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Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations For easement agreements, comment recommended:
a Expanding the reach of entity-held easements by allowing other land, including forested land, wetlands, and riparian areas, as it appeared to the commenter that the interim rule decoupled requirements specific to NRCSs Healthy Forests Reserve Program HFRP; and b Authorizing payments to producers participating in a project that addresses water quantity concerns and that would encourage conversion from irrigated to dryland farming.
Comment expressed support for the interim rules inclusion of expanding Public Law 83566 activities nationwide within RCPP. Finally, comment recommended that NRCS
continue to allow for greater flexibility in RCPP activity types.
Response: NRCS will maintain the integrity of its RCPP practices to ensure wise use of Federal funds while supporting innovation. CREP is a component of CRP administered by FSA, and CREP agreements are partnership agreements with state governments. NRCS believes that CREPstyle agreements would be redundant to the RCPP partnership agreement and would not aid in meeting RCPP goals efficiently.
NRCS expanded the availability of both U.S.-held and entity-held easements to the full extent of the RCPP
land eligibility criteria, and therefore the types of easements identified by the comment are already available. In addition, the 2018 Farm Bill expanded the availability of Public Law 83566
authority nationwide, and NRCS has entered into PPAs that utilize the Public Law 83566 authority beyond CCAs.
HFRP land eligibility criteria differs from RCPP criteria. RCPP forest land eligibility is limited to non-industrial private forest land, while HFRP
eligibility encompasses commercial forest land as well.
No changes are made in the final rule in response to these issues.
Supplemental Agreements Comment: Comment expressed support for the addition of supplemental agreements to the interim rule and recommended clarifying that NRCS consult with the lead partner when entering into a supplemental agreement with a non-lead partner and provide fuller discussion and clarification of the use of supplemental agreements.
Response: A supplemental agreement is a flexible vehicle for obligating RCPP
funding to an eligible partner or third party to carry out authorized RCPP

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activities. Supplemental agreements are used generally to award TA funding, to implement watershed or public works projects, or to implement an entity-held easement agreement. As a condition of supplemental agreements, NRCS and a partner may negotiate documentation requirements for payment, based on agreement deliverables and activities.
Supplemental agreements will require additional reporting beyond that required of the overall projects lead partner. No changes are made in the final rule in response to this issue.
Notice and Comment, Paperwork Reduction Act, and Effective Date 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 final rule involves matters relating to benefits and therefore is exempt from the APA requirements.
Further, the regulations to implement the programs of chapter 58 of title 16 of the U.S. Code, as specified in 16 U.S.C.
3846, and the administration of those programs, are:
To be made as an interim rule effective on publication, with an opportunity for notice and comment, Exempt from the Paperwork Reduction Act 44 U.S.C. ch. 35, and To use the authority under 5 U.S.C.
808 related to Congressional review and any potential delay in the effective date.
For major rules, the Congressional Review Act requires a delay in the effective date of 60 days after publication to allow for Congressional Review. This rule is a major rule under the Congressional Review Act, as defined by 5 U.S.C. 8042. 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, and the need to implement the regulations expeditiously to provide RCPP assistance to producers, NRCS and CCC find that full 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,
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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. At the same time, NRCS and CCC note that this final rule reflects consideration of the comments that were provided in response to the interim rule.
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 rule are summarized below. The full regulatory impact analysis is available on https
www.regulations.gov/.
Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs, requires that in order to manage the private costs required to comply with federal regulations for every new significant or economically significant regulation issued, the new costs must be offset by the elimination of at least two prior regulations. This rule involves transfer payments and does not rise to the level required to comply with Executive Order 13771.
OMB guidance in M1721, dated April 5, 2017, specifies that transfer rules are not covered by Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs. Transfer rules are Federal spending regulatory actions that cause only income transfers between taxpayers and program beneficiaries. Therefore, this is considered a transfer rule and is not covered by Executive Order 13771.

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