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Rules and Regulations Federal Register

31567 

Vol. 74, No. 126 

Thursday, July 2, 2009 

DEPARTMENT OF AGRICULTURE 

Farm Service Agency 

7 CFR Part 760 

Commodity Credit Corporation 

7 CFR Parts 1400 and 1439 

RIN 0560–AH95 

Livestock Indemnity Program and 

General Provisions for Supplemental 

Agricultural Disaster Assistance 

Programs 

AGENCY: Farm Service Agency and 

Commodity Credit Corporation, USDA. 

ACTION: Final rule. 

SUMMARY: This rule implements the 

general eligibility provisions for all the 

supplemental agricultural disaster 

assistance programs authorized by the 

Food, Conservation, and Energy Act of 

2008 (2008 Farm Bill) and the specific 

requirements for the Livestock 

Indemnity Program (LIP). LIP provides 

disaster assistance for livestock losses. 

LIP applies only to livestock owners and 

contract growers that had losses due to 

livestock deaths in excess of normal 

mortality due to adverse weather during 

the calendar year, including losses due 

to hurricanes, floods, blizzards, disease, 

wildfires, extreme heat, and extreme 

cold. Eligible LIP losses must have 

occurred on or after January 1, 2008, 

and before October 1, 2011. This rule 

specifies how the LIP payments are 

calculated and when producers may 

apply for benefits. This rule also 

removes some outdated rules from the 

Code of Federal Regulations (CFR). 

DATES: Effective Date: July 13, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Scotty Abbott, Production, Emergencies, 

and Compliance Division, Farm Service 

Agency (FSA), United States 

Department of Agriculture, STOP 0517, 

1400 Independence Avenue, SW., 

Washington, DC 20250–0517; telephone 

(202) 720–7997; e-mail 

scotty.abbott@usda.gov. 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). 

SUPPLEMENTARY INFORMATION: 

Background 

This rule implements the general 

eligibility provisions for the 

supplemental agricultural disaster 

assistance programs authorized by the 

2008 Farm Bill (Pub. L. 110–246). 

Sections 12033 and 15101 of the 2008 

Farm Bill authorize the Secretary of 

Agriculture (Secretary) to assist 

producers who have had crop and 

livestock losses due to adverse weather. 

FSA will provide assistance through 

five different programs: 

• Livestock Indemnity Program 

(referred to as Livestock Indemnity 

Payments in the Farm Bill), 

• Livestock Forage Disaster Program 

(LFP), 

• Emergency Assistance for 

Livestock, Honey Bees, and Farm-Raised 

Fish (ELAP), 

• Supplemental Revenue Assistance 

Payments Program (SURE) (which 

covers general crop production losses, 

but not those covered by LFP), and 

• Tree Assistance Program (TAP). 

This rule implements the first of these 

programs, LIP, in 7 CFR part 760, 

subpart E. The 2008 Farm Bill sets, 

however, common eligibility 

requirements for the programs. The 

general provisions for supplemental 

agricultural disaster assistance programs 

will be implemented in regulations in 7 

CFR part 760, subpart B. Specific 

provisions for the other programs, LFP, 

SURE, ELAP, and TAP, will be 

implemented through separate 

rulemakings. Where practical, these 

programs will be implemented to be 

similar to previous ad hoc disaster 

assistance programs. For example, LIP 

will be similar to the previous LIP 

regulations that were in 7 CFR part 760, 

subpart E. 

Currently, for LIP, the 2008 Farm Bill 

authorizes the Secretary to assist eligible 

livestock producers on farms that have 

had livestock death losses in excess of 

the normal mortality due to adverse 

weather. 

The supplemental agricultural 

disaster assistance programs will be 

administered by FSA using funds from 

the Agricultural Disaster Relief Trust 

Fund established under section 902 of 

the Trade Act of 1974 (19 U.S.C. 2497a). 

The disaster assistance programs 

authorized by the 2008 Farm Bill are 

permanent or ‘‘standing’’ programs that 

have similar scope to the previous ad 

hoc programs. The programs are 

provided for in two separate places in 

the 2008 Farm Bill. First, there is 

section 12033, which adds a new 

section 531 to the Federal Crop 

Insurance Act (7 U.S.C. 1501–1524). 

Second, there is section 15101, which 

adds section 902 of the Trade Act of 

1974. The provisions of the two sections 

as enacted were identical except that the 

Trade Act of 1974 provisions contained 

the trust fund provisions. Since then, 

there have been some amendments, but 

the two sections of the 2008 Farm bill 

are considered to be interchangeable for 

the purposes of this rule. 

General Eligibility Requirements 

Payment Limits 

The 2008 Farm Bill limits how much 

a producer may receive from FSA 

disaster assistance programs. 

In applying payment limitation for 

2008, no person, as defined and 

determined by the regulations in 7 CFR 

part 1400 in effect for 2008, may receive 

more than $100,000: 

• Total per crop year under ELAP, 

LFP, LIP and SURE 

• Per program years under TAP. 

For 2009 through 2011, no person or 

legal entity (excluding a joint venture or 

general partnership), as defined and 

determined by the regulations in 7 CFR 

part 1400 may receive, directly or 

indirectly, more than $100,000: 

• Total per crop year under ELAP, 

LFP, LIP and SURE 

• Per program years under TAP. 

For this purpose, both indirect and 

direct benefits are counted by 

attribution. In the case of a legal entity, 

the same payment is attributed to the 

direct payee in the full amount and 

those that have an indirect interest to 

the amount of the interest. For example, 

under the attribution rules that applies 

to these programs, assume: 

• Corporation A is in line to receive 

a $100,000 SURE payment, 

• Corporation A is owned 50 percent 

by Individual A and 50 percent by 

Corporation B, and 

• Corporation B is owned by 

Individual B with a 30 percent interest 

31568 Federal Register / Vol. 74, No. 126 / Thursday, July 2, 2009 / Rules and Regulations 

and by Individual C with a 70 percent 

interest. 

If so, Corporation A, for payment 

limitation purposes would be 

considered to have received $100,000 

and Individual C (who owns 70 percent 

of Corporation B, which owns half of 

Corporation A) would be considered to 

have indirectly benefitted by the 

amount of $35,000 (50 percent times 70 

percent of the $100,000). Even though 

no part of the $100,000 was actually 

paid to Individual C, the amount of 

$35,000 would count against individual 

C’s overall payment limitation from all 

sources and farms. Assume Individual C 

was already at the maximum payment 

limit, Individual C would not have been 

eligible to receive $35,000; as a result, 

the payment to Corporation A would be 

reduced by $35,000. 

The amount of any payment for which 

a participant may be eligible under any 

of these programs may be reduced by 

any amount received by the participant 

for the same or any similar loss from 

any Federal disaster assistance program. 

In applying the limitation on average 

adjusted gross income (AGI) for 2008, an 

individual or entity is ineligible for 

payment under ELAP, LFP, LIP, SURE, 

and TAP if the individual’s or entity’s 

average AGI exceeds $2.5 million for 

2007, 2006, and 2005 under the 

provisions in 7 CFR part 1400 in effect 

for 2008. For 2009 through 2011, the 

average AGI limitation provisions in 7 

CFR part 1400 applicable to Commodity 

Credit Corporation (CCC) commodity 

programs also apply to ELAP, LFP, LIP, 

SURE, and TAP. Specifically, as 

specified in the 2008 Farm Bill, for 2009 

through 2011, a person or legal entity 

with an average adjusted gross nonfarm 

income, as defined in 7 CFR 1400.3, that 

exceeds $500,000 for the relevant period 

will not be eligible to receive payments 

under these programs. Likewise, if a 

person with an indirect interest in a 

legal entity has an average nonfarm AGI 

over $500,000, then the payment to the 

legal entity will be reduced as 

calculated based on the percent of 

interest in the legal entity receiving the 

payment. For example, continuing with 

the assumptions in the example above, 

if Individual B had an average AGI that 

was over the limit, then the payment to 

Corporation A will be reduced by 15 

percent (Individual B’s 30 percent 

interest in Corporation B times 

Corporation B’s 50 percent interest in 

Corporation A). 

Payment and average AGI limits will 

be determined under regulations 

specified in 7 CFR part 1400 for 

Commodity Credit Corporation (CCC) 

commodity programs. The programs 

covered in this final rule are not CCC 

programs, but the CCC regulations in 7 

CFR part 1400 are adopted for these 

programs. 

The relevant AGI period for these 

programs is the 3 calendar years that 

precede the program year involved. For 

livestock losses, the program year is the 

calendar year of the loss of the livestock. 

For SURE, the program year is the year 

that corresponds to the relevant crop 

year. The crop year concept in some 

limited cases can involve a loss that 

occurs in a different calendar year than 

the calendar year whose number 

corresponds to the crop year. For 

example, wheat for the 2009 crop year 

can be planted in the fall of 2008 and 

be lost during 2008. SURE payments 

related to such a loss would be made in 

calendar year 2009. 

The regulations in 7 CFR 1400.105 

specify how payments will be attributed 

and how far the attribution will go. 

Attribution will be tracked through four 

levels of ownership in legal entities. The 

2008 Farm Bill removed the previous ‘‘3 

entity rule,’’ so a person can now 

receive benefits attributed through an 

unlimited number of entities, subject to 

the payment limits and the rules of 

attribution described in this final rule 

and in 7 CFR part 1400. In addition to 

these limits, the 2008 Farm Bill imposes 

limitations of payments to foreign 

persons. Those limits are specified in 

the regulations in § 760.103. 

Risk Management Purchase 

Requirement 

To be eligible for program payments 

under ELAP, SURE, and TAP, eligible 

producers on a farm, as specified by the 

2008 Farm Bill, must have purchased 

insurance for each insurable 

commodity, excluding grazing land; a 

few exceptions allowed by the 2008 

Farm Bill are discussed later in this 

section. ‘‘Insurable commodities’’ are 

those for which a plan of insurance can 

be obtained from the USDA’s Risk 

Management Agency (RMA) that makes 

coverage for crops available under the 

Federal Crop Insurance Act (FCIA). 

Benefits for ‘‘noninsurable’’ 

commodities are generally available 

through the Noninsured Crop Disaster 

Assistance Program (NAP) run by FSA. 

Except for grazing land, producers for 

ELAP, SURE, and TAP must have 

obtained an RMA policy or plan of 

insurance or NAP coverage for all of 

their crops. For LFP, producers must 

have obtained an RMA policy or plan of 

insurance or NAP coverage for those 

grazing lands for which they seek 

benefits. 

LIP does not have a risk management 

purchase requirement. The risk 

management purchase requirement 

regulations are included in this rule 

because they have multi-program 

application. As noted, this final rule 

contains general provisions for multiple 

programs and specific provisions for 

LIP. Additional provisions to cover the 

other programs will be issued later. 

Producers who did not purchase 

required coverage are not eligible for 

benefits unless an exception applies. 

‘‘Socially disadvantaged farmers and 

ranchers,’’ as well as ‘‘limited resource 

farmers and ranchers,’’ or ‘‘beginning 

farmers or ranchers,’’ are exempt. For 

the 2008 crop, persons who paid a 

certain buy-in fee were exempt from the 

purchase requirement if the buy-in fee 

was paid by September 16, 2008. By an 

amendment to the 2008 Farm Bill, 

Congress allowed a second buy-in 

enabling producers to buy in from 

February 17, 2009 up to May 18, 2009; 

however, if the buy-in occurred after the 

first deadline, or was not granted 

administratively through some form of 

equitable relief the producer had to 

agree to buy crop insurance or NAP for 

the next year for the crops to which the 

buy-in applied. Also, there were special 

benefit calculation provisions for 

producers who made use of the second 

deadline. The buy-in fee was equal to 

the cost of the insurance or NAP 

coverage, but did not entitle the 

producer to insurance or NAP coverage. 

Also, an amendment allowed a 2009 

crop buy-in for crops if the 2009 Federal 

Crop Insurance Corporation (FCIC) sales 

closing date was prior to August 14, 

2008. The deadline for the 2009 crop 

buy-in was January 12, 2009. In addition 

to these provisions, section 531(g)(5) of 

the FCIA (and the corresponding 

provisions of the Trade Act of 1974) 

have some more general provisions 

allowing the Secretary discretion to 

grant equitable relief to persons with a 

lack of coverage. The buy-in concept has 

no application to LIP since LIP has no 

purchase requirement. The buy-in fees 

were different for 2008 and 2009. 

Miscellaneous 

Under this rule, participants receiving 

disaster assistance payments under any 

of the these programs must keep records 

and supporting documentation for 3 

years following the end of the year in 

which the application for payment was 

filed. This discretionary recordkeeping 

requirement is consistent with other 

FSA rules and programs, as well as with 

previous similar disaster assistance 

programs. 

Restrictions apply to these programs 

including, but not limited to, those 

pertaining to highly erodible land and 

wetland conservation provisions in 7 

CFR part 12. 

Federal Register / Vol. 74, No. 126 / Thursday, July 2, 2009 / Rules and Regulations 31569 

This rule amends subpart B by adding 

§ 760.110 to clarify that appeal 

regulations specified in 7 CFR parts 11 

and 780 apply. It also specifies that for 

all the new standing disaster programs, 

matters requiring FSA determinations 

that are not in response to, or result 

from, an individual disputable set of 

facts in a specific individual 

participant’s application, are not matters 

that can be appealed under 7 CFR parts 

11 or 780. These include, but are not 

limited to, general statutory or 

regulatory provisions that apply to 

similarly situated participants, national 

average payment prices, regions, crop 

definition, average yields, or similar 

items. 

Specific Provisions for LIP 

Overview 

The 2008 Farm Bill provisions require 

LIP payments to be made at a rate of 75 

percent of the market value of the 

livestock on the day before the date of 

the death of the livestock. Payments are 

to be made to eligible producers on 

farms that have incurred livestock death 

losses for the calendar year in excess of 

the normal mortality. The eligible 

livestock death losses must have 

occurred on or after January 1, 2008, but 

before October 1, 2011, due to adverse 

weather, as determined by the Secretary, 

during the calendar year for which 

benefits are requested, including losses 

due to hurricanes, floods, blizzards, 

disease, wildfires, extreme heat, and 

extreme cold. All the provisions 

described in this paragraph, which are 

implemented in this rule, are statutory 

provisions over which FSA has little or 

no discretion. 

The details in this rule on what kinds 

of livestock are eligible, acceptable 

documentation of loss, and the 

application process for payment, are 

discretionary provisions. Generally, 

FSA has based the discretionary 

provisions of the program as specified 

in this rule on the rules and policies 

used for the 2005–2007 LIP because 

they are known to the public and to 

Congress and because they have worked 

well to apportion benefits for the type 

of loss involved in this program. 

Unlike some previous livestockrelated programs, LIP does not cover 

crawfish, catfish, or other aquaculture 

because losses of that kind are covered 

by SURE and the general direction of 

the 2008 Farm bill is that there will not 

be duplicative payments. 

Eligibility Requirements; Livestock 

Covered by LIP 

LIP payments and eligibilities will be 

calculated on the type of eligible 

livestock and the actual losses and the 

calculations will be made by FSAapproved categories. Eligible livestock 

for payment to livestock owners include 

beef cattle, dairy cattle, buffalo, beefalo, 

equine, sheep, goats, deer, swine, 

poultry, reindeer, elk, emus, alpacas, 

and llamas that died as a direct result 

of an eligible adverse weather event. 

The list of eligible livestock includes all 

the types from the previous ad hoc 

disaster program for livestock, except 

for catfish and crawfish as described 

above. Regulations for that program are 

in 7 CFR part 760, subpart J. This final 

rule adds alpacas, emus, and llamas to 

the list of eligible livestock. FSA added 

these types of livestock based on 

concerns expressed with respect to 

previous programs. 

Benefits are only available for the 

owners of livestock or for ‘‘contract 

growers’’—persons who produce 

livestock owned by someone else, but 

have a risk in the livestock (such as a 

farmer who raises chickens owned by a 

company that produces chicken 

products, but does not receive payment 

for livestock that die before the livestock 

is mature and returned to the owner). 

The contract grower provisions only 

cover swine and poultry because those 

are the only known examples of that 

kind of production arrangement. To be 

eligible livestock for LIP, as of the day 

they died the livestock must have been 

both of the following: 

• Owned by an eligible owner or in 

the possession of an eligible contract 

grower and 

• Maintained for commercial use as 

part of a farming operation of the 

participant on the day they died. 

In addition, to be eligible, the 

livestock must have died as a direct 

result of an eligible adverse weather 

event in the calendar year for which 

benefits are requested. Participants must 

provide verifiable documentation of 

livestock deaths claimed. 

Animals kept for recreational 

purposes, such as hunting animals, 

animals used for roping practice, pets, 

and show animals, are not eligible. 

Wild, free roaming animals are not 

eligible to generate payments. 

Eligibility for payments to poultry and 

swine contract growers will be limited 

based on the amount of their contractual 

risk and other payments received. 

Payments will not exceed their 

contractual risk, as determined by FSA. 

Any compensation received by the 

contract grower from the contractor for 

loss of income for the dead livestock 

will be deducted from the contract 

grower’s payment. 

Determination of LIP payment 

eligibility will be based on actual losses 

in excess of normal mortality for the 

calendar year for the relevant animal 

type and approved category by an 

individual producer or contract grower 

due to adverse weather. There is not a 

State or National ‘‘trigger’’ such as an 

emergency declaration that provides 

automatic eligibility for all producers in 

a particular State, county, or region. 

Adverse weather includes, but is not 

limited to, events such as hurricanes, 

floods, blizzards, wildfires, extreme 

heat, and extreme cold. FSA has the 

authority to determine eligibility of 

livestock losses caused by other adverse 

weather types, including disease caused 

by such weather. 

Applying for LIP Payment; LIP Payment 

Calculations 

There are two basic steps for a 

producer to obtain LIP payments. One 

step is to file a notice of loss when there 

is an event that does or could generate 

a claim because of the death of an 

animal due to adverse weather. Because 

the eligible losses are only those above 

normal mortality that are calculated on 

a yearly basis, a loss occurring in, for 

example, July, will not necessarily 

generate a claim depending on how 

great the losses are, natural or 

otherwise, for the rest of the year. It 

could be, however, that a loss in July is 

so great that the producer is already 

beyond normal mortality for the year, in 

which case there could already be a 

claim for benefits. The second step is to 

file the application for payment. 

For the first step, after this final rule 

is published, producers must provide a 

notice of loss to the FSA county office 

within 30 days of when the loss of 

livestock was apparent, or within 30 

days after the end of the calendar year 

in which the loss occurred, whichever 

comes first. Producers who suffered a 

potentially eligible loss of livestock 

prior to July 13, 2009 (prior to this rule 

being effective), must provide a notice 

of loss to the FSA county office by 

September 13, 2009 (within 60 calendar 

days after this rule is effective). As 

indicated, however, a notice of loss is 

one part of the application process; 

other documentation is required for a 

complete application for payment, as 

described in this rule. The completed 

application must be submitted to the 

FSA county office no later than 30 

calendar days after the end of the 

calendar year in which the loss of 

livestock occurred or, for 2008 losses, by 

September 13, 2009 (60 calendar days 

after this rule is effective). Producers 

that suffer multiple livestock losses 

during the calendar year may file 

multiple notices of loss and multiple 

applications for payment. This rule 

31570 Federal Register / Vol. 74, No. 126 / Thursday, July 2, 2009 / Rules and Regulations 

specifies the documents that are 

required to show loss, such as inventory 

records and grower contracts. The 30- 

day deadline is a change from the 

previous programs that had an 

application period determined by the 

Deputy Administrator for Farm 

Programs for FSA. Putting a specific 

deadline in the rules should make it 

clear when applications are due. 

As specified in the 2008 Farm Bill, 

the payment for livestock owners will 

be calculated based on 75 percent of the 

average fair market value of the 

applicable livestock on the day before 

the date of death of the livestock, as 

determined by the Agency. This 

program is not a program funded by 

CCC. Rather, it is funded by the trust 

fund as provided for in section 902 of 

the Trade Act of 1974, as added by the 

2008 Farm Bill. For contract growers, 

the payment will be based on 75 percent 

of the average income loss sustained by 

the grower with respect to the dead 

livestock. Where there is a contract 

grower holding the livestock at the time 

of death, only the contract grower will 

be eligible for the payment; the owner 

is not eligible. When determining the 

market value of applicable livestock in 

order to determine payment rates for 

LIP, FSA will establish market values 

for each type and category of livestock 

using data from credible livestock 

markets. Credible livestock markets will 

include sale barns and local sales as 

well as sales at terminal market centers 

or slaughtering facilities. 

FSA, through the State FSA offices, 

will obtain recommendations from 

applicable State livestock organizations, 

State Cooperative Extension Service, 

and other knowledgeable and credible 

sources, to establish the normal 

mortality rate for each type of livestock 

on a State-by-State basis. Payments are 

only available for losses over normal 

mortality over the course of the year and 

those rates will be established on a 

State-by-State basis. 

Miscellaneous LIP Provisions 

All owners, contract growers, 

livestock, and losses must meet the 

eligibility requirements provided in this 

rule. False certifications carry serious 

consequences. FSA will validate 

applications with random spot-checks. 

Livestock losses that are not weatherrelated are not eligible for LIP. 

Structure of the Regulations 

The regulations in 7 CFR part 760, 

‘‘Indemnity Payment Programs,’’ 

currently contain subparts A through M, 

which generally cover previous ad hoc 

disaster assistance programs. This rule 

revises subparts B and E and removes 

and reserves subparts C, D, and F 

through H. The current subpart B 

specifies general provisions for the 2005 

Hurricane Disaster Programs; this rule 

revises subpart B to specify general 

provisions for the new standing disaster 

programs from the 2008 Farm Bill. The 

current subpart E provides the 

regulations for the 2005 Livestock 

Indemnity Program; this rule revises 

Subpart E to establish the regulations for 

the new LIP established by the 2008 

Farm Bill. This rule removes the 

existing provisions for previous ad hoc 

disaster programs in subparts C, D, F, G, 

and H because the authority for the 

programs has expired. For housekeeping 

purposes, this rule also removes 7 CFR 

part 1439, which contains some related 

CCC programs. For questions on the 

former regulations, interested parties 

can refer to the appropriate regulation in 

the January 1, 2009 edition of the Code 

of Federal Regulations. 

Subpart A of part 760 covers the Dairy 

Indemnity Program and is not impacted 

by this rule. Subparts I through M, 

which provide the rules for the 2005– 

2007 ad hoc disaster programs, are left 

intact and not removed because of the 

status of potential claims under those 

subparts. In all cases, however, to the 

extent of lingering or new disputes, the 

rules governing these older programs 

apply as they existed at the time the 

programs were administered. 

When all of the supplemental 

agricultural disaster assistance programs 

are implemented, 7 CFR part 760 will 

have been revised as described in the 

table below: 

Current subpart New subpart 

Subpart A—Dairy Indemnity Payment Program ....................................... Subpart A—Dairy Indemnity Payment Program [unchanged]. 

Subpart B—General Provisions for the 2005 Section 32 Hurricane Disaster Programs.760 Subpart B—General Provisions for Supplemental Agricultural Disaster Assistance Programs. 

Subpart C—Hurricane Indemnity Program ............................................... 760 Subpart C—Emergency Assistance for Livestock, Honey Bees, 

and Farm-Raised Fish. 

Subpart D—Feed Indemnity Program ...................................................... 760 Subpart D—Livestock Forage Disaster Program. 

Subpart E—Livestock Indemnity Program ................................................ 760 Subpart E—Livestock Indemnity Program [revised]. 

Subpart F—Tree Indemnity Program ....................................................... 760 Subpart F—Tree Assistance Program. 

Subpart G—Aquaculture Program ............................................................ 760 Subpart G—Supplemental Revenue Assistance Payments Program. 

Subpart H—2006 Livestock Assistance Grant Program .......................... None—removed. 

Subparts I through M ................................................................................ Subparts I through M [unchanged]. 

Miscellaneous Conforming 

Amendments 

We are updating the references in 7 

CFR 1400.1 to refer to 7 CFR part 760 

for the LIP, ELAP, LFP, SURE, and TAP 

programs. 

In addition, as indicated we are 

removing in its entirety 7 CFR part 

1439, ‘‘Emergency Livestock 

Assistance,’’ as the programs there are 

outdated even though there may be 

some lingering claims. The times for 

filing claims under all of those programs 

has long since passed and in any event 

all involve rules that were published in 

the Federal Register and can be found 

in the 2009 edition of the Code of 

Federal Regulations. 

Notice and Comment 

The 2008 Consolidated Security, 

Disaster Assistance, and Continuing 

Appropriations Act (Pub. L. 110–329) 

made section 1601(c)(2) of the 2008 

Farm Bill applicable in implementing 

section 12033 of the 2008 Farm Bill. To 

the extent relevant, the exemption 

applies, we believe to the corresponding 

provision enacted in section 15101 

since they are identical except for the 

provisions for funding in section 15101, 

which do not appear at all in section 

12033. Otherwise, the provisions of 

Public Law 110–329 would have no 

meaning. Therefore, these regulations 

are exempt from the notice and 

comment requirements of the 

Administrative Procedures Act (5 U.S.C. 

553), as specified in section 1601(c)(2) 

of the 2008 Farm Bill, which requires 

that the regulations be promulgated and 

administered without regard to the 

notice and comment provisions of 

section 553 of title 5 of the United States 

Code or the Statement of Policy of the 

Secretary of Agriculture effective July 

Federal Register / Vol. 74, No. 126 / Thursday, July 2, 2009 / Rules and Regulations 31571 

24, 1971, (36 FR 13804) relating to 

notices of proposed rulemaking and 

public participation in rulemaking. 

Effective Date 

In making this final rule exempt from 

notice and comment through section 

1601(c)(2) of the 2008 Farm Bill, using 

the administrative procedure provisions 

in 5 U.S.C. 553, FSA finds that there is 

good cause for making this rule effective 

less than 30 days after publication in the 

Federal Register. This rule allows FSA 

to provide benefits to producers who 

suffered losses due to livestock deaths 

caused by adverse weather. Therefore, 

to begin providing benefits to producers 

as soon as possible, this final rule is 

effective 13 days after publication in the 

Federal Register. 

Executive Order 12866 

The Office of Management and Budget 

(OMB) designated this rule as not 

significant under Executive Order 12866 

and, therefore, OMB was not required to 

review this rule. 

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. 

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 LIP provisions required by the 

2008 Farm Bill that are identified in this 

rule are non-discretionary in nature, 

solely providing financial assistance. 

Therefore, FSA has determined that 

provisions for further NEPA review do 

not apply to this rule. Therefore, no 

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 rule has been reviewed under 

Executive Order 12988. This rule is not 

retroactive and it does not preempt State 

or local laws, regulations, or policies 

unless they present an irreconcilable 

conflict with this rule. Before any 

judicial action may be brought regarding 

the provisions of this rule the 

administrative appeal provisions of 7 

CFR parts 11 and 780 must be 

exhausted. 

Executive Order 13132 

The policies contained in this rule do 

not have any substantial direct effect on 

States, on the relationship between the 

national government and States, or on 

the distribution of power and 

responsibilities among various levels of 

government. Nor does this rule impose 

substantial direct compliance costs on 

State and local governments. Therefore, 

consultation with States was not 

required. 

Executive Order 13175 

The policies contained in this rule do 

not impose substantial unreimbursed 

direct compliance costs on Indian tribal 

governments or have tribal implications 

that preempt tribal law. 

Unfunded Mandates 

This rule contains no Federal 

mandates under the regulatory 

provisions of Title II of the Unfunded 

Mandates Reform Act of 1995 (UMRA) 

for State, local, and tribal government or 

the private sector. In addition, FSA was 

not required to publish a notice of 

proposed rule making for this rule. 

Therefore, this rule is not subject to the 

requirements of sections 202 and 205 of 

the UMRA. 

Federal Assistance Programs 

This rule applies to the following 

Federal assistance program that is not in 

the Catalog of Federal Domestic 

Assistance: LIP. 

Paperwork Reduction Act 

The regulations in this rule are 

exempt from the requirements of the 

Paperwork Reduction Act (44 U.S.C. 

Chapter 35), as specified in section 

1601(c)(2) of the 2008 Farm Bill, which 

provides that these regulations be 

promulgated and administered without 

regard to the Paperwork Reduction Act. 

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 

7 CFR Part 760 

Dairy products, Indemnity payments, 

Pesticide and pests, Reporting and 

recordkeeping requirements. 

7 CFR Part 1400 

Agriculture, Grant programs— 

agriculture, Loan programs—agriculture, 

Price support programs, Reporting and 

recordkeeping requirements. 

7 CFR Part 1439 

Animal feeds, Disaster assistance, 

Grant programs—agriculture, Indians, 

Livestock, Reporting and recordkeeping 

requirements. 

■ For the reasons discussed above, 

under the authority of 15 U. S.C. 714b, 

this rule amends 7 CFR parts 760, 1400, 

and 1439 as follows: 

PART 760—INDEMNITY PAYMENT 

PROGRAMS 

■ 1. Revise the authority citation for part 

760 to read as follows: 

Authority: 7 U.S.C. 4501, 7 U.S.C. 1531, 

16 U.S.C. 3801, note, and 19 U.S.C. 2497; 

Title III, Public Law 109–234, 120 Stat. 474; 

and Title IX, Public Law 110–28, 121 Stat. 

211. 

■ 2. Revise Subpart B to read as follows: 

Subpart B—General Provisions for 

Supplemental Agricultural Disaster 

Assistance Programs 

Sec. 

760.101 Applicability. 

760.102 Administration of ELAP, LFP, LIP, 

SURE, and TAP. 

760.103 Eligible producer. 

760.104 Risk management purchase 

requirements. 

760.105 Waiver for certain crop years; buyin. 

760.106 Equitable relief. 

760.107 Socially disadvantaged, limited 

resource, or beginning farmer or rancher. 

760.108 Payment limitation. 

760.109 Misrepresentation and scheme or 

device. 

760.110 Appeals. 

760.111 Offsets, assignments, and debt 

settlement. 

760.112 Records and inspections. 

760.113 Refunds; joint and several liability. 

760.114 Minors. 

760.115 Deceased individuals or dissolved 

entities. 

760.116 Miscellaneous. 

Subpart B—General Provisions for 

Supplemental Agricultural Disaster 

Assistance Programs 

§ 760.101 Applicability. 

(a) This subpart establishes general 

conditions for this subpart and subparts 

C through H of this part and applies 

31572 Federal Register / Vol. 74, No. 126 / Thursday, July 2, 2009 / Rules and Regulations 

only to those subparts. Subparts C 

through H cover the following programs 

provided for in the ‘‘2008 Farm Bill’’ 

(Pub. L. 110–246): 

(1) Emergency Assistance for 

Livestock, Honey Bees, and Farm-Raised 

Fish Program (ELAP); 

(2) Livestock Forage Disaster Program 

(LFP); 

(3) Livestock Indemnity Payments 

Program (LIP); 

(4) Supplemental Revenue Assistance 

Payments Program (SURE); and 

(5) Tree Assistance Program (TAP). 

(b) To be eligible for payments under 

these programs, participants must 

comply with all provisions under this 

subpart and the relevant particular 

subpart for that program. All other 

provisions of law also apply. 

§ 760.102 Administration of ELAP, LFP, 

LIP, SURE, and TAP. 

(a) The programs in subparts C 

through H of this part will be 

administered under the general 

supervision and direction of the 

Administrator, Farm Service Agency 

(FSA), and the Deputy Administrator for 

Farm Programs, FSA (who is referred to 

as the ‘‘Deputy Administrator’’ in this 

part). 

(b) FSA representatives do not have 

authority to modify or waive any of the 

provisions of the regulations of this part 

as amended or supplemented, except as 

specified in paragraph (e) of this 

section. 

(c) The State FSA committee will take 

any action required by the regulations of 

this part that the county FSA committee 

has not taken. The State FSA committee 

will also: 

(1) Correct, or require a county FSA 

committee to correct, any action taken 

by such county FSA committee that is 

not in accordance with the regulations 

of this part or 

(2) Require a county FSA committee 

to withhold taking any action that is not 

in accordance with this part. 

(d) No provision or delegation to a 

State or county FSA committee will 

preclude the Administrator, the Deputy 

Administrator for Farm Programs, or a 

designee or other such person, from 

determining any question arising under 

the programs of this part, or from 

reversing or modifying any 

determination made by a State or county 

FSA committee. 

(e) The Deputy Administrator for 

Farm Programs may authorize State and 

county FSA committees to waive or 

modify non-statutory deadlines, or other 

program requirements of this part in 

cases where lateness or failure to meet 

such requirements does not adversely 

affect operation of the programs in this 

part. Participants have no right to seek 

an exception under this provision. The 

Deputy Administrator’s refusal to 

consider cases or circumstances or 

decision not to exercise this 

discretionary authority under this 

provision will not be considered an 

adverse decision and is not appealable. 

§ 760.103 Eligible producer. 

(a) In general, the term ‘‘eligible 

producer’’ means, in addition to other 

requirements as may apply, an 

individual or entity described in 

paragraph (b) of this section that, as 

determined by the Secretary, assumes 

the production and market risks 

associated with the agricultural 

production of crops or livestock on a 

farm either as the owner of the farm, 

when there is no contract grower, or a 

contract grower of the livestock when 

there is a contract grower. 

(b) To be eligible for benefits, an 

individual or entity must be a: 

(1) Citizen of the United States; 

(2) Resident alien; for purposes of this 

part, resident alien means ‘‘lawful 

alien’’ as defined in 7 CFR part 1400; 

(3) Partnership of citizens of the 

United States; or 

(4) Corporation, limited liability 

corporation, or other farm 

organizational structure organized 

under State law. 

§ 760.104 Risk management purchase 

requirements. 

(a) To be eligible for program 

payments under: 

(1) ELAP, SURE, and TAP, eligible 

producers for any commodity at any 

location for which the producer seeks 

benefits must have for every commodity 

on every farm in which the producer 

has an interest for the relevant program 

year: 

(i) In the case of an ‘‘insurable 

commodity,’’ (which for this part means 

a commodity for which the Deputy 

Administrator determines catastrophic 

coverage is available from the USDA 

Risk Management Agency (RMA)) 

obtained catastrophic coverage or better 

under a policy or plan of insurance 

administered by RMA under the Federal 

Crop Insurance Act (FCIA) (7 U.S.C. 

1501–1524), except that this obligation 

will not include crop insurance pilot 

programs so designated by RMA or to 

forage crops, and 

(ii) In the case of a ‘‘noninsurable 

commodity,’’ (which is any commodity 

for which, as to the particular 

production in question, is not an 

‘‘insurable commodity,’’ but for which 

coverage is available under the 

Noninsured Crop Disaster Assistance 

Program (NAP) operated under 7 CFR 

part 1437), have obtained NAP coverage 

by filing the proper paperwork and fee 

within the relevant deadlines, except 

that this requirement will not include 

forage on grazing land. 

(2) LFP, with respect to those grazing 

lands incurring losses for which 

assistance is being requested, eligible 

livestock producers must have: 

(i) Obtained a policy or plan of 

insurance for the forage crop under 

FCIA, or 

(ii) Filed the required paperwork and 

paid the administrative fee by the 

applicable State filing deadline for NAP 

coverage for that grazing land. 

(b) Producers who did not purchase a 

policy or plan of insurance 

administered by RMA in accordance 

with FCIA (7 U.S.C. 1501–1524), or NAP 

coverage for their applicable crops, will 

not be eligible for assistance under 

ELAP, LFP, SURE, and TAP, as 

provided in paragraph (a) of this section 

unless the producer is one of the classes 

of farmers for which an exemption 

under § 760.107 apply, is exempt under 

the ‘‘buy-in’’ provisions of this subpart, 

or is granted relief from that 

requirement by the Deputy 

Administrator under some other 

provision of this part. 

(c) Producers who have obtained 

insurance by a written agreement as 

specified in § 400.652(d) of this title 

even though that production would not 

normally be considered an ‘‘insurable 

commodity’’ under the rules of this 

subpart, will be considered to have met 

the risk management purchase 

requirement of this subpart with respect 

to such production. The commodity to 

which the agreement applies will be 

considered for purposes of this subpart 

to be an ‘‘insurable commodity.’’ 

(d) Producers by an administrative 

process who were granted NAP coverage 

for the relevant period as a form of relief 

in an administrative proceeding, or who 

were awarded NAP coverage for the 

relevant period through an appeal 

through the National Appeals Division 

(NAD), will be considered as having met 

the NAP eligibility criteria of this 

section for that crop as long as the 

applicable NAP service fee has been 

paid. 

(e) The risk management purchase 

requirement for programs specified 

under this part will be determined 

based on the initial intended use of a 

crop at the time a policy or plan of 

insurance or NAP coverage was 

purchased and as reported on the 

acreage report. 

Federal Register / Vol. 74, No. 126 / Thursday, July 2, 2009 / Rules and Regulations 31573 

§ 760.105 Waiver for certain crop years; 

buy-in. 

(a) For the 2008 crop year, the 

insurance or NAP purchase 

requirements of § 760.104 (this is 

referred to as the ‘‘purchase’’ 

requirement) will be waived for eligible 

producers for losses during the 2008 

crop year if the eligible producer paid 

a fee (buy-in fee) equal to the applicable 

NAP service fee or catastrophic risk 

protection plan fee to the Secretary by 

September 16, 2008. Payment of a buyin fee under this section is for the sole 

purpose of becoming eligible for 

participation in ELAP, LFP, SURE, and 

TAP. Payment of a buy-in fee does not 

provide any actual insurance or NAP 

coverage or assistance. 

(b) For the 2009 crop year, the 

purchase requirement will be waived for 

purchases where the closing date for 

coverage occurred prior to August 14, 

2008, so long as the buy-in fee set by the 

Secretary of Agriculture was paid by 

January 12, 2009. 

(c) Any producer of 2008 

commodities who is otherwise ineligible 

because of the purchase requirement 

and who did not meet the conditions of 

paragraph (a) of this section may still be 

covered for ELAP, SURE, or TAP 

assistance if the producer paid the 

applicable fee described in paragraph 

(d) of this section no later than May 18, 

2009, provided that in the case of each: 

(1) Insurable commodity, excluding 

grazing land, the eligible producers on 

the farm agree to obtain a policy or plan 

of insurance under FCIA (7 U.S.C. 

1501–1524), excluding a crop insurance 

pilot program under that subtitle, for the 

next insurance year for which crop 

insurance is available to the eligible 

producers on the farm at a level of 

coverage equal to 70 percent or more of 

the recorded or appraised average yield 

indemnified at 100 percent of the 

expected market price, or an equivalent 

coverage, and 

(2) Noninsurable commodity, the 

eligible producers on the farm must 

agree to file the required paperwork, 

and pay the administrative fee by the 

applicable State filing deadline, for NAP 

for the next year for which a policy is 

available. 

(d) For producers seeking eligibility 

under paragraph (c) of this section, the 

applicable buy-in fee for the 2008 crop 

year was the catastrophic risk protection 

plan fee or the applicable NAP service 

fee in effect prior to NAP service fee 

adjustments specified in the 2008 Farm 

Bill. 

§ 760.106 Equitable relief. 

(a) The Secretary may provide 

equitable relief on a case-by-case basis 

for the purchase requirement to eligible 

participants that: 

(1) Are otherwise ineligible or 

unintentionally fail to meet the 

requirements of § 760.104 for one or 

more eligible crops on the farm, as 

determined by the Secretary, or 

(2) Failed to meet the requirements of 

§ 760.104 due to the enactment of the 

2008 Farm Bill after the: 

(i) Applicable sales closing date for a 

policy or plan of insurance in 

accordance with the FCIA (7 U.S.C. 

1501–1524) or 

(ii) Application closing date for NAP. 

(b) Equitable relief will not be granted 

to participants in instances of: 

(1) A scheme or device that had the 

effect or intent of defeating the purposes 

of a program of insurance, NAP, or any 

other program administered under this 

part or elsewhere in this title, 

(2) An intentional decision to not 

meet the purchase or buy-in 

requirements, 

(3) Producers against whom sanctions 

have been imposed by RMA or FSA 

prohibiting the purchase of coverage or 

prohibiting the receipt of payments 

otherwise payable under this part, 

(4) Violations of highly erodible land 

and wetland conservation provisions of 

7 CFR part 12, 

(5) Producers who are ineligible under 

any provisions of law, including 

regulations, relating to controlled 

substances (see for example 7 CFR 

718.6), or 

(6) A producer’s debarment by a 

federal agency from receiving any 

federal government payment if such 

debarment included payments of the 

type involved in this matter. 

(c) In general, no relief that is 

discretionary will be allowed except 

upon a finding by the Deputy 

Administrator or the Deputy 

Administrator’s designee that the person 

seeking the relief acted in good faith as 

determined in accordance with such 

rules and procedures as may be set by 

the Deputy Administrator. 

§ 760.107 Socially disadvantaged, limited 

resource, or beginning farmer or rancher. 

(a) Risk management purchase 

requirements, as provided in § 760.104, 

will be waived for a participant who, as 

specified in paragraphs (b)(1) through 

(3) of this section, is eligible to be 

considered a ‘‘socially disadvantaged 

farmer or rancher,’’ a ‘‘limited resource 

farmer or rancher,’’ or a ‘‘beginning 

farmer or rancher.’’ 

(b) To qualify for this section as a 

‘‘socially disadvantaged farmer or 

rancher,’’ ‘‘limited resource farmer or 

rancher,’’ or ‘‘beginning farmer or 

rancher,’’ participants must meet 

eligibility criteria as follows: 

(1) A ‘‘socially disadvantaged farmer 

or rancher’’ is, for this section, a farmer 

or rancher who is a member of a socially 

disadvantaged group whose members 

have been subjected to racial or ethnic 

prejudice because of their identity as 

members of a group without regard to 

their individual qualities. Gender is not 

included as a covered group. Socially 

disadvantaged groups include the 

following and no others unless 

approved in writing by the Deputy 

Administrator: 

(i) American Indians or Alaskan 

Natives, 

(ii) Asians or Asian-Americans, 

(iii) Blacks or African Americans, 

(iv) Native Hawaiians or other Pacific 

Islanders, and 

(v) Hispanics. 

(2) A ‘‘limited resource farmer or 

rancher’’ means for this section a 

producer who is both: 

(i) A producer whose direct or 

indirect gross farm sales do not exceed 

$100,000 in both of the two calendar 

years that precede the calendar year that 

corresponds to the relevant program 

year, adjusted upwards for any general 

inflation since fiscal year 2004, inflation 

as measured using the Prices Paid by 

Farmer Index compiled by the National 

Agricultural Statistics Service (NASS), 

and 

(ii) A producer whose total household 

income is at or below the national 

poverty level for a family of four, or less 

than 50 percent of the county median 

household income for the same two 

calendar years referenced in paragraph 

(a) of this section, as determined 

annually using Commerce Department 

data. (Limited resource farmer or 

rancher status can be determined using 

a Web site available through the Limited 

Resource Farmer and Rancher Online 

Self Determination Tool through the 

National Resource and Conservation 

Service at http:// 

www.lrftool.sc.egov.usda.gov/tool.asp.) 

(3) A ‘‘beginning farmer or rancher’’ 

means for this section a person or legal 

entity who for a program year both: 

(i) Has never previously operated a 

farm or ranch, or who has not operated 

a farm or ranch in the previous 10 years, 

applicable to all members (shareholders, 

partners, beneficiaries, etc., as fits the 

circumstances) of an entity, and 

(ii) Will have or has had for the 

relevant period materially and 

substantially participated in the 

operation of a farm or ranch. 

(c) If a legal entity requests to be 

considered a ‘‘socially disadvantaged,’’ 

‘‘limited resource,’’ or ‘‘beginning’’ 

farmer or rancher, at least 50 percent of 

the persons in the entity must in their 

individual capacities meet the 

31574 Federal Register / Vol. 74, No. 126 / Thursday, July 2, 2009 / Rules and Regulations 

definition as provided in paragraphs 

(b)(1) through (3) of this section and it 

must be clearly demonstrated that the 

entity was not formed for the purposes 

of avoiding the purchase requirements 

or formed after the deadline for the 

purchase requirement. 

§ 760.108 Payment limitation. 

(a) For 2008, no person, as defined 

and determined under the provisions in 

part 1400 of this title in effect for 2008 

may receive more than: 

(1) $100,000 total for the 2008 

program year under ELAP, LFP, LIP, 

and SURE combined or 

(2) $100,000 for the 2008 program 

year under TAP. 

(b) For 2009 and subsequent program 

years, no person or legal entity, 

excluding a joint venture or general 

partnership, as determined by the rules 

in part 1400 of this title may receive, 

directly or indirectly, more than: 

(1) $100,000 per program year total 

under ELAP, LFP, LIP, and SURE 

combined; or 

(2) $100,000 per program year under 

TAP. 

(c) The Deputy Administrator may 

take such actions as needed, whether or 

not specifically provided for, to avoid a 

duplication of benefits under the 

multiple programs provided for in this 

part, or duplication of benefits received 

in other programs, and may impose 

such cross-program payment limitations 

as may be consistent with the intent of 

this part. 

(d) In applying the limitation on 

average adjusted gross income (AGI) for 

2008, an individual or entity is 

ineligible for payment under ELAP, 

LFP, LIP, SURE, and TAP if the 

individual’s or entity’s average adjusted 

gross income (AGI) exceeds $2.5 million 

for 2007, 2006, and 2005 under the 

provisions in part 1400 of this title in 

effect for 2008. 

(e) For 2009 through 2011, the average 

AGI limitation provisions in part 1400 

of this title relating to limits on 

payments for persons or legal entities, 

excluding joint ventures and general 

partnerships, with certain levels of 

average adjusted gross income (AGI) 

will apply under this subpart and will 

apply to each applicant for ELAP, LFP, 

LIP, SURE, and TAP. Specifically, for 

2009 through 2011, a person or legal 

entity with an average adjusted gross 

nonfarm income, as defined in § 1404.3 

of this title, that exceeds $500,000 will 

not be eligible to receive benefits under 

this part. 

(f) The direct attribution provisions in 

part 1400 of this title apply to ELAP, 

LFP, LIP, SURE, and TAP for 2009 and 

subsequent years. Under those rules, 

any payment to any legal entity will also 

be considered for payment limitation 

purposes to be a payment to persons or 

legal entities with an interest in the 

legal entity or in a sub-entity. If any 

such interested person or legal entity is 

over the payment limitation because of 

direct payment or their indirect interests 

or a combination thereof, then the 

payment to the actual payee will be 

reduced commensurate with the amount 

of the interest of the interested person 

in the payee. Likewise, by the same 

method, if anyone with a direct or 

indirect interest in a legal entity or subentity of a payee entity exceeds the AGI 

levels that would allow a participant to 

directly receive a payment under this 

part, then the payment to the actual 

payee will be reduced commensurately 

with that interest. For all purposes 

under this section, unless otherwise 

specified in part 1400 of this title, the 

AGI figure that will be relevant for a 

person or legal entity will be an average 

AGI for the three taxable years that 

precede the most immediately 

preceding complete taxable year, as 

determined by CCC. 

§ 760.109 Misrepresentation and scheme 

or device. 

(a) A participant who is determined to 

have deliberately misrepresented any 

fact affecting a program determination 

made in accordance with this part, or 

otherwise used a scheme or device with 

the intent to receive benefits for which 

the participant would not otherwise be 

entitled, will not be entitled to program 

payments and must refund all such 

payments received, plus interest as 

determined in accordance with part 792 

of this chapter. The participant will also 

be denied program benefits for the 

immediately subsequent period of at 

least 2 crop years, and up to 5 crop 

years. Interest will run from the date of 

the original disbursement by FSA. 

(b) A participant will refund to FSA 

all program payments, plus interest, as 

determined in accordance with part 792 

of this chapter, provided however, that 

in any case it will run from the date of 

the original disbursement, received by 

such participant with respect to all 

contracts or applications, as may be 

applicable, if the participant is 

determined to have knowingly done any 

of the following: 

(1) Adopted any scheme or device 

that tends to defeat the purpose of the 

program, 

(2) Made any fraudulent 

representation, or 

(3) Misrepresented any fact affecting a 

program determination. 

§ 760.110 Appeals. 

(a) Appeals. Appeal regulations set 

forth at parts 11 and 780 of this title 

apply to this part. 

(b) Determinations not eligible for 

administrative review or appeal. FSA 

determinations that are not in response 

to a specific individual participant’s 

application are not to be construed to be 

individual program eligibility 

determinations or adverse decisions and 

are, therefore, not subject to 

administrative review or appeal under 

parts 11 or 780 of this title. Such 

determinations include, but are not 

limited to, application periods, 

deadlines, coverage periods, crop years, 

fees, prices, general statutory or 

regulatory provisions that apply to 

similarly situated participants, national 

average payment prices, regions, crop 

definition, average yields, and payment 

factors established by FSA for any of the 

programs for which this subpart applies 

or similar matters requiring FSA 

determinations. 

§ 760.111 Offsets, assignments, and debt 

settlement. 

(a) Any payment to any participant 

under this part will be made without 

regard to questions of title under State 

law, and without regard to any claim or 

lien against the commodity, or proceeds, 

in favor of the owner or any other 

creditor except agencies of the U.S. 

Government. The regulations governing 

offsets and withholdings in part 792 of 

this title apply to payments made under 

this part. 

(b) Any participant entitled to any 

payment may assign any payment(s) in 

accordance with regulations governing 

the assignment of payments in part 1404 

of this title. 

§ 760.112 Records and inspections. 

(a) Any participant receiving 

payments under any program in ELAP, 

LFP, LIP, SURE, or TAP, or any other 

legal entity or person who provides 

information for the purposes of enabling 

a participant to receive a payment under 

ELAP, LFP, LIP, SURE, or TAP, must: 

(1) Maintain any books, records, and 

accounts supporting the information for 

3 years following the end of the year 

during which the request for payment 

was submitted, and 

(2) Allow authorized representatives 

of USDA and the Government 

Accountability Office, during regular 

business hours, to inspect, examine, and 

make copies of such books or records, 

and to enter the farm and to inspect and 

verify all applicable livestock and 

acreage in which the participant has an 

interest for the purpose of confirming 

Federal Register / Vol. 74, No. 126 / Thursday, July 2, 2009 / Rules and Regulations 31575 

the accuracy of information provided by 

or for the participant. 

(b) [Reserved] 

§ 760.113 Refunds; joint and several 

liability. 

(a) In the event that the participant 

fails to comply with any term, 

requirement, or condition for payment 

or assistance arising under ELAP, LFP, 

LIP, SURE, or TAP and if any refund of 

a payment to FSA will otherwise 

become due in connection with this 

part, the participant must refund to FSA 

all payments made in regard to such 

matter, together with interest and latepayment charges as provided for in part 

792 of this chapter provided that 

interest will in all cases run from the 

date of the original disbursement. 

(b) All persons with a financial 

interest in an operation or in an 

application for payment will be jointly 

and severally liable for any refund, 

including related charges, that is 

determined to be due FSA for any 

reason under this part. 

§ 760.114 Minors. 

A minor child is eligible to apply for 

program benefits under ELAP, LFP, LIP, 

SURE, or TAP if all the eligibility 

requirements are met and the provision 

for minor children in part 1400 of this 

title are met. 

§ 760.115 Deceased individuals or 

dissolved entities. 

(a) Payments may be made for eligible 

losses suffered by an eligible participant 

who is now a deceased individual or is 

a dissolved entity if a representative, 

who currently has authority to enter 

into a contract, on behalf of the 

participant, signs the application for 

payment. 

(b) Legal documents showing proof of 

authority to sign for the deceased 

individual or dissolved entity must be 

provided. 

(c) If a participant is now a dissolved 

general partnership or joint venture, all 

members of the general partnership or 

joint venture at the time of dissolution 

or their duly authorized representatives 

must sign the application for payment. 

§ 760.116 Miscellaneous. 

(a) As a condition to receive benefits 

under ELAP, LFP, LIP, SURE, or TAP, 

a participant must have been in 

compliance with the provisions of parts 

12 and 718 of this title, and must not 

otherwise be precluded from receiving 

benefits under those provisions or under 

any law. 

(b) Rules of the Commodity Credit 

Corporation that are cited in this part 

will be applied to this subpart in the 

same manner as if the programs covered 

in this subpart were programs funded by 

the Commodity Credit Corporation. 

Subpart C [Removed and Reserved] 

■ 3. Remove and reserve subpart C. 

Subpart D [Removed and Reserved] 

■ 4. Remove and reserve subpart D. 

■ 5. Revise subpart E to read as follows: 

Subpart E—Livestock Indemnity Program 

Sec. 

760.401 Applicability. 

760.402 Definitions. 

760.403 Eligible owners and contract 

growers. 

760.404 Eligible livestock. 

760.405 Application process. 

760.406 Payment calculation. 

Subpart E—Livestock Indemnity 

Program 

§ 760.401 Applicability. 

(a) This subpart establishes the terms 

and conditions under which the 

Livestock Indemnity Program (LIP) will 

be administered under Titles XII and XV 

of the 2008 Farm Bill (Pub. L. 110–246). 

(b) Eligible livestock owners and 

contract growers will be compensated in 

accordance with § 760.406 for eligible 

livestock deaths in excess of normal 

mortality that occurred in the calendar 

year for which benefits are being 

requested as a direct result of an eligible 

adverse weather event. An ‘‘eligible 

adverse weather event’’ is one, as 

determined by the Secretary, occurring 

in the program year that could and did, 

even when normal preventative or 

corrective measures were taken and 

good farming practices were followed, 

directly result in the death of livestock. 

Because feed can be purchased or 

otherwise obtained in the event of a 

drought, drought is not an eligible 

adverse weather event except when 

anthrax, resulting from drought, causes 

the death of eligible livestock. 

§ 760.402 Definitions. 

The following definitions apply to 

this subpart. The definitions in parts 

718 and 1400 of this title also apply, 

except where they conflict with the 

definitions in this section. 

Adult beef bull means a male beef 

breed bovine animal that was at least 2 

years old and used for breeding 

purposes before it died. 

Adult beef cow means a female beef 

breed bovine animal that had delivered 

one or more offspring before dying. A 

first-time bred beef heifer is also 

considered an adult beef cow if it was 

pregnant at the time it died. 

Adult buffalo and beefalo bull means 

a male animal of those breeds that was 

at least 2 years old and used for 

breeding purposes before it died. 

Adult buffalo and beefalo cow means 

a female animal of those breeds that had 

delivered one or more offspring before 

dying. A first-time bred buffalo or 

beefalo heifer is also considered an 

adult buffalo or beefalo cow if it was 

pregnant at the time it died. 

Adult dairy bull means a male dairy 

breed bovine animal at least 2 years old 

used primarily for breeding dairy cows 

before it died. 

Adult dairy cow means a female 

bovine dairy breed animal used for the 

purpose of providing milk for human 

consumption that had delivered one or 

more offspring before dying. A first-time 

bred dairy heifer is also considered an 

adult dairy cow if it was pregnant at the 

time it died. 

Adverse weather means damaging 

weather events, including, but not 

limited to, hurricanes, floods, blizzards, 

disease, wildfires, extreme heat, and 

extreme cold. 

Agricultural operation means a 

farming operation. 

Application means the ‘‘Livestock 

Indemnity Program’’ form. 

Buck means a male goat. 

Commercial use means used in the 

operation of a business activity engaged 

in as a means of livelihood for profit by 

the eligible producer. 

Contract means, with respect to 

contracts for the handling of livestock, 

a written agreement between a livestock 

owner and another individual or entity 

setting the specific terms, conditions, 

and obligations of the parties involved 

regarding the production of livestock or 

livestock products. 

Deputy Administrator or DAFP means 

the Deputy Administrator for Farm 

Programs, Farm Service Agency, U.S. 

Department of Agriculture or the 

designee. 

Equine animal means a domesticated 

horse, mule, or donkey. 

Ewe means a female sheep. 

Farming operation means a business 

enterprise engaged in producing 

agricultural products. 

FSA means the Farm Service Agency. 

Goat means a domesticated, ruminant 

mammal of the genus Capra, including 

Angora goats. Goats are further defined 

by sex (bucks and nannies) and age 

(kids). 

Kid means a goat less than 1 year old. 

Lamb means a sheep less than 1 year 

old. 

Livestock owner means one having 

legal ownership of the livestock for 

which benefits are being requested on 

the day such livestock died. 

Nanny means a female goat. 

Non-adult beef cattle means a beef 

breed bovine animal that does not meet 

31576 Federal Register / Vol. 74, No. 126 / Thursday, July 2, 2009 / Rules and Regulations 

the definition of adult beef cow or bull. 

Non-adult beef cattle are further 

delineated by weight categories of either 

less than 400 pounds or 400 pounds or 

more at the time they died. 

Non-adult buffalo or beefalo means an 

animal of those breeds that does not 

meet the definition of adult buffalo or 

beefalo cow or bull. Non-adult buffalo 

or beefalo are further delineated by 

weight categories of either less than 400 

pounds or 400 pounds or more at the 

time of death. 

Non-adult dairy cattle means a dairy 

breed bovine animal, of a breed used for 

the purpose of providing milk for 

human consumption, that does not meet 

the definition of adult dairy cow or bull. 

Non-adult dairy cattle are further 

delineated by weight categories of either 

less than 400 pounds or 400 pounds or 

more at the time they died. 

Normal mortality means the 

numerical amount, computed by a 

percentage, as established for the area 

by the FSA State Committee, of 

expected livestock deaths, by category, 

that normally occur during a calendar 

year for a producer. 

Poultry means domesticated chickens, 

turkeys, ducks, and geese. Poultry are 

further delineated by sex, age, and 

purpose of production as determined by 

FSA. 

Ram means a male sheep. 

Secretary means the Secretary of 

Agriculture or a designee of the 

Secretary. 

Sheep means a domesticated, 

ruminant mammal of the genus Ovis. 

Sheep are further defined by sex (rams 

and ewes) and age (lambs) for purposes 

of dividing into categories for loss 

calculations. 

State committee, State office, county 

committee, or county office means the 

respective FSA committee or office. 

Swine means a domesticated 

omnivorous pig, hog, or boar. Swine for 

purposes of dividing into categories for 

loss calculations are further delineated 

by sex and weight as determined by 

FSA. 

United States means all fifty States of 

the United States, the Commonwealth of 

Puerto Rico, the Virgin Islands, Guam, 

and the District of Columbia. 

§ 760.403 Eligible owners and contract 

growers. 

(a) In addition to other eligibility rules 

that may apply, to be eligible as a: 

(1) Livestock owner for benefits with 

respect to the death of an animal under 

this subpart, the applicant must have 

had legal ownership of the eligible 

livestock on the day the livestock died 

and under conditions in which no 

contract grower could have been eligible 

for benefits with respect to the animal. 

Eligible types of animal categories for 

which losses can be calculated for an 

owner are specified in § 760.404(a). 

(2) Contract grower for benefits with 

respect to the death of an animal, the 

animal must be in one of the categories 

specified on § 760.404(b), and the 

contract grower must have had 

(i) A written agreement with the 

owner of eligible livestock setting the 

specific terms, conditions, and 

obligations of the parties involved 

regarding the production of livestock; 

(ii) Control of the eligible livestock on 

the day the livestock died; and 

(iii) A risk of loss in the animal. 

(b) A producer seeking payment must 

not be ineligible under the restrictions 

applicable to foreign persons contained 

in § 760.103(b) and must meet all other 

requirements of subpart B and other 

applicable USDA regulations. 

§ 760.404 Eligible livestock. 

(a) To be considered eligible livestock 

for livestock owners, the kind of 

livestock must be alpacas, adult or nonadult dairy cattle, beef cattle, buffalo, 

beefalo, elk, emus, equine, llamas, 

sheep, goats, swine, poultry, deer, or 

reindeer and meet all the conditions in 

paragraph (c) of this section. 

(b) To be considered eligible livestock 

for contract growers, the kind of 

livestock must be poultry or swine as 

defined in § 760.402 and meet all the 

conditions in paragraph (c) of this 

section. 

(c) To be considered eligible livestock 

for the purpose of generating payments 

under this subpart, livestock must meet 

all of the following conditions: 

(1) Died as a direct result of an 

eligible adverse weather event: 

(i) On or after January 1, 2008, but 

before October 1, 2011, 

(ii) No later than 60 calendar days 

from the ending date of the applicable 

adverse weather event, but before 

October 1, 2011, and 

(iii) In the calendar year for which 

benefits are being requested; 

(2) Been maintained for commercial 

use as part of a farming operation on the 

day they died; and 

(3) Before dying, not have been 

produced or maintained for reasons 

other than commercial use as part of a 

farming operation, such non-eligible 

uses being understood to include, but 

not be limited to, any uses of wild free 

roaming animals or use of the animals 

for recreational purposes, such as 

pleasure, hunting, roping, pets, or for 

show. 

(d) The following categories of 

animals owned by a livestock owner are 

eligible livestock and calculations of 

eligibility for payments will be 

calculated separately for each producer 

with respect to each category: 

(1) Adult beef bulls; 

(2) Adult beef cows; 

(3) Adult buffalo or beefalo bulls; 

(4) Adult buffalo or beefalo cows; 

(5) Adult dairy bulls; 

(6) Adult dairy cows; 

(7) Alpacas; 

(8) Chickens, broilers, pullets; 

(9) Chickens, chicks; 

(10) Chickens, layers, roasters; 

(11) Deer; 

(12) Ducks; 

(13) Ducks, ducklings; 

(14) Elk; 

(15) Emus; 

(16) Equine; 

(17) Geese, goose; 

(18) Geese, gosling; 

(19) Goats, bucks; 

(20) Goats, nannies; 

(21) Goats, kids; 

(22) Llamas; 

(23) Non-adult beef cattle; 

(24) Non-adult buffalo or beefalo; 

(25) Non-adult dairy cattle; 

(26) Reindeer; 

(27) Sheep, ewes; 

(28) Sheep, lambs; 

(29) Sheep, rams; 

(30) Swine, feeder pigs under 50 

pounds; 

(31) Swine, sows, boars, barrows, gilts 

50 to 150 pounds; 

(32) Swine, sows, boars, barrows, gilts 

over 150 pounds; 

(33) Turkeys, poults; and 

(34) Turkeys, toms, fryers, and 

roasters. 

(e) The following categories of 

animals are eligible livestock for 

contract growers and calculations of 

eligibility for payments will be 

calculated separately for each producer 

with respect to each category: 

(1) Chickens, broilers, pullets; 

(2) Chickens, layers, roasters; 

(3) Geese, goose; 

(4) Swine, boars, sows; 

(5) Swine, feeder pigs; 

(6) Swine, lightweight barrows, gilts; 

(7) Swine, sows, boars, barrows, gilts; 

and 

(8) Turkeys, toms, fryers, and roasters. 

§ 760.405 Application process. 

(a) In addition to submitting an 

application for payment at the 

appropriate time, a producer or contract 

grower that suffered livestock losses that 

create or could create a claim for 

benefits must: 

(1) For losses during 2008 and losses 

in 2009, prior to July 13, 2009, provide 

a notice of loss to FSA no later than 

September 13, 2009. 

(2) For losses on or after July 13, 2009, 

provide a notice of loss to FSA within 

the earlier of: 

Federal Register / Vol. 74, No. 126 / Thursday, July 2, 2009 / Rules and Regulations 31577 

(i) 30 calendar days of when the loss 

of livestock is apparent to the 

participant or 

(ii) 30 calendar days after the end of 

the calendar year in which the loss of 

livestock occurred. 

(3) The participant must submit the 

notice of loss required in paragraphs 

(a)(1) and (a)(2) to the FSA 

administrative county office that 

maintains the participant’s farm records 

for the agricultural operation. 

(b) In addition to the notices of loss 

required in paragraph (a) of this section, 

a participant must also submit a 

completed application for payment no 

later than 

(1) 30 calendar days after the end of 

the calendar year in which the loss of 

livestock occurred or 

(2) September 13, 2009 for losses 

during 2008. 

(c) Applicants must submit 

supporting documentation with their 

application. For contract growers, the 

information must include a copy of the 

grower contract and other documents 

establishing their status. In addition, for 

all applicants, including contract 

growers, supporting documents must 

show: 

(1) Evidence of loss, 

(2) Current physical location of 

livestock in inventory, 

(3) Physical location of claimed 

livestock at the time of death, and 

(4) Inventory numbers and other 

inventory information necessary to 

establish actual mortality as required by 

FSA. 

(d) The participant must provide 

adequate proof that the death of the 

eligible livestock occurred as a direct 

result of an eligible adverse weather 

event in the calendar year for which 

benefits are requested. The quantity and 

kind of livestock that died as a direct 

result of the eligible adverse weather 

event during the calendar year for 

which benefits are being requested may 

be documented by: purchase records; 

veterinarian records; bank or other loan 

papers; rendering-plant truck receipts; 

Federal Emergency Management Agency 

records; National Guard records; written 

contracts; production records; Internal 

Revenue Service records; property tax 

records; private insurance documents; 

and other similar verifiable documents 

as determined by FSA. 

(e) If adequate verifiable proof of 

death documentation is not available, 

the participant may provide reliable 

records, in conjunction with verifiable 

beginning and ending inventory records, 

as proof of death. Reliable records may 

include contemporaneous producer 

records, dairy herd improvement 

records, brand inspection records, 

vaccination records, pictures, and other 

similar reliable documents as 

determined by FSA. 

(f) Certification of livestock deaths by 

third parties may be accepted only if 

verifiable proof of death records or 

reliable proof of death records in 

conjunction with verifiable beginning 

and ending inventory records are not 

available and both of the following 

conditions are met: 

(1) The livestock owner or livestock 

contract grower, as applicable, certifies 

in writing: 

(i) That there is no other verifiable or 

reliable documentation of death 

available; 

(ii) The number of livestock, by 

category identified in this subpart and 

by FSA were in inventory at the time 

the applicable adverse weather event 

occurred; 

(iii) The physical location of the 

livestock, by category, in inventory 

when the deaths occurred; and 

(iv) Other details required for FSA to 

determine the certification acceptable; 

and 

(2) The third party is an independent 

source who is not affiliated with the 

farming operation such as a hired hand 

and is not a ‘‘family member,’’ defined 

as a person whom a member in the 

farming operation or their spouse is 

related as lineal ancestor, lineal 

descendant, sibling, spouse, and 

provides their telephone number, 

address, and a written statement 

containing specific details about: 

(i) Their knowledge of the livestock 

deaths; 

(ii) Their affiliation with the livestock 

owner; 

(iii) The accuracy of the deaths 

claimed by the livestock owner or 

contract grower including, but not 

limited to, the number and kind or type 

of the participant’s livestock that died 

because of the eligible adverse weather 

event; and 

(iv) Other information required by 

FSA to determine the certification 

acceptable. 

(g) Data furnished by the participant 

and the third party will be used to 

determine eligibility for program 

benefits. Furnishing the data is 

voluntary; however, without all 

required data program benefits will not 

be approved or provided. 

§ 760.406 Payment calculation. 

(a) Under this subpart, separate 

payment rates for eligible livestock 

owners and eligible livestock contract 

growers are specified in paragraphs (b) 

and (c) of this section, respectively. 

Payments for LIP are calculated by 

multiplying the national payment rate 

for each livestock category by the 

number of eligible livestock in excess of 

normal mortality in each category that 

died as a result of an eligible adverse 

weather event. Normal mortality for 

each livestock category will be 

determined by FSA on a State-by-State 

basis using local data sources including, 

but not limited to, State livestock 

organizations and the Cooperative 

Extension Service for the State. 

Adjustments will be applied as 

specified in paragraph (d) of this 

section. 

(b) The LIP national payment rate for 

eligible livestock owners is based on 75 

percent of the average fair market value 

of the applicable livestock as computed 

using nationwide prices for the previous 

calendar year unless some other price is 

approved by the Deputy Administrator. 

(c) The LIP national payment rate for 

eligible livestock contract growers is 

based on 75 percent of the average 

income loss sustained by the contract 

grower with respect to the dead 

livestock. 

(d) The LIP payment calculated for 

eligible livestock contract growers will 

be reduced by the amount the 

participant received from the party who 

contracted with the producer to raise 

the livestock for the loss of income from 

the dead livestock. 

Subpart F [Removed and Reserved] 

■ 6. Remove and reserve subpart F. 

Subpart G [Removed and Reserved] 

■ 7. Remove and reserve subpart G. 

Subpart H [Removed and Reserved] 

■ 8. Remove and reserve subpart H. 

PART 1400—PAYMENT LIMITATION 

AND PAYMENT ELIGIBILITY FOR 2009 

AND SUBSEQUENT CROP, PROGRAM, 

OR FISCAL YEARS 

■ 9. The authority citation for part 1400 

continues to read as follows: 

Authority: 7 U.S.C. 1308, 1308–1, 1308–2, 

1308–3, 1308–3a, 1308–4, and 1308–5. 

§ 1400.1 [Amended] 

■ 10. Amend § 1400.1 as follows: 

■ a. In paragraph (a)(4), remove the 

reference ‘‘part 1480 of this chapter’’ 

and add, in its place, the reference ‘‘part 

760 of this title’’; 

■ b. In paragraph (a)(5), remove the 

reference ‘‘part 1439 of this chapter’’ 

and add, in its place, the reference ‘‘part 

760 of this title’’; and 

■ c. In paragraph (a)(6), remove the 

reference ‘‘part 783’’ and add, in its 

place, the reference ‘‘part 760’’. 

31578 Federal Register / Vol. 74, No. 126 / Thursday, July 2, 2009 / Rules and Regulations 

PART 1439—EMERGENCY LIVESTOCK 

ASSISTANCE 

■ 11. Remove part 1439. 

Signed in Washington, DC, June 25, 2009. 

Carolyn B. Cooksie, 

Acting Administrator, Farm Service Agency, 

and Acting Executive Vice President, 

Commodity Credit Corporation. 

[FR Doc. E9–15537 Filed 7–1–09; 8:45 am] 

BILLING CODE 3410–05–P 

DEPARTMENT OF AGRICULTURE 

Commodity Credit Corporation 

7 CFR Part 1491 

RIN 0578–AA46 

Farm and Ranch Lands Protection 

Program 

AGENCY: Natural Resources 

Conservation Service (NRCS) and the 

Commodity Credit Corporation (CCC), 

United States Department of Agriculture 

(USDA). 

ACTION: Interim final rule; correction 

with reopening of public comment 

period. 

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 Farm and Ranch 

Lands Protection Program (FRPP) to 

incorporate programmatic changes 

authorized by the Food, Conservation, 

and Energy Act of 2008 (2008 Act). The 

public comment period closed March 

17, 2009. 

The January 16, 2009, interim final 

rule identified the contingent right of 

enforcement as an acquisition of a real 

property right. This correction to the 

January 16, 2009, interim final rule 

clarifies that the right of enforcement is 

a condition placed upon the award of 

financial assistance and, therefore, does 

not constitute an acquisition. NRCS is 

also using the opportunity presented by 

this rulemaking to ask for public input 

on key programmatic implementation 

questions. Finally, this document 

reopens the public comment period for 

the January 16, 2009, interim final rule, 

as amended, upon publication until 

August 3, 2009. 

DATES: Effective Date: The rule is 

effective July 2, 2009. 

Comment date: Submit comments on 

or before August 3, 2009. The comment 

period for the FRPP interim final rule 

published on January 16, 2009 (74 FR 

2317), as changed by this rulemaking, is 

reopened. Comments must be received 

on or before August 3, 2009. 

ADDRESSES: You may send comments 

(identified by Docket Number NRCS– 

IFR–08013) using any of the following 

methods: 

• Government-wide rulemaking Web 

site: Go to http://www.regulations.gov 

and follow the instructions for sending 

comments electronically. 

• Mail: John Glover, Acting Director, 

Easements Programs Division, 

Department of Agriculture, Natural 

Resources Conservation Service, Farm 

and Ranch Lands Protection Program 

Comments, Post Office Box 2890, 

Washington, DC 20013. 

• Fax: (202) 720–9689. 

• Hand Delivery: USDA South 

Building, 1400 Independence Avenue, 

SW., Room 6819, 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) 720–1854 in order to be escorted 

into the building. 

• This interim final rule may be 

accessed via the 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 link from beneath the Final 

and Interim Final Rules Index 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). 

FOR FURTHER INFORMATION CONTACT: John 

Glover, Acting Director, Easement 

Programs Division, Department of 

Agriculture, Natural Resources 

Conservation Service, Post Office Box 

2890, Washington, DC 20013–2890; 

Phone: (202) 720–1854; Fax: (202) 720– 

9689; or e-mail: 

FRPP2008@wdc.usda.gov. 

SUPPLEMENTARY INFORMATION: 

Regulatory Certifications 

Executive Order 12866 

The Office of Management and Budget 

reviewed the January 16, 2009, interim 

final rule and determined that it was a 

significant regulatory action. Pursuant 

to Executive Order 12866, NRCS 

conducted a cost-benefit analysis of the 

potential impacts associated with the 

interim final rule for FRPP published in 

the Federal Register on January 16, 

2009. The provisions of this interim 

final rule do not alter the analysis that 

was originally prepared. The 

administrative record is available for 

public inspection in the Department of 

Agriculture, Natural Resources 

Conservation Service, Room 5831 South 

Building, 1400 Independence Avenue, 

SW., Washington, DC. A copy of the 

analysis is available upon request from 

John Glover, Acting Director, Easement 

Programs Division, Department of 

Agriculture, Natural Resources 

Conservation Service, Room 6819–S, 

Washington, DC 20250–2890 or 

electronically at: http:// 

www.nrcs.usda.gov/programs/FRPP/ 

under the Program Information title. 

Regulatory Flexibility Act 

The Regulatory Flexibility Act is not 

applicable to this interim final rule 

because the Commodity Credit 

Corporation (CCC) is not required by 5 

U.S.C. 553, or by any other provision of 

law, to publish a notice of proposed 

rulemaking with respect to the subject 

matter of this rule. 

Environmental Analysis 

A programmatic environmental 

assessment has been prepared in 

association with the interim final 

rulemaking published on January 16, 

2009. The provisions of this interim 

final rule do not alter the assessment 

that was originally prepared. The 

analysis has determined that there will 

not be a significant impact to the human 

environment, and as a result, an 

Environmental Impact Statement is not 

required to be prepared (40 CFR Part 

1508.13). The comment period for the 

Environmental (EA) Analysis and 

Finding of No Significant Impact 

(FONSI) is reopened and hereby 

extended to August 3, 2009. 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, Natural 

Resources Conservation Service, 

Ecological Sciences Division, 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 www.regulations.gov, or 

(3) written comments to: Matt 

Harrington, National Environmental 

Coordinator, Ecological Sciences 

Division, Natural Resources 

Conservation Service, 1400 

Independence Ave., SW., Washington 

DC 20250.