Notice2022-11286
Final Guidance for Identification of Nonindustrial Private Forest Land (NIPF)
Primary source
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Published
May 26, 2022
Issuing agencies
Agriculture DepartmentNatural Resources Conservation Service
Abstract
On December 17, 2020, NRCS published a notice of proposed guidance for NIPF identification and provided a 30-day public comment period for input. NRCS received 139 comments from different members of the public, including Indian Tribes, State agencies, non-governmental organizations, and individuals. Several of these comments provided coordinated input from many organizations, including one letter that provided input from over 60 organizations. This document responds to comments received during the public comment period, which closed on January 19, 2021, and, for the reasons stated in this document, identifies that NRCS will not adopt the guidance it proposed in its December 2020 notice.
Full Text
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<title>Federal Register, Volume 87 Issue 102 (Thursday, May 26, 2022)</title>
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[Federal Register Volume 87, Number 102 (Thursday, May 26, 2022)]
[Notices]
[Pages 31974-31976]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-11286]
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DEPARTMENT OF AGRICULTURE
Natural Resources Conservation Service
[Docket No. NRCS-2020-0009]
Final Guidance for Identification of Nonindustrial Private Forest
Land (NIPF)
AGENCY: Natural Resources Conservation Service (NRCS), U.S. Department
of Agriculture (USDA).
ACTION: Notice.
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SUMMARY: On December 17, 2020, NRCS published a notice of proposed
guidance for NIPF identification and provided a 30-day public comment
period for input. NRCS received 139 comments from different members of
the public, including Indian Tribes, State agencies, non-governmental
organizations, and individuals. Several of these comments provided
coordinated input from many organizations, including one letter that
provided input from over 60 organizations. This document responds to
comments received during the public comment period, which closed on
January 19, 2021, and, for the reasons stated in this document,
identifies that NRCS will not adopt the guidance it proposed in its
December 2020 notice.
APPLICABLE DATE: May 26, 2022.
FOR FURTHER INFORMATION CONTACT: Martha Joseph, telephone: (814) 203-
5562; email: <a href="/cdn-cgi/l/email-protection#deb3bfacaab6bff0b4b1adbbaeb69eabadbabff0b9b1a8"><span class="__cf_email__" data-cfemail="0865697a7c60692662677b6d7860487d7b6c69266f677e">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background
NRCS is one of the USDA agencies that identifies NIPF for program
enrollment. In particular, NRCS identifies NIPF for enrollment in the
Agricultural Conservation Easement Program (ACEP), the Conservation
Stewardship Program (CSP), the Environmental Quality Incentives Program
(EQIP), and the Regional Conservation Partnership Program (RCPP).
Identification for NIPF enrollment under these NRCS programs is
based on section 1201(a)(18) of the Food Security Act of 1985 (the 1985
Farm Bill) (16 U.S.C. 3801), which defines NIPF as rural land, as
determined by the Secretary, that:
<bullet> Has existing tree cover or is suitable for growing trees;
and
<bullet> Is owned by any nonindustrial private individual, group,
association, corporation, Indian Tribe, or other private legal entity
that has definitive decision-making authority over the land.
Since the NIPF definition was first established several decades
ago, changes have occurred in the forestry industry. In particular,
foresters would identify the ``industrial'' status of a parcel of land
by whether or not a company was vertically integrated (for example, the
landowner owned both forestland and primary wood processing
facilities). However, the ability to distinguish whether a particular
parcel of land is industrial or nonindustrial became complicated when
companies started to divest either their land or mills at the turn of
the 21st century and timber investment management organizations (TIMOs)
and real estate investment trusts (REITs) reflected an increasing
amount of industrial forest land ownership.
To address these changes in the forestry industry, NRCS described
in its December 2020 notice, proposed guidance that would be used to
identify NIPF as defined by the 1985 Farm Bill and NRCS program
regulations. NRCS was not re-defining NIPF but was providing guidelines
for helping its staff identify the various components of the statutory
definition. Referencing criteria used by other conservation agencies
(the USDA Forest Service and Farm Service Agency), NRCS proposed to
clarify how to identify a nonindustrial private landowner if they:
(1)(i) Own fewer than 45,000 acres of forest land in the United
States; and
(ii) Do not own or operate an industrial mill for the primary
processing of raw wood products as determined by NRCS in consultation
with the State Technical Committee; or
(2) Meet criteria established for a nonindustrial private landowner
by NRCS in a State in consultation with the State Technical Committee.
NRCS received a total of 91 letters or emails containing 139
comments. The comments were from forestry or agricultural stakeholders,
conservation organizations, individuals, Tribal entities, other
organizations, and governmental agencies. One of the letters was signed
by over 60 organizations. NRCS review of the comments revealed a clear
stakeholder preference that NRCS continue to use the existing
programmatic framework until Congress can address how the changes in
the forestry industry should
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affect eligibility for certain NRCS programs.
Comment Topics
This document summarizes the comments and explains the NRCS
decision not to adopt revised NIPF technical guidance at this time. The
comments are organized alphabetically by topic. The topics include:
Adjusted Gross Income (AGI) limitation, funding, general criticism or
support, landscape-level conservation benefits, large NIPF holdings,
and mill ownership.
AGI
Comment: NRCS should use the AGI limits instead of the proposed
NIPF criteria. One comment also requested that NIPF be removed from AGI
regulations.
Response: Prior to the Agriculture Improvement Act of 2018 (the
2018 Farm Bill), the AGI payment eligibility provisions indirectly
assisted identification of non-industrial forestry landowners by
excluding more affluent corporate landowners from being eligible for
conservation payments. Additionally, under the Agricultural Act of 2014
(the 2014 Farm Bill), participants in RCPP, through the Healthy Forests
Reserve Program (HFRP), were not subject to the NIPF land eligibility
restriction or the AGI limitation.
However, the 2018 Farm Bill codified RCPP as a stand-alone program
and limited forest land eligibility to NIPF, necessitating criteria to
identify individual industrial landowners. The availability of the
general AGI waiver and the more program-specific AGI waiver has the
potential to allow more affluent corporate owners to participate.
NRCS has decided that it would be more appropriate to rely, in
part, upon the AGI limitation and waiver criteria \1\ to make NIPF
eligibility determinations so that forestry operations continue to be
treated similarly to agricultural operations.
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\1\ See 7 CFR 1400.500(f) for the waiver criteria.
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Funding
Comment: Protecting forests, especially in the drought-plagued
West, is essential for survival of the ecosystem, and as such should
receive greater funding.
Response: NRCS appreciates the expressions of support for
protecting forests.
General Criticism
Comment: Several comments expressed a general dissatisfaction with
any proposed changes to the definition. Some comments suggested NRCS
wait until the next Farm Bill to implement any change, which would
allow Congress to provide greater guidance. Others suggested that any
change must be vetted by the Joint Forestry Team (JFT), which is a
multilateral partnership including public and private entities. Several
comments expressed confusion over the proposed guidance, arguing that
the guidance is unnecessary. One comment simply stated that large
forests are important, implying that the acreage cap presents an undue
impediment.
Response: NRCS believes that technical guidance such as that
proposed in its December 17, 2020, notice would be helpful to
distinguish industrial from nonindustrial land holdings. As described
in the original notice, forestry industry changes resulted in many
industrial landholdings divesting themselves from their mill
facilities, though the industrial production methods on such lands
remained. NRCS believes that the development of technical guidance will
have greater receptivity in the conservation community with more
specific Congressional guidance about where resources should be focused
in light of these forest industry changes.
NRCS considers the JFT a valuable resource for receiving input with
respect to forestry issues, and the public comment period provided JFT
member organizations an opportunity to provide input to the guidance.
Additionally, NRCS understands the sentiment to receive additional
input from Congress, and therefore, NRCS is not going to adopt revised
technical guidance at this time.
General Support
Comment: Some comments expressed general support for NRCS
activities that promote forest conservation. Others specifically
supported aspects of the NIPF definition. Some expressed support for
the acreage limit or the mill criterion, while other lauded either the
narrowness or breadth of who may qualify as an NIPF landowner. Several
expressed appreciation for the involvement of State technical
committees.
Response: NRCS appreciates the general support it received from
producers and partners with respect to the proposed NIPF guidelines.
Landscape Level Conservation Benefits
Comment: Some expressed that the guidance specifying a 45,000-acre
threshold would exclude important conservation lands as well as
pathways for wildlife migration. Some comments recommend allowing large
landowners to participate in landscape-level conservation efforts to
effectively address resource concerns and reduce implementation costs
for individual landowners. One comment approved excluding corporate
landowners and recommended using the American Tree Farm Program private
forest landowner definition.
Response: NRCS recognizes that large, contiguous tracts provide
significant conservation benefits, including providing pathways for
wildlife migration. Congress specified that Farm Bill funding should be
targeted to nonindustrial forestry landowners, but whether large tracts
of forest land provide conservation benefits is a separate
consideration. NRCS believes that it can still obtain significant
conservation benefits through enrollment of contiguous small tracts and
by coordinating with partners who can contribute more of their
resources to protecting large tracts that may not meet AGI eligibility
or AGI waiver requirements.
Large NIPF Holdings
Comment: Comments related to the acreage criterion threshold of
45,000 acres came from a range of commenters. One of the comments was
signed by approximately 61 different forestry or conservation
stakeholders.
Additional comments were specific to the applicability of the
threshold with respect to Tribal land, especially land owned by Alaska
Native Corporations (ANCs). The comments received from Tribal entities
such as ANCs expressed concern that the acreage limitation did not
consider the sovereign nature of Tribal landholdings or that ANCs often
have very large acreages that would be excluded from NRCS assistance.
Many of the comments opposed the acreage criterion, stating that
the acreage limitation was arbitrary, that such a limitation does not
exist in statute, and that imposition of the acreage threshold would
eliminate valuable conservation opportunities. Several of these
comments identified that it was an error to equate large commercial
land holdings with the term ``industrial'' since much of this land must
be subject to stewardship requirements. These commenters also expressed
the view that it was a mistake to equate commercial thinning and
logging activities with the term ``industrial.''
However, NRCS also received many comments expressing support for
the 45,000-acre threshold, but criticism that this threshold was too
large for someone to identify themselves as non-industrial, and
recommendations instead for a
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10,000 or lower acreage threshold. Several of these comments expressed
concern that landowners with large acreages would outcompete and divert
limited conservation dollars from smaller forestry operations that
needed the financial assistance. Other comments expressed strong
support for the acreage criterion because they believe TIMOs or REITs
with large acreage should be ineligible for conservation assistance.
Several comments identified that State-level assistance to family
forestry operations have a far lower acreage threshold of less than a
few hundred acres.
Response: NRCS considered several options in response to these
comments. In particular, NRCS considered:
(1) Making all forest land eligible;
(2) Issuing the proposed guidance as final with no changes;
(3) Relying completely on whether there is a mill on site to
determine whether land is industrial;
(4) Revising the guidance to identify exceptions to the mill and
acreage criteria; or
(5) Continuing to rely, in part, upon AGI and other payment
eligibility requirements to act as a surrogate for identification of
industrial land holdings.
NRCS rejected the first option as Congress specified that only NIPF
lands were eligible for certain NRCS programs. NRCS also rejected
reliance on the mill criterion alone as it failed to accommodate the
last couple decades of development in the forestry industry. Given the
concerns regarding the establishment of the acreage criterion, NRCS
believes that it should maintain its reliance upon the mill criterion
in conjunction with the AGI limitation, AGI waiver criteria, and
related payment attribution eligibility to help make NIPF eligibility
determinations.
Mill Criterion
Comment: NRCS received comments with respect to the mill criterion,
including:
<bullet> Expressing concern about small portable mills and impact
to family operations,
<bullet> Recommending that NRCS use output thresholds,
<bullet> Recommending removal of the mill criterion entirely,
<bullet> Supporting that the State Conservationist defines what
constitutes a mill,
<bullet> Expressing concern about potential inconsistency across
States; and
<bullet> Recommending AGI for the mill criterion.
Response: As identified in the large NIPF holdings discussion
above, NRCS believes it should keep the mill criterion as it has long
been used to assist with the identification of NIPF acreage. However,
since there are small operations that have mills, and portable mills
are used to assist with conservation activities (for example, wildfire
management), NRCS wants to take this opportunity to clarify that the
presence of these mills will not affect the parcel's eligibility as
NIPF.
Current Technical Guidance
In response to the comments summarized above, NRCS will not be
issuing new technical guidance to identify NIPF for program eligibility
purposes. In particular, NRCS will continue to identify forest land
eligibility using the traditional NIPF identification criteria, such as
the presence of an industrial mill, in conjunction with payment
eligibility criteria that address, in part, the changes in forest land
ownership by large corporate entities.
Louis Aspey,
Associate Chief, Natural Resources Conservation Service.
[FR Doc. 2022-11286 Filed 5-25-22; 8:45 am]
BILLING CODE 3410-16-P
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