Daily Rules, Proposed Rules, and Notices of the Federal Government
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The Office of Management and Budget (OMB) has determined that this rule is not significant and will not be reviewed by OMB under Executive Order 12866.
It has been determined that the Regulatory Flexibility Act is not applicable to this final rule because NRCS is not required by 5 U.S.C. 553, or any other provision of law, to publish a notice of final rulemaking with respect to the subject matter of this rule.
NRCS has determined through a Civil Rights Impact Analysis that the issuance of this final rule discloses no disproportionately adverse impact for minorities, women, or persons with disabilities. The data presented indicates producers who are members of the historically underserved groups have participated in NRCS programs at parity with other producers. Extrapolating from historical participation data, it is reasonable to conclude that NRCS programs, including Regional Equity, will continue to be administered in a non-discriminatory manner. Outreach and communication strategies are in place to ensure all producers will be provided the same information to allow them to make informed compliance decisions regarding the use of their lands that will affect their participation in the Department of Agriculture (USDA) programs. Regional Equity funding applies to all persons equally regardless of their race, color, national origin, gender, sex, or disability status. Therefore, the Regional Equity rule portends no adverse civil rights implications. Copies of the Civil Rights Impact Analysis may be obtained from Geno Bulzomi, Acting Team Leader, Program Allocations and Management Support Team, Department of Agriculture, Natural Resources Conservation Service, 1400 Independence Avenue, SW., Room 5208 South Building, Washington, DC 20250.
The Regional Equity final rule establishes procedures for implementing this provision at part 662 of this title and will not directly impact the environment. This rule falls within the categories of activities that have been determined not to have a significant individual or cumulative effect on the human environment and are excluded from the preparation of an environmental assessment or environmental impact statement as set forth in the USDA National Environmental Policy Act regulations in 7 CFR part 1b.3. Regional Equity is an administrative function that relates to the funding of programs and fund disbursements. These activities are categorically excluded based upon 7 CFR 1b.3(a)(1) and 7 CFR 1b.3(a)(2) of USDA regulations.
Section 2904 of the Food, Conservation, and Energy Act of 2008 (2008 Act) requires that implementation of programs authorized by Title II of the
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, requires Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments or the private sector of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of UMRA requires NRCS to prepare a written statement, including a cost benefit assessment, for proposed and final rules with “Federal mandates” that may result in such expenditures for State, local, or Tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objectives of the rule.
This rule contains no Federal mandates, as defined under Title II of UMRA, for State, local, and Tribal governments or the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.
This final rule has been reviewed in accordance with Executive Order 12988. The provisions of this rule are not retroactive. Furthermore, the provisions of this final rule preempt State and local laws to the extent such laws are inconsistent with the rule.
NRCS has considered this final rule in accordance with Executive Order 13132, issued August 4, 1999. NRCS has determined that the rule conforms to the Federalism principles set out in this Executive Order; would not impose any compliance costs on the States; and would not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, NRCS concludes that this rule does not have Federalism implications.
This final rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal governments. USDA has assessed the impact of this final rule on Indian Tribal governments and has concluded that this final rule will not negatively affect communities of Indian Tribal governments. The rule will neither impose substantial direct compliance costs on Tribal governments, nor preempt Tribal law.
Pursuant to section 304 of the Department of Agriculture Reorganization Act of 1994, Public Law 104-354, USDA classified this final rule as “not major.”
NRCS is issuing a final rule on the Regional Equity provision, implementing section 1241(d) of the Food Security Act of 1985, as amended, (16 U.S.C. 3841(d)) that requires minimum annual levels of conservation program funding to each State. Section 2703 of the 2008 Act amended the Regional Equity provision by: Increasing the minimum annual aggregate funding level from $12 million to $15 million; establishing new conservation programs that are subject to the Regional Equity provision (Agricultural Water Enhancement Program, Chesapeake Bay Watershed Initiative, Conservation Stewardship Program, and Voluntary Public Access and Habitat Incentive Program); and requiring consideration of the respective demand in each Regional Equity State.
On January 13, 2009, NRCS published an interim final rule setting forth how it intended to implement the Regional Equity provision. Under the Regional Equity regulation at 7 CFR part 662, NRCS identifies the States that will not receive through the normal program allocation process a minimum aggregate level of funding of $15 million, known as “Regional Equity States,” and also identifies programs that will contribute funds to meeting this threshold known as “contribution programs.” NRCS then establishes program-specific drawing accounts for each contribution program sufficient to bring all Regional Equity States to an allocation of $15 million. A Regional Equity State can request funds from the program-specific drawing accounts after the State has obligated at least 90 percent of its initial allocation for that program. The Chief, however, has the discretion to waive this requirement to meet the specific need of a particular program.
This process enables NRCS to monitor the use of drawing account funds and ensure that funds are used in the most effective and timely manner. NRCS used a similar funding allocation procedure in fiscal year (FY) 2008, when some Regional Equity States were unable to use all of their Regional Equity funding. By holding Regional Equity funds in program-specific drawing accounts, NRCS reallocated these funds earlier in the fiscal year than the statutory April 1 deadline and identified States that could obligate the funds toward high-priority needs. NRCS believes this approach positions the agency to ensure that program funds are directed to the highest-ranked applications.
Under the interim final rule, NRCS identified that it considers the respective demand in each Regional Equity State in each program by having State Conservationists in Regional Equity States cooperatively determine the funding opportunity for each State's program-specific drawing account. State Conservationists consult with their respective State Technical Committees in evaluating the demand in their State for funding from the drawing accounts. In evaluating the demand for Regional Equity funding opportunities, State Conservationists consider how applications address national program priorities, historic trends in program interest, and the State's priority natural resource concerns. This process enables additional funds to be allocated in a way that meets the natural resource conservation needs of each State's producers, meets the demand of each State's program needs, and ensures that States do not receive additional funding when there is insufficient demand.
NRCS published the Regional Equity interim final rule on January 13, 2009, and invited public comment on the rule as well as on any economic or environmental impacts that might result from implementation of the regulation. The deadline for comments was March 16, 2009. NRCS received 7 responses containing more than 20 comments.
After consideration of those comments, as described herein, NRCS is issuing this final rule to establish consistency and certainty in implementation procedures for the Regional Equity provision.
Administrative practice and procedure, Agriculture, and Soil conservation.
16 U.S.C. 3841(d).
This part sets forth the procedures that NRCS will use to implement the Regional Equity provision of the Food Security Act of 1985, 16 U.S.C. 3841(d).
The following definitions are applicable to this part:
The regulation in this part sets forth the policies and procedures for the Regional Equity provision as administered by the NRCS. This regulation applies to the Regional Equity programs defined in this part. The Chief will implement the Regional Equity provision by identifying programs that contribute to the establishment of program-specific drawing accounts for priority funding in Regional Equity States.
The following procedures will implement the Regional Equity provision:
(1) Identifying which programs contribute funds, as determined by the Chief, consistent with the limitations established in 16 U.S.C. 3841(d); and
(2) Each State's respective demand.
(i) State Conservationists in Regional Equity States, in consultation with State Technical Committees, will evaluate and determine their respective program demands based on the following criteria:
(A) Program applications and how they address national program priorities;
(B) Historic trends in program interest; and
(C) State priority natural resource concerns.
(ii) The State Conservationist's identified respective demand will assist the Chief in determining the composition of contribution program funds within the established drawing account.