[Federal Register Volume 71, Number 102 (Friday, May 26, 2006)]
[Rules and Regulations]
[Pages 30263-30266]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-8100]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 Prices of new books are listed in the first FEDERAL REGISTER issue of each 
 week.
 
 ========================================================================
 

  Federal Register / Vol. 71, No. 102 / Friday, May 26, 2006 / Rules 
and Regulations  

[[Page 30263]]



DEPARTMENT OF AGRICULTURE

Farm Service Agency

7 CFR Part 701

RIN 0560-AH43


Emergency Conservation Program

AGENCY: Farm Service Agency, USDA.

ACTION: Interim final rule.

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

SUMMARY: This interim final rule amends the regulations for the 
Emergency Conservation Program (ECP) to implement provisions of the 
Department of Defense, Emergency Supplemental Appropriation to Address 
Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006 
(Pub. L. 109-149) (2006 Act) providing assistance to nursery, oyster, 
and poultry producers and non-industrial private forest landowners to 
rehabilitate public or private oyster reefs or farmland damaged by 
hurricanes during calendar year 2005.

Dates:  This interim final rule is effective May 26, 2006. Written 
comments via letter, facsimile, or Internet must be received on or 
before June 26, 2006 in order to be assured consideration.

ADDRESSES: The Farm Service Agency (FSA) invites interested persons to 
submit comments on this proposed rule. Comments may be submitted by any 
of the following methods:
     E-Mail: Send comments to [email protected].
     Fax: Submit comments by facsimile transmission to: (202) 
720-4619.
     Mail: Send comments to: Clayton Furukawa, ECP Program 
Manager, Conservation and Environmental Programs Division, Farm Service 
Agency, United States Department of Agriculture, STOP 0513, 1400 
Independence Avenue, SW., Washington, DC 20250-0513.
     Hand Delivery or Courier: Deliver comments to: Clayton 
Furukawa, ECP Program Manager, Conservation and Environmental Programs 
Division, Farm Service Agency, United States Department of Agriculture, 
Rm. 4977-S., 1400 Independence Avenue, SW., Washington, DC 20250-0513
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.

FOR FURTHER INFORMATION CONTACT: Clayton Furukawa, ECP Program Manager, 
Conservation and Environmental Programs Division, USDA/FSA/CEPD/STOP 
0513, 1400 Independence Avenue, SW., Washington, DC 20250-0513, 
telephone 202-690-0571. E-mail: [email protected].

Discussion of Proposed Rule

    The ECP is an on-going program that provides cost-share assistance 
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 2006 Act provides emergency supplemental appropriations to 
address calendar year 2005 hurricane-related damage. Section 101 of the 
2006 Act provided $199,800,000 for the ECP, to remain available until 
expended, to address damage from hurricanes that occurred during 
calendar year 2005. In addition to funding the standard benefits 
available under the ECP to rehabilitate certain land, the 2006 Act also 
authorizes certain additional assistance to certain oyster, nursery, 
and poultry producers and to private non-industrial forest landowners.

Allocating Funds

    Compared to the broader ECP program, the funding provided by the 
2006 Act covered both new and existing authorities. Therefore, FSA has 
segregated the funds made available by the 2006 Act from the broader 
ECP program. Requests for ECP funding for damages from hurricanes 
during calendar year 2005 are expected to be greater than the funds 
made available by the 2006 Act.
    As a general rule, FSA at the national level allocates ECP funds to 
State FSA offices, and the local FSA county committees obligate the 
funds on a ``first-come, first-served'' basis. Further, as previously 
indicated, the 2006 Act also provided funds to address damage to 
certain oyster, nursery, and poultry producers and to private non-
industrial forest landowners. These new authorities are in addition to 
FSA's existing authority under ECP.
    Because FSA desired to make funds available as quickly as possible, 
FSA allocated certain funding for debris removal while reserving the 
remaining funds for the new 2006 Act authorities. The funds made 
available for debris removal were pro-rated based on estimates of need 
provided by local FSA offices. FSA did this because existing 
regulations address and funds for this purpose could be immediately 
allocated. It should be noted that the new legislation caps assistance 
for poultry growers who suffered uninsured losses to poultry houses to 
$20 million.

General Provisions

    The 2006 Act authorizes assistance for 2005 hurricane-related 
damage, including claims for oyster bed refurbishing; for cleaning up 
structures such as barns; for removing debris such as nursery 
structures, shade houses, and aboveground irrigation facilities; and 
for removing poultry house debris, including carcasses. Also, money is 
authorized for certain forestry claims.
    The 2006 Act authorizes the funding as a result of hurricanes that 
occurred during the 2005 calendar year. This regulation adds special 
provisions for losses due to 2005 hurricanes. FSA intends to focus 
ECP's limited disaster recovery assistance dollars to areas that were 
heavily impacted by the 2005 hurricanes. At a minimum, FSA has 
determined that only counties that are Presidential or Secretarial 
declared disaster counties due to hurricane damage suffered during 
calendar year 2005, as well as oyster reefs that suffered damage from 
2005 hurricanes, will be eligible to receive ECP assistance provided 
under the authorities defined by sections 701.50 through 701.57 of this 
rule. In order to ensure that ECP helps the most affected counties, the 
Deputy Administrator may further prioritize ECP hurricane assistance 
based upon FSA's assessment of needed recovery aid.
    This rule also revises 7 CFR 701.11(a)(3) to clarify that ECP 
assistance may be provided on land

[[Page 30264]]

which received assistance under the Emergency Watershed Protection 
Program authorized by the regulations at 7 CFR part 624 only if that 
assistance is not for the same expenses as the ECP so as to ensure 
there are no duplicate payments. The regulations at 7 CFR 701.11(a)(4) 
prohibit duplicate payments from other programs, including the 
Emergency Forestry Conservation Reserve Program (EFCRP). The EFCRP was 
also authorized by the 2006 Act and provides funding for the 
rehabilitation and reforestation of certain lands damaged by the 2005 
hurricanes.

Oysters

    Existing ECP rules provide generally that land owned by State and 
Federal agencies is not eligible for ECP assistance. It is common for 
oyster beds to be publicly, as well as privately, held, and the 2006 
Act provides authority to refurbish oyster beds for public and private 
oyster reefs. Therefore, this rule provides that publicly-held oyster 
beds are eligible for assistance, subject to otherwise applicable 
rules, including the $200,000 per ``person'' ECP payment limitation.
    As provided in the existing regulations at 7 CFR 701.1(i) and to 
assist with the refurbishing of public oyster beds, the Agency may 
enter into contracts with State agencies to perform technical 
assistance related to the refurbishment of public or private oyster 
beds. Cost-share for this relief is statutorily limited to 90 percent 
of the eligible costs.
    Oyster bed refurbishing consists of removing mud and debris from 
public and private oyster beds, staking out the leased areas, re-
establishing the oyster beds using crushed limestone, recycled oyster 
shells, or other available approved cultch materials, and reseeding the 
oyster beds.

Nursery

    The 2006 Act provides for assistance to nursery producers to remove 
debris such as nursery structures, shade houses, and above-ground 
irrigation facilities for participants within designated disaster 
counties. The statute provides that payments shall be no more than 90 
percent of the lesser of the participant's actual cost or of the total 
allowable cost.

Poultry

    The 2006 Act provides up to $20 million for assistance to poultry 
growers who suffered uninsured losses to poultry houses to reconstruct 
or repair their poultry houses in counties affected by hurricane during 
the 2005 calendar year.
    The 2006 Act limits assistance for poultry houses to the lesser of 
50 percent of the total costs associated with the reconstruction or 
repair of a poultry house or $50,000 per poultry house. Poultry house 
assistance is further limited by the statute so that the sum of this 
ECP assistance and any indemnities for losses to a poultry house paid 
to a poultry grower may not exceed 90 percent of the total costs 
associated with the reconstruction or repair of a poultry house.
    Poultry growers will be required to certify to any insurance 
payments received for poultry houses damaged by hurricane during 
calendar year 2005 to be eligible for ECP assistance.

Private Non-Industrial Forest Land

    The 2006 Act authorizes assistance to non-industrial private forest 
landowners who suffered a loss of, or damage to, at least 35 percent of 
forest acres on commercial forest land. Further, the producer has 5 
years from the date of the loss to: (1) Reforest the lost forest acres 
in accordance with a plan approved by FSA that is 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 state. FSA intends to use 
State Forester best management practices. By statute, the cost-share 
may not exceed 75 percent or be more than $150 per acre.
    The 2006 Act authorized ECP assistance to reforest and rehabilitate 
damaged forest land. Reforest means replanting seedlings where 
applicable and rehabilitate means to bring the land back into a 
condition to be able to reforest which may mean removing debris or site 
preparation, where applicable.
    Based on appropriate suitability, FSA will prioritize offers for 
forestry assistance by the type of forest in the following, descending 
order: Longleaf pine/Atlantic white cedar or bottomland, upland 
hardwood, loblolly/slash pine, mixed stand.

Summary of Cost-Benefit Analysis

    The additions to the Emergency Conservation Program have a total 
funding of $199,800,000, which will remain available until expended. 
Given the number of affected producers, it is likely the entire amount 
will be expended.
    Technical assistance will require about 10% of total program funds, 
with the Forest Service likely to receive the largest share via a 
cooperative agreement for forestry program function. For oyster bed 
rehabilitation, the National Marine Fisheries Service has offered to 
provide technical assistance, as well as volunteer interpreters, at no 
cost to the Agency.
    Payments from the ECP directly impact the net revenue for 
landowners and lease holders. However, cost-share and other limitations 
mean that the program will not make producers whole. Nevertheless, in 
the aggregate, ECP payment will reduce the impact of the disaster on 
producers. This may reduce the likelihood of producers permanently 
exiting associated sectors.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    This rule has been determined to be economically significant under 
Executive Order 12866 and has been reviewed by the Office of Management 
and Budget. A Cost-Benefit Analysis (CBA) was completed and is 
available from the contact person cited above.

Federal Assistance Program

    The title and number of the Federal Assistance Program, as found in 
the Catalog of Federal Domestic Assistance, to which this rule applies 
are: Emergency Conservation Program (ECP)--10.054.

Regulatory Flexibility Act

    This rule is not subject to the Regulatory Flexibility Act since 
the Farm Service Agency is not required by 5 U.S.C. 553 or any other 
law to publish a notice of proposed rulemaking for this rule.

Environmental Review

    The environmental impacts of this rule have been considered in 
accordance with the provisions of the National Environmental Policy Act 
of 1969 (NEPA), 42 U.S.C. 4321 et seq.; the regulations of the Council 
on Environmental Quality (40 CFR parts 1500-1508); and FSA's 
regulations for compliance with NEPA at 7 CFR part 799. It was 
determined that this rule constitutes a major Federal action. The 
Agency has completed a final environmental impact statement assessment 
and record of decision which is on file and available to the public in 
the Administrative Record at the address specified in the, ADDRESSES 
section. It is also available electronically at: http://www.fsa.usda.gov/dafp/cepd/epb/nepa.htm.

Executive Order 12372

    This program is not subject to Executive Order 12372, which 
requires intergovernmental consultation with

[[Page 30265]]

State and local officials. See the Notice related to 7 CFR part 3015, 
subpart V, published at 48 FR 29115 (June 24, 1983).

Executive Order 12612

    This rule does not have Federalism implications that warrant the 
preparation of a Federalism Assessment. This rule will not have a 
substantial direct effect on States or their political subdivisions, or 
on the distribution of power and responsibilities among the various 
levels of government.

Executive Order 12988

    This rule has been reviewed in accordance with Executive Order 
12988. This interim rule is not retroactive and it does not preempt 
State law. 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.

Unfunded Mandates Reform Act of 1995

    This rule contains no Federal mandates under the regulatory 
provisions of Title II of the UMRA for State, local, and tribal 
government or the private sector. Therefore, this rule is not subject 
to the requirements of sections 202 and 205 of the UMRA.

Immediate Effect

    It has been determined that this rule should be made effective 
immediately because it would not be in the public interest to delay 
relief to persons affected by the hurricanes in order to provide for 
public notice and comment by issuing a proposed rule. However, by 
issuing these regulations via an interim final rule, FSA still invites 
comments and will consider them in the development of the final rule.

Paperwork Reduction Act

    The Office of Management and Budget (OMB) has approved the 
information collection requirements of the ECP and assigned it OMB 
control number 0560-0082.

Government Paperwork Elimination Act

    FSA is committed to compliance with the Government Paperwork 
Elimination Act (GPEA) and the Freedom to E-File Act, which require 
Government agencies in general and FSA in particular to provide the 
public the option of submitting information or transacting business 
electronically to the maximum extent possible. The regulation is 
available at http://www.fsa.usda.gov under the heading `Other 
Partners'. Applications may be submitted at the FSA county offices, by 
mail or by FAX.

List of Subjects in 7 CFR Part 701

    Agriculture, Disaster assistance, Environmental protection, Natural 
resources.


0
Accordingly, 7 CFR part 701 is amended as follows:

PART 701--EMERGENCY CONSERVATION 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: Pub. L. 95-334, 92 Stat. 420, 16 U.S.C. 2201 et. 
seq.; Pub. L. 109-149, Division B, sec. 101.

0
2. Section 701.11(a)(3) is revised to read as follows:


Sec.  701.11  Prohibition on duplicate payments.

    (a) * * *
    (3) The Emergency Watershed Protection Program (EWP), provided for 
in 7 CFR part 624, for the same or similar expenses.
* * * * *

0
3. Add Sec. Sec.  701.50 through 701.57, to read as follows:


Sec.  701.50  2005 hurricanes.

    In addition benefits elsewhere allowed by this part, claims related 
to calendar year 2005 hurricane losses may be allowed to the extent 
provided for in Sec. Sec.  701.50 through 701.57. Such claims under 
those sections will be limited to losses in counties that were declared 
disaster counties by the President or the Secretary because of 2005 
hurricanes and to losses to oyster reefs. Claims under Sec. Sec.  
701.51 through 701.57 shall be subject to all normal ECP limitations 
and provisions except as explicitly provided in those sections.


Sec.  701.51  Definitions.

    The following definitions apply to Sec. Sec.  701.52 through 
701.57:
    Above-ground irrigation facilities means irrigation pipes, 
sprinklers, pumps, emitters, and any other integral part of the above 
ground irrigation system.
    Barn means a structure used for the housing of animals or farm 
equipment.
    Commercial forest land means forest land with trees intended to be 
harvested for commercial purposes that has a productivity potential 
greater than or equal to 20 cubic feet per year of merchantable timber.
    Date of loss means the date the hurricane damage occurred in 
calendar year 2005.
    Eligible county means any county that was declared a disaster 
county by the President or the Secretary because of a calendar year 
2005 hurricane, that otherwise meets the eligibility requirements of 
this part.
    Forest management plan means a plan of action and direction on 
forest lands to achieve a set of results usually specified as goals or 
objectives consistent with program policies prepared or approved by a 
natural resource professional, such as a State forestry agency 
representative.
    Poultry house means a building used to house live poultry for the 
purpose of commercial food production.
    Private non-industrial forest land means rural commercial forest 
lands with existing tree cover, or which are suitable for growing 
trees, that are owned by a private non-industrial forest landowner as 
defined in this section.
    Private non-industrial forest landowner means, for purposes of the 
ECP for forestry, an individual, group, association, corporation, 
Indian tribe, or other legal private entity owning non-industrial 
private forest land or who receives concurrence from the landowner for 
making the claim in lieu of the owner, and for practice implementation 
and who holds a lease on the land for a minimum of 10 years. Owners or 
lessees principally engaged in the primary processing of raw wood 
products are excluded from this definition. Owners of land leased to 
lessees who would be excluded under the previous sentence are also 
excluded.
    Shade house means a metal or wood structure covered by a material 
used for shade purposes.


Sec.  701.52  Availability of funding.

    Payments under Sec. Sec.  701.53 through 701.57 are subject to the 
availability of funds under Public Law 109-149.


Sec.  701.53  Debris removal and water for livestock.

    Subject to the other eligibility provisions of this part, an ECP 
participant addressing damage in an eligible county from hurricanes 
during calendar year 2005 may be allowed up to 90 percent of the 
participant's actual cost or of the total allowable cost for cleaning 
up structures such as barns, shade houses and above-ground irrigation 
facilities, for removing poultry house debris, including carcasses, and 
for providing water for livestock.


Sec.  701.54  Oysters.

    (a) Notwithstanding Sec.  701.5(b), but otherwise subject to the 
other eligibility

[[Page 30266]]

provisions of this part except as provided explicitly in this section, 
assistance may be made available under this section for the eligible 
cost of refurbishing public or private oyster reefs damaged in calendar 
year 2005 by a 2005 hurricane. Oyster bed refurbishing consists of 
removing mud from public and private oyster beds, staking out the 
leased areas, reestablishing the oyster beds using crushed limestone, 
recycled oyster shells, or other available and suitable approved cultch 
materials, reseeding the oyster beds, and related actions approved by 
FSA.
    (b) Notwithstanding Sec.  701.26, an ECP participant shall not 
receive more than 90 percent of the participant's actual cost or of the 
total allowable cost described in paragraph (a) of this section.
    (c) The provisions of Sec.  701.26(c) limiting ECP payments to 50 
percent of the agricultural value of the land do not apply to oyster 
bed rehabilitation and refurbishing.


Sec.  701.55  Nursery.

    (a) Subject to the other eligibility provisions of this part except 
as provided explicitly in this section, assistance may be made 
available in an eligible county under this section for the cost of 
removing nursery debris such as nursery structures, shade houses, and 
above ground irrigation facilities, where such debris was created in 
calendar year 2005 by a 2005 hurricane.
    (b) Notwithstanding Sec.  701.26, an otherwise eligible ECP 
participant may be allowed up to 90 percent of the participant's actual 
cost or of the total allowable cost for losses described in paragraph 
(a) of this section.


Sec.  701.56  Poultry.

    (a) Subject to the other eligibility provisions of this part except 
as provided explicitly in this section, assistance may be allowed under 
this section for uninsured losses in calendar year 2005 to a poultry 
house in an eligible county due to a 2005 hurricane.
    (b) Claimants under this section may be allowed an amount up to the 
lesser of:
    (1) The lesser of 50 percent of the participant's actual or the 
total allowable cost of the reconstruction or repair of a poultry 
house, or
    (2) $50,000 per poultry house.
    (c) The total amount of assistance provided under this section and 
any indemnities for losses to a poultry house paid to a poultry grower, 
may not exceed 90 percent of the total costs associated with the 
reconstruction or repair of a poultry house.
    (d) Poultry growers must provide information on insurance payments 
on their poultry houses. Copies of contracts between growers and 
poultry integrators may be required.
    (e) Assistance under this section is limited to amounts necessary 
for reconstruction and/or repair of a poultry house to the same size as 
before the hurricane.
    (f) Assistance is limited to poultry houses used to house poultry 
for commercial enterprises. A commercial poultry enterprise is one with 
a dedicated structure for poultry and a number of poultry that exceeds 
actual non-commercial uses of poultry and their products at all times, 
and from which poultry or related products are actually, and routinely, 
sold in commercial quantities for food, fiber, or eggs. Unless 
otherwise approved by FSA, a commercial quantity is a quantity per week 
that would normally exceed $100 in sales.
    (g) Poultry houses with respect to which claims are made under this 
section must be reconstructed or repaired to meet current building 
standards.


Sec.  701.57  Private non-industrial forest land.

    (a) Subject to the other eligibility provisions of this part except 
as provided explicitly in this section, assistance made available under 
this section with respect to private, non-industrial forest land in an 
eligible county for costs related to reforestations, rehabilitation, 
and related measures undertaken because of losses in calendar year 2005 
caused by a 2005 hurricane. To be eligible, a non-industrial private 
forest landowner must have suffered a loss of, or damage to, at least 
35 percent of forest acres on commercial forest land of the forest 
landowner in a designated disaster county due to a 2005 hurricane or 
related condition. The 35 percent loss shall be determined based on the 
value of the land before and after the hurricane event.
    (b) During the 5-year period beginning on the date of the loss, the 
eligible private non-industrial forest landowner must:
    (1) Reforest the eligible damaged forest acres in accordance with a 
forest management plan approved by FSA that is appropriate for the 
forest type where the forest management plan is developed by a person 
with appropriate forestry credentials, as determined by the Deputy 
Administrator;
    (2) Use the best management practices included in the forest 
management plan; and
    (3) Exercise good stewardship on the forest land of the landowner 
while maintaining the land in a forested state.
    (c) Notwithstanding Sec.  701.26, an ECP participant shall not 
receive under this section more than 75 percent of the participant's 
actual cost or of the total allowable cost of reforestation, 
rehabilitation, and related measures.
    (d) Payments under this section shall not exceed a maximum of $150 
per acre for any acre.
    (e) Requests will be prioritized based upon planting tree species 
best suited to the site as stated in the forest management plan.

    Signed at Washington, DC, on May 19, 2006.
Glen L. Keppy,
Acting Administrator, Farm Service Agency.
[FR Doc. E6-8100 Filed 5-25-06; 8:45 am]
BILLING CODE 3410-05-P