AGENCY:

Natural Resources Conservation Service and the Commodity Credit Corporation, United States Department of Agriculture.

ACTION:

Interim rule.

SUMMARY:

The Agricultural Improvement Act of 2018 (the 2018 Farm Bill) made several minor changes to certain of the Natural Resources Conservation Service (NRCS) conservation programs and related requirements. The conservation programs and related requirements include the administration of the State Technical Committee, the Watershed Protection and Flood Prevention Act Program, the Healthy Forests Reserve Program (HFRP), the Technical Service Provider (TSP) Assistance provisions, and the Voluntary Public Access and Habitat Incentive Program (VPA-HIP). This rule makes changes to the existing regulations for the conservation programs that are consistent with the changes made by the 2018 Farm Bill.

DATES:

Effective: May 6, 2019.

Comment date: Submit comments on or before July 5, 2019.

ADDRESSES:

We invite you to submit comments on this rule. In your comments, include the date, volume, and page number of this issue of the Federal Register, and the title of rule. You may submit comments by the following method:

• Federal eRulemaking Portal: Go to http://www.regulations.gov and search for Docket ID USDA-2019-0005. Follow the online instructions for submitting comments.

All written comments received will be publicly available on www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Martha Joseph; phone: (814) 203-5562, or email: martha.joseph@usda.gov. Persons with disabilities who require alternative means for communication should contact the USDA Target Center at (202) 720-2600 (voice).

SUPPLEMENTARY INFORMATION:

Background

This rule makes minor changes to existing NRCS regulations and an NRCS administered Commodity Credit Corporation (CCC) regulation. The 2018 Farm Bill (Pub. L. 115-334) made mandatory minor changes to several conservation programs and related requirements, including State Technical Committee, Watershed Protection and Flood Prevention, HFRP, TSP Assistance, and VPA-HIP. The minor changes include:

• Adding to the membership of the State Technical Committee (7 CFR part 610, subpart C);
• Waiving the requirement for watershed plans under certain circumstances under the Watershed Protection and Flood Prevention (7 CFR part 622);
• Expanding the purposes of HFRP (7 CFR part 625);
• Authorizing that certification of TSPs be through a qualified non-federal entity (7 CFR part 652); and
• Including as a criteria for evaluation of VPA-HIP bids whether the land is enrolled in the Wetlands Reserve Easement (WRE) component of the Agricultural Conservation Easement Program (ACEP).

State Technical Committee (7 CFR Part 610, Subpart C)

The 2018 Farm Bill added the State Cooperative Extension Service and land grant universities in the State to the membership of the State Technical Committee. This rule adds representatives from these organizations to the list of members in 7 CFR 610.22.

Watershed Protection and Flood Prevention Program (7 CFR Part 622)

The Watershed Protection and Flood Prevention Act of 1954 (Pub. L. 83-566, Watershed Operations), as amended by section 2401 of the 2018 Farm Bill, authorizes NRCS to install watershed improvement measures to reduce flooding, sedimentation, and erosion damage; improve conservation, development, utilization, and disposal of water; and advance conservation and proper utilization of land.

Working in cooperation with soil conservation districts and other local sponsoring organizations, NRCS prepares detailed watershed plans that outline soil and water management problems and proposals to alleviate the problems, including estimated benefits and costs, cost-sharing arrangements, and operation and maintenance arrangements. The 2018 Farm Bill authorizes NRCS to waive the watershed plan for works of improvement if the NRCS Chief determines that (1) the watershed plan is unnecessary or duplicative; and (2) the works of improvement are otherwise consistent with applicable requirements. NRCS incorporates the waiver in 7 CFR 622.31.

HFRP (7 CFR Part 625)

HFRP is authorized by Title V of the Healthy Forests Restoration Act of 2003 (Pub. L. 108-148). The 2018 Farm Bill amended HFRP to add that protection of at-risk species is a purpose in the conservation of forest land, permanent easements are an enrollment option for acreage on Tribal land, and land that improves the well-being of a species identified as of greatest conservation need by a State wildlife action plan is now eligible and a priority for enrollment. Additionally, the 2018 Farm Bill removed the requirement to not use more than 40 percent of funds allocated each fiscal year for cost-share agreements, and not more than 60 percent of funds allocated each fiscal year for easements. The 2018 Farm Bill also updated the types of practices that can be conducted on enrolled land. NRCS incorporates these changes into 7 CFR part 625.

Additionally, NRCS is removing reference to the Regional Conservation Partnership Program (RCPP) authorized under Subtitle I of Title XII of the Food Security Act of 1985 (known as the 1985 Farm Bill). The 2018 Farm Bill amendments change how HFRP interacts with RCPP. The Agricultural Act of 2014 (Pub. L. 113-79) identified HFRP as a covered program under RCPP, and authorized the NRCS Chief to waive non-statutory, discretionary HFRP provisions and operational procedures where the NRCS Chief determined the waiver would further the purposes of HFRP. However, due to the changes to RCPP in the 2018 Farm Bill, NRCS is revising 7 CFR 625.1 to remove the specific waiver authority. (Other RCPP regulatory changes are being made in a separate rulemaking.)

NRCS is also taking this opportunity to make some minor administrative changes and corrections to improve the coordination between NRCS easement programs. These changes include: Updating the definition of Indian Tribe to clearly include Pueblos, identifying that lands are ineligible if there are onsite or offsite conditions that could interfere with the ability to meet HFRP purposes, and incorporating payment flexibility for easement and restoration payments to allow single payments, annual payments, and restoration payments based on actual or average costs. Finally, NRCS is making a correction to 7 CFR 625.10(d) because 30-year contracts had inadvertently been omitted from the types of agreements identified in that paragraph.

TSP (7 CFR Part 652)

The 2018 Farm Bill amended the TSP provisions in section 1242 of the 1985 Farm Bill by defining third-party provider and adding authority for NRCS to certify a TSP through a non-federal entity approved by the Secretary to perform the certification. The current regulatory definition of third-party provider is consistent with the 2018 Farm Bill changes and does not require any changes to implement the 2018 Farm Bill. NRCS had authorized non-federal entities to recommend TSPs for certification; NRCS is amending the alternative certification process to specify that NRCS will enter into agreements with the recommending organizations to certify TSPs.

VPA-HIP (7 CFR Part 1455)

VPA-HIP is authorized by section 1240R of the 1985 Farm Bill. VPA-HIP provides, within funding limits, grants to State and Tribal Governments to encourage owners and operators of privately held farm, ranch, and forest land to voluntarily make that land available for access by the public for wildlife-dependent recreation, including hunting and fishing under programs administered by State and Tribal Governments. NRCS administers VPA-HIP on behalf of CCC. The 2018 Farm Bill amended VPA-HIP funding to authorize $50,000,000 for fiscal years 2019 through 2023, to the maximum extent practicable, and requires $3 million of the VPA-HIP funds be made available to encourage public hunting and other recreational activities on lands subject to ACEP-WRE. Since the VPA-HIP regulation identifies program priorities, NRCS is adding this new priority in 7 CFR 1455.20(c)(5).

Effective Date, Notice and Comment, and Paperwork Reduction Act

In general, the Administrative Procedure Act (APA, 5 U.S.C. 553) requires that a notice of proposed rulemaking be published in the Federal Register and interested persons be given an opportunity to participate in the rulemaking through submission of written data, views, or arguments with or without opportunity for oral presentation, except when the rule involves a matter relating to public property, loans, grants, benefits, or contracts. This rule involved matters relating to benefits and is therefore is exempt from the APA requirements. Further, the regulations to implement the programs of Chapter 58 of Title 16 of the U.S. Code, as specified in 16 U.S.C. 3846, and the administration of those programs, are:

• To be made as an interim rule effective on publication, with an opportunity for notice and comment;
• Exempt from the Paperwork Reduction Act (44 U.S.C. chapter 35); and
• To use the authority under 5 U.S.C. 808 related to Congressional review and avoid any potential delay in the effective date.

The APA exemption covers the changes for HFRP and Watershed Protection and Flood Prevention. The exemption in 16 U.S.C. 3846 covers the changes for the other programs in this rule. Therefore, this rule is effective on the date of publication in the Federal Register.

NRCS invites interested persons to participate in this rulemaking by submitting written comments or views about the changes made by this interim rule. The most helpful comments reference a specific portion of the regulation, explain the reason for any recommended changes, and include supporting data and references to relevant section of either the 2018 Farm Bill or the 1985 Farm Bill. All comments received on or before the closing date for comments will be considered. If changes to the regulation need to be made in response to public comments, those comments will be addressed in a subsequent rulemaking.

Executive Orders 12866, 13563, 13771, and 13777

Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasized the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” established a federal policy to alleviate unnecessary regulatory burdens on the American people.

The Office of Management and Budget (OMB) designated this rule as not significant under Executive Order 12866, “Regulatory Planning and Review,” and therefore, OMB has not reviewed this rule.

Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” requires that, in order to manage the private costs required to comply with federal regulations, for every new significant or economically significant regulation issued, the new costs must be offset by the elimination of at least two prior regulations. As this rule is designated not significant, it is not subject to Executive Order 13771.

Clarity of the Regulation

Executive Order 12866, as supplemented by Executive Order 13563, requires each agency to write all rules in plain language. In addition to your substantive comments on this rule, we invite your comments on how to make the rule easier to understand. For example:

• Are the requirements in the rule clearly stated? Are the scope and intent of the rule clear?
• Does the rule contain technical language or jargon that is not clear?
• Is the material logically organized?
• Would changing the grouping or order of sections or adding headings make the rule easier to understand?
• Could we improve clarity by adding tables, lists, or diagrams?
• Would more, but shorter, sections be better? Are there specific sections that are too long or confusing?
• What else could we do to make the rule easier to understand?

Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), generally requires an agency to prepare a regulatory analysis of any rule whenever an agency is required by APA or any other law to publish a proposed rule, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This rule is not subject to the Regulatory Flexibility Act because no law requires that a proposed rule be published for this rulemaking initiative.

Environmental Review

The environmental impacts of this rule have been considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and the NRCS regulations for compliance with NEPA (7 CFR part 650). The 2018 Farm Bill requires minor changes to NRCS conservation programs, and there are no changes to the basic structure of the programs. The majority of the changes are mandatory and, therefore, do not require evaluation under the National Environmental Policy Act. In addition, minor administrative improvements are made to the regulations as a result of continuing evaluations of NRCS program implementation efforts. The only discretionary regulatory changes are administrative in nature. Such administrative changes fall within a categorical exclusion for policy development, planning, and implementation that relate to routine administrative activities (7 CFR 1b.3(a)(1)). As such, NRCS has determined that the provisions identified in this rule are mandatory or minor and administrative requirements of the 2018 Farm Bill programs and do not constitute a major federal action that would significantly affect the quality of the human environment, individually or cumulatively. Therefore, NRCS will not prepare an environmental assessment or environmental impact statement for this regulatory action.

Executive Order 12372

Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with State and local officials that would be directly affected by proposed federal financial assistance. The objectives of the Executive Order are to foster an intergovernmental partnership and a strengthened federalism, by relying on State and local processes for State and local government coordination and review of proposed federal financial assistance and direct federal development. For reasons specified in the final rule related notice regarding 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), the programs and activities in this rule are excluded from the scope of Executive Order 12372.

Executive Order 12988

This rule has been reviewed under Executive Order 12988, “Civil Justice Reform.” This rule will not preempt State or local laws, regulations, or policies unless they represent an irreconcilable conflict with this rule. Before any judicial actions may be brought regarding the provisions of this rule, the administrative appeal provisions of 7 CFR part 11 are to be exhausted.

Executive Order 13132

This rule has been reviewed under Executive Order 13132, “Federalism.” The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, except as required by law. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.

Executive Order 13175

This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.

NRCS has assessed the impact of this rule on Indian Tribes and determined that this rule does not, to our knowledge, have Tribal implication that requires Tribal consultation under Executive Order 13175. The regulation changes do not have Tribal implications that preempt Tribal law and are not expected have a substantial direct effect on one or more Indian Tribes. If a Tribe requests consultation, NRCS will work with the USDA Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions, and modifications identified in this rule are not expressly mandated by the 2018 Farm Bill.

Separate from Tribal consultation, communication and outreach efforts are in place to assure that all producers, including Tribes (or their members), are provided information about the regulation changes. Specifically, NRCS obtains input through Tribal Conservation Advisory Councils. A Tribal Conservation Advisory Council may be an existing Tribal committee or department and may also constitute an association of member Tribes organized to provide direct consultation to NRCS at the State, regional, and national levels to provide input on NRCS rules, policies, programs, and impacts on Tribes. Tribal Conservation Advisory Councils provide a venue for agency leaders to gather input on Tribal interests. Additionally, NRCS will be holding several sessions with Indian Tribes and Tribal entities across the country in fiscal year 2019 to describe the 2018 Farm Bill changes to NRCS conservation programs, obtain input about how to improve Tribal and Tribal member access to NRCS conservation assistance, and make any appropriate adjustments to the regulations that will foster such improved access.

Unfunded Mandates

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 104-4), requires federal agencies to assess the effects of their regulatory actions on State, local, and Tribal Governments or the private sector. Agencies generally must prepare a written statement, including cost benefits analysis, for proposed and final rules with federal mandates that may result in expenditures of $100 million or more in any 1 year for State, local or Tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost-effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no federal mandates, as defined under Title II of UMRA, for State, local, and Tribal Governments or the private sector. Therefore, this rule is not subject to the requirements of UMRA.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

SBREFA (Pub. L. 104-121) normally requires that an agency delay the effective date of a major rule for 60 days from the date of publication to allow for Congressional review. This rule is not a major rule under the SBREFA. Therefore, neither NRCS nor the CCC is required to delay the effective date for 60 days from the date of publication to allow for Congressional review. As stated above, this rule is effective on the date of publication in the Federal Register.

Federal Assistance Programs

The titles and numbers of the Federal Domestic Assistance Programs in the Catalog of Federal Domestic Assistance to which this rule applies are:

10.922—Healthy Forests Reserve Program

10.903—Voluntary Public Access-Habitat Incentives Program

10.904—Watershed Protection and Flood Prevention

E-Government Act Compliance

NRCS and CCC are committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

List of Subjects

7 CFR Part 610

• Grazing Lands
• Soil conservation
• Technical assistance
• Water resources

7 CFR Part 622

• Flood control
• Grant programs—natural resources
• Loan programs—natural resources
• Soil conservation
• Technical assistance
• Watersheds

7 CFR Part 625

• Administrative practice and procedure
• Agriculture
• Forest and forest product
• Soil conservation

7 CFR Part 652

• Soil conservation
• Technical assistance
• Water resources

7 CFR Part 1455

• Agriculture
• Animals
• Environmental protection
• Fishing
• Forests and forest products
• Grant programs
• Hunting
• Indians
• Indians—land
• Natural resources
• Recreation and recreation areas
• Rural areas
• State and local governments
• Wildlife

For the reasons discussed above, CCC and NRCS amend 7 CFR parts 610, 622, 625, 652, and 1455 as follows:

PART 610—TECHNICAL ASSISTANCE

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

Authority: 1 6 U.S.C. 590a-f, 590q, 2005b, 3861, and 3862.

2. Amend § 610.22 as follows:

a. In paragraph (a)(10), remove the word “and” after the semi-colon;

b. In paragraph (a)(11), remove the period and add a semi-colon and “; and” in its place; and

c. Add paragraph (a)(12).

The addition reads as follows:

PART 622—WATERSHED PROJECTS

3. The authority citation for part 622 is revised to read as follows:

Authority: 16 U.S.C. 1001-1012a, and 33 U.S.C. 701b-1.

4. Revise § 622.31 as follows:

a. Designate the undesignated paragraph as paragraph (a); and

b. Add paragraph (b).

The addition reads as follows:

PART 625—HEALTHY FORESTS RESERVE PROGRAM

5. The authority citation for part 625 continues to read as follows:

Authority: 16 U.S.C. 6571-6578.

6. Amend § 625.1 as follows:

a. Redesignate paragraph (b)(3) as paragraph (b)(4);

b. Add new paragraph (b)(3); and

c. Remove paragraph (e).

The addition reads as follows:

7. In § 625.2 revise the definitions of “conservation practice” and “Indian tribe” to reads as follows:

8. Amend § 625.4 as follows:

a. Revise paragraphs (a) and (c)(2);

b. In paragraph (d)(2) after the semi-colon remove the word “and”;

c. In paragraph (d)(3) remove the period and add “; and” in its place; and

d. Add a new paragraph (d)(4).

The revisions and addition read as follows:

9. Amend § 625.6, in paragraph (a)(2), by removing “or species” and adding “or deemed of greatest conservation need under a State wildlife action plan, or species” in their place.

10. Amend § 625.8 as follows:

a. In paragraph (c)(2), remove “no more than 10 annual payments of equal or unequal size” and add “through annual payments” in its place; and

b. Revise paragraphs (e) and (f).

The revisions read as follows:

11. Amend § 625.10, paragraph (d), by removing “easement,” and adding “easement, 30-year contract,” in its place.

12. Amend § 625.11, paragraph (a), by adding a new second sentence to read as follows:

PART 652—TECHNICAL SERVICE PROVIDER ASSISTANCE

13. The authority citation for part 652 continues to read as follows:

Authority: 16 U.S.C. 3842.

14. Amend § 652.25 by adding paragraphs (f) through (h) to read as follows:

PART 1455—VOLUNTARY PUBLIC ACCESS AND HABITAT INCENTIVE PROGRAM

15. The authority citation for part 1455 continues to read as follows:

Authority: 15 U.S.C. 714b and 714c, and 16 U.S.C. 3839.

16. In § 1455.20, paragraph (c)(5), at the end, remove the word “program” and add “program, including lands enrolled in the Wetland Reserve Easement component of the Agricultural Conservation Easement Program, part 1468, subpart C of this chapter” in its place.