[Federal Register Volume 74, Number 134 (Wednesday, July 15, 2009)]
[Rules and Regulations]
[Pages 34209-34211]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16705]



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 Rules and Regulations
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  Federal Register / Vol. 74, No. 134 / Wednesday, July 15, 2009 / 
Rules and Regulations  

[[Page 34209]]



DEPARTMENT OF AGRICULTURE

Natural Resources Conservation Service

7 CFR Part 636

RIN 0578-AA49


Wildlife Habitat Incentive Program

AGENCY: Natural Resources Conservation Service, United States 
Department of Agriculture.

ACTION: Interim final rule; amendment; reopening of comment period.

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SUMMARY: The Natural Resources Conservation Service (NRCS) published in 
the Federal Register of January 16, 2009, an interim final rule with 
request for comment amending the program regulations for the Wildlife 
Habitat Incentive Program (WHIP) to incorporate programmatic changes 
authorized by the Food, Conservation, and Energy Act of 2008 (2008 
Act). On March 12, 2009, NRCS corrected language in the interim final 
rule regarding the erroneous application of the payment limitation to 
joint operations, and extended the comment period to April 17, 2009. 
This document amends the interim final rule by expanding the definition 
of agricultural lands to include areas of a farm or ranch that are not 
currently under production. NRCS is also using the opportunity 
presented by this rulemaking to reopen the comment period. Comments are 
limited to the content of this amendment.

DATES: This amendment is effective on July 15, 2009. The comment period 
for the WHIP Interim Final Rule published on January 16, 2009 (74 FR 
2786), extended March 12, 2009 (74 FR 10673), until April 17, 2009, is 
reopened. Submit comments on or before August 14, 2009.

ADDRESSES: You may send comments (identified by Docket Number NRCS-IFR-
08005) using any of the following methods:
     Government-wide rulemaking Web site: Go to http://regulations.gov and follow the instructions for sending comments 
electronically.
     E-mail: [email protected].
     Mail: Gregory Johnson, Director, Financial Assistance 
Programs Division, Department of Agriculture, Natural Resources 
Conservation Service, 1400 Independence Avenue, SW., Washington, DC 
20250-2890.
     Fax: (202) 720-4265.
     Hand Delivery Room: USDA South Building, 1400 Independence 
Avenue, SW., Room 5237, Washington, DC 20250, between 9 a.m. and 4 
p.m., Monday through Friday, except Federal Holidays. Please ask the 
guard at the entrance to the South Building to call (202) 720-1845 in 
order to be escorted into the building.
     This interim final rule may be accessed via Internet. 
Users can access the NRCS homepage at: http://www.nrcs.usda.gov/; 
select the Farm Bill link from the menu; select the Interim Final Rules 
link from beneath the Farm Bill Public Comments Links title. Persons 
with disabilities who require alternative means for communication 
(Braille, large print, audio tape, etc.) should contact the USDA TARGET 
Center at: (202) 720-2600 (voice and TDD).
    To view public comments, ask the guard at the entrance to the South 
Building to call (202) 720-4527 in order to be escorted into the 
building.

FOR FURTHER INFORMATION CONTACT: Gregory Johnson, Director, Financial 
Assistance Programs Division, Department of Agriculture, Natural 
Resources Conservation Service, 1400 Independence Avenue, SW., 
Washington, DC 20013-2890; Phone: (202) 720-1845; Fax: (202) 720-4265.

SUPPLEMENTARY INFORMATION: 

Regulatory Certifications

Executive Order 12866

    Pursuant to Executive Order 12866 (FR Doc. 93-24523, September 30, 
1993), the interim final rule published on January 16, 2009, is a 
significant regulatory action, and NRCS conducted an economic analysis 
of the potential impacts associated with this program. The 
administrative record is available for public inspection in Room 5831 
South Building, USDA, 1400 Independence Avenue, SW., Washington, DC. 
NRCS reviewed the economic analysis prepared for the January 16, 2009, 
interim final rule and determined that the provisions of this interim 
final rule do not alter the assessment and the findings that were 
originally prepared. A copy of the analysis is available upon request 
from Gregory Johnson, Director, Financial Assistance Programs Division, 
Department of Agriculture, Natural Resources Conservation Service, Room 
5237 South Building, Washington, DC 20250-2890 or electronically at: 
http://www.nrcs.usda.gov/programs/whip/ under the WHIP Rules and 
Notices with Supporting Documents title.

Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)

    Section 2904(c) of the 2008 Act requires that the Secretary use the 
authority in Section 808(2) of Title 5, U.S.C., which allows an agency 
to forego SBREFA's usual 60-day congressional review delay of the 
effective date of a major regulation if the agency finds that there is 
a good cause to do so. NRCS hereby determines that it has good cause to 
do so in order to meet the congressional intent to have the 
conservation programs, authorized or amended by Title II, in effect as 
soon as possible. Accordingly, this rule is effective upon filing for 
public inspection by the Office of the Federal Register.

Executive Order 13175

    This interim final rule has been reviewed in accordance with 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments. NRCS has assessed the impact of this interim final rule on 
Indian Tribal Governments and has concluded that this rule will not 
have substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes.

Regulatory Flexibility Act

    The Regulatory Flexibility Act is not applicable to this interim 
final rule because NRCS is required by 5 U.S.C. 553, or by any other 
provision of law, to publish a notice of proposed

[[Page 34210]]

rulemaking with respect to the subject matter of this rule.

Environmental Analysis

    Availability of the Environmental Assessment (EA) and Finding of No 
Significant Impact (FONSI). A programmatic environmental assessment has 
been prepared in association with the January 16, 2009, interim final 
rule. The provisions of this interim final rule do not alter the 
assessment and the findings that were originally prepared. The analysis 
determined that there would not be a significant impact to the human 
environment and, as a result, an Environmental Impact Statement was not 
required to be prepared (40 CFR part 1508.13). The EA and FONSI are 
available for review and comment for an additional 30 days from the 
date of publication of this amendment to the interim final rule in the 
Federal Register. A copy of the EA and FONSI may be obtained from the 
following Web site: http://www.nrcs.usda.gov/programs/Env_Assess/. A 
hard copy may also be requested from the following address and contact: 
Matt Harrington, National Environmental Coordinator, Ecological 
Sciences Division, Natural Resources Conservation Service, 1400 
Independence Ave., SW., Washington, DC 20250. Comments from the public 
should be specific and reference that comments provided are on the EA 
and FONSI. Public comment may be submitted by any of the following 
means: (1) E-mail comments to [email protected], (2) e-mail to e-
gov Web site: http://www.regulations.gov, or (3) written comments to: 
Matt Harrington, National Environmental Coordinator, Ecological 
Sciences Division, Department of Agriculture, Natural Resources 
Conservation Service, 1400 Independence Ave., SW., Washington, DC 
20250.

Civil Rights Impact Analysis

    NRCS determined through a Civil Rights Impact Analysis that the 
January 16, 2009, interim final rule disclosed no disproportionately 
adverse impacts for minorities, women, or persons with disabilities. 
The provisions of this interim final rule do not alter the assessment 
and the findings that were originally prepared.

Paperwork Reduction Act

    Section 2904 of the 2008 Act requires that the promulgation of 
regulations and the administration of Title II of this Act shall be 
made without regard to chapter 35 of Title 44 U.S.C., also known as the 
Paperwork Reduction Act. Therefore, NRCS is not reporting recordkeeping 
or estimated paperwork burden associated with this amendment or the 
January 16, 2009, interim final rule.

Government Paperwork Elimination Act

    NRCS is committed to compliance with the Government Paperwork 
Elimination Act, which requires Government agencies, in general, to 
provide the public the option of submitting information or transacting 
business electronically to the maximum extent possible. To better 
accommodate public access, NRCS has developed an online application and 
information system for public use.

Executive Order 12988

    This interim final rule has been reviewed in accordance with 
Executive Order 12988, Civil Justice Reform. The provisions of this 
interim final rule are not retroactive. The provisions of this interim 
final rule preempt State and local laws to the extent that such laws 
are inconsistent with this interim final rule. Before an action may be 
brought in a Federal court of competent jurisdiction, the 
administrative appeal rights afforded persons at 7 CFR parts 614 and 11 
must be exhausted.

Federal Crop Insurance Reform and Department of Agriculture 
Reorganization Act of 1994

    The Federal Crop Insurance Reform and Department of Agriculture 
Reorganization Act of 1994, Title III, Section 304, requires that for 
each proposed major regulation with a primary purpose to regulate 
issues of human health, human safety, or the environment, USDA is to 
publish an analysis of the risks addressed by the regulation and the 
costs and benefits of the regulation. NRCS has determined that such a 
risk assessment does not apply to this interim final rule. NRCS 
recognizes that although such assessments can be quite helpful, the Act 
pertains only to a rule that has been designated as a ``proposed major 
regulation.'' NRCS does not consider ``interim final'' or ``final'' 
rules as falling into the category of proposed major regulations.

Unfunded Mandates Reform Act of 1995

    NRCS assessed the effects of the January 16, 2009, rulemaking 
action on State, local, and tribal governments, and the public. NRCS 
determined that such action did not compel the expenditure of $100 
million or more in any one year (adjusted for inflation) by any State, 
local, or tribal governments, or anyone in the private sector. 
Additionally, the provisions of this interim final rule do not alter 
this determination. Therefore, a statement under Section 202 of the 
Unfunded Mandates Reform Act of 1995 is not required.

Background

    NRCS published an interim final rule in the Federal Register of 
January 16, 2009 (74 FR 2786), amending the program regulations for 
WHIP found at 7 CFR part 636. NRCS published a correction to the 
interim final rule in the Federal Register on March 12, 2009, to 
address the incorrect application of the $50,000 payment limitation to 
joint operations.
    Under the January 16, 2009, interim final rule, NRCS limited the 
definition of agricultural lands to lands that are currently used to 
produce agricultural and forest-related products or on which livestock 
are produced. NRCS adopted this particular definition of ``agricultural 
lands'' for WHIP to increase consistency of definitions between similar 
programs. However, through its adoption of the same definition for 
agricultural lands, NRCS inadvertently limited the WHIP statute's 
inherent flexibility to enroll lands that are not eligible for 
enrollment under other NRCS conservation programs. Traditionally, WHIP 
has served as a niche program through its ability to improve wildlife 
habitat on areas that were not otherwise eligible for NRCS assistance.
    Additionally, NRCS has precluded landowners from enrolling part of 
their overall farmstead into WHIP simply because the particular area is 
not currently used for agricultural production. NRCS has determined 
that the WHIP statute should not be interpreted so narrowly, especially 
since it may be these lands that are not currently under production 
that can most readily be improved for wildlife habitat consistent with 
the extent of current management of the farm or ranch.
    NRCS proposes in this Amendment to the interim final rule an 
expansion of the definition of ``agricultural land'' for the purposes 
of WHIP. In particular, NRCS intends to define agricultural lands to 
mean cropland, grassland, rangeland, pasture, and other land determined 
by NRCS to be suitable for fish and wildlife habitat development, on 
which agricultural and forest-related products or livestock are or have 
the potential to be produced. Agricultural lands may include cropped 
woodland, marshes, incidental areas included in the agricultural 
operation, and other types of land used for or have the potential to be 
used for production.

[[Page 34211]]


0
For the reasons stated in the preamble, NRCS amends part 636 of Title 7 
of the CFR as set forth below:

PART 636--WILDLIFE HABITAT INCENTIVE PROGRAM

0
1. The authority citation for part 1466 continues to read as follows:

    Authority:  16 U.S.C. 3839bb-1.


0
2. Amend Sec.  636.3 by revising the definition of ``agricultural 
lands'' to read as follows:


Sec.  636.3  Definitions.

* * * * *
    Agricultural lands means cropland, grassland, rangeland, pasture, 
and other land determined by NRCS to be suitable for fish and wildlife 
habitat development on which agricultural and forest-related products 
or livestock are produced or have the potential to be produced. 
Agricultural lands may include cropped woodland, marshes, incidental 
areas included in the agricultural operation, and other types of land 
used for or have the potential to be used for production.

    Signed this 8th day of July 2009, in Washington, DC.
Dave White,
Vice President, Commodity Credit Corporation and Chief, Natural 
Resources Conservation Service.
[FR Doc. E9-16705 Filed 7-14-09; 8:45 am]
BILLING CODE 3410-16-P