RULES AND REGULATIONS
DEPARTMENT OF AGRICULTURE
[7 PA. CODE CH. 138h]
Agricultural Land Conservation Assistance Grant Program
[26 Pa.B. 5636]
The Department of Agriculture (Department) adopts Chapter 138h (relating to agricultural land conservation assistance grant program).
Sections 7.1 and 7.3 of the act June 18, 1982 (P. L. 549, No. 159) (3 P. S. §§ 1207.1 and 1207.3) authorizes the Department to award grants to counties for designated purposes related to the conservation of agricultural land and empowers the Department to promulgate regulations necessary to support this grant program. It is under the this statutory authority that these regulations are adopted.
The act requires that the Department consult with the State Agricultural Land Preservation Board (State Board) in establishing eligibility criteria for grants and in promulgating regulations necessary to administer and enforce the act. The State Board approved the proposed version of these regulations at its July 13, 1995, meeting. In its review of the final version of these regulations, the State Board was provided a proposed response to comments, proposed revisions to Annex A and an explanation of substantive changes at its July 10, 1996, meeting. The State Board offered no changes to the draft documents, which form the core of this order.
Notice of proposed rulemaking was published at 26 Pa.B. 1555 (April 6, 1996), and provided for a 30-day public comment period.
Comments were received from the Pennsylvania Farmland Preservation Association (PFPA) and the Westmoreland County Farmland Preservation Program. The Independent Regulatory Review Commission (IRRC) also offered comments. These comments, and the Department's responses, follow.
IRRC commented that proposed § 138h.1(b) (relating to program objectives) was an unnecessary restatement of § 138h.8 (relating to review of application by State Board), and recommended § 138h.1(b) be deleted from the final regulations.
The Department accepts this comment, and has revised § 138h.1 accordingly.
The PFPA asked whether the definition of ''applicant'' in proposed § 138h.2 (relating to definitions) could be expanded to include organizations such as the PFPA. The PFPA made the observation that an organization such as the PFPA might be able to use grant funds to complete projects which might be of benefit to all county programs.
The Department believes it cannot expand the definition of ''applicant'' as the PFPA requests. Section 7.3(a) of the act (3 P. S. § 1207.3(a)) limits the State Board's authority by allowing it to award grants to counties only.
IRRC suggested several revisions to § 138h.4 (relating to uses of grant funds). In response, the Department has revised § 138h.4(c)(3) to more clearly state that the costs described in that paragraph must be directly linked to achieving the objectives described in § 138h.4(c)(1) and (2). In addition, § 138h.4(d) has been added to clarify that grant funds may not be used for the purchase of general-use word processing and spreadsheet software.
IRRC, the Westmoreland County Farmland Preservation Program and the PFPA each expressed concern that proposed § 138h.5 (relating to eligibility criteria) might not allow the expenditure of grant funds for subsequent stages or upgrades of previously completed projects. For example, a county that had developed its own basic Geographical Information System (GIS) might not be able to obtain grant funds to add additional capabilities or layers of information necessary to its ranking of farmland being considered for agricultural conservation easement purchase.
In response, the Department has revised § 138h.5(a) to clarify that grant funds may be obtained to fund subsequent stages or upgrades of previously completed projects if the application documents that the stage or upgrade was not included in the funding plans for earlier stages of the project.
The PFPA expressed general concern that counties might compete against each other and not coordinate their efforts unless the regulations were more specific as to matters such as how much grant money would be awarded each year and how applications would be prioritized.
In response, the Department has added § 138h.5(b)(9), which requires the impact of the project on other county programs to be considered in the evaluation and ranking of grant applications.
IRRC suggested proposed § 138h.6 (relating to applications generally) be revised to establish a specific time period within which the Secretary will mail written notice to an applicant that additional documentation is necessary to complete the application.
The Department accepts this comment, and has added § 138h.6(d) to establish a 10-day period from receipt of an application within which the Secretary must mail the notice.
At IRRC's recommendation, the first sentence of § 138h.7(b) (relating to filing applications) has been reworked for greater clarity.
IRRC also suggested the term ''will'' replace the term ''may'' in § 138h.7(b) to clarify that the Department will request additional information necessary to process an application and will discontinue processing an incomplete or inaccurate application until the requested information is received.
The Department accepts this suggestion and has revised § 138h.7(b) accordingly.
The Department also implemented IRRC's recommendation that proposed §§ 138h.8 and 138h.9 (relating to review of application by State Board; and notice of disposition of application) be revised to consistently use the terms ''approval'' and ''disapproval,'' rather than ''acceptance'' and ''rejection,'' in describing actions to be taken with respect to an application.
After the close of the public comment period, the PFPA offered the suggestion that proposed § 138.11(b) (relating to verification of use) be revised to clarify that unexpended grant funds are to be returned to the Department for deposit into the Agricultural Conservation Easement Purchase Fund (Fund). The Department accepts this suggestion and has revised § 138h.11(a) accordingly.
IRRC commented that proposed § 138h.11(c) should specifically provide that repayment of grant funds and interest be credited to the Fund. This provision appears in section 7.3(d) of the act.
The Department accepts this comment and has revised § 138h.11(c) accordingly.
IRRC also recommended that proposed § 138h.11(c) be revised to reference the statute that establishes the legal interest rate referenced in that subsection.
The Department has implemented this recommendation in the final regulations.
IRRC suggested that proposed §§ 138h.12(b) and 138h.13 (relating to grant cancellation; and deficits) be revised to reference the requirement of section 7.3(d) of the act that a grant recipient implement an Agricultural Conservation Easement Purchase Program.
The Department accepts this suggestion and has revised §§ 138h.12 and 138h.13 accordingly.
After the close of the public comment period, the PFPA suggested that proposed § 138h.12(b) be revised to require the establishment of a county program by a grant recipient within 2 years of the grant agreement instead of 3 years.
The Department agrees that the PFPA's recommendation is an improvement, and has made the suggested revision.
At IRRC's recommendation, the Department revised § 138h.14 (relating to records) to shorten the required record retention period for grant recipients from 7 years to 3 years.
IRRC also suggested several nonsubstantive stylistic or grammatical revisions that the Department has implemented in the final regulations. These revisions do not change the substance of the regulations, but enhance its readability.
The regulations will impose no costs and have no fiscal impact upon the Commonwealth. Although the act allows for up to $750,000 to be awarded in grants, this grant money will originate from the Fund on a funds-available basis.
These regulations will impose no costs and have no fiscal impact upon political subdivisions. If a county seeks grant funds for a project permitted under the act, though, it must pay at least 50% of the project's costs.
These regulations will impose no costs and have no fiscal impact on the private sector.
These regulations will impose no costs and have no fiscal impact upon the general public.
These regulations are not expected to result in an appreciable increase in paperwork. The Department will issue grant application forms to interested persons and review completed applications in consultation with the State Board. Paperwork will be minimal.
Further information is available by contacting the Department of Agriculture, Attention: Raymond Pickering, Bureau of Farmland Protection, 2301 North Cameron Street, Harrisburg, PA 17110-9408.
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on March 27, 1996, the Department submitted a copy of the notice of proposed rulemaking published at 26 Pa.B. 1555 to IRRC and to the Chairpersons of the House and Senate Standing Committees on Agriculture and Rural Affairs for review and comment. In compliance with section 5(b.1) of the Regulatory Review Act, the Department also provided IRRC and the Committees with copies of the comments received as well as other documentation.
In preparing these final-form regulations, the Department has considered the comments received from IRRC, the Committees and the public.
These final-form regulations were deemed approved by the House Committee on October 7, 1996, were deemed approved by the Senate Committee on October 7, 1996, and were approved by IRRC on October 17, 1996, in accordance with section 5(c) of the Regulatory Review Act.
The Department finds that:
(1) Public notice of intention to adopt the regulations encompassed by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and that all comments received were considered.
(3) The modifications that were made to these regulations in response to comments received do not enlarge the purpose of the proposed rulemaking published at 26 Pa.B. 1555.
(4) The regulations meet the requirements of Executive Order 1996-1, ''Regulatory Review and Promulgation.''
(5) The adoption of the regulations in the manner provided by this order is necessary and appropriate for the administration of the authorizing statute.
The Department, acting under the authorizing statute, orders that:
(a) The regulations of the Department, 7 Pa. Code, are amended by adding §§ 138h.1--138h.15 to read as set forth in Annex A.
(b) The Secretary of Agriculture shall submit this order and Annex A to the Office of General Counsel and to the Office of Attorney General for approval as required by law.
(c) The Secretary of Agriculture shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin.
CHARLES C. BROSIUS,
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 26 Pa.B. 5289 (November 2, 1996).)
Fiscal Note: Fiscal Note 2-100 remains valid for the final adoption of the subject regulations.
TITLE 7. AGRICULTURE
PART V-C. FARMLAND AND FOREST LAND
CHAPTER 138h. AGRICULTURAL LAND CONSERVATION ASSISTANCE GRANT PROGRAM
138h.1. Grant Program objectives. 138h.2. Definitions. 138h.3. Limitations on grants. 138h.4. Uses of grant funds. 138h.5. Eligibility criteria. 138h.6. Applications generally. 138h.7. Filing applications. 138h.8. Review of application by State Board. 138h.9. Notice of disposition of application. 138h.10. Grant agreement. 138h.11. Verification of use. 138h.12. Grant cancellation. 138h.13. Deficits. 138h.14. Records. 138h.15. Final report.
§ 138h.1. Grant Program objectives.
Through the awarding of grants and the placing of conditions upon how grant funds are to be spent, the Grant Program will fund projects which will increase the protection and preservation of agricultural land within this Commonwealth by encouraging the implementation and effectiveness of county programs in each eligible county. A grant will only be awarded to a county whose governing body has appointed an agricultural land preservation board, even though the county may not have a county program.
§ 138h.2. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Act--The Agricultural Area Security Law (3 P. S. §§ 901--915).
Applicant--An eligible county acting through and with the approval of its agricultural land preservation board.
County program--A county agricultural land preservation program for the purchase of agricultural conservation easements approved by the State Board under the act.
Department--The Department of Agriculture of the Commonwealth.
Eligible county--A county, not of the first class, whose governing body has passed a resolution forming a county agricultural land preservation board under the law and appointed members to the board by the date of application.
Grant Program--The Agricultural Land Conservation Assistance Grant Program.
Secretary--The Secretary of the Department.
State Board--The State Agricultural Land Preservation Board.
§ 138h.3. Limitations on grants.
(a) The maximum amount of a grant is $10,000.
(b) For projects costing less than $20,000, the maximum grant will be 50% of the project cost.
(c) A county is not eligible for more than a cumulative total of $25,000 in grants under the Grant Program.
(d) The total amount of grant funds which may be awarded will not exceed $750,000 of the funds deposited into the Agricultural Conservation Easement Purchase Fund under section 7.1(a) of the act of June 18, 1982 (P. L. 549, No. 159) (3 P. S. § 1207.1(a)). The amount of grant funds awarded in any particular year will be determined by the State Board, depending on the availability of the funds.
§ 138h.4. Uses of grant funds.
(a) Conformity to application. Grant funds awarded to an applicant shall be expended solely for specific projects described in the grant application in accordance with the project budget approved by the State Board and shall be expended within the time period specified in the grant agreement.
(b) Pennsylvania projects. Grant funds awarded to an applicant under the Grant Program shall be used only to fund projects within the geographic boundaries of this Commonwealth.
(c) Allowable expenditures of grant funds. Grant funds shall be used for one or more of the following purposes:
(1) To cover costs incurred by an applicant in creating a spatial mapping database. The database shall, at a minimum, contain county topographic data, property boundaries, soil boundaries, soil capability classes and soil productivity ratings.
(2) To cover costs incurred by an applicant to develop and implement agricultural zoning ordinances, including model ordinances for possible adoption by local government units.
(3) To cover costs incurred by an applicant to train staff, contract with consultants, and pay for computer software directly linked to achieving the purposes of paragraphs (1) and (2), or to reaching the objective of a fully approved and functioning county program.
(d) Ineligible expenditures. Grant funds may not be used for the purchase of general-use word processing and spreadsheet software.
§ 138h.5. Eligibility criteria.
(a) General. The following general criteria apply to applications for projects:
(1) The Grant Program will not accept applications for the following:
(i) Projects already completed.
(ii) Stages of projects already in progress.
(iii) Stages of projects for which funding has been included in a county appropriation or where other funding has been approved.
(2) Subsequent stages or upgrades of previously completed projects for which funding has already been approved may be considered for funding if documentation is provided to the Department to demonstrate that the stage of the project or upgrade identified in the application was not included in funding plans for earlier stages of the project.
(b) Specific. The following specific criteria will be used to evaluate and rank applications for funding consideration:
(1) The acceptability of costs within the proposed budget.
(2) The availability of funding for the project from a source other than the Commonwealth.
(3) The extent to which the project shall impact upon the goal of preserving agricultural lands within this Commonwealth.
(4) The relevance of the project to encouraging the preservation of agricultural lands.
(5) The geographic scope of the project and the amount of agricultural land which will be affected by the project described in the application.
(6) The value to the community of the project described in the application.
(7) The innovativeness of the project.
(8) The anticipated date of full implementation of a county program.
(9) The impact the project would have on other county programs.
§ 138h.6. Applications generally.
(a) Application required. Applicants shall submit a written grant application to the Department through their county agricultural land preservation boards.
(b) Obtaining an application. Applications for grants under this chapter shall be made on forms prepared by the Department. The forms will be furnished, upon request, by the Department.
(c) Additional documentation. The State Board and the Secretary may require an applicant to submit additional documentation to complete or verify the application form. The additional documentation may include a letter, affidavit or other documentation, to:
(1) Verify the legitimacy of the applicant's agricultural land preservation board.
(2) Verify that grant funds will be used for one or more of the purposes in § 138h.4 (relating to uses of grant funds).
(3) Confirm the applicant has secured funds from another source for the project for which the grant is requested.
(4) Obtain from a third party which is providing matching funds to an applicant a recommendation that a grant under this chapter be awarded the applicant and verifying that its contribution of funds to the project would not be available without a grant from the Department.
(d) Request for additional documentation. If additional documentation is necessary, the State Board or the Secretary will mail a written request for additional documentation to the applicant within 10 days of receipt of the application.
§ 138h.7. Filing applications.
(a) Place and time. An application for a grant under the Grant Program shall be received by the program administrator at the Department of Agriculture, 2301 North Cameron Street, Harrisburg, Pennsylvania 17110-9408, during the specific 45-day annual application period as advertised in the Pennsylvania Bulletin. The advertisement will be published at least 30 days prior to the commencement of the application period.
(b) Incomplete or inaccurate applications. The Department will review each application and any supporting documentation that is received within the 45-day application period. If an application is found to be incomplete or inaccurate, the Department will request additional information and will discontinue further processing of the application if the documentation is not received by the Department within the 45-day application period described in subsection (a).
§ 138h.8. Review of application by State Board.
(a) Transmittal of application to State Board. When the Department determines a grant application is complete and accurate, it will forward this application, together with supporting documentation submitted therewith, to the State Board for review at its next regularly scheduled meeting. Since all applications are to be submitted and completed within the same time period, all applications for funding will be transmitted to the State Board at the same time.
(b) Factors. The State Board will review and evaluate the application and supporting documentation and will consider the factors in § 138h.5 (relating to eligibility criteria) in deciding whether to recommend approval or disapproval of the grant request.
(c) Decisions. When the State Board has reviewed the grant application and supporting documentation, it will vote on whether to recommend approval or disapproval of the grant application. The State Board will vote on these projects in accordance with its bylaws. The State Board may also recommend the grant be awarded in an amount less than that requested in the grant application. In addition, the State Board may vote to recommend the imposition of restrictions or special conditions upon the issuance of a grant. If the State Board recommends approval of a particular grant application, the Secretary will execute the grant agreement if funding is available and all other conditions have been met.
§ 138h.9. Notice of disposition of application.
The Department will mail to the applicant written notice of the approval or disapproval of a grant application within 30 days of a decision. This notice will be by regular mail to the address indicated by the applicant on the grant application form.
§ 138h.10. Grant agreement.
After the State Board approves a grant application, and as a precondition to the Department's release of grant funds to a successful applicant, the Department and the applicant shall execute a written grant agreement which describes the terms and conditions subject to which the grant is made. This grant agreement shall contain and conform to the requirements of this chapter and applicable State laws. It shall also contain any special terms and conditions required by the State Board and the Secretary.
§ 138h.11. Verification of use.
(a) Verification. Within 3 months of the time period specified in the grant agreement, or the completion of the project, whichever is earlier, the grant recipient shall submit to the Department written receipts accounting for the project costs. If the total of the written receipts demonstrates that some portion of the grant amount was not spent, the grant recipient shall also submit payment in the full amount of this unspent sum to the Department. The repayment shall be credited to the Agricultural Conservation Easement Purchase Fund, and may be used to fund this Grant Program. The Department may also require that additional documentation be submitted by the grant recipient to document the expenditure of grant funds.
(b) Extension of time. The 3-month period described in subsection (a) may only be extended by the written permission of the Secretary. An extension will be for a specific period of time.
(c) Failure to verify use. If required receipts or documentation are not submitted to the Department as described in subsections (a) and (b), or if the grant funds or a portion thereof are unaccounted for, the Secretary may demand, in writing, the return by the grant recipient of the entire grant sum or a lesser amount, plus appropriate legal interest as prescribed in section 202 of the act of January 30, 1974 (P. L. 13, No. 6) (41 P. S. § 202). The grant recipient shall repay a sum of grant funds and interest demanded by the Department within 60 days of the mailing of the written demand. The repayment shall be credited to the Agricultural Conservation Easement Purchase Fund, and may be used to fund this Grant Program.
§ 138h.12. Grant cancellation.
(a) Misuse of funds. A grant may be canceled by the Department if the Secretary determines grant funds are not being spent in accordance with the terms and conditions of the grant agreement. In the event of cancellation, the Department may demand the return of the entire grant sum, or a portion thereof, and the grant recipient shall repay the sum in the manner described in § 138h.11(c) (relating to verification of use).
(b) Failure to establish a county program. If, within 2 calendar years of the date of the first grant agreement to that county, the grant recipient does not have a county program in place, the grant funds provided to the eligible county under this chapter shall be returned to the Department in full as described in § 138h.11(c).
§ 138h.13. Deficits.
The Department's financial obligation or liability is limited to the amount of the grant. The Department will not be financially responsible for cost overruns incurred by grant recipients, or any other costs resulting from establishment of a county program.
§ 138h.14. Records.
(a) The grant recipient shall maintain books, records and other evidence pertinent to costs incurred in connection with the project. The books and records shall be maintained according to generally-accepted accounting principles.
(b) Financial records, supporting documents, statistical records and other records pertaining to the grant shall be retained by the grant recipient for 3 years following the date final payment is made. The records and documents shall be available for inspection or audit by the Commonwealth, its agencies and instrumentalities during this time period.
§ 138h.15. Final report.
Within 3 months of the date of completion of the project, the grant recipient shall submit a final report delineating the progress made towards meeting the objectives in the initial grant application.
[Pa.B. Doc. No. 96-1928. Filed for public inspection November 15, 1996, 9:00 a.m.]
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