[Federal Register Volume 75, Number 221 (Wednesday, November 17, 2010)]
[Rules and Regulations]
[Pages 70083-70090]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-28946]



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Rules and Regulations
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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.

-----------------------------------------------------------------------

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:
    <bullet> Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    <bullet> 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.
    <bullet> 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 http://www.fsa.usda.gov/.

FOR FURTHER INFORMATION CONTACT: Katina Hanson, phone: (202) 720-0062; 
or e-mail: <a href="/cdn-cgi/l/email-protection#2c494f5c5e495c435e585f6c5b484f02595f484d024b435a"><span class="__cf_email__" data-cfemail="c0a5a3b0b2a5b0afb2b4b380b7a4a3eeb5b3a4a1eea7afb6">[email protected]</span></a>.

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:
    <bullet> Type and degree of damage;
    <bullet> Type of practices needed to address the problem;
    <bullet> Availability of funds;
    <bullet> Availability of technical assistance;
    <bullet> Environmental concerns; and
    <bullet> 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.

----------------------------------------------------------------------------------------------------------------
           Current CFR                   Section title                             This rule
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------

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: http://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


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