Emergency Conservation Program

Federal Register, Volume 84 Issue 132 (Wednesday, July 10, 2019)
[Federal Register Volume 84, Number 132 (Wednesday, July 10, 2019)]
[Rules and Regulations]
[Pages 32839-32841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14346]
Rules and Regulations
                                                Federal Register
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Federal Register / Vol. 84, No. 132 / Wednesday, July 10, 2019 /
Rules and Regulations
[[Page 32839]]
Farm Service Agency
7 CFR Part 701
[Docket No. FSA-2019-0006]
RIN 0560-AI46
Emergency Conservation Program
AGENCY: Farm Service Agency, USDA.
ACTION: Final rule.
SUMMARY: The Agriculture Improvement Act of 2018 (2018 Farm Bill)
amended provisions of the Emergency Conservation Program (ECP). This
rule implements those changes to ECP and makes additional minor
technical amendments to the ECP regulations. The Farm Service Agency
(FSA) is amending regulations to add wildfires as an eligible natural
disaster, expand eligibility requirements, increase the maximum payment
amount certain participants may receive, provide cost-share for fence
repair and replacement, and provide certain cost-share payments more
expeditiously than was previously authorized under ECP. In addition,
this rule makes minor changes related to the Emergency Forest
Restoration Program (EFRP).
DATES: Effective July 10, 2019.
FOR FURTHER INFORMATION CONTACT: Shanita Landon; telephone: (202) 690-
1612; or email: [email protected];usda.gov. Persons with
disabilities who require alternative means for communication should
contact the USDA Target Center at (202) 720-2600 (voice).
    Through ECP, FSA provides payments to farmers and ranchers to
rehabilitate farmland damaged by certain natural disasters and to
implement emergency water conservation measures in periods of severe
drought. ECP provides cost-share assistance to farmers or ranchers to
rehabilitate farmland damaged by wind erosion, floods, hurricanes, or
other natural disasters as determined by the Deputy Administrator.
Section 2403 of the 2018 Farm Bill (Pub. L. 115-334) made changes to
the ECP provisions. For ECP, the 2018 Farm Bill amended the
Agricultural Credit Act of 1978 (16 U.S.C. 2201), by adding wildfires
as an eligible natural disaster for which payments may be provided to
eligible producers. The changes to the regulations include:
     Adding an additional category to natural disasters to be
consistent with the changes to the ECP provisions;
     Making a portion of the cost-share payments for the repair
or replacement of fencing available to eligible producers prior to the
producer carrying out the repair or replacement;
     Increasing the maximum payment amount a producer can
receive under ECP;
     Establishing a maximum payment percentage that a producer
who is a socially disadvantaged or beginning farmer or rancher may
receive; and
     Making minor technical changes to the existing ECP and
EFRP regulations.
    FSA is relocating definitions applicable to EFRP into the general
definitions section in Sec.  701.2. The defined terms are ``Commercial
forest land,'' ``Nonindustrial private forest land,'' and ``Owners of
nonindustrial private forest land.''
Maximum Cost Share Percentages
    Prior to this rule, a qualified limited resource farmer or rancher
that participated in ECP may have received reimbursement of up to 90
percent of the total allowable cost. The 2018 Farm Bill expands this
maximum cost-share to include socially disadvantaged and beginning
farmers and ranchers, while in all cases limiting total payment for a
single event to an amount not to exceed 50 percent of the agricultural
value of the land.
    This rule continues the maximum cost-share payments that can be
made to a farmer or rancher who is not a limited-resource, socially
disadvantaged, or beginning farmer or rancher, to no more than 75
percent of the total allowable cost, not to exceed 50 percent of the
agricultural value of the land.
Maximum ECP Payments per Person or Legal Entity
    Prior to this rule, a person or legal entity was limited to a
maximum ECP cost share of $200,000 per person or legal entity, per
disaster event. This rule will increase the maximum per person or legal
entity payment limitation to $500,000.
Advanced Payment Option for Fences
    The 2018 Farm Bill authorizes a set aside of funds to provide that
25 percent of funding is to be used for the repair or replacement of
fencing. The rule also adds Sec.  701.128 for advance payments of up to
25 percent of the cost of repairing or replacement of fencing before
the repair or replacement is carried out. In the event this cost share
assistance is not spent within 60 calendar days of being issued, the
participant will be required to refund the cost-share payment.
EFRP Maximum Financial Assistance
    The rule revises Sec.  701.226 to clarify that an EFRP participant
will not receive more than 75 percent of the total cost of the
emergency measures carried out by the participant; and, that the
$500,000 maximum applies for a person or legal entity, per natural
disaster. In addition, there is no provision for a waiver of the above-
described EFRP limits for financial assistance.
Effective Date and Notice and Comment
    The Administrative Procedure Act (APA; 5 U.S.C. 553) provides that
the notice and comment and 30-day delay in the effective date
provisions do not apply when the rule involves specified actions,
including matters relating to benefits. This rule relates to benefits
and thus falls within that exemption.
    This rule is not a major rule under Congressional Review Act.
Therefore, FSA is not required to delay the effective date for 60 days
from the date of publication to allow for Congressional review.
    Therefore, this rule is effective on the date of publication the
Federal Register.
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
[[Page 32840]]
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. The requirements in
Executive Orders 12866 and 13563 for the analysis of costs and benefits
apply to rules that are determined to be significant. 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 and an analysis
of the costs and benefits is not required under either Executive Orders
12866 or 13563.
    Executive Order 13771, ``Reducing Regulation and Controlling
Regulatory Costs,'' requires that in order to manage the private costs
required to comply with Federal regulations that 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. In a general response to the
requirements of Executive Order 13777, USDA created a Regulatory Reform
Task Force, and USDA agencies were directed to remove barriers, reduce
burdens, and provide better customer service both as part of the
regulatory reform of existing regulations and as an ongoing approach.
FSA reviewed this regulation and made changes to improve any provision
that was determined to be outdated, unnecessary, or ineffective.
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
since FSA is not required to publish a notice of proposed rulemaking
for this rule.
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 FSA regulations
for compliance with NEPA (7 CFR part 799). This rule includes changes
mandated by the 2018 Farm Bill and discretionary technical amendments
that are administrative in nature. Accordingly, the discretionary
provisions of this action are covered by the Categorical Exclusion,
found in 7 CFR 799.31(b)(2)(iii) for minor amendments or revisions to
previously approved actions and Sec.  799.31(b)(3)(i), for the issuance
of minor technical corrections to regulations. No Extraordinary
Circumstances (Sec.  799.33) exist. As such, the implementation of the
discretionary technical amendments provided in this rule does not
constitute a major Federal action that would significantly affect the
quality of the human environment, individually or cumulatively.
Therefore, FSA will not prepare an environmental assessment or
environmental impact statement for this regulatory action and this rule
serves as the environmental screening documentation of the programmatic
environmental compliance decision for this federal action.
Executive Order 12372
    Executive Order 12372, ``Intergovernmental Review of Federal
Programs,'' requires consultation with State and local officials. 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 would 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 parts 11 and 780 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.
    FSA has assessed the impact of this rule on Indian Tribes and
determined that this rule does not, to our knowledge, have Tribal
implications that requires Tribal consultation under Executive Order
13175. If a Tribe requests consultation, FSA 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.
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 need to prepare a written statement,
including a cost benefit 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
[[Page 32841]]
effective or least burdensome alternative that achieves the objectives
of the rule.
    This rule contains no Federal mandates, as defined in Title II of
UMRA, for State, local, and Tribal governments or the private sector.
Therefore, this rule is not subject to the requirements of sections 202
and 205 of UMRA.
Federal Assistance Programs
    The title and number of the Federal Domestic Assistance Program in
the Catalog of Federal Domestic Assistance, to which this rule applies
is 10.054--Emergency Conservation Program.
Paperwork Reduction Act
    In the accordance with the Paperwork Reduction Act of 1995 (44
U.S.C. 3501-3520), this rule does not change the information collection
approved by OMB under OMB control number 0560-0082.
E-Government Act Compliance
    FSA 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 in 7 CFR Part 701
    Disaster assistance, Environmental protection, Forests and forest
products, Grant programs--agriculture, Grant programs--natural
resources, Reporting and recordkeeping requirements, Rural areas, Soil
conservation, Water resources, Wildlife.
    For the reasons discussed above, FSA amends 7 CFR part 701 as
1. The authority citation for part 701 continues to read as follows:
    Authority:  16 U.S.C. 2201-2206; Sec. 101, Pub. L. 109-148, 119
Stat. 2747; and Pub. L.111-212, 124 Stat. 2302.
Subpart B--Emergency Conservation Program
2. In Sec.  701.2, add definitions for ``Commercial forest land'',
``Nonindustrial private forest land'', and ``Owners of nonindustrial
private forest land'' in alphabetical order.
    The additions read as follows:
Sec.  701.2  Definitions.
* * * * *
    (b) * * *
    Commercial forest land means forest land with trees intended to be
harvested for commercial purposes that has a productivity potential
greater than or equal to 20 cubic feet per year of merchantable timber.
* * * * *
    Nonindustrial private forest land means rural commercial forest
lands with existing tree cover, or which are suitable for growing
trees, that are owned by a private non-industrial forest landowner as
defined in this section.
    Owners of nonindustrial private forest means, for purposes of the
EFRP, an individual, group, association, corporation, Indian Tribe, or
other legal private entity owning nonindustrial private forest land or
who receives concurrence from the landowner for making the claim in
lieu of the owner; and, for practice implementation, the one who holds
a lease on the land for a minimum of 10 years. Owners or lessees
principally engaged in the primary processing of raw wood products are
excluded from this definition. Owners of land leased to lessees who
would be excluded under the previous sentence are also excluded.
3. Amend Sec.  701.103 as follows:
a. Revise section heading;
b. In paragraph (a), remove ``or other'' and add ``wildfire, or other''
in its place; and
c. In paragraph (b), remove ``wind'' and add ``wildfire, wind'' in its
    The revision reads as follows:
Sec.  701.103  Eligible losses, objective, and payments.
* * * * *
4. Amend Sec.  701.126 as follows:
a. In paragraph (a), remove ``lesser of the participant's total actual
cost or of the'';
b. Revise paragraph (b); and
c. In paragraph (c), remove ``shall'' and adding ``will'' in its place.
    The revision reads as follow.
Sec.  701.126  Maximum cost-share percentage.
* * * * *
    (b) However, notwithstanding paragraph (a) of this section, a
producer who is a limited resource, socially disadvantaged, or
beginning farmer or rancher that participates in ECP may receive up to
90 percent of the total allowable costs expended to perform the
practice as determined under this part.
* * * * *
Sec.  701.127   [Amended]
5. Amend Sec.  701.127 by removing ``$200,000'' and adding ``$500,000''
in its place.
6. Add Sec.  701.128 to read as follows:
Sec.  718.128  Repair or replacement of fencing.
    (a) With respect to a payment to an agricultural producer for the
repair or replacement of fencing, the agricultural producer has the
option of receiving up to 25 percent of the projected payment,
determined based on the applicable percentage of the fair market value
of the cost of the repair or replacement, as determined by FSA before
the agricultural producer carries out the repair or replacement.
    (b) If the funds provided under paragraph (a) of this section are
not spent by the agricultural producer within 60 calendar days of the
date on which the agricultural producer receives those funds, the funds
must be returned to FSA by a date determined by FSA.
    (c) Payments made under this section are subject to the
availability of funds.
7. Amend Sec.  701.203 as follows:
a. Revise the section heading; and
b. In paragraph (a), remove ``on or after January 1, 2010,''.
    The revision reads as follow.
Sec.  701.203  Eligible measures, objectives, and assistance.
* * * * *
Sec.  701.205   [Amended]
8. Amend Sec.  701.205 paragraph (a)(2) by removing ``, which occurred
on or after January 01, 2010,''.
Sec.  701.226   [Amended]
9. Amend Sec.  701.226 as follows:
a. In paragraph (b), remove ``A person,'' and add ``A person, or legal
entity,'' in its place and remove ``disaster'' and add ``natural
disaster'' in its place; and
b. Remove paragraph (c).
Steven Peterson,
Acting Administrator, Farm Service Agency.
[FR Doc. 2019-14346 Filed 7-9-19; 8:45 am]