Regional Conservation Partnership Program
| Published date | 13 February 2020 |
| Citation | 85 FR 8131 |
| Record Number | 2020-01812 |
| Section | Rules and Regulations |
| Court | Commodity Credit Corporation |
Federal Register, Volume 85 Issue 30 (Thursday, February 13, 2020)
[Federal Register Volume 85, Number 30 (Thursday, February 13, 2020)]
[Rules and Regulations]
[Pages 8131-8145]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01812]
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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.
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Federal Register / Vol. 85, No. 30 / Thursday, February 13, 2020 /
Rules and Regulations
[[Page 8131]]
DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR Part 1464
[Docket ID NRCS-2019-0012]
RIN 0578-AA70
Regional Conservation Partnership Program
AGENCY: Natural Resources Conservation Service (NRCS) and the Commodity
Credit Corporation (CCC), United States Department of Agriculture
(USDA).
ACTION: Interim rule.
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SUMMARY: This interim rule with request for public comment adds a new
part to our regulations to implement the Regioinal Conservation
Partnership Program (RCPP). RCPP enhances conservation and promotes
coordination between NRCS and its partners to help producers and
landowners increase the restoration and sustainable use of soil, water,
and wildlife on a regional or watershed scale. NRCS, an agency of the
USDA, administers RCPP, which is funded through CCC. RCCP is
reauthorized by the Agriculture Improvement Act of 2018 (the 2018 Farm
Bill), which streamlined RCPP administration, including elimination of
``covered program'' financial transfers and replacement of covered
program contracts with RCPP contracts and programmatic partnership
agreements. Section 2504 of the 2018 Farm Bill authorizes NRCS to
implement RCPP through an Availability of Program Funding (APF)
announcement in FY 2019 without issuing a regulation. This interim
administration authority expired September 30, 2019, and section
1271E(e) of the RCPP statute, as amended, requires NRCS to administer
RCPP through a regulation going forward. Therefore, NRCS is publishing
this interim rule to incorporate the 2018 Farm Bill changes to RCPP
program administration.
DATES:
Effective date: February 13, 2020.
Comment date: Submit comments on or before April 13, 2020.
Comment date for Environmental Review: Submit comments on the draft
Environmental Analysis (EA) and Finding of No Significant Impact
(FONSI) on or before March 16, 2020.
ADDRESSES: We invite you to submit comments on this notice. In your
comments, include the date, volume, and page number of this issue of
the Federal Register, and the title of notice. You may submit comments
by the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov and search for Docket ID NRCS-2019-0012. Follow the
online instructions for submitting comments.
All written comments received will be publicly available on http://www.regulations.gov.
A copy of the draft Environmental Assessment (EA) and Finding of No
Significant Impact (FONSI) may be obtained from the following website:
https://www.nrcs.usda.gov/wps/portal/nrcs/detailfull/national/programs/farmbill/?cid=stelprdb1263599. A hard copy may also be requested in one
of the following ways:
Via mail: [email protected] with ``Request for EA'' in
the subject line; or
A written request: Karen Fullen, Environmental Compliance
Specialist, Natural Resources Conservation Service, 9173 W Barnes Dr.,
Suite C, Boise, ID 83709.
FOR FURTHER INFORMATION CONTACT: Michael Whitt; (202) 690-2267; email:
[email protected]. Persons with disabilities who require
alternative means for communication should contact the USDA Target
Center at (202) 720-2600 (voice).
SUPPLEMENTARY INFORMATION:
Background
Section 2401 of the Agricultural Act of 2014 (the 2014 Farm Bill)
originally established the Regional Conservation Partnership Program
(RCPP) through adding a new subtitle I to Title XII of the Food
Security Act of 1985. The 2014 Farm Bill authorized $100 million in
each fiscal year (FY) from FY 2014 through 2018 and made resources
available through reserving seven percent of the funds or acres made
available each year from covered programs, including the Agricultural
Conservation Easement Program (ACEP), the Conservation Stewardship
Program (CSP), the Environmental Quality Incentives Program (EQIP), and
the Healthy Forests Reserve Program (HFRP).
RCPP promotes coordination between NRCS and its partners to deliver
conservation assistance to producers and landowners. Under the 2014
Farm Bill, NRCS administered RCPP through APF notices posted to
grants.gov. NRCS published APF notices in May 2014 for FY 2014-15
implementation, and then additional APFs for FY 2016, FY 2017, and FY
2018 utilizing funds that were made available under the 2014 Farm Bill.
Eligible partners submitted proposals to one of three funding pools--
the national pool, the State pool, and the Critical Conservation Area
(CCA) pool. The Secretary of Agriculture designated eight CCAs in 2014.
Subtitle G of Title II of the Agriculture Improvement Act of 2018
(2018 Farm Bill; Pub. L. 115-334) made the following changes to RCPP
program requirements:
Increases RCPP funding to $300 million for each fiscal
year (FY 2019-23) in mandatory funding and removes the seven percent
covered program funding authority.
Authorizes RCPP program contracts rather than
implementation of RCPP funding through covered program contracts,
making RCPP a stand-alone program.
Eliminates the national funding pool, thereby simplifying
the application process for partners. NRCS will allocate 50 percent of
the annual funding to State and multistate pools and allocate the
remaining 50 percent of annual funding to CCAs.
Adds and simplifies the definitions of ``eligible land''
and ``eligible activities.'' NRCS incorporates eligible activities
available into its participant awards.
Expands the scope of the program by including the
authorities of the Conservation Reserve Program (16 U.S.C. 3831-3835)
and the Watershed Protection and Flood Prevention Program (Pub. L.
566), excluding the
[[Page 8132]]
Watershed Rehabilitation Program, in the definition of ``covered
programs.''
Adds authority to enter into alternative funding
arrangements or grant agreements with eligible partners depending on
the specific requirements of the project. However, the 2018 Farm Bill
limits NRCS to entering no more than 15 alternative funding
arrangements each fiscal year.
Expands the purpose of the program to include protection
of drinking water and ground water on eligible land.
Updates the definition of ``eligible partners'' to
identify conservation districts and acequias specifically.
Allows partnership agreements to be longer than 5 years in
select situations, as determined by NRCS, to further purposes of the
program.
Allows partnership agreement renewals for a period of time
not to exceed 5 years that in select situations may be funded through
an expedited noncompetitive process.
Allows a partnership agreement, or a renewal partnership
agreement, to be extended one time for up to 12 months.
Specifies that a project should: Achieve one or more
conservation benefits; specify the eligible activities to achieve those
conservation benefits; and state the timeline for carrying out the
project, including interim milestones and related conservation
outcomes.
Requires guidance for partners on how to quantify and
report project outcomes, including achievement of conservation
benefits.
Updates reporting requirements and emphasizes the
importance of reporting progress in achieving conservation benefits on
a regular basis.
Requires reporting publicly at the time of selection the
amount of technical assistance (TA) that will be set aside for project
implementation.
Limits TA costs to those costs specific and necessary to
carry out the objectives of the program and to develop and implement
strategies to encourage third-party technical service providers (TSPs)
to provide TA to eligible partners pursuant to a partnership agreement.
Clarifies how eligible partners may make contributions,
including through direct funding, in-kind support, or a combination of
direct funding and in-kind support.
Clarifies that, upon agency approval, amounts expended by
an eligible partner for staff salaries or development of the
partnership agreement between the announcement of the project award and
the signing of the partnership agreement may be counted toward the
partner contribution.
Requires the Secretary to: Establish a timeline for
carrying out the duties under the program; identify a State program
coordinator who will assist partners; establish guidance to assist
partners with assessment requirements; provide partners (other than
grant agreement partners) a semiannual report that contains the status
of each pending and obligated contract under the project and an annual
report describing how the Secretary used that fiscal year's TA; and
ensure that any eligible activity effectively achieves the conservation
benefits identified in an approved partnership agreement.
Requires NRCS to implement RCPP through a simplified
application process.
Prohibits use of adjusted gross income criteria to
determine eligibility for eligible partners.
Gives high priority to partners that build new
partnerships with local, State, and private entities or implement the
project consistent with existing watershed, habitat, or other area
restoration plans.
Outlines the partner responsibilities under a grant
agreement including contributing significant resources to achieving
project goals, carrying out eligible activities on eligible land in
agreement with producers to achieve conservation benefits on a regional
or watershed scale, and providing an annual report to NRCS that
describes the status of the project.
Includes outreach provisions for historically underserved
producers and for eligible partners and producers in designated CCAs.
Requires identification of one or more priority resource
concerns that apply to each CCA.
Requires selection of applications for partnership
agreements under CCAs that address one or more priority resource
concerns for which the CCA is designated.
Overview of Program Administration
RCPP provides NRCS a valuable tool for coordinating the delivery of
conservation assistance with that provided by partners. RCPP promotes
coordination of NRCS conservation activities with partners that offer
value-added contributions to expand the collective ability to address
on-farm, watershed, and regional natural resource concerns. Through
RCPP, NRCS seeks to co-invest with partners to implement projects that
demonstrate innovative solutions to conservation challenges and provide
measurable improvements and outcomes tied to the resource concerns they
seek to address. The 2018 Farm Bill made substantive changes to the
program, and RCPP is now a stand-alone program with authorized
conservation activities as those offered by other NRCS programs, but
with modifications and flexibilities unique to RCPP. These
modifications and flexibilities enhance NRCS' ability to tailor its
conservation assistance to the objectives of RCPP partners to a greater
extent than is available through NRCS' other conservation programs.
NRCS provides RCPP assistance through partnership agreements,
supplemental agreements, and program contracts. This interim rule
provides information about RCPP and guidelines related to submitting
proposals and applications for participation in RCPP. Project approval
and development of partnership agreements are based on competitive
evaluation, selection, and post-selection negotiations, on the basis of
criteria established in this interim rule and any future notice of
funding opportunity.
In particular, eligible partners must submit complete proposals
through a competitive process. The following partners are eligible to
submit a proposal and enter into a partnership agreement with NRCS:
Agricultural or silvicultural producer associations or other group of
producers; States or units of local government; Indian Tribes; farmer
cooperatives; institutions of higher education; conservation districts;
water districts; irrigation districts; acequias; rural water districts
or associations or other organizations with specific water delivery
authority to producers on agricultural land; municipal water or
wastewater treatment entities; organizations or other nongovernmental
entities with an established history of working cooperatively with
producers on agricultural land, as determined by the Chief of NRCS; and
an organization described in section 1265A(3)(B) of the ACEP statute.
The Agency will make available project summaries including partner
contributions via the RCPP website at https://www.nrcs.usda.gov/wps/portal/nrcs/main/national/programs/financial/rcpp/.
NRCS reviews and evaluates the proposals based on the criteria set
forth in this interim rule and as detailed in the annual APF.
Consistent with statutory direction of the 2018 Farm Bill, priority
consideration will be given to proposals that provide for outreach to
and engagement of beginning farmers or ranchers, socially disadvantaged
farmers or ranchers, limited resource farmers or ranchers, veteran
farmers and ranchers, and Indian Tribes within the area covered by the
project. This interim rule
[[Page 8133]]
also includes other statutory priorities, including projects that--
Assist producers in meeting or avoiding the need for a
natural resource regulatory requirement;
Have a high percentage of producers in the area to be
covered by the agreement;
Significantly leverage non-Federal financial and technical
resources and coordinate with other local, State, or national efforts;
Build new partnerships with local, State, and private
entities to include a diversity of stakeholders in the project;
Deliver a high percentage of applied conservation to
achieve conservation benefits or address the priority resource concern
within a CCA;
Implement projects consistent with existing watershed,
habitat, or other area restoration plans;
Provide innovation in conservation methods and delivery,
including outcome-based performance measures and methods; or
Meet other factors that are important for achieving the
purposes of the program, as determined by NRCS.
Proposals may not be adjusted after they have been submitted to
NRCS for review and ranking. After a proposal is selected, NRCS enters
into a negotiation with the lead partner to develop a partnership
agreement that serves as an agreement governing the overall approach of
the project. The identity of the lead partner, the overall funding
amount, the general activity types (e.g., land management, rental,
entity-held easements) to be offered and the resource concerns
addressed by the project are not subject to negotiation. Details on
activities specific to a project (e.g., delineated practices under the
land management activity type) and details on the approach for
reporting on project outcomes are examples of items that are subject to
negotiation.
There is no funding obligated through the partnership agreement
unless the partnership agreement is an alternative funding arrangement
or grant (collectively referred to as ``alternative funding
arrangement''). Consistent with the RCPP statute, any project
management and producer outreach activities between the announcement of
awards and the execution of partnership agreements can be counted as
partner contributions, if such activities are included in the
application. Based on available funding and agency priorities, NRCS may
offer reduced funding from the amount requested in the application.
Under the partnership agreement, NRCS may enter into additional
agreements under the project framework, including RCPP program
contracts with producers and supplemental agreements with the lead
partners or other eligible partners. Supplemental agreements include
agreements for the delivery of technical assistance, easement
agreements with eligible entities, and project-style agreements. These
contracts and agreements are entered into separately in support of the
approved project. The terms set by NRCS are not subject to negotiation.
NRCS will manage these agreements according to NRCS-developed terms and
conditions necessary to ensure program and financial integrity.
Following execution of the partnership agreement, producers within
the approved project areas may apply directly to NRCS to enter into an
RCPP program contract that encompasses eligible land or apply
indirectly through the project partner. Producer participation is
subject to competitive ranking, availability of funds, and NRCS
reporting requirements. Eligible land includes any agricultural or
nonindustrial private forest land or associated land on which NRCS
determines an eligible activity would help achieve conservation
benefits defined for each approved RCPP project's programmatic
agreement.
Producers interested in applying for RCPP participation in an
approved RCPP project must establish and maintain records about their
operation at their local USDA service center. The NRCS designated
conservationist or a partner representative may assist a producer to
determine which implementation actions are appropriate based on the
eligible activities the applicant seeks to install or perform to
compete in an RCPP project funding opportunity, as detailed in the APF.
Under a program contract, NRCS may make a practice implementation
payment, a stewardship payment, a rental payment for targeted
conservation benefits, or an easement payment to secure the long-term
protection of identified conservation benefits for perpetuity or for 30
years, when so limited under State law. Therefore, as described more
fully below, while the term ``program contract'' is used for all such
agreements between NRCS and an eligible producer, a program contract
may be structured to be analogous to an EQIP contract or an agreement
to purchase a conservation easement under ACEP. Additionally, where
appropriate, NRCS may include several different types of payments in
the same instrument or enter into multiple program contracts for
distinct activities implemented by a producer. NRCS will not make
duplicative payments for the same conservation benefits on the same
land.
Producers seeking to participate in an RCPP project must meet all
RCPP eligibility requirements. These requirements vary depending on the
producer's objectives and the eligible activities selected for
implementation under the program contract. A participant may elect to
use a certified TSP for technical assistance associated with
conservation planning or practice design and implementation.
Information about services that may be available from a certified TSP
can be found at: http://techreg.usda.gov/.
Types of Program Contracts With Producers
There are five general types of financial assistance activities
that encompass the range of eligible activities available in RCPP
analogous to those authorized by the covered programs:
(1) Land management contracts that include land improvement,
management, or restoration activities, including land treatment
activities as authorized by Public Law 83-566;
(2) Land rental contracts;
(3) Conservation easements held by the United States (``US-held
easements'');
(4) Conservation easements held by an eligible entity (``entity-
held easements''); and
(5) Public works contracts.
1. Land Management Contracts
Land management contracts are based on an EQIP/CSP-like contracting
model between NRCS and an eligible producer, including private
landowners, committed to addressing RCPP project resource concerns on
eligible lands. The conservation activities included under this
category also include restoration and land management practices
authorized under ACEP-Wetland Reserve Easement (WRE), HFRP, and Public
Law 83-566 (land treatment). Land management contracts will utilize
proven aspects of NRCS planning, implementation, and contracting
methodology, and are expected to be based principally on NRCS
conservation practice standards, existing CSP enhancements, stewardship
activities, and existing payment schedules. However, producer and land
eligibility restrictions tied to specific EQIP and CSP regulatory
requirements, such as CSP ``whole operation'' requirements or EQIP
irrigation history requirements do not apply to these land management
contracts. Payment rates for land management contracts are expected to
mimic similar rates under the covered
[[Page 8134]]
programs. However, payment rates are among the requirements which NRCS
may negotiate at the project (vs participant contract) level. NRCS may
approve payment schedules that provide increased payment rates when the
agency determines that offsetting features of the project (for example,
partner contributions) support requested payment rates and scenarios.
2. Land Rental Activities
NRCS will offer land rental activities through a rental contract
that will be based on a combination of the CRP rental contract and a
land management contract as described above. The contract document for
land rental activities between NRCS and an eligible producer will
address RCPP project resource concerns on eligible lands. Application,
ranking, and contracting will emulate applicable aspects of NRCS
ranking processes, to include use of ranking tools to assess expected
conservation benefits on a project by project basis, and standard NRCS
contracting processes like those employed in similar NRCS conservation
activity based programs to help ensure conservation delivery and
financial accountability. However, unlike the traditional CRP program
administered by USDA's Farm Service Agency, RCPP land rental authority
is not generally expected to be used for landscape-scale soil erosion
protection. Rather, NRCS expects that land rental contracts will focus
on short-term, targeted rental needs in the context of a larger RCPP
project. Examples include paying 1-3 years of forgone income to
incentivize adoption of an innovative cropping system or to transition
to an organic production system. RCPP rental contracts will be based on
proven aspects of NRCS planning, implementation, and contracting
methodology, which may include an estimate of forgone income.
3. U.S.-Held Conservation Easements
RCPP conservation easement enrollment opportunities will be offered
to eligible landowners to execute conservation easements on a diversity
of land uses. U.S.-held easements are in general permanent easements
with exceptions for Tribes (that is, 30-year contracts) or States where
State law prohibits permanent easements (duration set at the longest
duration allowable under State law). Under current NRCS covered
programs, U.S.-held easements are only available for wetlands (ACEP-
WRE) and forestland (HFRP). For RCPP, U.S.-held easements will be
available for any agriculturally linked land use, such as cropland,
grasslands, natural wetlands, or riparian areas buffering agricultural
lands. RCPP easements are driven by ties to RCPP project resource
concerns and conservation benefits, not land use or other covered
program eligibility factors.
Application, ranking, easement acquisition processes, and
contracting will emulate applicable aspects of ACEP and HFRP. RCPP
easements will use new template deeds based on the level of restriction
warranted by the easement in the specific context of a RCPP project,
which will be a foundational component of landowner application,
evaluation, and ranking. The more restrictive the terms of the
easement, the higher the percentage of the easement value that may be
provided under RCPP.
4. Entity-Held RCPP Conservation Easements
ACEP-Agricultural Land Easement (ALE) authorizes entity-held
agricultural land easements. For RCPP, entity-held easements are
eligible for any land use and driven by conservation benefits and
resource concerns identified in the RCPP project. Therefore, in
addition to entity-held easements to protect working agricultural lands
(as allowed under ALE), entity-held easements under RCPP may be
enrolled on other eligible land, including forest land, wetlands, and
riparian areas. Entity-held easements under RCPP require collaboration
between NRCS, a qualified entity, and an eligible landowner. Given the
statutory structure, NRCS will utilize a supplemental agreement with a
qualified entity to establish the terms and conditions under which NRCS
will provide financial assistance for the qualified eligible entity to
purchase a conservation easement from an eligible producer.
Application, ranking, easement acquisition processes, matching, and
contracting will emulate applicable aspects of ACEP-ALE.
5. Public Works Supplemental Agreements
Through the public works component of RCPP, eligible partners may
receive financial assistance awards to support implementation of
structural works of improvement to address watershed-scale issues on
eligible land, similar to projects currently carried out under Public
Law 83-566. Unlike other RCPP contract types, RCPP project proposals
must detail proposed public works activities (that is, detailed plan of
work) to provide project reviewers information needed to assess project
viability. Financial assistance for works of improvement will be
awarded through a supplemental agreement. Under the supplemental
agreement, unlike for other types of RCPP activities, partners lead the
planning, design, and installation of works of improvement. However,
NRCS retains watershed plan and design approval authority consistent
with Federal infrastructure projects and informed by NRCS watershed and
engineering directives and related Public Law 83-566 policy.
Summary of Regulatory Framework
The RCPP regulation has four subparts:
Subpart A provides the general framework for the program
and provides the purposes, scope, definitions, fund allocations, and
basic program requirements.
Subpart B provides the framework for the proposal,
selection, and administration of RCPP partnership agreements, including
supplemental agreements to facilitate the provision of program
assistance to producers. This subpart also includes general provisions
related to third party contracts.
Subpart C provides the framework under which NRCS provides
program assistance to producers to implement eligible activities.
Subpart D provides the standard programmatic information
about appeals, assignments, and related matters.
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 exempt from 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.
[[Page 8135]]
For major rules, the Congressional Review Act requires a delay in
the effect date of 60-days after publication to allow for Congressional
Review. This rule is a major under the Congressional Review Act, as
defined by 5 U.S.C. 804(2). The authority in 5 U.S.C. 808 provides that
when an agency finds for good cause that notice and public procedure
are impracticable, unnecessary, or contrary to the public interest,
that the rule may take effect at such time as the agency determines.
Due to the nature of the rule, the mandatory requirements of the 2018
Farm Bill changes to RCPP, and the need to implement the RCPP
regulations expeditiously to provide assistance to producers, NRCS and
CCC find that notice and public procedure are contrary to the public
interest. Therefore, even though this rule is a major rule for purposes
of the Congressional Review Act of 1996, NRCS and CCC are 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 in the Federal Register.
NRCS invites interested persons to participate in this rulemaking
by submitting written comments or views about 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 the 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. NRCS
will review and respond to the public comments in the RCPP final rule.
NRCS is especially interested in obtaining public comment on the
following topics:
CCAs and their associated priority resource concerns;
How best to develop and report project outcomes;
Ideas on how to implement RCPP easements;
How to incorporate land rental authorities into program
implementation;
Alternative Funding Arrangements; and
Project renewal criteria.
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
economically significant under Executive Order 12866, and therefore,
OMB has reviewed this rule. The costs and benefits of this proposed
rule are summarized below. The full cost benefit analysis is available
on https://www.regulations.gov/.
Executive Order 13771, ``Reducing Regulation and Controlling
Regulatory Costs,'' requires that, 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. This rule
involves transfer payments and does not rise to the level required to
comply with 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 ordering 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?
Summary of Economic Impacts
RCPP is a voluntary collaborative program that provides financial
and technical assistance to partner organizations to help agricultural
producers plan and implement conservation activities to address natural
resource concerns on private or Tribal agricultural, nonindustrial
private forest and certain associated lands. RCPP was first authorized
by Congress in the Agricultural Act of 2014 (the 2014 Farm Bill). To
date, 375 projects have been selected across the United States and
Puerto Rico leveraging $1 billion in NRCS technical and financial
assistance with approximately $1.3 billion in partner contributions.
The 2014 Farm Bill provided $100 million annually in RCPP mandatory
funding. Furthermore, under the 2014 Farm Bill, conservation activities
were undertaken through partnership agreements (between NRCS and a lead
partner) and contracts or agreements with eligible landowners,
entities, and individuals under one or more covered programs (EQIP,
CSP, ACEP, HFRP, and the Watershed Protection and Flood Prevention
Act). EQIP, CSP, and ACEP each contributed seven percent of their
annual funding toward RCPP projects.
The 2018 Farm Bill reauthorizes RCPP with significant changes to
how the program is funded. Specifically, contributions from ``covered
programs'' are eliminated and ``covered program contracts'' are
replaced with RCPP contracts and programmatic partnership agreements.
The 2018 Farm Bill repeals the seven percent reserved resources
from the covered programs, provides $300 million in annual mandatory
Commodity Credit Corporation (CCC) funding, and establishes RCPP
standalone contracts. Federal transfers under the 2014 Farm Bill
totaled slightly more than $1 billion for FY 2014 through 2018, or $200
million on an annual basis. The $300 million in mandatory annual
funding increases RCPP funding by approximately $100 million annually,
taking into account the past contribution of the ``covered programs''
during FY 2014 through 18.
The 2018 Farm Bill also changes the ``funding pool'' structure by
streamlining from three pools to two pools and providing that 50
percent of funds go to a Critical Conservation Areas pool and 50
percent of funds go to a state or multi-state pool. It also allows
project renewals and creates new programmatic authorities and
expectations for the administration of agreements with partners. In
addition, application and renewal processes are simplified to encourage
participation by both producers and project partners. NRCS intends that
the majority of funds awarded each year will be awarded under a
competitive process. If the lead
[[Page 8136]]
partner makes such a request, NRCS may renew a partnership agreement.
To ensure that only the most successful of projects qualify for renewal
on a non-competitive basis, NRCS has identified in this rule that a
partner must meet or exceed the objectives of the original project in
order to be considered for renewal.
Most of this rule's impact consists of transfer payments from the
Federal Government to producers or to partners for the benefit of
producers. Conservation benefits of RCPP financial and technical
assistance funding delivered to date have been directly comparable to
that provided by covered programs (EQIP, CSP, ACEP, etc.), and similar
benefits are expected from RCPP funding under the 2018 Farm Bill.
Additionally, conservation benefits of partner contributions and
collaboration in RCPP projects is expected to magnify the benefits of
RCPP funding over each project's life, offsetting initial delays in
obligation and implementation. NRCS will discuss methods to quantify
the incremental benefits obtained from RCPP with lead partners, but due
to the 5 year life of a typical RCPP project, only limited data are
available at this time to support this conclusion. Therefore, NRCS and
partners may use various mechanisms such as modeling to predict long-
term outcomes. Despite these data limitations, RCPP is expected to
positively affect natural resource concerns--through both the $300
million in funding provided annually by Congress and by the leverage of
partner contributions.
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,
generally requires an agency to prepare a regulatory analysis of any
rule whenever an agency is required by the 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. Despite the Regulatory Flexibility Act not
applying to this rule, the action only affects those entities who
voluntarily participate in RCPP and in doing so receive its benefits.
Compliance with the provisions of RCPP regulations is only required for
those entities who choose to participate in this voluntary program.
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 analysis has
determined there will not be a significant impact to the human
environment and as a result, an environmental impact statement (EIS) is
not required to be prepared (40 CFR 1508.13). While OMB has designated
this rule as ``economically significant'' under Executive Order 12866,
``. . . economic or social effects are not intended by themselves to
require preparation of an environmental impact statement'' (40 CFR
1508.14), when not interrelated to natural or physical environmental
effects. The Environmental Assessment (EA) and Finding of No
Significant Impact (FONSI) are available for review and comment for 30
days from the date of publication of this interim rule in the Federal
Register. NRCS will consider this input and determine whether there is
any new information provided that is relevant to environmental concerns
and bearing on the proposed action or its impacts that warrant
supplementing or revising the current available draft of the RCPP EA
and FONSI.
A copy of the EA and FONSI may be obtained from https://www.nrcs.usda.gov/wps/portal/nrcs/detailfull/national/programs/farmbill/?cid=stelprdb1263599. Follow the instructions in the ADDRESSES
section above for submitting comments.
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. It does not 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.
The USDA's Office of Tribal Relations (OTR) 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. Tribal consultation for this
rule was included in the 2018 Farm Bill Tribal consultation held on May
1, 2019, at the National Museum of the American Indian in Washington,
DC. The portion of the Tribal consultation relative to this rule was
conducted by Bill Northey, USDA Under Secretary for the Farm Production
and Conservation mission area, as part of the Title II session. There
were no specific comments from Tribes
[[Page 8137]]
on the RCPP rule during the Tribal consultation. If a tribe requests
additional consultation, NRCS will work with OTR to ensure meaningful
consultation is provided where changes, additions, and modifications
identified in this rule are not expressly mandated by legislation.
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 this regulation.
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 held 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. NRCS will
continue to reach out to Indian Tribes and Tribal entities to obtain
input about how to improve NRCS delivery of RCPP and our other
conservation programs.
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 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-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.
Federal Assistance Programs
The title and number of the Federal Domestic Assistance Programs in
the Catalog of Federal Domestic Assistance to which this rule applies
is: 10.932--Regional Conservation Partnership Program.
E-Government Act Compliance
NRCS and CCC are committed to complying with the E-Government Act
of 2002 (44 U.S.C. 101), 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 1464
Agricultural operations, Conservation payments, Conservation
practices, Eligible activities, Environmental credits, Forestry
management, Natural resources, Resource concern, Soil and water
conservation, Wildlife.
0
For the reasons stated in the preamble, CCC adds part 1464 to Title 7
of the Code of Federal Regulations to read as follows:
PART 1464--REGIONAL CONSERVATION PARTNERSHIP PROGRAM
Subpart A--General Provisions
Sec.
1464.1 Applicability.
1464.2 Administration.
1464.3 Definitions.
1464.4 Funding pool allocations.
1464.5 Program requirements.
Subpart B--Partnership Agreements
1464.20 Proposal procedures.
1464.21 Ranking considerations and proposal selection.
1464.22 Partnership agreements.
1464.23 Funding.
1464.24 Modifications, noncompliance, termination, and remedies.
1464.25 Alternative funding arrangements or grant agreements.
1464.26 Supplemental agreements.
1464.27 Third-party contracts or agreements.
Subpart C--Program Contracts
1464.30 Application for contracts and selecting applications for
funding.
1464.31 Program contract requirements.
1464.32 Modifications and transfers of land.
1464.33 Violations and remedies.
Subpart D--General Administration
1464.40 Appeals.
1464.41 Compliance with regulatory measures.
1464.42 Access to agricultural operation or tract.
1464.43 Equitable relief.
1464.44 Offsets and assignments.
1464.45 Misrepresentation and scheme or device.
1464.46 Environmental credits for conservation improvements.
Authority: 15 U.S.C. 714b and 714c; 16 U.S.C. 3871 et seq.
Subpart A--General Provisions
Sec. 1464.1 Applicability.
(a) The purposes of the Regional Conservation Partnership Program
(RCPP) are as follows:
(1) Carry out eligible activities to further the conservation,
protection, restoration, and sustainable use of soil, water (including
sources of drinking water and ground water), wildlife, agricultural
land, and related natural resources on eligible land on a regional or
watershed scale;
(2) Encourage eligible partners to cooperate with producers in--
(i) Meeting or avoiding the need for national, State, and local
natural resource regulatory requirements related to production on
eligible lands, including through alignment of partnership projects
with other national, State, and local agencies and programs addressing
similar natural resource or environmental concerns, and
(ii) Implementing projects that will result in the adoption,
installation, and maintenance of eligible activities that affect
multiple agricultural or nonindustrial private forest operations on a
local, regional, State, or multistate basis;
(3) Encourage flexible and streamlined delivery of conservation
assistance to producers through partnership agreements; and
(4) Engage producers and eligible partners in conservation projects
to achieve greater conservation outcomes and benefits for producers
than would otherwise be achieved.
(b) Through RCPP, NRCS provides technical and financial assistance
to implement eligible activities through partnership and supplemental
agreements with eligible partners and program contracts with producers.
(c) RCPP is available in any of the 50 States, the District of
Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands of
the United States, American Samoa, and the Commonwealth of the Northern
Mariana Islands.
(d) Each program contract, partnership agreement, and supplemental
agreement is subject to the regulations in place on the date it is
executed.
[[Page 8138]]
Sec. 1464.2 Administration.
(a) The funds, facilities, and authorities of the Commodity Credit
Corporation (CCC) are available to NRCS for carrying out RCPP.
Accordingly, each reference to NRCS in this part also refers to CCC
funds, facilities, and authorities where applicable.
(b) No delegation in this part to lower organizational levels will
preclude the Chief of NRCS from making any determinations under this
part, redelegating to other organizational levels, or from reversing or
modifying any determination made under this part.
(c) NRCS may use other agency-wide authorities, such as 16 U.S.C.
3842 and 31 U.S.C. 1535, to 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.
(d) To assist in the implementation of the program, the Chief may
waive the applicability of the limitation in section 1001D of the Food
Security Act of 1985 for participating producers if the Chief
determines that the waiver is necessary to fulfill the objectives of
the program. Section 1001D of the Food Security Act of 1985 does not
apply to eligible partners.
(e) NRCS will identify in each State a program coordinator who will
serve as the primary point of contact for programmatic implementation
of RCPP in that State.
(f) NRCS will establish guidance to assist eligible partners with
quantifying conservation benefits of RCPP implementation. Due to the
diversity of natural resource issues addressed by an RCPP project and
the diversity of conservation activities that a project may undertake,
NRCS will work with each partner to develop project-specific outcome
approach that will be included in the partnership agreement.
Sec. 1464.3 Definitions.
The following definitions will apply to this part and all documents
issued in accordance with this part, unless specified otherwise:
Agricultural operation means a parcel or parcels of land whether
contiguous or noncontiguous, that is--
(1) Under the effective control of the producer at the time the
producer applies for a program contract; and
(2) That is operated by the producer with equipment, labor,
management, and production, forestry, or cultivation practices that are
substantially separate from other operations.
Applicant means a producer who has requested in writing to
participate in RCPP.
Beginning farmer or rancher means a person, Indian Tribe, Tribal
corporation, or legal entity who has not materially and substantially
operated a farm, ranch, or nonindustrial private forest land (NIPF), or
who has materially and substantially operated a farm, ranch, or NIPF
for not more than 10 consecutive years, subject to the following
conditions:
(1) 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.
(2) 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, and no member may have materially and
substantially operated a farm, ranch, or NIPF for more than 10
consecutive years, and 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.
Conservation benefits means the improvements in the status of
resource concerns, priority resource concerns, and similar project
goals resulting from the implementation of eligible activities in an
RCPP project area.
Covered program means the--
(1) Agricultural Conservation Easement Program administered under 7
CFR part 1468;
(2) Environmental Quality Incentives Program administered under 7
CFR part 1466;
(3) Conservation Stewardship Program administered under 7 CFR part
1470, except for the Grassland Conservation Initiative set forth in
section 1240L-1 of the Food Security Act of 1985;
(4) Healthy Forests Reserve Program administered under 7 CFR part
625;
(5) Watershed protection and flood prevention programs administered
under 7 CFR part 622, except the Watershed Rehabilitation Program set
forth in 16 U.S.C. 1012; and
(6) Conservation Reserve Program administered under 7 CFR part
1410.
Critical conservation area (CCA) means a geographical area
designated by the Secretary of Agriculture that contains a critical
conservation condition that can be addressed through the program.
Effective control means possession of the land by ownership,
written lease, or other legal agreement and authority to act as
decision maker for the day-to-day management of the operation from the
time of application and for the duration of the program contract or
applicable terms of a supplemental agreement.
Eligible activity means a practice, activity, land rental,
agreement, easement, or related conservation measure that is available
under the statutory authority for a covered program, as determined by
NRCS.
Eligible land means any land that NRCS determines is eligible under
Sec. 1464.5.
Eligible partner means an agency, organization, or other entity
specified in Sec. 1464.5 that NRCS determines the appropriate
authority, expertise, and resources necessary to carry out partnership
responsibilities.
Historically underserved producer means a person, joint operation,
Indian Tribe, or legal entity who is a beginning farmer or rancher,
socially disadvantaged farmer or rancher, limited resource farmer or
rancher, or veteran farmer or rancher.
Indian Tribe means any Indian Tribe, Band, Nation, Pueblo, 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 eligible for the special programs and services provided by the
United States to Indians because of their status as Indians.
Joint operation means, as defined in part 1400 of this chapter, a
general partnership, joint venture, or other similar business
arrangement in which the members are jointly and severally liable for
the obligations of the organization.
Lead partner means an eligible partner who is the primary signatory
of a partnership agreement with NRCS and is identified as the lead
partner in that agreement.
Legal entity means, as defined in part 1400 of this chapter, an
entity created under Federal or State law that--
(1) Owns land or an agricultural commodity, product, or livestock;
or
(2) Produces an agricultural commodity, product, or livestock.
Limited resource farmer or rancher means:
(1) A person who:
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(i) Has direct or indirect gross farm sales not more than the
current indexed value in each of the previous 2 years (adjusted for
inflation using the Prices Paid by Farmer Index as compiled by USDA's
National Agricultural Statistical Service), and
(ii) 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 2 years (to be determined
annually using Commerce Department data); or
(2) A legal entity or joint operation if all individual members
independently qualify under paragraph (1) of this definition.
Liquidated damages means a sum of money stipulated that a
participant agrees to pay NRCS if the participant fails to fulfill the
terms of the program contract. The sum represents an estimate of the
expenses incurred by NRCS to service the program contract and reflects
the difficulties of proof of loss and the inconvenience or
nonfeasibility of otherwise obtaining an adequate remedy.
Natural Resources Conservation Service (NRCS) is an agency of the
USDA, which has responsibility for administering RCPP using the funds,
facilities, and authorities of the CCC.
Nonlead partner means an eligible partner, other than a lead
partner, who has entered into a supplemental agreement with NRCS
consistent with the terms of a partnership agreement.
Nonindustrial private forest land (NIPF) means rural land, as
determined by NRCS, that has existing tree cover or is suitable for
growing trees; and is owned by any nonindustrial private individual,
group, association, corporation, Indian Tribe, acequia, or other
private legal entity that has definitive decision-making authority over
the land.
Participant means a person, legal entity, joint operation, or
Indian Tribe who has applied for participation and is receiving a
financial assistance payment or is responsible for implementing the
terms and conditions of a program contract.
Partnership agreement means a programmatic agreement between NRCS
and a lead partner.
Person means a natural person and does not include a legal entity.
Priority resource concern means a natural resource concern located
in a CCA that can be addressed through:
(1) Water quality improvement, including through reducing erosion,
promoting sediment control, and addressing nutrient management
activities affecting large bodies of water of regional, national, or
international significance;
(2) Water quantity improvement, including improvement relating to:
(i) Drought;
(ii) Ground water, surface water, aquifer, or other water sources;
or
(iii) Water retention and flood prevention;
(3) Wildlife habitat restoration to address species of concern at a
Federal, State, or local level; and
(4) Other natural resource improvements, as determined by the
Chief, within the CCA.
Producer means a person, legal entity, joint operation, or Indian
Tribe who NRCS determines is:
(1) Engaged in agricultural production or forestry management on
the agricultural operation; or
(2) The landowner of eligible land for purposes of a program
contract or associated supplemental agreement, as determined by NRCS.
Program means the Regional Conservation Partnership Program (RCPP)
administered by NRCS under this part.
Program contract means a binding agreement under the program for
the transfer of assistance from NRCS to the producer to compensate the
producer for the implementation of eligible activities that specifies
the rights and obligations of any producer participating in the
program.
Project resource concern means a specific resource concern set out
in a partnership agreement that is of special importance or
significance for the purposes of that partnership agreement.
Proposal means an offer submitted by an eligible partner for
consideration and ranking for selection by NRCS to enter into a
partnership agreement.
RCPP plan of operations means the document that identifies the
location and timing of eligible activities that the participant agrees
to implement on eligible land.
Resource concern means a specific natural resource problem that is
likely to be addressed successfully through the implementation of the
eligible activities.
Socially disadvantaged farmer or rancher means a producer who is a
member of a group whose members have been subjected to racial or ethnic
prejudices without regard to its members' individual qualities. For an
entity, at least 50 percent ownership in the business entity must be
held by socially disadvantaged individuals.
State Technical Committee means a committee established by NRCS in
a State pursuant to 7 CFR part 610, subpart C.
Supplemental agreement means a legal document between NRCS and an
eligible lead or nonlead partner that is subject to the terms of a
partnership agreement and which furthers the purposes of the
partnership agreement.
Technical service provider (TSP) means an individual, private-
sector entity, Indian Tribe, or public agency either:
(1) Certified pursuant to 7 CFR part 652 and placed on the approved
list to provide technical services to participants; or
(2) Selected by USDA to assist in program implementation through a
supplemental agreement or otherwise through a procurement contract,
contribution agreement, or cooperative agreement with USDA.
Veteran farmer or rancher means a producer who meets the definition
in section 2501(a)(7) of the Food, Agriculture, Conservation, and Trade
Act of 1990, as amended (7 U.S.C. 2279(a)(7)).
Sec. 1464.4 Funding pool allocations.
(a) Of the funds made available for the program, NRCS will
allocate:
(1) Fifty percent of the funds to projects based on a State or
multistate competitive process; and
(2) Fifty percent of the funds to projects for the CCAs designated
by the Secretary.
(b) NRCS will allocate funds under the funding pools identified
under paragraph (a) of this section to projects selected on a
competitive basis pursuant to partnership agreement proposals submitted
under the requirements of subpart B of this part.
Sec. 1464.5 Program requirements.
(a) General requirements.
(1) Program participation is voluntary.
(2) NRCS and lead partners enter into partnership agreements that
identify the purposes and scope of RCPP projects under the framework of
a partnership agreement.
(3) NRCS and lead partners enter into supplemental agreements to
facilitate assistance to producers.
(4) NRCS enters into program contracts with producers to provide
program assistance to eligible producers to implement eligible
activities on eligible land.
(5) NRCS may enter into an alternative funding arrangement with a
lead partner for the lead partner to deliver program assistance
directly to producers in accordance with Sec. 1464.25 of this part.
(b) Partner eligibility. An eligible partner may include:
(1) An agricultural or silvicultural producer association or other
group of producers;
[[Page 8140]]
(2) A State or unit of local government, including a conservation
district;
(3) An Indian Tribe;
(4) A farmer cooperative;
(5) An institution of higher education;
(6) A water district, irrigation district, acequia, rural water
district or association, or other organization with specific water
delivery authority to producers on agricultural land;
(7) A municipal water or wastewater treatment entity;
(8) An organization or entity with an established history of
working cooperatively with producers on agricultural land, as
determined by the Secretary, to address--
(i) Local conservation priorities related to agricultural
production, wildlife habitat development, and NIPF management; or
(ii) Critical watershed-scale soil erosion, water quality, sediment
reduction, or other natural resource concerns; or
(9) An eligible entity as identified by NRCS pursuant to 7 CFR part
1468.
(c) Producer eligibility. To be eligible to receive payments or
benefits under the program, each producer must--
(1) Be in compliance with the highly erodible land and wetland
conservation provisions found at part 12 of this title;
(2) Meet the adjusted gross income payment limitations under part
1400 of this chapter unless waived by the Chief;
(3) Have effective control of the land;
(4) NRCS may approve interim conservation practice standards or
activities if--
(i) New technologies or management approaches that provide a high
potential for optimizing conservation benefits have been developed; and
(ii) The interim conservation practice standard or activity
incorporates the new technologies and provides financial assistance for
pilot work to evaluate and assess the performance, efficiency, and
effectiveness of the new technology or management approach.
(f) Technical service provision. (1) NRCS may use the services of a
qualified TSP, including a qualified eligible partner, in meeting its
responsibilities for technical assistance.
(2) Producers or eligible partners may use technical services from
qualified personnel of other Federal, State, and local agencies, Indian
Tribes, or individuals who are certified as TSPs under 7 CFR part 652.
(3) Technical services provided by qualified personnel not
affiliated with USDA may include but are not limited to: Conservation
planning; conservation practice survey, layout, design, installation,
and certification; information, education, and training for producers;
and other program implementation services as identified by NRCS.
(4) NRCS retains approval authority of work done by non-NRCS
personnel for the purpose of approving RCPP payments.
Subpart B--Partnership Agreements
Sec. 1464.20 Proposal procedures.
(a) NRCS will:
(1) Periodically announce opportunities through a simplified
competitive process for eligible partners to submit proposals for
partnership agreements; and
(2) Make public the criteria that will be used to evaluate
proposals for partnership agreements in each announced project
selection opportunity, which may include whether NRCS will consider
alternative funding arrangements or grant agreements during the
selection opportunity or whether proposals seeking alternative funding
arrangements or grant agreements will have a separate selection
opportunity. These criteria will relate to four principle categories:
Impact, partner cash and in-kind contribution, innovation, and project
management.
(b) A partnership agreement proposal submitted by the eligible
partner must include the following:
(1) The scope of the proposed project;
(2) A plan for monitoring, evaluating, and reporting on progress
made toward achieving the project's objectives;
(3) The estimated RCPP funding and other program resources
requested for the project including any advance technical assistance
for outreach in the project area;
(4) Whether the eligible partner is requesting NRCS to consider the
proposal for funding under an alternative funding arrangement or grant
agreement under Sec. 1464.25;
(5) Each eligible partner collaborating to achieve project
objectives, including their roles, responsibilities, capabilities, and
contribution; and
(6) Other information NRCS may identify as necessary to evaluate
and select proposals.
Sec. 1464.21 Ranking considerations and proposal selection.
(a) Final selection. NRCS will rank and select proposals for
partnership agreements pursuant to the evaluation criteria listed in
1464.20(a)(2).
(b) Priority to certain proposals. NRCS may give a higher priority
to proposals for partnership agreements that--
(1) Assist producers in meeting or avoiding the need for a natural
resource regulatory requirement;
(2) Have a high percentage of producers in the area to be covered
by the agreement;
(3) Significantly leverage non-Federal financial and technical
resources and coordinate with other local, State, or national efforts;
(4) Build new partnerships with local, State, and private entities
to include a diversity of stakeholders in the project;
(5) Deliver a high percentage of applied conservation to achieve
conservation benefits or address the priority resource concern for a
designated CCA;
(6) Implement the project consistent with existing watershed,
habitat, or other area restoration plans;
(7) Provide innovation in conservation methods and delivery,
including outcome-based performance measures and methods; or
(8) Meet other factors that are important for achieving the
purposes of the program, as determined by NRCS.
(c) Proposals in CCAs. (1) NRCS will select proposals for
partnership agreements within CCAs that address one or more priority
resource concerns for which the CCA is designated.
(2) NRCS will identify the designated CCAs and publish the priority
resource concerns for each CCA.
(3) NRCS will identify the priority resource concerns and
associated ranking criteria in any announcement under Sec. 1464.20.
Sec. 1464.22 Partnership agreements.
(a) In general. Upon selection of a proposal for partnership
agreement, NRCS will work with the eligible partner to develop the
specifics of the partnership agreement. NRCS may offer a reduced amount
of program assistance from that requested in the proposal for a
partnership agreement or negotiate other project details.
(b) Duration. A partnership agreement between NRCS and a lead
partner will be for a period of time:
(1) Not to exceed 5 years; or
(2) That is longer than 5 years if the longer period of time is
necessary to meet the objectives of the program, as determined by NRCS.
(c) Extension. A partnership agreement, including a renewal of a
partnership agreement, may be extended not more than one time for a
period of time not longer than 12 months, as determined by NRCS.
(d) Requirements. The partnership agreement between NRCS and a lead
partner will:
(1) Specify the scope of a project, including:
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(i) One or more conservation benefits that the project will
achieve;
(ii) The eligible activities on eligible land to be conducted under
the project to achieve conservation benefits;
(iii) The implementation timeline for carrying out the project,
including any interim milestones;
(iv) The local, State, multistate, or other geographic area
covered; and
(v) The planning, outreach, implementation, and assessment to be
conducted.
(2) Identify the outreach and education to producers for potential
participation in the project;
(3) Authorize the lead partner, at the request of a producer, to
act on behalf of a producer participating in the project in applying
for assistance under subpart C of this part;
(4) Identify the significant contribution to the project costs by
the lead partner, including any direct or indirect funding or in-kind
support that will be contributed to help achieve the project
objectives;
(5) Define the conservation benefits and other outcomes to be
achieved by the project including the impact to any priority or project
resource concern;
(6) Require the lead partner to assess periodically the progress
made by the project in achieving the defined conservation benefits and
outcomes;
(7) Require the lead partner to report to NRCS at the conclusion of
the project on the project's results and funding leveraged;
(8) Set forth the total amount of financial and technical
assistance funding that NRCS will reserve to support project
implementation;
(9) Establish the general terms and conditions of any supplemental
agreements that NRCS or the lead partner may enter into with nonlead
partners;
(10) Identify the terms and conditions under which either NRCS or
the lead partner may enter into supplemental agreements to further the
purposes of the partnership agreement;
(11) Identify the other requirements identified by NRCS; and
(12) Include any unique requirements if the partnership agreement
is a grant agreement or alternative funding arrangement.
(e) Supplemental agreements. NRCS may enter into supplemental
agreements with a lead partner or a nonlead partner to provide
technical assistance or to assist producers with implementation of
eligible activities in the project area as identified in Sec. 1464.26.
(f) Partnership agreement renewal. (1) As determined by NRCS, a
partnership agreement may be renewed for a period not to exceed 5
years.
(2) NRCS may agree to renew the partnership agreement through an
expedited process if--
(i) The lead partner requests such a renewal; and
(ii) NRCS determines that the project has met or exceeded project
objectives as verified by NRCS.
(3) To facilitate expedited renewal, NRCS may designate a portion
of available RCPP funding for expedited renewal requests.
(4) NRCS will not rank expedited renewal requests against new
proposals.
(5) Under a renewal of a partnership agreement, the parties may
request to continue to implement the project as defined in the original
partnership agreement or expand the scope of the project consistent
with the objectives and purposes of the original partnership agreement.
(g) Notification. All eligible partners who submit a proposal for a
partnership agreement or submit a request to renew a partnership
agreement will receive notification from NRCS regarding selection or
nonselection of the project proposal or approval or denial of the
renewal request.
Sec. 1464.23 Funding.
(a) Except as otherwise provided in this subpart, NRCS will only
provide technical and financial assistance to producers through program
contracts as described in subpart C of this part.
(b) Notwithstanding the restriction set forth in paragraph (a) of
this section, NRCS may provide technical and financial assistance to a
partner:
(1) Where the partnership agreement is funded through an
alternative funding arrangement or grant agreement under Sec. 1464.25;
or
(2) Pursuant to a supplemental agreement executed in furtherance of
a partnership agreement, as set forth in Sec. 1464.26.
(c) Notwithstanding the restriction set forth in paragraph (a) of
this section, pursuant to a partnership agreement or supplemental
agreement, NRCS may provide funding to a partner for technical
assistance for an eligible purpose, such as:
(1) Providing outreach and education for potential participation in
the project;
(2) Establishing baseline metrics to support the development of the
assessment required under Sec. 1464.22(d)(6); or
(3) Providing technical assistance to producers.
(d) Notwithstanding the restriction set forth in paragraph (a) of
this section, NRCS may enter into third-party contracts or agreements
to meet its responsibilities under the program using program funding.
(e) Any funding provided by NRCS under paragraphs (a) through (d)
of this section will count against the total amount of funding that
NRCS agreed to provide to the project under the terms of the
partnership agreement.
Sec. 1464.24 Modification, noncompliance, termination, and remedies.
(a) Modifications. NRCS may modify a partnership agreement,
including associated supplemental agreements, if--
(1) The lead partner or, as applicable, the nonlead partner agrees
to the modification; and
(2) NRCS determines the modified partnership agreement or
associated supplemental agreement continues to meet the purposes of the
program.
(b) Noncompliance. In the event of noncompliance with the
partnership agreement terms, NRCS will provide the lead partner written
notice as specified in the partnership agreement, and, where
appropriate, a reasonable opportunity to correct voluntarily the
noncompliance in accordance with the terms of the partnership
agreement.
(c) Terminations. (1) Lead partners may request that NRCS terminate
the partnership agreement, provided the request for termination is in
writing, and includes the reasons for termination.
(2) NRCS may terminate a partnership agreement if--
(i) Justified by the reasons provided by the lead partner;
(ii) NRCS determines that a modification of the partnership
agreement is necessary to comply with applicable law and the partner
does not concur with such modification; or
(iii) The lead partner fails to correct noncompliance with a term
of the partnership agreement under paragraph (b) of this section.
(3) A termination may be justified by circumstances beyond the lead
partners' control that prevents completion of one or more provisions of
the partnership agreement, such as a natural disaster or other
circumstances in which NRCS may determine that termination is in the
public interest.
(4) If a program agreement is terminated, the lead partner forfeits
all rights to any remaining technical or financial assistance under the
partnership agreement.
(d) Effect on other agreements. Termination of a partnership
agreement under this section will--
(1) Not affect the validity of any program contract that was
entered into within the project area encompassed by the partnership
agreement; and
(2) Result in the termination of a supplemental agreement unless
NRCS
[[Page 8142]]
determines that the supplemental agreement would continue to provide
necessary program implementation assistance to producers with program
contracts or otherwise advance an eligible program activity within the
project area.
(e) Refund and right to future assistance. If NRCS terminates a
partnership agreement due to noncompliance with its terms or
conditions, the lead partner will forfeit any right to future
assistance under the partnership agreement and will refund all or part
of any payments received directly by the lead partner, plus interest.
(f) Liquidated damages. (1) NRCS may include terms in a partnership
agreement that allow for the assessment of liquidated damages against
the lead partner in the event of an intentional breach.
(2) The amount of any liquidated damages will be set at an amount
reasonably calculated to reimburse NRCS for its foreseeable losses in
the event of noncompliance and will not be punitive in nature.
Sec. 1464.25 Alternative funding arrangements or grant agreements.
(a) When the Chief so determines, NRCS may offer to fund a proposal
through an alternative funding arrangement or grant agreement under
this section.
(b) In determining whether to offer to fund a proposal through an
alternative funding arrangement or grant agreement, the Chief will
consider the extent to which the proposal:
(1) Will achieve conservation benefits on a regional or watershed
scale;
(2) Involves investments in infrastructure (such as roads, dams,
and irrigation facilities) related to agricultural or nonindustrial
private forest production that would benefit multiple producers and
address natural resource concerns such as drought, wildfire, or water
quality impairment on the land within the proposal area;
(3) Addresses natural resource concerns, including the development
and implementation of watershed, habitat, or other area restoration
plans;
(4) Uses innovative approaches to leverage the Federal investment
with private financial mechanisms, such as:
(i) Provision of performance-based payments to producers, or
(ii) Support for an environmental market; and
(5) Otherwise demonstrates that the goals and objectives of the
program would be more easily achieved by offering to fund the proposal
through an alternative funding arrangement or grant agreement under
this section.
(c) The terms of an alternative funding arrangement or grant
agreement may be made expressly in the partnership agreement and may
include providing financial assistance directly to the lead partner or
to nonlead partners through supplemental agreements.
(d) NRCS will not enter into more than 15 partnership agreements
funded through an alternative funding arrangement or grant agreement
each fiscal year.
Sec. 1464.26 Supplemental agreements.
(a) Authorization. Subject to the conditions in this section and in
the partnership agreement, NRCS may enter into supplemental agreements
with a lead partner or a nonlead partner.
(b) Effect on programmatic agreement. A supplemental agreement may
not modify the substantive terms of the partnership agreement.
(c) Technical assistance. (1) NRCS may provide technical assistance
funds under a supplemental agreement to facilitate the provision of
technical assistance by the lead partner or nonlead partner to
producers in the project area.
(2) Any technical assistance funds obligated under a supplemental
agreement by NRCS will count against the total amount of technical
assistance funds that NRCS agreed to provide to the project under the
terms of the partnership agreement.
(d) Financial assistance. Based upon eligibility, evaluation, and
selection criteria developed by NRCS, NRCS may provide financial
assistance funds under a supplemental agreement if the supplemental
agreement is:
(1) To facilitate the conveyance of an easement to an eligible
entity by a producer;
(2) To implement an eligible activity that is available under 7 CFR
part 622, except for the Watershed Rehabilitation Program set forth in
16 U.S.C. 1012;
(3) Other situations where a program contract requires the
integration of a supplemental agreement to facilitate the
implementation of an eligible activity, as determined by NRCS.
(e) Term. A supplemental agreement will be for a term that is
within the term of a partnership agreement unless NRCS determines that
the term of the supplemental agreement should extend beyond the term of
the partnership agreement to ensure appropriate assistance to
participating producers or completion of an eligible activity.
(f) Noncompliance and remedies. NRCS will incorporate in a
supplemental agreement:
(1) The procedures required in the event of a determination that
the lead partner or nonlead partner is not in compliance with the terms
and conditions of the supplemental agreement;
(2) The consequences for failure to remedy noncompliance, including
termination of the supplemental agreement, the requirement to repay any
payments received, forfeit any future payments, and the availability of
liquidated damages;
(3) The impacts of termination of the supplemental agreement upon
the partnership agreement or any associated program contract;
(4) The availability, if any, of administrative review of NRCS
determinations under Sec. 1464.40; and
(5) Other terms and conditions NRCS determines necessary to ensure
the effective delivery of program resources to producers.
Sec. 1464.27 Third-party contracts or agreements.
(a) Lead and nonlead partners may employ third-party contracts or
agreements to fulfill their obligations under a partnership or
supplemental agreement, subject to approval by the Chief or as allowed
per the terms of the partnership or supplemental agreement.
(b) Any costs to a lead or nonlead partner as part of a third-party
contract or agreement as described in paragraph (a) of this section may
constitute all or part of a partner contribution described in Sec.
1464.22(d)(4) to the extent that such costs directly relate to
fulfilling the obligations of a partnership or supplemental agreement,
as determined by NRCS.
(c) NRCS may employ third-party contracts or agreements in order to
meet its responsibilities under the terms of an approved partnership
agreement, supplemental agreement, or program contract, including but
not limited to easement acquisition services, implementation services,
or other goods or services NRCS determines are necessary to meet its
responsibilities under RCPP.
Subpart C--Program Contracts
Sec. 1464.30 Application for program contracts and selecting
applications for funding.
(a) Evaluation guidelines. In evaluating program contract
applications, NRCS may take into consideration the following
guidelines:
(1) Any producer who has eligible land in a project area
encompassed by a partnership agreement may submit an application for
participation in RCPP.
(2) To the greatest extent practicable, applications for similar
eligible activities may be grouped together in
[[Page 8143]]
ranking pools for evaluation and ranking purposes.
(3) Upon execution of a partnership agreement, NRCS will accept
producer applications for funding under such agreement throughout the
fiscal year and may be evaluated and ranked on a continuous or ranking-
period basis.
(4) NRCS may give priority to applications that are submitted as
part of a bundle submitted by a lead partner.
(5) In selecting RCPP applications, NRCS will develop an evaluation
and ranking process to prioritize eligible applications for funding
that address the purposes of the project or CCA, including treating the
identified project or priority resource concerns, as applicable.
(b) Selection order. (1) NRCS will select eligible applications for
funding in order of ranking priority taking into account identified
evaluation periods and ranking pools.
(2) NRCS may decline to select an eligible application if the
remaining funding is insufficient to fund that application and NRCS may
proceed to the next application in ranked order that can be funded with
available funding.
(3) NRCS, in consultation with the lead partner, may identify and
establish in the partnership agreement other limited circumstances that
may warrant selection of eligible applications outside of a strictly
applied rank order because such application is critical to the success
of a project that provides conservation benefits to multiple producers
or landowners in a community, watershed, or other geographic area.
(c) Public information. Pursuant to the terms of the partnership
agreement, NRCS or the lead partner will make available to the public
sign-up information, including the identification of program and
priority resource concerns, a listing of eligible activities, payment
rates for certain eligible activities, State supplemental guidance, and
contact information for the RCPP State coordinators available to assist
partners and applicants with the program.
(d) Applications in CCAs. (1) NRCS will identify the designated
CCAs and publish priority resource concerns for a CCA project.
(2) NRCS will select eligible applications for program contracts
within CCAs that address one or more priority resource concerns for
which the CCA is designated.
(3) NRCS will identify the priority resource concerns and
associated ranking criteria in any announcement under Sec. 1464.20.
Sec. 1464.31 Program contract requirements.
(a) Requirement of a program contract. For a producer to receive
payments, the producer must enter into a program contract and agree to
the terms and conditions associated with the type of eligible activity
to be implemented.
(b) Program contract contents. A program contract will:
(1) Identify the requirements for participation under RCPP,
including:
(i) Contract duration;
(ii) Maximum Federal payment amounts or rates; and
(iii) Any other necessary requirements, as determined by NRCS;
(2) Identify:
(i) The eligible activities that the participant agrees to
implement; and
(ii) The requirements to demonstrate successful implementation of
the eligible activities;
(3) Incorporate the RCPP plan of operations, as applicable, which
includes--
(i) Identification of eligible activities contained in the program
contract, including which resource concerns each eligible activity
addresses;
(ii) A schedule or timeline for implementation of selected eligible
activities, as applicable; and
(iii) Other criteria as determined necessary by NRCS;
(4) Incorporate provisions to further the purposes of the
partnership agreement;
(5) Incorporate all provisions as required by statute or
regulation, including requirements that the participant will:
(i) Not conduct any action that would defeat the program's
purposes;
(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 program contract, consistent with the
provisions of Sec. 1464.36; and
(iii) Supply information if required by NRCS to determine
compliance with program requirements; and
(6) Specify any other provision determined necessary or appropriate
by NRCS to ensure the program purpose is met.
(c) Payment eligibility. To be eligible to enter into a program
contract or receive a payment, an applicant or participant must--
(1) Provide a tax identification number; however, where applicable,
American Indians, Alaska Natives, and Pacific Islanders may use another
unique identification number for each individual eligible for payment;
(2) Indicate, where applicable, the percent interest share in a
payment that is consistent with operation or ownership shares;
(3) Comply with the highly erodible land and wetland conservation
provisions found at part 12 of this title at the time of application
and throughout the contract term; and
(4) Be eligible for payments in accordance with part 1400 of this
chapter, average adjusted gross income limitation, including any waiver
of these requirements, prior to program contract approval.
(d) Duplication of payment. (1) Except as otherwise indicated in
this paragraph, any payments received by a participant from a State,
private entity, or person for the implementation of one or more
eligible activities on eligible land will be in addition to the
payments provided to the participant under this part.
(2) NRCS will not issue financial assistance to a participant
through a program contract for eligible activities on eligible land if
the participant receives payments or other benefits for the same or
similar eligible activity on the same land under any other conservation
program administered by USDA.
(3) NRCS will not provide technical or financial assistance to a
participant for more than one eligible activity to achieve the same
resource benefit on the same land during the same time period.
Sec. 1464.32 Modifications and transfers of land.
(a) Modifications. NRCS may modify a program contract, if:
(1) The parties agree to the modification, and
(2) NRCS determines the modified program contract continues to meet
the purposes of the program.
(b) Notice of loss of effective control. NRCS may terminate an
entire program contract if, within the time specified in the program
contract, the participant does not provide NRCS with written notice
regarding any voluntary or involuntary loss of effective control of any
acreage under the program contract, which includes changes in the
participant's ownership structure or corporate form.
(c) Approval of transfer. NRCS may approve a transfer of a program
contract if:
(1) NRCS has documented notice from the current participant that
identifies the new producer who will take control of the acreage, as
required in paragraph (e) of this section;
(2) The current participant transfers rights and responsibilities
to the new producer;
(3) The new producer meets program eligibility requirements within
a
[[Page 8144]]
reasonable time frame, as determined by NRCS, and agrees to assume the
rights and responsibilities from the current participant for the
acreage under the program contract; and
(4) NRCS determines that the purposes of the program will continue
to be met despite the current participant's losing effective control of
all or a portion of the land under contract.
(d) Payment status. (1) Until NRCS approves the transfer of program
contract rights, the transferee is not a participant in the program and
may not receive payment for eligible activities implemented prior to
NRCS approval of the program contract transfer.
(2) For program contract payment purposes, NRCS will consider the
transferor to be the participant to whom payments may be made for
eligible activities implemented when NRCS approval of the program
contract transfer is pending.
(e) Right to terminate. NRCS may not approve a program contract
transfer and may terminate the program contract in its entirety if NRCS
determines that the loss of effective control of the land was
voluntary, the participant's written notification of loss of effective
control was not provided to NRCS within the specified timeframe, the
new producer is not eligible or willing to assume responsibilities
under the contract, or the purposes of the program cannot be met.
(f) Run with the land. Once an easement deed has been acquired, an
easement will run with the land and bind all successors and assigns.
Subordination, modification, exchange, or termination of an easement
acquired under this part will be consistent with the policies and
procedures under 7 CFR part 1468.
(g) Reestablishment. In the event an eligible activity fails
through no fault of the participant, NRCS may issue payments to
reestablish the eligible activity, subject to such limitations that
NRCS may establish.
Sec. 1464.33 Violations and remedies.
(a) Reasonable notice. In the event of a violation of the program
contract terms, NRCS will provide the participant written notice as
specified in the program contract, and, where appropriate, a reasonable
opportunity to voluntarily correct the violation in accordance with the
terms of the program contract.
(b) Voluntary correction. If the participant fails to correct the
violation of a term of the program contract in the timeframe specified
by NRCS, NRCS may terminate the program contract or require
modification as a condition to keep the program contract in effect.
(c) Refund and right to future assistance. If NRCS terminates a
program contract due to a violation of its terms or conditions, the
participant will forfeit any right to future assistance under the
program contract and will refund all or part of any payments received
by the participant, plus interest.
(d) Liquidated damages. (1) NRCS may include terms in a program
contract that allow for the assessment of liquidated damages in the
event of a violation.
(2) The amount of any liquidated damages will be set at an amount
reasonably calculated to reimburse NRCS for its foreseeable losses in
the event of a violation by the participant and will not be punitive in
nature.
(3) NRCS will enforce a liquidated damage provision if the Chief
determines doing so is in the best interests of RCPP.
(e) Hardships. (1) NRCS may allow a participant in a program
contract terminated in accordance with the provisions of paragraph (b)
of this section to retain a portion of any payments received
appropriate to the effort the participant has made to comply with the
program contract, or in cases of hardship, where NRCS determines that
forces beyond the participant's control prevented compliance with the
program contract.
(2) The condition that is the basis for the participant's inability
to comply with the program contract must not have existed at the time
the program contract was executed by the participant.
(3) If a participant believes that such a hardship condition
exists, the participant may submit a written request to NRCS for relief
pursuant to this paragraph and any such request will contain
documentation sufficient for NRCS to determine that this hardship
condition exists.
(f) Death, incompetency, disappearance. In the case of death,
incompetency, or disappearance of any participant, NRCS may, as
identified in the program contract, terminate the contract, make any
payments due under this part pursuant to guidance under applicable
provisions of parts 707 and 1400 of this title (including payment to
successor(s)), or take any further action that the Chief determines is
fair and reasonable in light of all of the circumstances.
(g) Administrative errors. NRCS reserves the right to correct any
and all errors in entering data or the results of computations in a
program contract. If a participant does not agree to such corrections,
NRCS will terminate the program contract.
Subpart D--General Administration
Sec. 1464.40 Appeals.
(a) Participants under program contracts. A participant may obtain
administrative review of an adverse decision under RCPP in accordance
with parts 11 and 614 of this title. Any and all determination in
matters of general applicability, such as payment rates, the
designation of identified program or priority resource concerns, and
eligible activities are not subject to appeal.
(b) Lead partners and nonlead partners under partnership or
supplemental agreements.
(1) A lead partner or nonlead partner may obtain a review of any
administrative determination concerning eligibility as a partner under
the program or eligibility for financial assistance payments under an
agreement that obligated financial assistance funds utilizing the
administrative appeal regulations provided in 7 CFR parts 11 and 614.
(2) NRCS provision of technical assistance funds under a
partnership agreement or supplemental agreement are not subject to
administrative review as the provision of such funds are to assist NRCS
with its implementation of the program consistent with 16 U.S.C. 3842
and are not program payments or benefits to a lead partner or nonlead
partner.
Sec. 1464.41 Compliance with regulatory measures.
Participants who implement eligible activities will be responsible
for obtaining the authorities, rights, easements, permits, or other
approvals necessary for their implementation consistent with applicable
statutes and regulations. Participants will be responsible for
compliance with all laws and for all effects or actions resulting from
the participant's performance under the contract.
Sec. 1464.42 Access to agricultural operation or tract.
Any authorized NRCS representative will have the right to enter an
agricultural operation or tract of land for the purposes of determining
eligibility, conducting ranking and due diligence activities, and for
ascertaining the accuracy of any representations related to agreement
or contract performance. Access will include the right to provide
technical assistance, determine eligibility, conduct ranking and onsite
inspections prior to execution of an
[[Page 8145]]
agreement or contract, inspect any actions undertaken under the
agreement or contract, and collect information necessary to evaluate
agreement or contract performance, as specified in the agreement or
contract. The NRCS representative will attempt to contact the applicant
or participant prior to exercising this provision.
Sec. 1464.43 Equitable relief.
(a) If a participant relied upon the advice or action of NRCS and
did not know, or have reason to know, that the action or advice was
improper or erroneous, the participant may be eligible for equitable
relief under 7 CFR part 635; however, the financial or technical
liability for any action by a participant that was taken based on the
advice of a TSP will remain with the TSP and will not be assumed by
NRCS.
(b) If a participant has been found in violation of a program
requirement through failure to comply fully with that requirement, the
participant may be eligible for equitable relief under 7 CFR part 635.
Sec. 1464.44 Offsets and assignments.
(a) Except as provided in paragraph (b) of this section, any
payment or portion thereof to any person, legal entity, joint
operation, or Indian Tribe will be made without regard to questions of
title to the payment under State law and without regard to any claim or
lien against the crop, or proceeds thereof, in favor of the owner or
any other creditor except agencies of the U.S. Government. The
regulations governing offsets and withholdings found at part 1403 of
this chapter will apply to contract payments.
(b) Any person, legal entity, Indian Tribe, eligible entity, or
other party entitled to any cash payment under this program may assign
the right to receive such cash payments, in whole or in part.
Sec. 1464.45 Misrepresentation and scheme or device.
(a) A person, legal entity, joint operation, or Indian Tribe that
is determined to have erroneously represented any fact affecting a
program determination made in accordance with this part will not be
entitled to payments under RCPP and must refund to NRCS all RCPP
payments, plus interest, determined in accordance with part 1403 of
this chapter.
(b) A participant will lose all interest in all contracts or
agreements with NRCS and will refund to NRCS all payments, plus
interest determined in accordance with part 1403 of this chapter,
received by such participant with respect to all contracts and
agreements if it is determined that the participant has knowingly:
(1) Adopted any scheme or device that tends to defeat the purpose
of the program;
(2) Made any fraudulent representation to NRCS;
(3) Adopted any scheme or device for the purpose of depriving any
tenant or sharecropper of the payments to which such person would
otherwise be entitled under the program; or
(4) Misrepresented any fact affecting a program determination.
(c) If NRCS determines that a participant has violated the terms of
a program contract, a lead partner has violated the terms of a
partnership agreement, or a lead partner or nonlead partner has
violated the terms of a supplemental agreement, NRCS may determine that
the severity of the violation renders the participant, lead partner, or
nonlead partner, respectively, ineligible for future NRCS conservation
program consideration in accordance with applicable suspension and
debarment regulations.
Sec. 1464.46 Environmental credits for conservation improvements.
NRCS recognizes that environmental benefits will be achieved by
implementing eligible activities funded through RCPP, and a participant
may obtain environmental credits as a result of implementing additional
eligible activities through an environmental service market if one of
the purposes of the market is the facilitation of additional
conservation benefits that are consistent with the purposes of a
program contract or supplemental agreement. NRCS asserts no direct or
indirect interest on these credits. However, NRCS retains the authority
to ensure that operation and maintenance (O&M) requirements for RCPP-
funded eligible activities are met. Where the non-RCPP funded
additional eligible activities may impact the land under a program
contract or supplemental agreement, producers and participants are
highly encouraged to request an O&M compatibility determination from
NRCS prior to entering into any environmental credit agreements.
Matthew Lohr,
Chief, Natural Resources Conservation Service.
Robert Stephenson,
Executive Vice President, Commodity Credit Corporation.
[FR Doc. 2020-01812 Filed 2-12-20; 8:45 am]
BILLING CODE 3410-16-P
