[Federal Register Volume 74, Number 134 (Wednesday, July 15, 2009)]
[Rules and Regulations]
[Pages 34209-34211]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-16705]
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Rules and Regulations
Federal Register
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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
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Federal Register / Vol. 74, No. 134 / Wednesday, July 15, 2009 /
Rules and Regulations
[[Page 34209]]
DEPARTMENT OF AGRICULTURE
Natural Resources Conservation Service
7 CFR Part 636
RIN 0578-AA49
Wildlife Habitat Incentive Program
AGENCY: Natural Resources Conservation Service, United States
Department of Agriculture.
ACTION: Interim final rule; amendment; reopening of comment period.
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SUMMARY: The Natural Resources Conservation Service (NRCS) published in
the Federal Register of January 16, 2009, an interim final rule with
request for comment amending the program regulations for the Wildlife
Habitat Incentive Program (WHIP) to incorporate programmatic changes
authorized by the Food, Conservation, and Energy Act of 2008 (2008
Act). On March 12, 2009, NRCS corrected language in the interim final
rule regarding the erroneous application of the payment limitation to
joint operations, and extended the comment period to April 17, 2009.
This document amends the interim final rule by expanding the definition
of agricultural lands to include areas of a farm or ranch that are not
currently under production. NRCS is also using the opportunity
presented by this rulemaking to reopen the comment period. Comments are
limited to the content of this amendment.
DATES: This amendment is effective on July 15, 2009. The comment period
for the WHIP Interim Final Rule published on January 16, 2009 (74 FR
2786), extended March 12, 2009 (74 FR 10673), until April 17, 2009, is
reopened. Submit comments on or before August 14, 2009.
ADDRESSES: You may send comments (identified by Docket Number NRCS-IFR-
08005) using any of the following methods:
Government-wide rulemaking Web site: Go to http://regulations.gov and follow the instructions for sending comments
electronically.
E-mail: whip2008@wdc.usda.gov.
Mail: Gregory Johnson, Director, Financial Assistance
Programs Division, Department of Agriculture, Natural Resources
Conservation Service, 1400 Independence Avenue, SW., Washington, DC
20250-2890.
Fax: (202) 720-4265.
Hand Delivery Room: USDA South Building, 1400 Independence
Avenue, SW., Room 5237, Washington, DC 20250, between 9 a.m. and 4
p.m., Monday through Friday, except Federal Holidays. Please ask the
guard at the entrance to the South Building to call (202) 720-1845 in
order to be escorted into the building.
This interim final rule may be accessed via Internet.
Users can access the NRCS homepage at: http://www.nrcs.usda.gov/;
select the Farm Bill link from the menu; select the Interim Final Rules
link from beneath the Farm Bill Public Comments Links title. Persons
with disabilities who require alternative means for communication
(Braille, large print, audio tape, etc.) should contact the USDA TARGET
Center at: (202) 720-2600 (voice and TDD).
To view public comments, ask the guard at the entrance to the South
Building to call (202) 720-4527 in order to be escorted into the
building.
FOR FURTHER INFORMATION CONTACT: Gregory Johnson, Director, Financial
Assistance Programs Division, Department of Agriculture, Natural
Resources Conservation Service, 1400 Independence Avenue, SW.,
Washington, DC 20013-2890; Phone: (202) 720-1845; Fax: (202) 720-4265.
SUPPLEMENTARY INFORMATION:
Regulatory Certifications
Executive Order 12866
Pursuant to Executive Order 12866 (FR Doc. 93-24523, September 30,
1993), the interim final rule published on January 16, 2009, is a
significant regulatory action, and NRCS conducted an economic analysis
of the potential impacts associated with this program. The
administrative record is available for public inspection in Room 5831
South Building, USDA, 1400 Independence Avenue, SW., Washington, DC.
NRCS reviewed the economic analysis prepared for the January 16, 2009,
interim final rule and determined that the provisions of this interim
final rule do not alter the assessment and the findings that were
originally prepared. A copy of the analysis is available upon request
from Gregory Johnson, Director, Financial Assistance Programs Division,
Department of Agriculture, Natural Resources Conservation Service, Room
5237 South Building, Washington, DC 20250-2890 or electronically at:
http://www.nrcs.usda.gov/programs/whip/ under the WHIP Rules and
Notices with Supporting Documents title.
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)
Section 2904(c) of the 2008 Act requires that the Secretary use the
authority in Section 808(2) of Title 5, U.S.C., which allows an agency
to forego SBREFA's usual 60-day congressional review delay of the
effective date of a major regulation if the agency finds that there is
a good cause to do so. NRCS hereby determines that it has good cause to
do so in order to meet the congressional intent to have the
conservation programs, authorized or amended by Title II, in effect as
soon as possible. Accordingly, this rule is effective upon filing for
public inspection by the Office of the Federal Register.
Executive Order 13175
This interim final rule has been reviewed in accordance with
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments. NRCS has assessed the impact of this interim final rule on
Indian Tribal Governments and has concluded that this rule will not
have substantial direct effects on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes.
Regulatory Flexibility Act
The Regulatory Flexibility Act is not applicable to this interim
final rule because NRCS is required by 5 U.S.C. 553, or by any other
provision of law, to publish a notice of proposed
[[Page 34210]]
rulemaking with respect to the subject matter of this rule.
Environmental Analysis
Availability of the Environmental Assessment (EA) and Finding of No
Significant Impact (FONSI). A programmatic environmental assessment has
been prepared in association with the January 16, 2009, interim final
rule. The provisions of this interim final rule do not alter the
assessment and the findings that were originally prepared. The analysis
determined that there would not be a significant impact to the human
environment and, as a result, an Environmental Impact Statement was not
required to be prepared (40 CFR part 1508.13). The EA and FONSI are
available for review and comment for an additional 30 days from the
date of publication of this amendment to the interim final rule in the
Federal Register. A copy of the EA and FONSI may be obtained from the
following Web site: http://www.nrcs.usda.gov/programs/Env_Assess/. A
hard copy may also be requested from the following address and contact:
Matt Harrington, National Environmental Coordinator, Ecological
Sciences Division, Natural Resources Conservation Service, 1400
Independence Ave., SW., Washington, DC 20250. Comments from the public
should be specific and reference that comments provided are on the EA
and FONSI. Public comment may be submitted by any of the following
means: (1) E-mail comments to NEPA2008@wdc.usda.gov, (2) e-mail to e-
gov Web site: http://www.regulations.gov, or (3) written comments to:
Matt Harrington, National Environmental Coordinator, Ecological
Sciences Division, Department of Agriculture, Natural Resources
Conservation Service, 1400 Independence Ave., SW., Washington, DC
20250.
Civil Rights Impact Analysis
NRCS determined through a Civil Rights Impact Analysis that the
January 16, 2009, interim final rule disclosed no disproportionately
adverse impacts for minorities, women, or persons with disabilities.
The provisions of this interim final rule do not alter the assessment
and the findings that were originally prepared.
Paperwork Reduction Act
Section 2904 of the 2008 Act requires that the promulgation of
regulations and the administration of Title II of this Act shall be
made without regard to chapter 35 of Title 44 U.S.C., also known as the
Paperwork Reduction Act. Therefore, NRCS is not reporting recordkeeping
or estimated paperwork burden associated with this amendment or the
January 16, 2009, interim final rule.
Government Paperwork Elimination Act
NRCS is committed to compliance with the Government Paperwork
Elimination Act, which requires Government agencies, in general, to
provide the public the option of submitting information or transacting
business electronically to the maximum extent possible. To better
accommodate public access, NRCS has developed an online application and
information system for public use.
Executive Order 12988
This interim final rule has been reviewed in accordance with
Executive Order 12988, Civil Justice Reform. The provisions of this
interim final rule are not retroactive. The provisions of this interim
final rule preempt State and local laws to the extent that such laws
are inconsistent with this interim final rule. Before an action may be
brought in a Federal court of competent jurisdiction, the
administrative appeal rights afforded persons at 7 CFR parts 614 and 11
must be exhausted.
Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994
The Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994, Title III, Section 304, requires that for
each proposed major regulation with a primary purpose to regulate
issues of human health, human safety, or the environment, USDA is to
publish an analysis of the risks addressed by the regulation and the
costs and benefits of the regulation. NRCS has determined that such a
risk assessment does not apply to this interim final rule. NRCS
recognizes that although such assessments can be quite helpful, the Act
pertains only to a rule that has been designated as a ``proposed major
regulation.'' NRCS does not consider ``interim final'' or ``final''
rules as falling into the category of proposed major regulations.
Unfunded Mandates Reform Act of 1995
NRCS assessed the effects of the January 16, 2009, rulemaking
action on State, local, and tribal governments, and the public. NRCS
determined that such action did not compel the expenditure of $100
million or more in any one year (adjusted for inflation) by any State,
local, or tribal governments, or anyone in the private sector.
Additionally, the provisions of this interim final rule do not alter
this determination. Therefore, a statement under Section 202 of the
Unfunded Mandates Reform Act of 1995 is not required.
Background
NRCS published an interim final rule in the Federal Register of
January 16, 2009 (74 FR 2786), amending the program regulations for
WHIP found at 7 CFR part 636. NRCS published a correction to the
interim final rule in the Federal Register on March 12, 2009, to
address the incorrect application of the $50,000 payment limitation to
joint operations.
Under the January 16, 2009, interim final rule, NRCS limited the
definition of agricultural lands to lands that are currently used to
produce agricultural and forest-related products or on which livestock
are produced. NRCS adopted this particular definition of ``agricultural
lands'' for WHIP to increase consistency of definitions between similar
programs. However, through its adoption of the same definition for
agricultural lands, NRCS inadvertently limited the WHIP statute's
inherent flexibility to enroll lands that are not eligible for
enrollment under other NRCS conservation programs. Traditionally, WHIP
has served as a niche program through its ability to improve wildlife
habitat on areas that were not otherwise eligible for NRCS assistance.
Additionally, NRCS has precluded landowners from enrolling part of
their overall farmstead into WHIP simply because the particular area is
not currently used for agricultural production. NRCS has determined
that the WHIP statute should not be interpreted so narrowly, especially
since it may be these lands that are not currently under production
that can most readily be improved for wildlife habitat consistent with
the extent of current management of the farm or ranch.
NRCS proposes in this Amendment to the interim final rule an
expansion of the definition of ``agricultural land'' for the purposes
of WHIP. In particular, NRCS intends to define agricultural lands to
mean cropland, grassland, rangeland, pasture, and other land determined
by NRCS to be suitable for fish and wildlife habitat development, on
which agricultural and forest-related products or livestock are or have
the potential to be produced. Agricultural lands may include cropped
woodland, marshes, incidental areas included in the agricultural
operation, and other types of land used for or have the potential to be
used for production.
[[Page 34211]]
0
For the reasons stated in the preamble, NRCS amends part 636 of Title 7
of the CFR as set forth below:
PART 636--WILDLIFE HABITAT INCENTIVE PROGRAM
0
1. The authority citation for part 1466 continues to read as follows:
Authority: 16 U.S.C. 3839bb-1.
0
2. Amend Sec. 636.3 by revising the definition of ``agricultural
lands'' to read as follows:
Sec. 636.3 Definitions.
* * * * *
Agricultural lands means cropland, grassland, rangeland, pasture,
and other land determined by NRCS to be suitable for fish and wildlife
habitat development on which agricultural and forest-related products
or livestock are produced or have the potential to be produced.
Agricultural lands may include cropped woodland, marshes, incidental
areas included in the agricultural operation, and other types of land
used for or have the potential to be used for production.
Signed this 8th day of July 2009, in Washington, DC.
Dave White,
Vice President, Commodity Credit Corporation and Chief, Natural
Resources Conservation Service.
[FR Doc. E9-16705 Filed 7-14-09; 8:45 am]
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