Emergency Forest Restoration Program and Emergency Conservation Program, 70083-70090 [2010-28946]
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70083
Rules and Regulations
Federal Register
Vol. 75, No. 221
Wednesday, November 17, 2010
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. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
DEPARTMENT OF AGRICULTURE
Farm Service Agency
7 CFR Part 701
RIN 0560–AH89
Emergency Forest Restoration
Program and Emergency Conservation
Program
Farm Service Agency, USDA.
Interim rule.
AGENCY:
ACTION:
The Farm Service Agency
(FSA) is amending regulations as
required by the Food, Conservation, and
Energy Act of 2008 (the 2008 Farm Bill)
to implement the new Emergency Forest
Restoration Program (EFRP). EFRP will
provide financial assistance to owners
of nonindustrial private forest land to
restore land that was damaged by a
natural disaster on or after January 1,
2010. This interim rule also reorganizes
existing Emergency Conservation
Program (ECP) regulations to
incorporate EFRP and makes minor
technical amendments to the existing
regulations for ECP including general
regulations that will now apply to both
ECP and EFRP.
DATES: Effective Date: November 17,
2010. Comment Date: We will consider
comments that we receive by January
18, 2011.
ADDRESSES: We invite you to submit
comments on this interim rule. In your
comment, include the Regulation
Identifier Number (RIN) and the
volume, date, and page number of this
issue of the Federal Register. You may
submit comments by any of the
following methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
online instructions for submitting
comments.
• Mail: Katina Hanson, ECP Program
Manager, Conservation and
Environmental Program Division, FSA,
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SUMMARY:
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United States Department of Agriculture
(USDA), Mail STOP 0513, 1400
Independence Avenue, SW.,
Washington, DC 20250–0513.
• Hand Delivery or Courier: Deliver
comments to the above address.
All written comments will be
available for public inspection at the
above address during business hours
from 8 a.m. to 5 p.m., Monday through
Friday, except holidays. A copy of this
interim rule is available through the
FSA home page at https://
www.fsa.usda.gov/.
FOR FURTHER INFORMATION CONTACT:
Katina Hanson, phone: (202) 720–0062;
or e-mail: ecpreports@wdc.usda.gov.
SUPPLEMENTARY INFORMATION:
Background
This interim rule implements Section
8203 of the 2008 Farm Bill (Pub. L. 110–
246), which amends Title IV of the
Agricultural Credit Act of 1978, as
amended, (16 U.S.C. 2201–2206) by
adding the new EFRP. Title IV of the
Agricultural Credit Act of 1978
authorizes ECP, and generally
authorizes payments to farmers and
ranchers to rehabilitate farmland
damaged by wind erosion, floods,
hurricanes, or other natural disasters,
and for carrying out emergency water
conservation measures during periods of
severe drought. Section 8203 of the 2008
Farm Bill adds EFRP, which will make
payments available to an owner of
nonindustrial private forest land who is
approved for program participation and
carries out emergency measures to
restore land that is damaged by a natural
disaster. The fiscal year (FY) 2010
Supplemental Appropriations Act (Pub.
L. 111–212) provides $18 million for
EFRP to remain available until
expended for expenses resulting from
natural disasters that occurred on or
after January 1, 2010, and for other
purposes.
This rule also makes minor technical
changes to the existing ECP regulations
to be consistent with the 2008 Farm Bill
and with other FSA and Commodity
Credit Corporation (CCC) regulations.
Specifically, this rule replaces the term
‘‘person’’ with ‘‘person or legal entity’’ for
consistency with applicable payment
limitation regulations in 7 CFR part
1400, and revises a provision dealing
with the payment limit that applies to
ECP. This rule also reorganizes 7 CFR
part 701 to set up three subparts: A
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subpart of general provisions that
previously applied only to ECP and now
apply to both ECP and EFRP; a subpart
on ECP and miscellaneous ECP-related
ad hoc disaster programs; and a subpart
on EFRP. The general provisions section
also contains the sections that describe
programs that were previously
administered under 7 CFR part 701.
Subpart A—General
Most of the general provisions that
apply to ECP in the current 7 CFR part
701 are also needed to implement EFRP.
The new Subpart A includes those
general administrative and eligibility
requirements that apply to both ECP and
EFRP. This rule makes minor technical
amendments to the general provisions,
such as changing provisions that apply
to ECP to refer to both ECP and EFRP.
Also included in Subpart A are
provisions required for continued
administration of still-existing contracts
for two other programs that have been
administered under part 701, those
being the Agricultural Conservation
Program (ACP) contracts and Forestry
Incentive Program (FIP) contracts.
This rule makes the following
additional technical changes to the
general provisions in the new Subpart
A:
The ‘‘Administration’’ section is
amended to clarify, consistent with
current practice, that FSA may obtain
assistance from Federal agencies, State
agencies, or other providers of technical
assistance when necessary for program
implementation.
The ‘‘Definitions’’ section is amended
to add a definition of ‘‘Natural Disaster’’
consistent with § 8203(a) of the 2008
Farm Bill and the current ECP
definition, which includes wildfires,
hurricanes or excessive winds, drought,
ice storms or blizzards, floods, or other
naturally-occurring resource impacting
events. For EFRP, a natural disaster may
also include insect or disease
infestations, as determined by FSA in
consultation with other Federal and
State agencies as appropriate. The
definition of ‘‘program year’’ is being
removed as the term is not used in the
regulation.
The ‘‘Onsite Inspections’’ section is
amended to permit waivers of the onsite
inspection requirement for both ECP
and EFRP when conditions warrant.
After some disasters, damage is so
extensive and the need to address
damage so severe that the time delay
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associated with completing onsite
inspections for every participant in
areas with limited access hinders
efficient implementation of the program.
These circumstances were common
following Hurricanes Andrew and Iniki
in 1993 and Hurricanes Katrina and Rita
in 2005 where the extent and magnitude
of damage made onsite inspections
unnecessary and difficult. The new
provision will allow FSA to waive the
requirement for inspections when those
inspections could put people and
property at risk and needlessly delay
emergency assistance.
The ‘‘Eligible Costs’’ section is
amended to replace the phrase ‘‘farm or
ranch’’ with ‘‘eligible land’’ to clarify that
nonindustrial private forest land may be
considered eligible land.
The ‘‘Appeals’’ section is amended to
specify that the appeal regulations of the
Natural Resources and Conservation
Service (7 CFR part 614) apply to 7 CFR
part 701 for those particular situations
where NRCS has performed technical
assistance.
Many of the eligibility and
application requirements that apply to
ECP also apply to EFRP under the
regulations implemented for EFRP in
this interim rule. These include, for
example, requirements for onsite
inspections so that FSA can verify
damage, and requirements for proving
that the ‘‘practice’’ (emergency forest
restoration measure) has been
completed. Provisions concerning
appeals, change of ownership of the
land, assignment of payments, etc., also
apply to both ECP and EFRP. Both ECP
and EFRP have a ‘‘qualifying minimum
cost’’ provision, meaning that the cost of
the restoration must meet a minimum
threshold to be eligible. This provision
is intended to eliminate de minimis
losses where the cost of the
administration may exceed the amount
of the benefit; however, the regulations
do allow for some exceptions where the
circumstances warrant. The minimum
for ECP is $1,000 in most States and for
EFRP, FSA will establish the minimum
qualifying cost of restoration, which
will be available in the FSA county
office. With respect to the filing of
applications for enrollment in the
program, the information that will be
required for EFRP will be the same as
the information required for ECP and
other FSA conservation financial
assistance programs. There will be no
different information collection
requirements for EFRP.
Subpart B—Emergency Conservation
Program
The provisions that apply specifically
to ECP are moved to a new Subpart B.
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As illustrated in the table at the end of
this preamble summarizing changes
made by this interim rule, many
sections have been redesignated
(assigned a new number). In addition,
this rule makes minor technical changes
needed for this restructuring, such as
replacing the word ‘‘part’’ with ‘‘subpart’’
where appropriate, and to correct
internal references. This rule also
removes § 701.54 concerning ECP
assistance for oyster reefs damaged by
2005 hurricanes. The section is no
longer needed because the funding and
authority for that type of assistance was
transferred to the National Oceanic and
Atmospheric Administration.
Subpart C—Emergency Forest
Restoration Program
This rule adds a new Subpart C for
provisions specific to the new EFRP. All
of the provisions are new, because this
is a new program. Under EFRP, FSA
will provide financial assistance to
owners of nonindustrial private forest
land who carry out emergency measures
to restore the land that was damaged by
a natural disaster that occurred on or
after January 1, 2010. To be eligible, the
land must have had tree cover
immediately before the natural disaster.
EFRP is a financial assistance program;
the financial assistance will pay up to
75 percent of the cost of the emergency
forest restoration measures to approved
owners of private nonindustrial forest
land.
Similar to ECP, as specified in 7 CFR
701.13, FSA will announce an
enrollment period for the submission of
requests for EFRP financial assistance.
To request EFRP financial assistance,
eligible owners will apply on forms
specified by FSA. FSA will review the
applications, determine the applicant’s
and the land’s eligibility, and approve
applications. As specified in 7 CFR
701.16, requests will be prioritized as
determined appropriate or needed
before approval by FSA based on factors
including, but not limited to:
• Type and degree of damage;
• Type of practices needed to address
the problem;
• Availability of funds;
• Availability of technical assistance;
• Environmental concerns; and
• Safety factors.
These requests may be approved if
funds are available and the requested
practice is determined eligible.
As specified in 7 CFR 701.21, prior to
applying for payment, the approved
practice must be completed and proof of
completion must be submitted to the
FSA county office. In addition, as
specified in § 701.15(b)(4), the practice
must have been started no more than 60
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days before the EFRP designation is
approved for the applicable county
office, but it is understood that no
payments will be made unless
approved, and then only when
consistent with the provisions of the
regulations—thus, there may be a risk
inherent in incurring expenses prior to
approval. However, USDA will
endeavor to provide notice of the
availability or impending availability of
these programs when the need for these
programs is present and there is funding
available as well. EFRP designation
information is made available by FSA
county offices through outreach and
information campaigns to ensure that
nonindustrial private forest land owners
and underserved populations are aware
of the availability of EFRP financial
assistance.
For EFRP, ‘‘nonindustrial private
forest land’’ is defined in the 2008 Farm
Bill as:
rural land, as determined by the Secretary,
that—(A) has existing tree cover (or had tree
cover immediately before the natural disaster
and is suitable for growing trees); and (B) is
owned by any nonindustrial private
individual, group, association, corporation,
or other private legal entity, that has
definitive decision-making authority over the
land.
EFRP is somewhat similar in scope to
previous ECP-related ad hoc disaster
programs (most recently the 2005
hurricane disaster assistance portions of
ECP that provided assistance to owners
of private nonindustrial forest land).
That assistance was limited to certain
non-industrial private forest landowners
who suffered a loss of, or damage to, at
least 35 percent of forest acres on forest
land due to the 2005 hurricanes. The
producer had 5 years from the date of
the loss to:
(1) Reforest the lost or damaged forest
acres in accordance with a plan
approved by FSA that was appropriate
for the forest type;
(2) Use best management practices in
accordance with FSA’s best
management practices; and
(3) Exercise stewardship on the forest
land while maintaining the land in a
forested condition.
As authorized by the 2008 Farm Bill,
the new EFRP does not have these
limitations in geographic scope, type of
qualifying natural disaster, or timeframe
to implement restoration. Unlike some
previous ECP-related ad hoc disaster
assistance programs, EFRP will be
available nationwide.
Some provisions are different for ECP
and EFRP. For example, ECP
regulations, though not required by the
program statute itself, have traditionally
had a limit of $200,000 per participant
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per disaster, and this will continue
under the program regulations
implemented in this interim rule.
Similarly, the Farm Bill does not require
a limit for EFRP, but these regulations
will set a limit of $500,000 per person
or legal entity, per disaster. The higher
limit was selected because while
damage to ECP land may damage only
one season’s crops, a damaged forest
may take 15 years to recover. ECP has
a limit of 75 percent of the participant’s
actual costs, with up to 90 percent for
limited resource participants; in no case
can the financial assistance exceed 50
percent of the value of the land. EFRP
has a statutory limit of 75 percent of
actual costs for all producers, and no
provision capping financial assistance
based on the agricultural value of the
land.
Both ECP and EFRP are subject to the
availability of appropriated funding.
There was no funding for EFRP in 2008
or 2009. The FY 2010 Supplemental
Appropriation provides $18 million for
EFRP.
Most of the provisions in this rule for
EFRP are required by the 2008 Farm
Bill. FSA has added a few discretionary
provisions to ensure program integrity,
including requiring that the forest
restoration practice specifications
represent the minimum level of
performance needed to restore the land
to the applicable FSA, NRCS, Forest
Service, or State forestry standard. The
2008 Farm Bill provides that owners of
nonindustrial private forest land
damaged by a natural disaster are
eligible for EFRP if certain conditions
are met.
Nothing in this rule creates an
entitlement of any kind, and payments
will be made only to the extent that
funds are available and only to the
extent that, in addition to other
eligibility requirements, the FSA Deputy
Administrator for Farm Programs has
approved the availability of benefits for
a particular disaster in a particular area
for a particular time period.
Summary of Interim Rule
Reorganization of 7 CFR Part 701
This interim rule reorganizes 7 CFR
part 701 into three new subparts.
Subpart A will include general
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provisions that apply to both ECP and
EFRP; the sections will be numbered
§§ 701.1 through 701.99. Subpart B will
include provisions specific to ECP and
to the miscellaneous 2005 hurricane
relief programs; the sections will be
numbered §§ 701.100 through 701.199.
Subpart C will include provisions
specific to EFRP, and the sections will
be numbered §§ 701.200 through
701.299. The following table provides a
summary comparison of where sections
in the current regulation in 7 CFR part
701 have been placed in this interim
rule, and the substantive changes. The
table lists the sections in the order in
which they appear in the current CFR.
Sections with no substantive change
listed may have minor technical
changes, such as adding references to
EFRP or updating internal references.
Current 7 CFR part 701 provisions will
be in subparts A or B; subpart C is an
entirely new subpart for EFRP.
Current CFR
Section title
This rule
§ 701.1 .....................................................................
Administration .........................................................
§ 701.2 .....................................................................
Definitions ...............................................................
§ 701.3 .....................................................................
Scope .....................................................................
§ 701.4 .....................................................................
Producer eligibility ..................................................
§ 701.5 .....................................................................
Land eligibility .........................................................
§§ 701.6 through 701.9 ............................................
§ 701.10 ...................................................................
[Reserved] ..............................................................
Qualifying minimum cost of restoration .................
§ 701.11 ...................................................................
Prohibition on duplicate payments .........................
§ 701.12 ...................................................................
Eligible practices ....................................................
§ 701.13 ...................................................................
§ 701.14 ...................................................................
Submitting requests ...............................................
Onsite inspections ..................................................
§ 701.15 ...................................................................
Starting practices before financial assistance request is submitted; non-entitlement to payment;
payment subject to the availability of funds.
Practice approval ...................................................
Average adjusted gross income limitation .............
[Reserved] ..............................................................
Filing payment application .....................................
§ 701.1 (revises provision to clarify
technical assistance sources).
§ 701.2 (adds definition of natural disaster).
Redesignated as § 701.103 for ECP;
§ 701.203 for EFRP.
Redesignated as § 701.104 for ECP;
§ 701.204 for EFRP.
Redesignated as § 701.105 for ECP;
§ 701.205 for EFRP.
No change.
Redesignated as § 701.110 for ECP;
§ 701.210 for EFRP.
Redesignated as § 701.111 for ECP;
§ 701.211 for EFRP.
Redesignated as § 701.112 for ECP;
§ 701.212 for EFRP.
§ 701.13.
§ 701.14 (adds waiver of inspections
provisions).
§ 701.15.
§ 701.16 ...................................................................
§ 701.17 ...................................................................
§§ 701.18 through 701.220 ......................................
§ 701.21 ...................................................................
§ 701. 701.22..
§ 701.23 ...................................................................
§ 701.24 ...................................................................
§ 701.26 ...................................................................
Eligible costs ..........................................................
Dividing cost-share among more than one participant.
Practices carried out with aid from ineligible persons.
Maximum cost-share percentage ...........................
§ 701.27 ...................................................................
§§ 701.28 through 701.30 ........................................
§ 701.31 ...................................................................
§ 701.32 ...................................................................
§ 701.33 ...................................................................
Maximum ECP payments per person ....................
[Reserved] ..............................................................
Maintenance and proper use of practices .............
Failure to comply with program provisions ............
Death, incompetency, or disappearance ...............
Redesignated as § 701.126 for ECP;
§ 701.226 for EFRP.
Redesignated as § 701.127 for ECP.
No change.
§ 701.31.
§ 701.32.
§ 701.33.
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§ 701.25 ...................................................................
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§ 701.16.
Redesignated as § 701.117 for ECP.
No change.
§ 701.21.
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§ 701.23.
§ 701.24.
§ 701.25.
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Current CFR
Section title
This rule
§ 701.34 ...................................................................
Appeals ..................................................................
§ 701.35 ...................................................................
§ 701.36 ...................................................................
§ 701.37 ...................................................................
...................................................................
...................................................................
...................................................................
...................................................................
...................................................................
...................................................................
Compliance with regulatory measures ...................
Schemes and devices and claims avoidances ......
Loss of control of the property during the practice
life span.
[Reserved] ..............................................................
Cost-share assistance not subject to claims .........
Assignments ...........................................................
Information collection requirements .......................
Agricultural Conservation Program (ACP) contracts.
Forestry Incentives Program (FIP) contracts .........
2005 hurricanes .....................................................
Definitions ...............................................................
Availability of funding .............................................
Debris removal and water for livestock .................
Oysters ...................................................................
§ 701.34 (adds a provision for NRCS
appeals).
§ 701.35.
§ 701.36.
§ 701.37.
§ 701.55 ...................................................................
§ 701.56 ...................................................................
§ 701.57 ...................................................................
Nursery ...................................................................
Poultry ....................................................................
Private nonindustrial forest land ............................
§§ 701.38 through 701.40 ........................................
§ 701.41 ...................................................................
§ 701.42 ...................................................................
§ 701.43 ...................................................................
§ 701.44 ...................................................................
§ 701.45
§ 701.50
§ 701.51
§ 701.52
§ 701.53
§ 701.54
Notice and Comment
FSA is not required by 5 U.S.C. 553
or any other provision of law to publish
a notice of proposed rulemaking with
respect to the subject matter of this rule.
FSA is authorized by the FY 2010
Supplemental Appropriations Act (Pub.
L. 111–212) to issue an interim rule
effective on publication with an
opportunity for comment.
Executive Order 12866
This rule has been determined to be
significant and was reviewed by the
Office of Management and Budget
(OMB) under Executive Order 12866.
The cost benefit analysis is summarized
below and is available from the contact
information listed above.
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Cost Benefit Analysis Summary
Title IV of the Agricultural Credit Act
of 1978 authorizes ECP and generally
authorizes payments to farmers and
ranchers to rehabilitate farmland
damaged by wind erosion, floods,
hurricanes, or other natural disasters,
and for carrying out emergency water
conservation measures during periods of
severe drought. The 2008 Farm Bill
broadens the scope of Title IV by adding
EFRP to provide financial assistance to
owners of nonindustrial private forest
land who carry out emergency measures
to restore the land that was damaged by
a natural disaster. EFRP is a financial
assistance program; the financial
assistance will pay up to 75 percent of
the cost of the emergency forest
restoration measures to approved
owners of private nonindustrial forest
land.
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The impact of the program amounts to
a transfer to private forest landowners,
which is equivalent to total program
outlays. EFRP is expected to be funded
through irregular ad hoc appropriations
in a manner similar to the way the ECP
is funded. It is assumed that no
additional funding beyond the $18
million appropriated for FY 2010 will
be provided during the current Farm
Bill cycle, and that program outlays will
therefore be $18 million.
Regulatory Flexibility Act
This rule is not subject to the
Regulatory Flexibility Act since FSA is
not required to publish a notice of
proposed rulemaking for this rule. FSA
is authorized by the FY 2010
Supplemental Appropriations Act (Pub.
L. 111–212) to issue an interim rule
effective on publication with an
opportunity for comment.
Environmental Review
The environmental impacts of this
rule have been considered in a manner
consistent with the provisions of the
National Environmental Policy Act
(NEPA, 42 U.S.C. 4321–4347), the
regulations of the Council on
Environmental Quality (40 CFR parts
1500–1508), and FSA regulations for
compliance with NEPA (7 CFR part
799). The FY 2010 Supplemental
Appropriations Act (Pub. L. 111–212)
provides that EFRP will be considered
to have met the requirements of the
NEPA for activities similar in nature
and quantity to those of ECP established
under Title IV of the Agricultural Credit
Act of 1978 (16 U.S.C. 2201–2206). FSA
has determined that the activities
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No change.
§ 701.41.
§ 701.42.
§ 701.43.
§ 701.44.
§ 701.45.
Redesignated as § 701.150 for ECP.
Redesignated as § 701.151 for ECP.
Redesignated as § 701.152 for ECP.
Redesignated as § 701.153 for ECP.
Section removed, because the assistance is now provided by NOAA;
section number reserved.
Redesignated as § 701.155 for ECP.
Redesignated as § 701.156 for ECP.
Redesignated as § 701.157 for ECP.
allowed by the EFRP provisions are
similar in nature and quantity to those
of ECP and thus the exception applies.
Further, it is the determination of FSA
that the impacts associated with
amending regulations as required by the
2008 Farm Bill to implement the new
EFRP would be the same as those
discussed in the Final Supplemental
Environmental Impact Statement
(FSEIS) on the ECP, which can be found
at: https://www.fsa.usda.gov/FSA/
webapp?area=home&subject
=ecrc&topic=nep-cd.
For these reasons, separately and
together, FSA has determined that no
additional environmental assessment or
environmental impact statement will be
prepared.
Executive Order 12372
This program is not subject to
Executive Order 12372, which requires
consultation with State and local
officials. See the notice related to 7 CFR
part 3015, subpart V, published in the
Federal Register on June 24, 1983 (48
FR 29115).
Executive Order 12988
This interim rule has been reviewed
under Executive Order 12988, Civil
Justice Reform. This rule does not
preempt State and or local laws,
regulations, or policies unless they
present an irreconcilable conflict with
this rule. Before any judicial action may
be brought concerning the provisions of
this rule, appeal provisions of 7 CFR
parts 11 and 780 must be exhausted. As
specified in the 2008 Farm Bill, this
interim rule does not preempt a State or
tribal government law, including any
State or tribal government liability law.
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Executive Order 13132
The policies contained in this rule
would not have any substantial direct
effect on States, the relationship
between the Federal government and
the States, or the distribution of power
and responsibilities among the various
levels of government. Nor does this
interim rule impose substantial direct
compliance costs on State and local
governments. Therefore, consultation
with the States is not required.
Executive Order 13175
The policies contained in this rule do
not have tribal implications that
preempt tribal law. USDA will
undertake, within 6 months after this
rule becomes effective, Tribal
consultation to gain input by Tribal
officials concerning the impact of this
rule on Tribal governments,
communities, and individuals. The
consultation will establish a baseline of
consultation for future actions, should
any become necessary, regarding this
rule. Reports from the consultation will
be made part of the USDA annual
reporting on Tribal Consultation and
Collaboration. USDA will respond in a
timely and meaningful manner to all
Tribal government requests for
consultation concerning this rule and
will provide additional venues, such as
webinars and teleconferences, to
periodically host collaborative
conversations with Tribal leaders and
their representatives concerning ways to
improve this rule in Indian country.
Unfunded Mandates
This rule contains no Federal
mandates under the regulatory
provisions of Title II of the Unfunded
Mandate Reform Act of 1995 (UMRA,
Pub. L. 104–4). In addition, CCC is not
required to publish a notice of proposed
rulemaking for this rule. Therefore, this
rule is not subject to the requirements
of sections 202 and 205 of UMRA.
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Small Business Regulatory Enforcement
Fairness Act of 1996
This rule is not a major rule under the
Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104–121,
SBREFA). Therefore, FSA is not
required to delay the effective date for
60 days from the date of publication to
allow for Congressional review and this
rule is effective on the date of
publication in the Federal Register.
Federal Assistance Programs
The titles and numbers of the Federal
assistance programs in the Catalog of
Federal Domestic Assistance to which
this rule applies are:
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Emergency Conservation Program
(ECP)—10.054;
Agricultural Conservation Program
(ACP)—10.063;
Forestry Incentives Program (FIP)—
10.064; and
Emergency Forest Restoration Program
(EFRP)—10.095.
Paperwork Reduction Act
The EFRP regulations in this rule are
exempt from the requirements of the
Paperwork Reduction Act (44 U.S.C.
Chapter 35), as specified in the FY 2010
Supplemental Appropriations Act (Pub.
L. 111–212), which provides that these
regulations be promulgated and the
programs administered without regard
to the Paperwork Reduction Act.
The amendments in this rule to the
existing ECP require no revisions to the
information collection requirements that
are approved for ECP by OMB under
control number 0560–0082.
E-Government Act Compliance
FSA is committed to complying with
the E-Government Act, to promote the
use of the Internet and other
information technologies to provide
increased opportunities for citizen
access to Government information and
services, and for other purposes.
List of Subjects in 7 CFR part 701
Disaster assistance, Environmental
protection, Forests and forest products,
Reporting and recordkeeping
requirements, Rural areas, Soil
conservation, Water resources, Wildlife.
■ For the reasons discussed in the
preamble, this rule amends 7 CFR part
701 as follows:
PART 701—EMERGENCY
CONSERVATION PROGRAM,
EMERGENCY FOREST RESTORATION
PROGRAM, AND CERTAIN RELATED
PROGRAMS PREVIOUSLY
ADMINISTERED UNDER THIS PART
1. The authority citation for part 701
is revised to read as follows:
■
Authority: 16 U.S.C. 2201–2206; Sec. 101,
Pub. L. 109–148, 119 Stat. 2747; and Pub. L.
111–212, 124 Stat. 2302
2. The heading for part 701 is revised
as set out above.
■
Subpart A—General
3. Designate §§ 701.1 through 701.45
as subpart A under the heading set forth
above.
■ 4. Amend § 701.1 as follows:
■ a. Revise paragraph (a) to read as set
forth below;
■ b. In paragraph (b), first sentence,
remove the words ‘‘ECP is’’ and add, in
■
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Sfmt 4700
70087
their place, the words ‘‘ECP and EFRP
are’’, and in the third sentence, add the
words ‘‘or legal entity’’ immediately
following the word ‘‘person’’;
■ c. Revise paragraph (i) to read as set
forth below;
■ d. In paragraph (j), add the words ‘‘or
legal entity’’ immediately following the
words ‘‘in any person’’, and add the
words ‘‘or EFRP’’ immediately following
the word ‘‘ECP’’; and
■ e. In paragraph (k), add the words ‘‘or
EFRP’’ immediately following the word
‘‘ECP’’.
The revision reads as follows:
§ 701.1
Administration.
(a) Subject to the availability of funds,
this part provides the terms, conditions
and requirements of the Emergency
Conservation Program (ECP) and the
Emergency Forest Restoration Program
(EFRP) administered by the Farm
Service Agency (FSA). Neither program
is an entitlement program and payments
will only be made to the extent that the
Deputy Administrator announces the
eligibility of benefits for certain natural
disasters, the areas in which such
benefits will be available, the time
period in which the disaster and the
rehabilitation must occur, and only so
long as all the conditions for eligibility
specified in this part and elsewhere in
law are met. However, the Deputy
Administrator will not apply any nonstatutory limitation on payments
provided for in this part in such a way
that it would necessarily result in the
non-expenditure of program funds
required to otherwise be made by law.
*
*
*
*
*
(i) FSA may consult with any other
Federal agency, State agency, or other
provider of technical assistance for such
assistance as is determined by FSA to be
necessary to implement ECP or EFRP.
FSA is responsible for the technical
aspects of ECP and EFRP but may enter
into a Memorandum of Agreement with
another party to provide technical
assistance. If the requirement for
technical assistance results in undue
delay or significant hardship to
producers in a county, the State
committee may request in writing that
FSA waive this requirement for that
county. However, nothing in this
paragraph or in this part creates a right
of appeal or action for an applicant with
respect to provisions relating to internal
procedures of FSA.
*
*
*
*
*
■ 5. Amend § 701.2, paragraph (b), as
follows:
■ a. In the definition of ‘‘Applicant,’’ add
the words ‘‘or legal entity’’ immediately
following the word ‘‘person’’ and add the
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words ‘‘or EFRP’’ immediately following
the word ‘‘ECP’’;
■ b. Add, in alphabetical order, a new
definition for ‘‘Natural disaster’’; and
■ c. Remove the definition ‘‘Program
year’’.
The addition reads as follows:
adding, in its place, the words ‘‘In the
case of ECP, welfare’’.
§ 701.2
■
■
Definitions.
*
*
*
*
*
(b) * * *
Natural disaster means wildfires,
hurricanes or excessive winds, drought,
ice storms or blizzards, floods, or other
naturally-occurring resource impacting
events as determined by FSA. For EFRP,
a natural disaster also includes insect or
disease infestations as determined by
FSA in consultation with other Federal
and State agencies as appropriate.
*
*
*
*
*
§§ 701.3 through 701.5 [Redesignated as
§§ 701.103 through 701.105]
6. Redesignate §§ 701.3 through 701.5
as §§ 701.103 through 701.105, and
reserve §§ 701.3 through 701.5.
■
§§ 701.10 through 701.12 [Redesignated as
§§ 701.110 through 701.112]
7. Redesignate §§ 701.10 through
701.12 as §§ 701.110 through 701.112
and reserve §§ 701.10 through 701.12.
■
§ 701.13
Onsite inspections.
*
*
*
*
(b) Notwithstanding paragraph (a) of
this section, onsite inspections may be
waived by FSA, in its discretion only,
where damage is so severe that an onsite
inspection is unnecessary, as
determined by FSA.
[Amended]
10. Amend § 701.15 as follows:
a. In paragraph (b), introductory text,
remove the word ‘‘ECP’’, and
■ b. In paragraph (b)(4), add the words
‘‘or EFRP’’ immediately following the
word ‘‘ECP’’.
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■
■
[Amended]
11. Amend § 701.16, paragraph (a)(7),
by removing the word ‘‘Welfare’’ and
■
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[Amended]
13. Amend § 701.23 as follows:
a. In paragraph (a), remove the words
‘‘§§ 701.26 and 701.27’’ and add, in their
place, the words ‘‘§§ 701.126, 701.127,
and 701.226’’, and
■ b. In paragraphs (b)(1) and (b)(2),
remove the words ‘‘farm or ranch’’ and
add, in their place, the words ‘‘eligible
land’’, and
■ c. In paragraph (c), remove the words
‘‘§ 701.12(d)’’ and add, in their place,
‘‘§§ 701.112(d) or 701.212(d)’’.
■ 14. Amend § 701.25 as follows:
■ a. Revise the section heading to read
as set forth below, and
■ b. In the first sentence of the section,
add the words ‘‘or EFRP’’ immediately
following the word ‘‘ECP’’.
§ 701.25 Practices carried out with aid
from ineligible persons or ineligible legal
entities.
*
*
*
*
*
15. Redesignate §§ 701.26 through
701.27 as §§ 701.126 through 701.127
and reserve §§ 701.26 through 701.27.
§ 701.34
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[Amended]
16. Amend § 701.34 by removing the
word ‘‘part’’ and adding, in its place, the
words ‘‘parts 614 and’’.
■
§ 701.35
[Amended]
17. Amend § 701.35, second sentence
of the section, by adding the words ‘‘or
EFRP’’ immediately following the word
‘‘ECP’’ both times it appears.
■
§ 701.36
*
§ 701.16
§ 701.23
■
[Amended]
8. Amend § 701.13, paragraph (a), by
adding the words ‘‘or EFRP’’
immediately following the word ‘‘ECP’’.
■ 9. Amend § 701.14 as follows:
■ a. Redesignate the undesignated text
as a new paragraph (a),
■ b. In newly redesignated paragraph
(a), add the words ‘‘or EFRP’’
immediately following the word ‘‘ECP’’,
and
■ c. Add paragraph (b) to read as set
forth below.
§ 701.15
[Redesignated as § 701.117]
12. Redesignate § 701.17 as § 701.117
and reserve § 701.17.
■
§§ 701.26 through 701.27 [Redesignated as
§§ 701.126 through 701.127]
■
§ 701.14
§ 701.17
[Amended]
Frm 00006
Fmt 4700
[Amended]
19. Amend § 701.37, in the first
sentence of the section, by adding the
words ‘‘or EFRP’’ immediately following
the word ‘‘ECP’’ each time it appears,
and add the words ‘‘or legal entity’’
immediately following the word
‘‘person’’.
■
§§ 701.44 and 701.45
[Amended]
20. Amend §§ 701.44 and 701.45 by
removing the comma between the words
‘‘CFR’’ and ‘‘parts’’.
■
§§ 701.50 through 701.53 [Redesignated as
§§ 701.150 through 701.153]
21. Redesignate §§ 701.50 through
701.53 as §§ 701.150 through 701.153.
■
§ 701.54
■
[Removed]
22. Remove § 701.54.
§§ 701.55 through 701.57 [Redesignated as
§§ 701.155 through 701.157]
23. Redesignate §§ 701.55 through
701.57 as §§ 701.155 through 701.157.
■
§ 701.103
[Amended]
24. Amend newly redesignated
§ 701.103, as follows:
■ a. In paragraph (a), at the end, remove
the period and add, in it’s place, the
punctuation and words ‘‘, subject to the
availability of funds and only for areas,
natural disasters, and time periods
approved by the Deputy Administrator.’’
■ b. In paragraph (c) introductory text,
remove the word ‘‘part’’ and add, in its
place, the word ‘‘subpart’’.
■
§ 701.104
[Amended]
25. Amend newly redesignated
§ 701.104, paragraph (a), by adding the
words ‘‘or legal entity’’ immediately
following the word ‘‘person’’ both times
it appears.
■
§ 701.110
[Amended]
26. Amend newly redesignated
§ 701.110, paragraph (a), by removing
the words ‘‘§ 701.3(a)’’ and adding, in
their place, the words ‘‘§ 701.103(a)’’.
■
18. Amend § 701.36 as follows:
a. In paragraph (a), first sentence, add
the words ‘‘or legal entity’’ immediately
following the word ‘‘person’’, and in the
second sentence, remove the words
‘‘‘‘person’’ determinations made under
this part’’, and add, in their place, the
words ‘‘any eligibility determination,
including, but not limited to, a payment
limit eligibility’’,
■ b. In paragraph (b), remove the word
‘‘ECP’’ and add, in its place, the word
‘‘program’’,
■ c. In paragraph (c), add the words ‘‘or
legal entity’’ immediately following the
word ‘‘person’’,
■ d. In paragraph (d), add the words ‘‘or
EFRP’’ immediately following the word
‘‘ECP’’.
■
■
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§ 701.37
Sfmt 4700
§ 701.112
[Amended]
27. Amend newly redesignated
§ 701.112, paragraph (a), by removing
the word ‘‘part’’ and adding, in its place,
the word ‘‘subpart’’.
■ 28. Revise newly redesignated
§ 701.127 to read as follows:
■
§ 701.127 Maximum ECP payments per
person or legal entity.
A person or legal entity, as defined in
part 1400 of this title, is limited to a
maximum ECP cost-share of $200,000
per person or legal entity, per natural
disaster.
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Federal Register / Vol. 75, No. 221 / Wednesday, November 17, 2010 / Rules and Regulations
§ 701.150
[Amended]
29. Amend newly redesignated
§ 701.150, first sentence, by removing
the words ‘‘§§ 701.50 through 701.57’’
and adding, in their place, the words
‘‘§§ 701.150 through 701.157’’ and in the
third sentence, by removing the words
‘‘§§ 701.51 through 701.57’’ and adding,
in their place, the words ‘‘§§ 701.151
through 701.157’’.
■
§ 701.151
30. Amend newly redesignated
§ 701.151, introductory text, by
removing the words ‘‘§§ 701.52 through
701.57’’ and adding, in their place, the
words‘‘§§ 701.152 through 701.157’’.
[Amended]
31. Amend newly redesignated
§ 701.152 by removing the words
‘‘§§ 701.53 through 701.57’’ and adding,
in their place, the words ‘‘§§ 701.153
through 701.157’’, and by removing the
words ‘‘109–149’’ and adding, in their
place, the words ‘‘109–148’’.
■
§ 701.155
[Amended]
32. Amend newly redesignated
§ 701.155, paragraph (b), by removing
the words ‘‘§ 701.26’’ and adding, in
their place, the words ‘‘§ 701.126’’.
■
§ 701.157
[Amended]
33. Amend newly redesignated
§ 701.157 as follows:
■ a. In paragraph (b)(1), add the words
‘‘or legal entity’’ immediately following
the word ‘‘person’’, and
■ b. In paragraph (c), remove the words
‘‘§ 701.26’’ and add, in their place, the
words ‘‘§ 701.126’’.
Subpart B—Emergency Conservation
Program
34. Designate newly redesignated
§§ 701.103–701.157 as subpart B under
the heading set forth above.
■
§§ 701.100 through 701.102, 701.106
through 701.109, 701.113 through 701.116,
701.118 through 701.125, 701.128 through
701.149, and 701.154 [Added and
Reserved]
35. Add and reserve §§ 701.100
through 701.102, 701.106 through
701.109, 701.113 through 701.116,
701.118 through 701.125, 701.128
through 701.149, and 701.154.
■ 36. Add subpart C to read as follows:
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■
Subpart C—Emergency Forest Restoration
Program
Sec.
701.200–701.202 [Reserved]
701.203 Scope.
701.204 Participant eligibility.
701.205 Land eligibility.
701.206 through 701.209 [Reserved]
15:17 Nov 16, 2010
§§ 701.200 through 701.202
§§ 701.206 through 701.209
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[Reserved]
Scope.
(a) Subject to the availability of funds
and only for areas, natural disasters, and
time periods for the natural disaster and
rehabilitation approved by the Deputy
Administrator, FSA will provide
financial assistance to owners of
nonindustrial private forest land who
carry out emergency measures to restore
land damaged by a natural disaster on
or after January 1, 2010, as determined
by FSA.
(b) The objective of EFRP is to make
financial assistance available to eligible
participants on eligible land for certain
practices to restore nonindustrial
private forest land that has been
damaged by a natural disaster.
§ 701.204
■
VerDate Mar<15>2010
Subpart C—Emergency Forest
Restoration Program
(b) Land is ineligible for EFRP if FSA
determines that the land is any of the
following:
(1) Owned or controlled by the United
States; or
(2) Owned or controlled by States,
including State agencies or political
subdivisions of a State.
§ 701.203
[Amended]
■
§ 701.152
701.210 Qualifying minimum cost of
restoration.
701.211 Prohibition on duplicate payments.
701.212 Eligible EFRP practices.
701.213 through 701.225 [Reserved]
701.226 Maximum financial assistance.
70089
Participant eligibility.
(a) To be eligible to participate in
EFRP, a person or legal entity must be
an owner of nonindustrial private forest
land affected by a natural disaster, and
must be liable for or have the expense
that is the subject of the financial
assistance. The owner must be a person
or legal entity (including an Indian
tribe) with full decision-making
authority over the land, as determined
by FSA, or with such waivers as may be
needed from lenders or others as may be
required, to undertake program
commitments.
(b) Federal agencies and States,
including all agencies and political
subdivisions of a State, are ineligible for
EFRP.
(c) An application may be denied for
any reason.
§ 701.205
Land eligibility.
(a) For land to be eligible, it must be
nonindustrial private forest land and
must, as determined by FSA:
(1) Have existing tree cover or have
had tree cover immediately before the
natural disaster and be suitable for
growing trees;
(2) Have damage to natural resources
caused by a natural disaster, which
occurred on or after January 1, 2010,
that, if not treated, would impair or
endanger the natural resources on the
land and would materially affect future
use of the land; and
(3) Be physically located in a county
in which EFRP has been implemented.
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[Reserved]
§ 701.210 Qualifying minimum cost of
restoration.
(a) FSA will establish the minimum
qualifying cost of restoration, which
may vary by State or region.
(b) An applicant may request a waiver
of the qualifying minimum cost of
restoration. The waiver request must
document how failure to grant the
waiver will result in environmental
damage or hardship to the person or
legal entity, and how the waiver will
accomplish the goals of the program.
§ 701.211 Prohibition on duplicate
payments.
(a) Participants are not eligible to
receive funding under EFRP for land on
which FSA determines that the
participant has or will receive funding
for the same or similar expenses under:
(1) The Emergency Conservation
Program provided for in subpart B of
this part;
(2) The Wetland Reserve Program
(WRP) provided for in part 1467 of this
title;
(3) The Emergency Wetland Reserve
Program (EWRP) provided for in part
623 of this chapter;
(4) The Emergency Watershed
Protection Program (EWP), provided for
in part 624 of this chapter; or
(5) Any other program that covers the
same or similar expenses so as to create
duplicate payments, or, have the effect
of creating in total, otherwise, a higher
rate of financial assistance than is
allowed on its own under this part.
(b) Participants who receive any
duplicate funds, payments, or benefits
must refund any EFRP payments
received, except the Deputy
Administrator may reduce the refund
amount to the amount determined
appropriate by the Deputy
Administrator to ensure that the total
amount of assistance received by the
owner of the land under all programs
does not exceed an amount otherwise
allowed in this part.
§ 701.212
Eligible EFRP practices.
(a) Financial assistance may be
offered to eligible persons or legal
entities for EFRP practices to restore
forest health and forest-related resources
on eligible land.
(b) Practice specifications must
represent the minimum level of
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performance needed to restore the land
to the applicable FSA, NRCS, Forest
Service, or State forestry standard.
§§ 701.213 through 701.225
§ 701.226
[Reserved]
Maximum financial assistance.
(a) In addition to other restrictions
that may be applied by FSA, an EFRP
participant will not receive more than
75 percent of the lesser of the
participant’s total actual cost or of the
total allowable costs, as determined by
this subpart, to perform the practice.
(b) A person, as defined in part 1400
of this title, is limited to a maximum
cost-share of $500,000 per person or
legal entity, per disaster.
(c) The Deputy Administrator may
waive the provisions of this section on
a case by case basis to address
unusually large losses. Such relief is
solely at the discretion of the Deputy
Administrator, and the failure to
provide such relief is not subject to
administrative review or appeal under
parts 11 or 780 of this title.
Signed in Washington, DC, November 9,
2010.
Jonathan W. Coppess,
Administrator, Farm Service Agency.
[FR Doc. 2010–28946 Filed 11–16–10; 8:45 am]
BILLING CODE 3410–05–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 25
[Docket No. NM435; Special Conditions No.
25–413–SC]
Special Conditions: Bombardier Inc.
Model CL–600–2E25 Airplane,
Operation Without Normal Electrical
Power
Federal Aviation
Administration (FAA), DOT.
ACTION: Final special conditions; request
for comments.
AGENCY:
These special conditions are
issued for the Bombardier Inc. Model
CL–600–2E25 airplane. This airplane
will have a novel or unusual design
feature associated with a command-bywire (CBW) rudder-control system,
which requires a source of continuous
electrical power to operate the control
system. The current 14 CFR part
25.1351(d), ‘‘Operation without normal
electrical power,’’ requires safe
operation in VFR conditions for at least
five minutes with inoperative normal
electrical power. The applicable
airworthiness regulations do not contain
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SUMMARY:
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15:17 Nov 16, 2010
Jkt 223001
adequate or appropriate safety standards
for this design feature. These special
conditions contain the additional safety
standards that the Administrator
considers necessary to establish a level
of safety equivalent to that established
by the existing airworthiness standards.
DATES: The effective date of these
special conditions is November 5, 2010.
We must receive your comments by
January 3, 2011.
ADDRESSES: You must mail two copies
of your comments to: Federal Aviation
Administration, Transport Airplane
Directorate, Attn: Rules Docket (ANM–
113), Docket No. NM435, 1601 Lind
Avenue, SW., Renton, Washington,
98057–3356. You may deliver two
copies to the Transport Airplane
Directorate at the above address. You
must mark your comments: Docket No.
NM435 You can inspect comments in
the Rules Docket weekdays, except
Federal holidays, between 7:30 a.m. and
4 p.m.
FOR FURTHER INFORMATION CONTACT:
Steve Slotte, ANM–111, Transport
Airplane Directorate, Aircraft
Certification Service, 1601 Lind
Avenue, SW., Renton, Washington,
98057–3356; telephone (425) 227–2315;
facsimile (425) 227–1149.
SUPPLEMENTARY INFORMATION: The FAA
has determined that notice of, and
opportunity for prior public comment
on, these special conditions are
impracticable because these procedures
would significantly delay issuance of
the design approval and thus delivery of
the affected aircraft. In addition, the
substance of these special conditions
has been subject to the public-comment
process in several prior instances with
no substantive comments received. The
FAA therefore finds that good cause
exists for making these special
conditions effective upon issuance.
Comments Invited
We invite interested people to take
part in this rulemaking by sending
written comments, data, or views. The
most helpful comments reference a
specific portion of the special
conditions, explain the reason for any
recommended change, and include
supporting data. We ask that you send
us two copies of written comments.
We will file in the docket all
comments we receive, as well as a
report summarizing each substantive
public contact with FAA personnel
concerning these special conditions.
You can inspect the docket before and
after the comment closing date. If you
wish to review the docket in person, go
to the address in the ADDRESSES section
of this preamble between 7:30 a.m. and
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Fmt 4700
Sfmt 4700
4 p.m., Monday through Friday, except
Federal holidays.
We will consider all comments we
receive on or before the closing date for
comments. We will consider comments
filed late if it is possible to do so
without incurring expense or delay. We
may change these special conditions
based on the comments we receive.
If you want us to acknowledge receipt
of your comments on these special
conditions, include with your
comments a self-addressed, stamped
postcard on which you have written the
docket number. We will stamp the date
on the postcard and mail it back to you.
Background
On February 28, 2007, Bombardier
Inc. applied for an amendment to Type
Certificate No. A21EA, through
Transport Canada, to include the new
Model CL–600–2E25 airplane. The CL–
600–2E25, which is a derivative of the
CL–600–2D24 currently approved under
Type Certificate No. A21EA, is to be
certified for a maximum occupancy of
110 people, including 5 crewmembers.
The CL–600–2E25 has increased gross
weight, extended wing tip, and
increased fuselage length to
accommodate the additional passengers
as compared to the CL–600–2D24.
The CL–600–2E25 will have a CBW
rudder-control system that will affect
the performance of the airplane. This
system requires a continuous source of
electrical power to maintain an operable
control system.
Type Certification Basis
Under the provisions of Title 14, Code
of Federal Regulations (14 CFR) 21.101,
Bombardier Inc. must show that the
Model CL–600–2E25 airplane meets the
applicable provisions of 14 CFR part 25,
as amended by Amendments 25–1
through 25–119, except for earlier
amendments as agreed upon by the
FAA. These regulations will be
incorporated into Type Certificate No.
A21EA after type-certification approval
of the Model CL–600–2E25. The
regulations incorporated by reference in
the type certificate are commonly
referred to as the ‘‘original typecertification basis.’’ The regulations
incorporated by reference in Type
Certificate No. A21EA are as follows:
The original type-certification basis
for the Model CL–600–2D24 (CRJ 900),
shown on TCDS A21EA, Revision 25,
and reprinted below.
Model CL–600–2D15/CL–600–2D24
Part 25, including Amendments 25–1
through 25–86, Amendments 25–88
through Amendments 25–90, and
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]]>Agencies
[Federal Register Volume 75, Number 221 (Wednesday, November 17, 2010)]
[Rules and Regulations]
[Pages 70083-70090]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-28946]
========================================================================
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.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
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========================================================================
Federal Register / Vol. 75, No. 221 / Wednesday, November 17, 2010 /
Rules and Regulations
[[Page 70083]]
DEPARTMENT OF AGRICULTURE
Farm Service Agency
7 CFR Part 701
RIN 0560-AH89
Emergency Forest Restoration Program and Emergency Conservation
Program
AGENCY: Farm Service Agency, USDA.
ACTION: Interim rule.
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SUMMARY: The Farm Service Agency (FSA) is amending regulations as
required by the Food, Conservation, and Energy Act of 2008 (the 2008
Farm Bill) to implement the new Emergency Forest Restoration Program
(EFRP). EFRP will provide financial assistance to owners of
nonindustrial private forest land to restore land that was damaged by a
natural disaster on or after January 1, 2010. This interim rule also
reorganizes existing Emergency Conservation Program (ECP) regulations
to incorporate EFRP and makes minor technical amendments to the
existing regulations for ECP including general regulations that will
now apply to both ECP and EFRP.
DATES: Effective Date: November 17, 2010. Comment Date: We will
consider comments that we receive by January 18, 2011.
ADDRESSES: We invite you to submit comments on this interim rule. In
your comment, include the Regulation Identifier Number (RIN) and the
volume, date, and page number of this issue of the Federal Register.
You may submit comments by any of the following methods:
Federal eRulemaking Portal: Go to https://www.regulations.gov. Follow the online instructions for submitting
comments.
Mail: Katina Hanson, ECP Program Manager, Conservation and
Environmental Program Division, FSA, United States Department of
Agriculture (USDA), Mail STOP 0513, 1400 Independence Avenue, SW.,
Washington, DC 20250-0513.
Hand Delivery or Courier: Deliver comments to the above
address.
All written comments will be available for public inspection at the
above address during business hours from 8 a.m. to 5 p.m., Monday
through Friday, except holidays. A copy of this interim rule is
available through the FSA home page at https://www.fsa.usda.gov/.
FOR FURTHER INFORMATION CONTACT: Katina Hanson, phone: (202) 720-0062;
or e-mail: ecpreports@wdc.usda.gov.
SUPPLEMENTARY INFORMATION:
Background
This interim rule implements Section 8203 of the 2008 Farm Bill
(Pub. L. 110-246), which amends Title IV of the Agricultural Credit Act
of 1978, as amended, (16 U.S.C. 2201-2206) by adding the new EFRP.
Title IV of the Agricultural Credit Act of 1978 authorizes ECP, and
generally authorizes payments to farmers and ranchers to rehabilitate
farmland damaged by wind erosion, floods, hurricanes, or other natural
disasters, and for carrying out emergency water conservation measures
during periods of severe drought. Section 8203 of the 2008 Farm Bill
adds EFRP, which will make payments available to an owner of
nonindustrial private forest land who is approved for program
participation and carries out emergency measures to restore land that
is damaged by a natural disaster. The fiscal year (FY) 2010
Supplemental Appropriations Act (Pub. L. 111-212) provides $18 million
for EFRP to remain available until expended for expenses resulting from
natural disasters that occurred on or after January 1, 2010, and for
other purposes.
This rule also makes minor technical changes to the existing ECP
regulations to be consistent with the 2008 Farm Bill and with other FSA
and Commodity Credit Corporation (CCC) regulations. Specifically, this
rule replaces the term ``person'' with ``person or legal entity'' for
consistency with applicable payment limitation regulations in 7 CFR
part 1400, and revises a provision dealing with the payment limit that
applies to ECP. This rule also reorganizes 7 CFR part 701 to set up
three subparts: A subpart of general provisions that previously applied
only to ECP and now apply to both ECP and EFRP; a subpart on ECP and
miscellaneous ECP-related ad hoc disaster programs; and a subpart on
EFRP. The general provisions section also contains the sections that
describe programs that were previously administered under 7 CFR part
701.
Subpart A--General
Most of the general provisions that apply to ECP in the current 7
CFR part 701 are also needed to implement EFRP. The new Subpart A
includes those general administrative and eligibility requirements that
apply to both ECP and EFRP. This rule makes minor technical amendments
to the general provisions, such as changing provisions that apply to
ECP to refer to both ECP and EFRP. Also included in Subpart A are
provisions required for continued administration of still-existing
contracts for two other programs that have been administered under part
701, those being the Agricultural Conservation Program (ACP) contracts
and Forestry Incentive Program (FIP) contracts.
This rule makes the following additional technical changes to the
general provisions in the new Subpart A:
The ``Administration'' section is amended to clarify, consistent
with current practice, that FSA may obtain assistance from Federal
agencies, State agencies, or other providers of technical assistance
when necessary for program implementation.
The ``Definitions'' section is amended to add a definition of
``Natural Disaster'' consistent with Sec. 8203(a) of the 2008 Farm
Bill and the current ECP definition, which includes wildfires,
hurricanes or excessive winds, drought, ice storms or blizzards,
floods, or other naturally-occurring resource impacting events. For
EFRP, a natural disaster may also include insect or disease
infestations, as determined by FSA in consultation with other Federal
and State agencies as appropriate. The definition of ``program year''
is being removed as the term is not used in the regulation.
The ``Onsite Inspections'' section is amended to permit waivers of
the onsite inspection requirement for both ECP and EFRP when conditions
warrant. After some disasters, damage is so extensive and the need to
address damage so severe that the time delay
[[Page 70084]]
associated with completing onsite inspections for every participant in
areas with limited access hinders efficient implementation of the
program. These circumstances were common following Hurricanes Andrew
and Iniki in 1993 and Hurricanes Katrina and Rita in 2005 where the
extent and magnitude of damage made onsite inspections unnecessary and
difficult. The new provision will allow FSA to waive the requirement
for inspections when those inspections could put people and property at
risk and needlessly delay emergency assistance.
The ``Eligible Costs'' section is amended to replace the phrase
``farm or ranch'' with ``eligible land'' to clarify that nonindustrial
private forest land may be considered eligible land.
The ``Appeals'' section is amended to specify that the appeal
regulations of the Natural Resources and Conservation Service (7 CFR
part 614) apply to 7 CFR part 701 for those particular situations where
NRCS has performed technical assistance.
Many of the eligibility and application requirements that apply to
ECP also apply to EFRP under the regulations implemented for EFRP in
this interim rule. These include, for example, requirements for onsite
inspections so that FSA can verify damage, and requirements for proving
that the ``practice'' (emergency forest restoration measure) has been
completed. Provisions concerning appeals, change of ownership of the
land, assignment of payments, etc., also apply to both ECP and EFRP.
Both ECP and EFRP have a ``qualifying minimum cost'' provision, meaning
that the cost of the restoration must meet a minimum threshold to be
eligible. This provision is intended to eliminate de minimis losses
where the cost of the administration may exceed the amount of the
benefit; however, the regulations do allow for some exceptions where
the circumstances warrant. The minimum for ECP is $1,000 in most States
and for EFRP, FSA will establish the minimum qualifying cost of
restoration, which will be available in the FSA county office. With
respect to the filing of applications for enrollment in the program,
the information that will be required for EFRP will be the same as the
information required for ECP and other FSA conservation financial
assistance programs. There will be no different information collection
requirements for EFRP.
Subpart B--Emergency Conservation Program
The provisions that apply specifically to ECP are moved to a new
Subpart B. As illustrated in the table at the end of this preamble
summarizing changes made by this interim rule, many sections have been
redesignated (assigned a new number). In addition, this rule makes
minor technical changes needed for this restructuring, such as
replacing the word ``part'' with ``subpart'' where appropriate, and to
correct internal references. This rule also removes Sec. 701.54
concerning ECP assistance for oyster reefs damaged by 2005 hurricanes.
The section is no longer needed because the funding and authority for
that type of assistance was transferred to the National Oceanic and
Atmospheric Administration.
Subpart C--Emergency Forest Restoration Program
This rule adds a new Subpart C for provisions specific to the new
EFRP. All of the provisions are new, because this is a new program.
Under EFRP, FSA will provide financial assistance to owners of
nonindustrial private forest land who carry out emergency measures to
restore the land that was damaged by a natural disaster that occurred
on or after January 1, 2010. To be eligible, the land must have had
tree cover immediately before the natural disaster. EFRP is a financial
assistance program; the financial assistance will pay up to 75 percent
of the cost of the emergency forest restoration measures to approved
owners of private nonindustrial forest land.
Similar to ECP, as specified in 7 CFR 701.13, FSA will announce an
enrollment period for the submission of requests for EFRP financial
assistance. To request EFRP financial assistance, eligible owners will
apply on forms specified by FSA. FSA will review the applications,
determine the applicant's and the land's eligibility, and approve
applications. As specified in 7 CFR 701.16, requests will be
prioritized as determined appropriate or needed before approval by FSA
based on factors including, but not limited to:
Type and degree of damage;
Type of practices needed to address the problem;
Availability of funds;
Availability of technical assistance;
Environmental concerns; and
Safety factors.
These requests may be approved if funds are available and the
requested practice is determined eligible.
As specified in 7 CFR 701.21, prior to applying for payment, the
approved practice must be completed and proof of completion must be
submitted to the FSA county office. In addition, as specified in Sec.
701.15(b)(4), the practice must have been started no more than 60 days
before the EFRP designation is approved for the applicable county
office, but it is understood that no payments will be made unless
approved, and then only when consistent with the provisions of the
regulations--thus, there may be a risk inherent in incurring expenses
prior to approval. However, USDA will endeavor to provide notice of the
availability or impending availability of these programs when the need
for these programs is present and there is funding available as well.
EFRP designation information is made available by FSA county offices
through outreach and information campaigns to ensure that nonindustrial
private forest land owners and underserved populations are aware of the
availability of EFRP financial assistance.
For EFRP, ``nonindustrial private forest land'' is defined in the
2008 Farm Bill as:
rural land, as determined by the Secretary, that--(A) has
existing tree cover (or had tree cover immediately before the
natural disaster and is suitable for growing trees); and (B) is
owned by any nonindustrial private individual, group, association,
corporation, or other private legal entity, that has definitive
decision-making authority over the land.
EFRP is somewhat similar in scope to previous ECP-related ad hoc
disaster programs (most recently the 2005 hurricane disaster assistance
portions of ECP that provided assistance to owners of private
nonindustrial forest land). That assistance was limited to certain non-
industrial private forest landowners who suffered a loss of, or damage
to, at least 35 percent of forest acres on forest land due to the 2005
hurricanes. The producer had 5 years from the date of the loss to:
(1) Reforest the lost or damaged forest acres in accordance with a
plan approved by FSA that was appropriate for the forest type;
(2) Use best management practices in accordance with FSA's best
management practices; and
(3) Exercise stewardship on the forest land while maintaining the
land in a forested condition.
As authorized by the 2008 Farm Bill, the new EFRP does not have
these limitations in geographic scope, type of qualifying natural
disaster, or timeframe to implement restoration. Unlike some previous
ECP-related ad hoc disaster assistance programs, EFRP will be available
nationwide.
Some provisions are different for ECP and EFRP. For example, ECP
regulations, though not required by the program statute itself, have
traditionally had a limit of $200,000 per participant
[[Page 70085]]
per disaster, and this will continue under the program regulations
implemented in this interim rule. Similarly, the Farm Bill does not
require a limit for EFRP, but these regulations will set a limit of
$500,000 per person or legal entity, per disaster. The higher limit was
selected because while damage to ECP land may damage only one season's
crops, a damaged forest may take 15 years to recover. ECP has a limit
of 75 percent of the participant's actual costs, with up to 90 percent
for limited resource participants; in no case can the financial
assistance exceed 50 percent of the value of the land. EFRP has a
statutory limit of 75 percent of actual costs for all producers, and no
provision capping financial assistance based on the agricultural value
of the land.
Both ECP and EFRP are subject to the availability of appropriated
funding. There was no funding for EFRP in 2008 or 2009. The FY 2010
Supplemental Appropriation provides $18 million for EFRP.
Most of the provisions in this rule for EFRP are required by the
2008 Farm Bill. FSA has added a few discretionary provisions to ensure
program integrity, including requiring that the forest restoration
practice specifications represent the minimum level of performance
needed to restore the land to the applicable FSA, NRCS, Forest Service,
or State forestry standard. The 2008 Farm Bill provides that owners of
nonindustrial private forest land damaged by a natural disaster are
eligible for EFRP if certain conditions are met.
Nothing in this rule creates an entitlement of any kind, and
payments will be made only to the extent that funds are available and
only to the extent that, in addition to other eligibility requirements,
the FSA Deputy Administrator for Farm Programs has approved the
availability of benefits for a particular disaster in a particular area
for a particular time period.
Summary of Interim Rule Reorganization of 7 CFR Part 701
This interim rule reorganizes 7 CFR part 701 into three new
subparts. Subpart A will include general provisions that apply to both
ECP and EFRP; the sections will be numbered Sec. Sec. 701.1 through
701.99. Subpart B will include provisions specific to ECP and to the
miscellaneous 2005 hurricane relief programs; the sections will be
numbered Sec. Sec. 701.100 through 701.199. Subpart C will include
provisions specific to EFRP, and the sections will be numbered
Sec. Sec. 701.200 through 701.299. The following table provides a
summary comparison of where sections in the current regulation in 7 CFR
part 701 have been placed in this interim rule, and the substantive
changes. The table lists the sections in the order in which they appear
in the current CFR. Sections with no substantive change listed may have
minor technical changes, such as adding references to EFRP or updating
internal references. Current 7 CFR part 701 provisions will be in
subparts A or B; subpart C is an entirely new subpart for EFRP.
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Current CFR Section title This rule
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Sec. 701.1..................... Administration........... Sec. 701.1 (revises provision to clarify
technical assistance sources).
Sec. 701.2..................... Definitions.............. Sec. 701.2 (adds definition of natural
disaster).
Sec. 701.3..................... Scope.................... Redesignated as Sec. 701.103 for ECP;
Sec. 701.203 for EFRP.
Sec. 701.4..................... Producer eligibility..... Redesignated as Sec. 701.104 for ECP;
Sec. 701.204 for EFRP.
Sec. 701.5..................... Land eligibility......... Redesignated as Sec. 701.105 for ECP;
Sec. 701.205 for EFRP.
Sec. Sec. 701.6 through 701.9. [Reserved]............... No change.
Sec. 701.10.................... Qualifying minimum cost Redesignated as Sec. 701.110 for ECP;
of restoration. Sec. 701.210 for EFRP.
Sec. 701.11.................... Prohibition on duplicate Redesignated as Sec. 701.111 for ECP;
payments. Sec. 701.211 for EFRP.
Sec. 701.12.................... Eligible practices....... Redesignated as Sec. 701.112 for ECP;
Sec. 701.212 for EFRP.
Sec. 701.13.................... Submitting requests...... Sec. 701.13.
Sec. 701.14.................... Onsite inspections....... Sec. 701.14 (adds waiver of inspections
provisions).
Sec. 701.15.................... Starting practices before Sec. 701.15.
financial assistance
request is submitted;
non-entitlement to
payment; payment subject
to the availability of
funds.
Sec. 701.16.................... Practice approval........ Sec. 701.16.
Sec. 701.17.................... Average adjusted gross Redesignated as Sec. 701.117 for ECP.
income limitation.
Sec. Sec. 701.18 through [Reserved]............... No change.
701.220.
Sec. 701.21.................... Filing payment Sec. 701.21.
application.
Sec. 701. 701.22...............
Sec. 701.23.................... Eligible costs........... Sec. 701.23.
Sec. 701.24.................... Dividing cost-share among Sec. 701.24.
more than one
participant.
Sec. 701.25.................... Practices carried out Sec. 701.25.
with aid from ineligible
persons.
Sec. 701.26.................... Maximum cost-share Redesignated as Sec. 701.126 for ECP;
percentage. Sec. 701.226 for EFRP.
Sec. 701.27.................... Maximum ECP payments per Redesignated as Sec. 701.127 for ECP.
person.
Sec. Sec. 701.28 through [Reserved]............... No change.
701.30.
Sec. 701.31.................... Maintenance and proper Sec. 701.31.
use of practices.
Sec. 701.32.................... Failure to comply with Sec. 701.32.
program provisions.
Sec. 701.33.................... Death, incompetency, or Sec. 701.33.
disappearance.
[[Page 70086]]
Sec. 701.34.................... Appeals.................. Sec. 701.34 (adds a provision for NRCS appeals).
Sec. 701.35.................... Compliance with Sec. 701.35.
regulatory measures.
Sec. 701.36.................... Schemes and devices and Sec. 701.36.
claims avoidances.
Sec. 701.37.................... Loss of control of the Sec. 701.37.
property during the
practice life span.
Sec. Sec. 701.38 through [Reserved]............... No change.
701.40.
Sec. 701.41.................... Cost-share assistance not Sec. 701.41.
subject to claims.
Sec. 701.42.................... Assignments.............. Sec. 701.42.
Sec. 701.43.................... Information collection Sec. 701.43.
requirements.
Sec. 701.44.................... Agricultural Conservation Sec. 701.44.
Program (ACP) contracts.
Sec. 701.45.................... Forestry Incentives Sec. 701.45.
Program (FIP) contracts.
Sec. 701.50.................... 2005 hurricanes.......... Redesignated as Sec. 701.150 for ECP.
Sec. 701.51.................... Definitions.............. Redesignated as Sec. 701.151 for ECP.
Sec. 701.52.................... Availability of funding.. Redesignated as Sec. 701.152 for ECP.
Sec. 701.53.................... Debris removal and water Redesignated as Sec. 701.153 for ECP.
for livestock.
Sec. 701.54.................... Oysters.................. Section removed, because the assistance is now
provided by NOAA; section number reserved.
Sec. 701.55.................... Nursery.................. Redesignated as Sec. 701.155 for ECP.
Sec. 701.56.................... Poultry.................. Redesignated as Sec. 701.156 for ECP.
Sec. 701.57.................... Private nonindustrial Redesignated as Sec. 701.157 for ECP.
forest land.
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Notice and Comment
FSA is not required by 5 U.S.C. 553 or any other provision of law
to publish a notice of proposed rulemaking with respect to the subject
matter of this rule. FSA is authorized by the FY 2010 Supplemental
Appropriations Act (Pub. L. 111-212) to issue an interim rule effective
on publication with an opportunity for comment.
Executive Order 12866
This rule has been determined to be significant and was reviewed by
the Office of Management and Budget (OMB) under Executive Order 12866.
The cost benefit analysis is summarized below and is available from the
contact information listed above.
Cost Benefit Analysis Summary
Title IV of the Agricultural Credit Act of 1978 authorizes ECP and
generally authorizes payments to farmers and ranchers to rehabilitate
farmland damaged by wind erosion, floods, hurricanes, or other natural
disasters, and for carrying out emergency water conservation measures
during periods of severe drought. The 2008 Farm Bill broadens the scope
of Title IV by adding EFRP to provide financial assistance to owners of
nonindustrial private forest land who carry out emergency measures to
restore the land that was damaged by a natural disaster. EFRP is a
financial assistance program; the financial assistance will pay up to
75 percent of the cost of the emergency forest restoration measures to
approved owners of private nonindustrial forest land.
The impact of the program amounts to a transfer to private forest
landowners, which is equivalent to total program outlays. EFRP is
expected to be funded through irregular ad hoc appropriations in a
manner similar to the way the ECP is funded. It is assumed that no
additional funding beyond the $18 million appropriated for FY 2010 will
be provided during the current Farm Bill cycle, and that program
outlays will therefore be $18 million.
Regulatory Flexibility Act
This rule is not subject to the Regulatory Flexibility Act since
FSA is not required to publish a notice of proposed rulemaking for this
rule. FSA is authorized by the FY 2010 Supplemental Appropriations Act
(Pub. L. 111-212) to issue an interim rule effective on publication
with an opportunity for comment.
Environmental Review
The environmental impacts of this rule have been considered in a
manner consistent with the provisions of the National Environmental
Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council
on Environmental Quality (40 CFR parts 1500-1508), and FSA regulations
for compliance with NEPA (7 CFR part 799). The FY 2010 Supplemental
Appropriations Act (Pub. L. 111-212) provides that EFRP will be
considered to have met the requirements of the NEPA for activities
similar in nature and quantity to those of ECP established under Title
IV of the Agricultural Credit Act of 1978 (16 U.S.C. 2201-2206). FSA
has determined that the activities allowed by the EFRP provisions are
similar in nature and quantity to those of ECP and thus the exception
applies. Further, it is the determination of FSA that the impacts
associated with amending regulations as required by the 2008 Farm Bill
to implement the new EFRP would be the same as those discussed in the
Final Supplemental Environmental Impact Statement (FSEIS) on the ECP,
which can be found at: https://www.fsa.usda.gov/FSA/webapp?area=home&subject=ecrc&topic=nep-cd.
For these reasons, separately and together, FSA has determined that
no additional environmental assessment or environmental impact
statement will be prepared.
Executive Order 12372
This program is not subject to Executive Order 12372, which
requires consultation with State and local officials. See the notice
related to 7 CFR part 3015, subpart V, published in the Federal
Register on June 24, 1983 (48 FR 29115).
Executive Order 12988
This interim rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule does not preempt State and or local
laws, regulations, or policies unless they present an irreconcilable
conflict with this rule. Before any judicial action may be brought
concerning the provisions of this rule, appeal provisions of 7 CFR
parts 11 and 780 must be exhausted. As specified in the 2008 Farm Bill,
this interim rule does not preempt a State or tribal government law,
including any State or tribal government liability law.
[[Page 70087]]
Executive Order 13132
The policies contained in this rule would not have any substantial
direct effect on States, the relationship between the Federal
government and the States, or the distribution of power and
responsibilities among the various levels of government. Nor does this
interim rule impose substantial direct compliance costs on State and
local governments. Therefore, consultation with the States is not
required.
Executive Order 13175
The policies contained in this rule do not have tribal implications
that preempt tribal law. USDA will undertake, within 6 months after
this rule becomes effective, Tribal consultation to gain input by
Tribal officials concerning the impact of this rule on Tribal
governments, communities, and individuals. The consultation will
establish a baseline of consultation for future actions, should any
become necessary, regarding this rule. Reports from the consultation
will be made part of the USDA annual reporting on Tribal Consultation
and Collaboration. USDA will respond in a timely and meaningful manner
to all Tribal government requests for consultation concerning this rule
and will provide additional venues, such as webinars and
teleconferences, to periodically host collaborative conversations with
Tribal leaders and their representatives concerning ways to improve
this rule in Indian country.
Unfunded Mandates
This rule contains no Federal mandates under the regulatory
provisions of Title II of the Unfunded Mandate Reform Act of 1995
(UMRA, Pub. L. 104-4). In addition, CCC is not required to publish a
notice of proposed rulemaking for this rule. Therefore, this rule is
not subject to the requirements of sections 202 and 205 of UMRA.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule under the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub. L. 104-121, SBREFA). Therefore,
FSA is not required to delay the effective date for 60 days from the
date of publication to allow for Congressional review and this rule is
effective on the date of publication in the Federal Register.
Federal Assistance Programs
The titles and numbers of the Federal assistance programs in the
Catalog of Federal Domestic Assistance to which this rule applies are:
Emergency Conservation Program (ECP)--10.054;
Agricultural Conservation Program (ACP)--10.063;
Forestry Incentives Program (FIP)--10.064; and
Emergency Forest Restoration Program (EFRP)--10.095.
Paperwork Reduction Act
The EFRP regulations in this rule are exempt from the requirements
of the Paperwork Reduction Act (44 U.S.C. Chapter 35), as specified in
the FY 2010 Supplemental Appropriations Act (Pub. L. 111-212), which
provides that these regulations be promulgated and the programs
administered without regard to the Paperwork Reduction Act.
The amendments in this rule to the existing ECP require no
revisions to the information collection requirements that are approved
for ECP by OMB under control number 0560-0082.
E-Government Act Compliance
FSA is committed to complying with the E-Government Act, to promote
the use of the Internet and other information technologies to provide
increased opportunities for citizen access to Government information
and services, and for other purposes.
List of Subjects in 7 CFR part 701
Disaster assistance, Environmental protection, Forests and forest
products, Reporting and recordkeeping requirements, Rural areas, Soil
conservation, Water resources, Wildlife.
0
For the reasons discussed in the preamble, this rule amends 7 CFR part
701 as follows:
PART 701--EMERGENCY CONSERVATION PROGRAM, EMERGENCY FOREST
RESTORATION PROGRAM, AND CERTAIN RELATED PROGRAMS PREVIOUSLY
ADMINISTERED UNDER THIS PART
0
1. The authority citation for part 701 is revised to read as follows:
Authority: 16 U.S.C. 2201-2206; Sec. 101, Pub. L. 109-148, 119
Stat. 2747; and Pub. L. 111-212, 124 Stat. 2302
0
2. The heading for part 701 is revised as set out above.
Subpart A--General
0
3. Designate Sec. Sec. 701.1 through 701.45 as subpart A under the
heading set forth above.
0
4. Amend Sec. 701.1 as follows:
0
a. Revise paragraph (a) to read as set forth below;
0
b. In paragraph (b), first sentence, remove the words ``ECP is'' and
add, in their place, the words ``ECP and EFRP are'', and in the third
sentence, add the words ``or legal entity'' immediately following the
word ``person'';
0
c. Revise paragraph (i) to read as set forth below;
0
d. In paragraph (j), add the words ``or legal entity'' immediately
following the words ``in any person'', and add the words ``or EFRP''
immediately following the word ``ECP''; and
0
e. In paragraph (k), add the words ``or EFRP'' immediately following
the word ``ECP''.
The revision reads as follows:
Sec. 701.1 Administration.
(a) Subject to the availability of funds, this part provides the
terms, conditions and requirements of the Emergency Conservation
Program (ECP) and the Emergency Forest Restoration Program (EFRP)
administered by the Farm Service Agency (FSA). Neither program is an
entitlement program and payments will only be made to the extent that
the Deputy Administrator announces the eligibility of benefits for
certain natural disasters, the areas in which such benefits will be
available, the time period in which the disaster and the rehabilitation
must occur, and only so long as all the conditions for eligibility
specified in this part and elsewhere in law are met. However, the
Deputy Administrator will not apply any non-statutory limitation on
payments provided for in this part in such a way that it would
necessarily result in the non-expenditure of program funds required to
otherwise be made by law.
* * * * *
(i) FSA may consult with any other Federal agency, State agency, or
other provider of technical assistance for such assistance as is
determined by FSA to be necessary to implement ECP or EFRP. FSA is
responsible for the technical aspects of ECP and EFRP but may enter
into a Memorandum of Agreement with another party to provide technical
assistance. If the requirement for technical assistance results in
undue delay or significant hardship to producers in a county, the State
committee may request in writing that FSA waive this requirement for
that county. However, nothing in this paragraph or in this part creates
a right of appeal or action for an applicant with respect to provisions
relating to internal procedures of FSA.
* * * * *
0
5. Amend Sec. 701.2, paragraph (b), as follows:
0
a. In the definition of ``Applicant,'' add the words ``or legal
entity'' immediately following the word ``person'' and add the
[[Page 70088]]
words ``or EFRP'' immediately following the word ``ECP'';
0
b. Add, in alphabetical order, a new definition for ``Natural
disaster''; and
0
c. Remove the definition ``Program year''.
The addition reads as follows:
Sec. 701.2 Definitions.
* * * * *
(b) * * *
Natural disaster means wildfires, hurricanes or excessive winds,
drought, ice storms or blizzards, floods, or other naturally-occurring
resource impacting events as determined by FSA. For EFRP, a natural
disaster also includes insect or disease infestations as determined by
FSA in consultation with other Federal and State agencies as
appropriate.
* * * * *
Sec. Sec. 701.3 through 701.5 [Redesignated as Sec. Sec. 701.103
through 701.105]
0
6. Redesignate Sec. Sec. 701.3 through 701.5 as Sec. Sec. 701.103
through 701.105, and reserve Sec. Sec. 701.3 through 701.5.
Sec. Sec. 701.10 through 701.12 [Redesignated as Sec. Sec. 701.110
through 701.112]
0
7. Redesignate Sec. Sec. 701.10 through 701.12 as Sec. Sec. 701.110
through 701.112 and reserve Sec. Sec. 701.10 through 701.12.
Sec. 701.13 [Amended]
0
8. Amend Sec. 701.13, paragraph (a), by adding the words ``or EFRP''
immediately following the word ``ECP''.
0
9. Amend Sec. 701.14 as follows:
0
a. Redesignate the undesignated text as a new paragraph (a),
0
b. In newly redesignated paragraph (a), add the words ``or EFRP''
immediately following the word ``ECP'', and
0
c. Add paragraph (b) to read as set forth below.
Sec. 701.14 Onsite inspections.
* * * * *
(b) Notwithstanding paragraph (a) of this section, onsite
inspections may be waived by FSA, in its discretion only, where damage
is so severe that an onsite inspection is unnecessary, as determined by
FSA.
Sec. 701.15 [Amended]
0
10. Amend Sec. 701.15 as follows:
0
a. In paragraph (b), introductory text, remove the word ``ECP'', and
0
b. In paragraph (b)(4), add the words ``or EFRP'' immediately following
the word ``ECP''.
Sec. 701.16 [Amended]
0
11. Amend Sec. 701.16, paragraph (a)(7), by removing the word
``Welfare'' and adding, in its place, the words ``In the case of ECP,
welfare''.
Sec. 701.17 [Redesignated as Sec. 701.117]
0
12. Redesignate Sec. 701.17 as Sec. 701.117 and reserve Sec. 701.17.
Sec. 701.23 [Amended]
0
13. Amend Sec. 701.23 as follows:
0
a. In paragraph (a), remove the words ``Sec. Sec. 701.26 and 701.27''
and add, in their place, the words ``Sec. Sec. 701.126, 701.127, and
701.226'', and
0
b. In paragraphs (b)(1) and (b)(2), remove the words ``farm or ranch''
and add, in their place, the words ``eligible land'', and
0
c. In paragraph (c), remove the words ``Sec. 701.12(d)'' and add, in
their place, ``Sec. Sec. 701.112(d) or 701.212(d)''.
0
14. Amend Sec. 701.25 as follows:
0
a. Revise the section heading to read as set forth below, and
0
b. In the first sentence of the section, add the words ``or EFRP''
immediately following the word ``ECP''.
Sec. 701.25 Practices carried out with aid from ineligible persons or
ineligible legal entities.
* * * * *
Sec. Sec. 701.26 through 701.27 [Redesignated as Sec. Sec. 701.126
through 701.127]
0
15. Redesignate Sec. Sec. 701.26 through 701.27 as Sec. Sec. 701.126
through 701.127 and reserve Sec. Sec. 701.26 through 701.27.
Sec. 701.34 [Amended]
0
16. Amend Sec. 701.34 by removing the word ``part'' and adding, in its
place, the words ``parts 614 and''.
Sec. 701.35 [Amended]
0
17. Amend Sec. 701.35, second sentence of the section, by adding the
words ``or EFRP'' immediately following the word ``ECP'' both times it
appears.
Sec. 701.36 [Amended]
0
18. Amend Sec. 701.36 as follows:
0
a. In paragraph (a), first sentence, add the words ``or legal entity''
immediately following the word ``person'', and in the second sentence,
remove the words ````person'' determinations made under this part'',
and add, in their place, the words ``any eligibility determination,
including, but not limited to, a payment limit eligibility'',
0
b. In paragraph (b), remove the word ``ECP'' and add, in its place, the
word ``program'',
0
c. In paragraph (c), add the words ``or legal entity'' immediately
following the word ``person'',
0
d. In paragraph (d), add the words ``or EFRP'' immediately following
the word ``ECP''.
Sec. 701.37 [Amended]
0
19. Amend Sec. 701.37, in the first sentence of the section, by adding
the words ``or EFRP'' immediately following the word ``ECP'' each time
it appears, and add the words ``or legal entity'' immediately following
the word ``person''.
Sec. Sec. 701.44 and 701.45 [Amended]
0
20. Amend Sec. Sec. 701.44 and 701.45 by removing the comma between
the words ``CFR'' and ``parts''.
Sec. Sec. 701.50 through 701.53 [Redesignated as Sec. Sec. 701.150
through 701.153]
0
21. Redesignate Sec. Sec. 701.50 through 701.53 as Sec. Sec. 701.150
through 701.153.
Sec. 701.54 [Removed]
0
22. Remove Sec. 701.54.
Sec. Sec. 701.55 through 701.57 [Redesignated as Sec. Sec. 701.155
through 701.157]
0
23. Redesignate Sec. Sec. 701.55 through 701.57 as Sec. Sec. 701.155
through 701.157.
Sec. 701.103 [Amended]
0
24. Amend newly redesignated Sec. 701.103, as follows:
0
a. In paragraph (a), at the end, remove the period and add, in it's
place, the punctuation and words ``, subject to the availability of
funds and only for areas, natural disasters, and time periods approved
by the Deputy Administrator.''
0
b. In paragraph (c) introductory text, remove the word ``part'' and
add, in its place, the word ``subpart''.
Sec. 701.104 [Amended]
0
25. Amend newly redesignated Sec. 701.104, paragraph (a), by adding
the words ``or legal entity'' immediately following the word ``person''
both times it appears.
Sec. 701.110 [Amended]
0
26. Amend newly redesignated Sec. 701.110, paragraph (a), by removing
the words ``Sec. 701.3(a)'' and adding, in their place, the words
``Sec. 701.103(a)''.
Sec. 701.112 [Amended]
0
27. Amend newly redesignated Sec. 701.112, paragraph (a), by removing
the word ``part'' and adding, in its place, the word ``subpart''.
0
28. Revise newly redesignated Sec. 701.127 to read as follows:
Sec. 701.127 Maximum ECP payments per person or legal entity.
A person or legal entity, as defined in part 1400 of this title, is
limited to a maximum ECP cost-share of $200,000 per person or legal
entity, per natural disaster.
[[Page 70089]]
Sec. 701.150 [Amended]
0
29. Amend newly redesignated Sec. 701.150, first sentence, by removing
the words ``Sec. Sec. 701.50 through 701.57'' and adding, in their
place, the words ``Sec. Sec. 701.150 through 701.157'' and in the
third sentence, by removing the words ``Sec. Sec. 701.51 through
701.57'' and adding, in their place, the words ``Sec. Sec. 701.151
through 701.157''.
Sec. 701.151 [Amended]
0
30. Amend newly redesignated Sec. 701.151, introductory text, by
removing the words ``Sec. Sec. 701.52 through 701.57'' and adding, in
their place, the words``Sec. Sec. 701.152 through 701.157''.
Sec. 701.152 [Amended]
0
31. Amend newly redesignated Sec. 701.152 by removing the words
``Sec. Sec. 701.53 through 701.57'' and adding, in their place, the
words ``Sec. Sec. 701.153 through 701.157'', and by removing the words
``109-149'' and adding, in their place, the words ``109-148''.
Sec. 701.155 [Amended]
0
32. Amend newly redesignated Sec. 701.155, paragraph (b), by removing
the words ``Sec. 701.26'' and adding, in their place, the words
``Sec. 701.126''.
Sec. 701.157 [Amended]
0
33. Amend newly redesignated Sec. 701.157 as follows:
0
a. In paragraph (b)(1), add the words ``or legal entity'' immediately
following the word ``person'', and
0
b. In paragraph (c), remove the words ``Sec. 701.26'' and add, in
their place, the words ``Sec. 701.126''.
Subpart B--Emergency Conservation Program
0
34. Designate newly redesignated Sec. Sec. 701.103-701.157 as subpart
B under the heading set forth above.
Sec. Sec. 701.100 through 701.102, 701.106 through 701.109, 701.113
through 701.116, 701.118 through 701.125, 701.128 through 701.149, and
701.154 [Added and Reserved]
0
35. Add and reserve Sec. Sec. 701.100 through 701.102, 701.106 through
701.109, 701.113 through 701.116, 701.118 through 701.125, 701.128
through 701.149, and 701.154.
0
36. Add subpart C to read as follows:
Subpart C--Emergency Forest Restoration Program
Sec.
701.200-701.202 [Reserved]
701.203 Scope.
701.204 Participant eligibility.
701.205 Land eligibility.
701.206 through 701.209 [Reserved]
701.210 Qualifying minimum cost of restoration.
701.211 Prohibition on duplicate payments.
701.212 Eligible EFRP practices.
701.213 through 701.225 [Reserved]
701.226 Maximum financial assistance.
Subpart C--Emergency Forest Restoration Program
Sec. Sec. 701.200 through 701.202 [Reserved]
Sec. 701.203 Scope.
(a) Subject to the availability of funds and only for areas,
natural disasters, and time periods for the natural disaster and
rehabilitation approved by the Deputy Administrator, FSA will provide
financial assistance to owners of nonindustrial private forest land who
carry out emergency measures to restore land damaged by a natural
disaster on or after January 1, 2010, as determined by FSA.
(b) The objective of EFRP is to make financial assistance available
to eligible participants on eligible land for certain practices to
restore nonindustrial private forest land that has been damaged by a
natural disaster.
Sec. 701.204 Participant eligibility.
(a) To be eligible to participate in EFRP, a person or legal entity
must be an owner of nonindustrial private forest land affected by a
natural disaster, and must be liable for or have the expense that is
the subject of the financial assistance. The owner must be a person or
legal entity (including an Indian tribe) with full decision-making
authority over the land, as determined by FSA, or with such waivers as
may be needed from lenders or others as may be required, to undertake
program commitments.
(b) Federal agencies and States, including all agencies and
political subdivisions of a State, are ineligible for EFRP.
(c) An application may be denied for any reason.
Sec. 701.205 Land eligibility.
(a) For land to be eligible, it must be nonindustrial private
forest land and must, as determined by FSA:
(1) Have existing tree cover or have had tree cover immediately
before the natural disaster and be suitable for growing trees;
(2) Have damage to natural resources caused by a natural disaster,
which occurred on or after January 1, 2010, that, if not treated, would
impair or endanger the natural resources on the land and would
materially affect future use of the land; and
(3) Be physically located in a county in which EFRP has been
implemented.
(b) Land is ineligible for EFRP if FSA determines that the land is
any of the following:
(1) Owned or controlled by the United States; or
(2) Owned or controlled by States, including State agencies or
political subdivisions of a State.
Sec. Sec. 701.206 through 701.209 [Reserved]
Sec. 701.210 Qualifying minimum cost of restoration.
(a) FSA will establish the minimum qualifying cost of restoration,
which may vary by State or region.
(b) An applicant may request a waiver of the qualifying minimum
cost of restoration. The waiver request must document how failure to
grant the waiver will result in environmental damage or hardship to the
person or legal entity, and how the waiver will accomplish the goals of
the program.
Sec. 701.211 Prohibition on duplicate payments.
(a) Participants are not eligible to receive funding under EFRP for
land on which FSA determines that the participant has or will receive
funding for the same or similar expenses under:
(1) The Emergency Conservation Program provided for in subpart B of
this part;
(2) The Wetland Reserve Program (WRP) provided for in part 1467 of
this title;
(3) The Emergency Wetland Reserve Program (EWRP) provided for in
part 623 of this chapter;
(4) The Emergency Watershed Protection Program (EWP), provided for
in part 624 of this chapter; or
(5) Any other program that covers the same or similar expenses so
as to create duplicate payments, or, have the effect of creating in
total, otherwise, a higher rate of financial assistance than is allowed
on its own under this part.
(b) Participants who receive any duplicate funds, payments, or
benefits must refund any EFRP payments received, except the Deputy
Administrator may reduce the refund amount to the amount determined
appropriate by the Deputy Administrator to ensure that the total amount
of assistance received by the owner of the land under all programs does
not exceed an amount otherwise allowed in this part.
Sec. 701.212 Eligible EFRP practices.
(a) Financial assistance may be offered to eligible persons or
legal entities for EFRP practices to restore forest health and forest-
related resources on eligible land.
(b) Practice specifications must represent the minimum level of
[[Page 70090]]
performance needed to restore the land to the applicable FSA, NRCS,
Forest Service, or State forestry standard.
Sec. Sec. 701.213 through 701.225 [Reserved]
Sec. 701.226 Maximum financial assistance.
(a) In addition to other restrictions that may be applied by FSA,
an EFRP participant will not receive more than 75 percent of the lesser
of the participant's total actual cost or of the total allowable costs,
as determined by this subpart, to perform the practice.
(b) A person, as defined in part 1400 of this title, is limited to
a maximum cost-share of $500,000 per person or legal entity, per
disaster.
(c) The Deputy Administrator may waive the provisions of this
section on a case by case basis to address unusually large losses. Such
relief is solely at the discretion of the Deputy Administrator, and the
failure to provide such relief is not subject to administrative review
or appeal under parts 11 or 780 of this title.
Signed in Washington, DC, November 9, 2010.
Jonathan W. Coppess,
Administrator, Farm Service Agency.
[FR Doc. 2010-28946 Filed 11-16-10; 8:45 am]
BILLING CODE 3410-05-P
