
activity might have on the species. The HCP process allows development
to proceed while promoting listed species conservation. NRCS will
provide guidance that will allow technical assistance to be used for
the development of a HCP for EQIP assisted activities that adversely
affect listed species but costs or fees associated with the permit
acquisition will not be an eligible cost. This concept applies to all
laws, rules, and regulations that may require remedial actions;
the
planning can be provided through EQIP assistance but permit fees and
costs cannot.
Section 1466.32 Access to Operating Unit
NRCS received 4 comments recommending that an authorized
agent of
NRCS must first obtain permission before accessing a participant's
property. NRCS 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 a reasonable effort should be made 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 NRCS must document in the participant's file the
efforts made to notify the participant before accessing the operating
unit. No change was made in the final rule concerning these comments.
Section 1466.33 Performance Based Upon Advice or Action of
Representatives of NRCS
The Department received no comments relative to this section
of the
proposed rule.
Section 1466.34 Offsets and Assignments
The Department received no comments relative to this section
of the
proposed rule.
Section 1466.35 Misrepresentation and Scheme or Device
The Department received no comments relative to this section
of the
proposed rule.
List of Subjects in 7 CFR Part 1466
Administrative practices and procedures, Conservation,
Natural
Resources, Water Resources, Wetlands, Cost-Shares, Payment Rates.
0
Accordingly, part 1466 of Title 7 of the Code of Federal Regulations
is
revised 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 National priorities.
1466.5 National allocation and management.
1466.6 State allocation and management.
1466.7 Outreach activities.
1466.8 Program requirements.
1466.9 EQIP plan of operations.
1466.10 Conservation practices.
1466.11 Technical and other assistance provided by qualified
personnel not affiliated with USDA.
Subpart B--Contracts and Payments
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 rates and incentive payment levels.
1466.24 EQIP payments.
1466.25 Contract modifications and transfers of land.
1466.26 Contract violations and termination.
1466.27 Conservation innovation grants.
[Reserved]
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 NRCS.
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-3839-8
Subpart A--General Provisions
Sec. 1466.1 Applicability.
Through the Environmental Quality
Incentives Program (EQIP), the
Natural Resources Conservation Service (NRCS) provides assistance to
eligible farmers and ranchers to address soil, water, air, and related
natural resources concerns, and to encourage enhancements on their
lands in an environmentally beneficial and cost-effective manner and to
assist producers in complying with environmental
regulations. The
purposes of the program are achieved by
[[Page 32349]]
implementing structural and land management conservation practices on
eligible land.
Sec. 1466.2 Administration.
(a) The funds, facilities, and authorities of the Commodity
Credit
Corporation (CCC) are available to NRCS for carrying out EQIP.
Accordingly, where NRCS is mentioned in this part, it also refers to
the CCC's funds, facilities, and authorities where applicable.
(b) NRCS and the Farm Service Agency (FSA) will consult, at
the
National level, in establishing policies, priorities, and guidelines
related to the implementation of this part. FSA may continue to
participate in EQIP through participation on State Technical Committees
and Local Work Groups.
(c) NRCS supports ``locally-led conservation'' by using State
Technical Committees at the state level and Local Work Groups at the
county/parish level to advise NRCS on technical issues relating to the
implementation of EQIP such as:
(1) Identification of priority natural resource concerns;
(2) Identification of which conservation practices should be
eligible for financial assistance; and
(3) Establishment of cost-share rates and incentive payment
levels.
(d) No delegation in this part to lower organizational levels
shall
preclude the Chief of NRCS from determining any issues arising under
this Part or from reversing or modifying any determination made under
this Part.
(e) NRCS may enter into agreements with other Federal or
State
agencies, Indian Tribes, conservation districts, units of local
government, public or private organizations and individuals to assist
NRCS with implementation of the program in this part.
Sec. 1466.3 Definitions.
The following definitions will apply to this part and all
documents
issued in accordance with this Part, unless specified otherwise:
Agricultural land means cropland, rangeland, pasture, private
non-
industrial forest land, and other land on which crops or livestock are
produced.
Agricultural operation means a parcel or parcels of land
whether
contiguous or noncontiguous, constituting a cohesive management unit
for agricultural purposes. An agricultural operation shall be regarded
as located in the county in which the principle dwelling is situated,
or if there is no dwelling thereon, it shall be regarded to be in the
county in which the major portion of the land is located.
Animal waste management facility means a structural
conservation
practice used for storing or treating animal waste.
Applicant means an individual, entity or joint operation who
has an
interest in a farming operation, as defined in 7 CFR 1400.3, who has
requested in writing to participate in EQIP.
At-risk species means any plant or animal species as
determined by
the State Technical Committee to need direct intervention to halt its
population decline.
Beginning Farmer or Rancher means an individual or entity
who:
(1) Has not operated a farm or ranch, or who has operated a
farm or
ranch for not more than 10 consecutive years. This requirement applies
to all members of an entity, and
(2) Will materially and substantially participate in the
operation
of the farm or ranch.
(i) In the case of a contract with an individual,
individually or
with the immediate family, material and substantial participation
requires that the individual provide substantial day-to-day labor and
management of the farm or ranch, consistent with the practices in the
county or State where the farm is located
(ii) In the case of a contract with an entity or joint
operation,
all members must materially and substantially participate in the
operation of the farm or ranch. Material and substantial participation
requires that each of the members provide some amount of the
management, or labor and management necessary for day-to-day
activities, such that if each of the members did not provide these
inputs, operation of the farm or ranch would be seriously impaired.
Chief means the Chief of NRCS, USDA, or designee.
Comprehensive Nutrient Management Plan (CNMP) means a
conservation
system that is unique to an animal feeding operation (AFO). A CNMP is a
grouping of conservation practices and management activities which,
when implemented as part of a conservation system, will help to ensure
that both production and natural resource protection goals are
achieved. A CNMP incorporates practices to use animal manure and
organic by-products as a beneficial resource. A CNMP addresses natural
resource concerns dealing with soil erosion, manure, and organic by-
products and their potential impacts on all natural resources including
water and air quality, which may derive from an AFO. A CNMP is
developed to assist an AFO owner/operator in meeting all applicable
local, Tribal, State, and Federal water quality goals or
regulations.
For nutrient impaired stream segments or water bodies, additional
management activities or conservation practices may be required by
local, Tribal, State, or Federal water quality goals or
regulations.
Conservation district means any district or unit of State,
tribal,
or local government formed under State, tribal, or territorial law for
the express purpose of developing and carrying out a local soil and
water conservation program. Such district or unit of government
may be
referred to as a ``conservation district,'' ``soil conservation
district,'' ``soil and water conservation district,'' ``resource
conservation district,'' ``land conservation committee,'' or similar
name.
Conservation Innovation Grants means competitive grants made
under
EQIP to individuals, governmental and non-governmental organizations to
stimulate innovative methods to leverage Federal funds to implement
EQIP to enhance and protect the environment in conjunction with
agricultural production.
Conservation practice means a specified treatment, such as a
structural or land management practice, that is planned and applied
according to NRCS standards and specifications.
Contract means a legal document that specifies the rights and
obligations of any individual or entity who has been accepted to
participate in the program. An EQIP contract is a binding
agreement for
the transfer of assistance from USDA to the participant to share in the
costs of applying conservation practices as opposed to procurement
contract.
Cost-share payment means the financial assistance from NRCS
to the
participant to share the cost of installing a structural conservation
practice.
Cost-effectiveness refers to the least-cost practices or
system
that achieves the stated conservation objectives.
Designated Conservationist means a NRCS employee whom the
State
Conservationist has designated as responsible for administration of
EQIP in a specific area.
Entity means those organizations as defined in 7 CFR 1400.3.
EQIP plan of operations means the identification, location
and
timing of conservation practices, both structural and land management,
that the producer proposes to implement on eligible land in order to
address the priority natural resource concerns and optimize
environmental benefits.
Field office technical guide means the official local NRCS
source
of resource information and interpretations of guidelines, criteria,
and standards for
[[Page 32350]]
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 financial assistance from NRCS 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.)
that is Federally recognized as eligible for the special programs and
services provided by the United States to Indians because of their
status as Indians.
Indian land is an inclusive term describing all lands held in
trust
by the United States for individual Indians or tribes, or all lands,
titles to which are held by individual Indians or tribes, subject to
Federal restrictions against alienation or encumbrance, or all lands
which are subject to the rights of use, occupancy and/or benefit of
certain tribes. For purposes of this part, the term Indian land also
includes land for which the title is held in fee status by Indian
tribes, and the U.S. Government-owned land under Bureau of Indian
Affairs jurisdiction.
Joint operation means a general partnership, joint venture,
or
other similar business arrangement as defined in 7 CFR 1400.3.
Land management practice means conservation practices that
primarily use site-specific management techniques and methods to
conserve, protect from degradation, or improve soil, water, air, 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.
Lifespan means the period of time during which a conservation
practice is to be maintained and used for the intended purpose.
Limited Resource Farmer or Rancher means:
(1) A person with direct or indirect gross farm sales not
more than
$100,000 in each of the previous two years (to be increased starting in
FY 2004 to adjust for inflation using Prices Paid by Farmer Index as
compiled by National Agricultural Statistical Service (NASS), and
(2) Has a total household income at or below the national
poverty
level for a family of four, or less than 50 percent of county median
household income in each of the previous two years (to be determined
annually using Commerce Department Data).
Liquidated damages means a sum of money stipulated in the
EQIP
contract which the participant agrees to pay NRCS if the participant
fails to adequately complete the contract. The sum represents an
estimate of the anticipated or actual harm caused by the failure, and
reflects the difficulties of proof of loss and the inconvenience or
non-feasibility of otherwise obtaining an adequate remedy.
Livestock means animals produced for food or fiber such as
dairy
cattle, beef cattle, buffalo, poultry, turkeys, swine, sheep, horses,
goats, fish or other animals raised by aquaculture, or animals the
State Conservationist identifies with the advice of the State Technical
Committee.
Livestock production means farm or ranch operations involving
the
production, growing, raising, or reproduction of livestock or livestock
products.
Local Work Group means representatives of local offices of
FSA, the
Cooperative State Research, Education, and Extension Service, the
conservation district, and other Federal, State, and local government
agencies, including Tribes, with expertise in natural resources who
advise NRCS on decisions related to EQIP implementation.
National measures mean measurable criteria identified by the
Chief
of NRCS, with the advice of other Federal agencies and State
Conservationists, to help EQIP achieve the National Priorities and
statutory requirements.
National priorities means resource issues identified by the
Chief
of NRCS, with advice from other Federal agencies and State
Conservationists, which will be used to determine the distribution of
EQIP funds and guide local implementation of EQIP.
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 a producer who is a party to an EQIP
contract.
Person has the same meaning as set out in 7 CFR 1400.3.
Priority natural resource concern(s) means an existing or
pending
degradation of natural resource condition(s) as identified locally by
the State Conservationist or Designee with advice from the State
Technical Committee and Local Work Groups.
Producer means an individual or entity 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 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.
Secretary means the Secretary of the U. S. Department of
Agriculture.
State Conservationist means the NRCS employee authorized to
implement EQIP and direct and supervise NRCS activities in a State, the
Caribbean Area, or the Pacific Basin Area.
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, including
vegetative practices, that involves establishing, constructing, or
installing a site-specific measure to conserve, protect from
degradation, or improve soil, water, air, 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, contour grass
strips, filterstrips, critical area plantings, tree planting, wildlife
habitat, and capping of abandoned wells.
Technical assistance means the personnel and support
resources
needed to: (1) Conduct conservation planning; conservation practice
survey, layout, design, installation, and certification; (2) training,
certification, and quality assurance of professional
conservationists;
and (3) evaluation and assessment of the producer's operation and
maintenance needs.
Technical Service Provider means an individual,
private-sector
entity, or
[[Page 32351]]
public agency certified by NRCS to provide technical services to
program participants or to NRCS.
Wildlife means birds, fishes, reptiles, amphibians,
invertebrates,
and mammals along with all other non-domesticated animals.
Sec. 1466.4 National Priorities.
(a) The following National priorities will be used in the
implementation of EQIP:
(1) Reductions of nonpoint source pollution, such as
nutrients,
sediment, pesticides, or excess salinity in impaired watersheds
consistent with TMDLs where available as well as the reduction of
groundwater contamination and the conservation of ground and surface
water resources;
(2) Reduction of emissions, such as particulate matter,
nitrogen
oxides (NOX), volatile organic compounds, and ozone
precursors and depleters that contribute to air quality
impairment
violations of National Ambient Air Quality Standards;
(3) Reduction in soil erosion and sedimentation from
unacceptable
levels on agricultural land; and
(4) Promotion of at-risk species habitat conservation.
(b) With the advice of other Federal agencies, NRCS will
undertake
periodic reviews of the National priorities and the effects of program
delivery at the state and local level. The Chief intends to annually
review the National priorities to adapt the program to address
emerging
resource issues. NRCS will:
(1) Use the National priorities to guide the allocation of
EQIP
funds to the State NRCS offices,
(2) Use the National priorities in conjunction with state and
local
priorities to assist with prioritization and selection of EQIP
applications, and
(3) Periodically review and update the National priorities
utilizing input from the public and affected stakeholders to ensure
that the program continues to address national resource needs.
Sec. 1466.5 National Allocation and Management.
The Chief allocates EQIP funds to the State Conservationists
to
implement EQIP at the state and local level. In order to optimize the
overall environmental benefits over the duration of the
program, the
Chief of NRCS will:
(a) Use an EQIP fund allocation formula that reflects
National
priorities and measures and that uses available natural resource and
resource concerns data to distribute funds to the state level. This
procedure will be updated periodically to reflect adjustments to
National priorities and information about resource concerns and program
performance. The data used in the allocation formula will be updated as
it becomes available.
(b) Provide a performance incentive to NRCS in States that
demonstrate a high level of program performance in implementing
EQIP.
Performance incentives shall consider factors such as
strategically
planning EQIP implementation, effectively addressing National
priorities and measures and state and local resource concerns, the
effectiveness of program delivery, the use of Technical Service
Providers, and the number of contracts with Limited Resource Producers
and Beginning Farmers. These funds will be made available annually from
a reserve established at the National level when funds become
available.
(c) Use NRCS's accountability system to establish state level
EQIP
performance goals and treatment objectives.
(d) Ensure that National, state and local level information
regarding program implementation such as resource priorities,
eligible
practices, ranking processes, allocation of base and reserve funds, and
program achievements is made available to the public.
(e) Consult with State Conservationists and other Federal
agencies
with the appropriate expertise and information when evaluating the
considerations described in this section.
(f) Authorize the State Conservationist, with advice from the
State
Technical Committee and Local Work Groups, to determine how funds will
be used and how the program will be administered to achieve
National
priorities and measures in each state.
(g) Move towards assessment, evaluation and accountability
based on
actual natural resource and environmental outcomes and results.
Sec. 1466.6 State Allocation and Management.
The State Conservationist will:
(a) Identify State priority natural resource concerns with
the
advice of the State Technical Committee that directly contribute
towards meeting National priorities and measures and will use NRCS's
accountability system to establish local level EQIP performance goals
and treatment objectives;
(b) Identify, as appropriate and necessary, Designated
Conservationists who are NRCS employees that are assigned the
responsibility to administer EQIP in specific areas, and
(c) Use the following to determine how to manage the EQIP
program
and how to allocate funds within a state:
(1) The nature and extent of priority natural resource
concerns at
the state and local level;
(2) The availability of human resources, incentive programs,
education programs, and on-farm research programs from Federal, State,
Indian Tribe, and local levels, both public and private, to assist with
the activities related to the priority natural resource concerns;
(3) The existence of multi-county and/or multi-state
collaborative
efforts to address regional priority natural resource concerns;
(4) Ways and means to measure performance and success; and
(5) The degree of difficulty that producers face in complying
with
environmental laws.
Sec. 1466.7 Outreach Activities.
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 priority 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.
Sec. 1466.8 Program requirements.
(a) Program participation is voluntary. The
applicant develops an
EQIP plan of perations for the agricultural land to be treated that
serves as the basis for the EQIP contract. NRCS provides participants
with technical assistance, cost-share and/or incentive payments to
apply needed conservation practices and land-use adjustments.
(b) 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 7 CFR part 12.
(2) Have an interest in the farming operation as defined in 7
CFR
1400.3.
(3) Have control of the land for the life of the proposed
contract
period.
(i) An exception may be made by the Chief of NRCS in the case
of
land allotted by the Bureau of Indian Affairs (BIA), Tribal land, or
other instances in which the 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 the Chief of NRCS
with the written
[[Page 32352]]
concurrence of the landowner in order to apply a structural
conservation practice.
(4) Submit an EQIP plan of operations that is acceptable to
NRCS as
being in compliance with the terms and conditions of the program;
and
(5) Supply information, as required by NRCS, to determine
eligibility for the program; including but not limited to
information
to verify the applicant's status as a limited resource farmer or
rancher or beginning farmer or rancher and eligibility as per Adjusted
Gross Income, 7 CFR 1400 subpart G.
(c) Land used as cropland, rangeland, pasture, private non-
industrial forest land, and other land on which crops or livestock are
produced, including agricultural land that NRCS determines poses a
threat to soil, water, air, or related natural resources, may be
eligible for enrollment in EQIP. However, land may be considered for
enrollment in EQIP only 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; and
(ii) The conservation practices will contribute to an
improvement
in the identified natural resource concern; or
(3) Tribal, allotted, or Indian trust land.
(d) Sixty percent of available EQIP financial assistance will
be
targeted to conservation practices related to livestock production,
including practices on grazing lands and other lands directly
attributable to livestock production, as measured at the National
level.
Sec. 1466.9 EQIP plan of operations.
(a) All conservation practices in the EQIP plan of operations
must
be carried out in accordance with the applicable NRCS field office
technical guide.
(b) The EQIP plan of operations must include:
(1) A description of the participant's specific conservation
and
environmental objectives to be achieved;
(2) To the extent practicable, the quantitative or
qualitative
goals for achieving the participant's conservation and environmental
objectives;
(3) A description of one or more conservation practices in
the
conservation management system to be implemented to achieve the
conservation and environmental objectives;
(4) A description of the schedule for implementing the
conservation
practices, including timing and sequence; and
(5) Information that will enable evaluation of the
effectiveness of
the plan in achieving the environmental objectives.
(c) If an EQIP plan of operations includes an animal waste
storage
or treatment facility, the participant must provide for the development
and implementation of a comprehensive nutrient management plan.
(d) Participants are responsible for implementing the EQIP
plan of
operations.
(e) A participant may receive assistance to implement an EQIP
plan
of operations for water conservation with funds authorized by section
1240I of the 1985 Act, 16 U.S.C. 3839aa-9, only if the assistance will
facilitate a net savings in ground or surface water resources in the
agricultural operation of the producer.
Sec. 1466.10 Conservation practices.
(a) NRCS will determine which structural and land management
practices are eligible for program payments. A list of eligible
practices will be available to the public.
(b) Cost-share and incentive payments will not be made to a
participant for a conservation practice that the applicant has applied
prior to application for the program.
(c) Cost-share and incentive payments will not be made to a
participant who has implemented or initiated the implementation of a
conservation practice prior to approval of the contract unless a waiver
was granted by the State Conservationist or Designated Conservationist
prior to the installation of the practice.
(d) A participant will be eligible for cost-share or
incentive
payments for irrigation related structural and land management
practices only on land that has been irrigated for two of the last five
years prior to application for assistance.
(e) Where new technologies or conservation practices that
provide a
high potential for optimizing environmental benefits 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.
Sec. 1466.11 Technical and other assistance provided by qualified
personnel not affiliated with USDA.
(a) NRCS may use the services of qualified Technical Service
Providers in performing its responsibilities for technical assistance.
(b) Participants may use technical and other assistance from
qualified personnel of other Federal, State, and local agencies, Indian
Tribes, or individuals who are certified as Technical Service Providers
by NRCS.
(c) 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. Payments to certified Technical Service
Providers will be made only for an application that has been approved
for payments.
(d) NRCS retains approval authority over certification of
work done
by non-NRCS personnel for the purpose of approving EQIP payments.
Subpart B--Contracts and Payments
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. Applications are accepted throughout the
year. Producers who are members of a joint operation may file a single
application for the joint operation.
(b) The State Conservationist or Designated Conservationist
with
advice from the State Technical Committee or Local Work Groups will
develop a ranking process to prioritize applications for funding which
address priority natural resource concerns. The State Conservationist
or Designated Conservationist will periodically select for funding the
highest ranked applications based on applicant eligibility and the NRCS
ranking process. The State Conservationist or Designated
Conservationist will rank all applications according to the following
factors:
(1) The degree of cost-effectiveness of the proposed
conservation
practices,
(2) The magnitude of the environmental
benefits resulting from the
treatment of National priorities and the priority natural resource
concerns reflecting the level of performance of a conservation
practice,
(3) Treatment of multiple resource concerns,
(4) Use of conservation practices that provide
environmental
enhancements for a longer period of time,
(5) Compliance with Federal, state, local or tribal
regulatory
requirements concerning soil, water and air quality; wildlife
habitat;
and ground and surface water conservation, and
(6) Other locally defined pertinent factors, such as the
location
of the
[[Page 32353]]
conservation practice, the extent of natural resource degradation, and
the degree of cooperation by local producers to achieve environmental
improvements.
(c) If the State Conservationist determines that the
environmental
values of two or more applications for cost-share payments or incentive
payments are comparable, the State Conservationist will not assign a
higher priority to the application solely because it would present the
least cost to the program.
(d) The ranking will not give preferential treatment to
applications based on size of the operation.
(e) The ranking will determine which applications will be
awarded
contracts. The approving authority for EQIP contracts will be the State
Conservationist or designee except the approving authority for any EQIP
contract greater than $100,000 is the NRCS Regional Conservationist.
(f) The State Conservationist will make all information
regarding
priority resources concerns, how the EQIP program is
implemented in the
state, and the cost-list of eligible practices available to the public.
Sec. 1466.21 Contract requirements.
(a) In order for a participant to receive cost-share or
incentive
payments, the participant must enter into a contract agreeing to
implement one or more conservation practices. Cost-share payments and
incentive payments as well as reimbursement for Technical Service
Provider technical assistance may be included in a contract.
(b) An EQIP contract will:
(1) Identify all conservation practices to be implemented,
the
timing of practice installation, the operation and maintenance
requirements for the practices, and applicable cost-shares and
incentive payments allocated to the practices under the contract;
(2) Be for a minimum duration of one year after completion of
the
last practice, but not more than 10 years;
(3) Incorporate all provisions as required by law or statute,
including requirements that the participant will:
(i) Not implement any practices on the farm or ranch unit
under the
contract, or agricultural operation of the producer for ground and
surface water conservation contracts, that would tend to defeat the
purposes of the program;
(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. 1466.26;
(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.
1466.25;
(iv) Implement a comprehensive nutrient management plan when
the
EQIP contract includes a waste storage or waste treatment facility; and
(v) Supply information as may be required by NRCS 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) Specify any other provision determined necessary or
appropriate
by NRCS.
(c) The participant must start at least one financially
assisted
practice within the first 12 months of signing a contract. If a
participant, for reasons beyond their control, is unable to start a
practice within the first year of the contract, they can request a
waiver from the State Conservationist.
(d) Each contract will be limited to no more than $450,000.
Sec. 1466.22 Conservation practice operation and maintenance.
The contract will incorporate the operation and maintenance
of
conservation practices applied under the contract. The participant must
operate and maintain each conservation practice installed under the
contract for its intended purpose for the life span of the conservation
practice as determined by NRCS. Conservation practices installed before
the execution of a contract, but needed in the contract to obtain the
environmental benefits agreed upon must be operated and
maintained as
specified in the contract. NRCS may periodically inspect a conservation
practice during the lifespan of the practice as specified in the
contract to ensure that operation and maintenance are occurring. When
NRCS finds that a participant is not operating and maintaining
practices in an appropriate manner, NRCS will request a refund of cost-
share or incentive payments made for that practice under the contract.
Sec. 1466.23 Cost-share rates and incentive payment levels.
(a) Determining Cost-share payment rates.
(1) The maximum cost-share payments made to a participant
under the
program will not be more than 75 percent of the actual cost of
a
structural practice, as determined by the State Conservationist or
Designated Conservationist, except that for a Limited Resource Farmer
or Rancher or Beginning Farmer and Rancher cost-share payments may be
up to 90 percent, as determined by the State Conservationist or
Designated Conservationist.
(2) The cost-share payments to a participant under the
program will
be reduced proportionately below the rate established by the State
Conservationist or Designated Conservationist, or the cost-share limit
as set in paragraph (c) of this section, to the extent that total
financial contributions for a structural practice from all public and
private sources exceed 100 percent of the actual cost of the practice.
(b) Determining Incentive Payment levels. NRCS may provide
incentive payments to participants for performing a land management
practice or to develop a comprehensive nutrient management plan in an
amount and at a rate necessary to encourage a participant to perform
the practice that would not otherwise be initiated without government
assistance. The State Conservationist or Designated Conservationist,
with the advice of the State Technical Committee or Local Work Groups,
may consider establishing limits on the extent of land management
practices that may be included in a contract.
(c) Cost-share rates and incentive payment levels for
conservation
practices will be established by the State Conservationist or
Designated Conservationist with advice from the State Technical
Committee and Local Work Groups. The State Conservationist or
Designated Conservationist will develop a list of eligible conservation
practices with varied cost-share rates and incentive payment levels
that considers:
(1) The conservation practice cost-effectiveness and
innovation,
(2) The degree of treatment of priority natural resource
concerns,
(3) The number of resource concerns the practice will
address,
(4) The longevity of the practice's environmental
benefits, and
(5) Other pertinent local considerations.
(d) Practice cost lists that include any structural practice
with
greater than 50 percent cost share rate are to be approved by the State
Conservationist with concurrence of the Regional Conservationist.
[[Page 32354]]
Sec. 1466.24 EQIP payments.
(a) Except as provided in paragraph (b) of this section, the
total
amount of cost-share and incentive payments paid to an individual or
entity under this part may not exceed an aggregate of $450,000,
directly or indirectly, for all contracts entered into during FYs 2002
through 2007.
(b) To determine eligibility for payments, NRCS will use the
following criteria:
(1) The provisions in 7 CFR part 1400, Payment Limitation and
Payment Eligibility, subparts A and G.
(2) States, political subdivisions, and entities thereof will
not
be considered to be individuals or entities eligible for payment.
(3) To be eligible to participate in EQIP, all individuals
applying, either alone or as part of a joint operation, must provide a
social security number. Where applicable; American Indians, Alaska
Natives, and Pacific Islanders may use another unique identification
number for each individual eligible for payment.
(4) To be eligible to participate in EQIP, any entity, as
identified in 7 CFR part 1400, must provide a list of all members of
the entity and embedded entities along with the members' social
security numbers and percentage interest in the entity.
(5) With regard to contracts on Indian Land, payments
exceeding the
payment limitation may be made to the Tribal venture if an official of
BIA or a Tribal official certifies in writing that no one individual
directly or indirectly will receive more than the limitation. The
Tribal entity must also provide, annually, listing of individuals and
payments made, by social security number or other unique identification
number, during the previous year for calculation of overall payment
limitations. The Tribal entity must also produce, at the request of
NRCS, proof of payments made to the individuals that incurred the costs
for installation of the practices.
(6) Any cooperative association of producers that markets
commodities for producers will not be considered to be a person
eligible for payment.
(7) Eligibility for payments in accordance with 7 CFR part
1400,
subpart G, average adjusted gross income limitation, will be determined
at the time of contract approval.
(8) Eligibility for higher cost-share payments in accordance
with
paragraph (a) of this section will be determined at the time of
approval of the contract.
(9) Any participant that utilizes a unique identification
number as
an alternative to a social security number will utilize only that
identifier for any and all other EQIP contracts that the participant is
party to. Violators will be considered to have provided fraudulent
representation and be subject to full penalties of section 1466.35.
(10) A participant will 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 practice on
same land under any other conservation program administered by
USDA.
(11) Before NRCS will approve and issue any cost-share or
incentive
payment, the participant must certify that the conservation practice
has been completed in accordance with the contract, and NRCS or other
approved Technical Service Provider certifies that the practice has
been carried out in accordance with the conservation practice standards
of the applicable NRCS field office technical guide.
(12) The provisions of 7 CFR 1412.505 except that refunds
will be
determined by the State Conservationist.
Sec. 1466.25 Contract modifications and transfers of land.
(a) The participant and NRCS may modify a contract if the
participant and NRCS agree to the contract modification and the EQIP
plan of operations is revised in accordance with NRCS requirements and
is approved by the Designated Conservationist.
(b) The participant and NRCS may agree to transfer a contract
to
another producer. The transferee must be determined by NRCS to be
eligible to participate in EQIP and must 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) NRCS may require a participant to refund all or a portion
of
any financial 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. 1466.26 Contract violations and termination.
(a)(1) If NRCS determines that a participant is in violation
of the
terms of a contract or documents incorporated by reference into the
contract, NRCS shall give the participant a reasonable time, as
determined by NRCS, to correct the violation and comply with the terms
of the contract and attachments thereto. If a participant continues in
violation, NRCS may terminate the EQIP contract.
(2) Notwithstanding the provisions of paragraph (a)(1) of
this
section, a contract termination shall be effective immediately upon a
determination by NRCS that the participant has submitted false
information or filed a false claim, or engaged in any act, scheme, or
device 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 NRCS terminates a contract, the participant will
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 7 CFR part 1403. NRCS may exercise the option of
requiring only partial refund of the payments received if a previously
installed conservation practice can function independently, is not
adversely affected by the violation or the absence of 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 lifespan of the practice.
(2) If NRCS terminates a contract due to breach of contract
or the
participant voluntarily terminates the contract, the participant will
forfeit all rights for further payments under the contract and shall
pay such liquidated damages as are prescribed in the contract. NRCS
will have the option to waive the liquidated damages, depending upon
the circumstances of the case.
(3) When making contract termination decisions, NRCS may
reduce the
amount of money owed by the participant by a proportion that 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
NRCS
determines that termination is in the public interest.
(5) In carrying out its role in this section, NRCS may
consult with
the local conservation district.
Sec. 1466.27 Conservation Innovation Grants.
[Reserved]
Subpart C--General Administration
Sec. 1466.30 Appeals.
A participant may obtain administrative review of an adverse
decision under EQIP in accordance with 7 CFR parts 11 and 614.
Determination
[[Page 32355]]
in matters of general applicability, such as payment rates, payment
limits, and cost-share percentages, the designation of identified
priority natural resource concerns, and eligible conservation practices
are not subject to appeal.
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 NRCS 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, inspect any work undertaken under the contract, and collect
information necessary to evaluate the performance of conservation
practices in the contract. The NRCS 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 NRCS.
If a participant relied upon the advice or action of any
authorized
representative of NRCS and did not know, or have reason to know, that
the action or advice was improper or erroneous, 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 NRCS, to provide
a fair and equitable treatment because of the good-faith reliance on
the part of the participant. The financial or technical liability for
any action by a participant that was taken based on the advice of a
NRCS certified non-USDA Technical Service Provider will remain with the
certified Technical Service Provider and will not be assumed by NRCS
when NRCS authorizes payment.
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 7 CFR
part 1403
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 7
CFR part 1404.
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 NRCS
all payments, plus interest determined in accordance with 7 CFR part
1403.
(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 NRCS all payments, plus interest determined in
accordance with 7 CFR part 1403, received by such producer with respect
to all contracts. The producer's interest in all contracts shall be
terminated.
Signed in Washington, DC on May 15, 2003.
Bruce I. Knight,
Vice President, Commodity Credit Corporation, Chief, Natural Resources
Conservation Service.
[FR Doc. 03-13024 Filed 5-29-03; 8:45 am]
BILLING CODE 3410-10-P
| | |
About Us
Notices
Page 32337-32355
Back to Top