[Federal Register Volume 76, Number 179 (Thursday, September 15, 2011)]
[Rules and Regulations]
[Pages 56949-56951]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-23596]



 ========================================================================
 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. 76, No. 179 / Thursday, September 15, 2011 / 
Rules and Regulations  

[[Page 56949]]



DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1450

RIN 0560-AI13


Biomass Crop Assistance Program; Corrections

AGENCY: Commodity Credit Corporation and Farm Service Agency, USDA.

ACTION: Interim rule; correction.

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

SUMMARY: The Commodity Credit Corporation (CCC) is amending the Biomass 
Crop Assistance Program (BCAP) regulation to provide specifically for 
prioritizing limited program funds in favor of the ``project area'' 
portion of BCAP. CCC is also correcting errors in the regulation.

DATES: Effective Date: September 15, 2011.
    Comment Date: We will consider comments that we receive by November 
14, 2011.

ADDRESSES: We invite you to submit comments on this interim rule. In 
your comment, include the Regulation Identifier Number (RIN) and the 
volume, date, and page number of this issue of the Federal Register. 
You may submit comments by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Mail: Kelly Novak, BCAP Program Manager, Conservation and 
Environmental Program Division, FSA, United States Department of 
Agriculture (USDA), Mail Stop 0513, 1400 Independence Avenue, SW., 
Washington, DC 20250-0513.
     Hand Delivery or Courier: Deliver comments to the above 
address.
    All written comments will be available for public inspection at the 
above address during business hours from 8 a.m. to 5 p.m., Monday 
through Friday, except holidays.

FOR FURTHER INFORMATION, CONTACT: Kelly Novak, phone: (202) 720-4053. 
Persons with disabilities or 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

    CCC published a final rule on October 27, 2010 (75 FR 66202-66243) 
implementing BCAP as authorized by the Food, Conservation, and Energy 
Act of 2008 (the 2008 Farm Bill, Pub. L. 110-246). Section 9001 of the 
2008 Farm Bill authorized such sums as necessary for BCAP. The 
Supplemental Appropriations Act, 2010 (Pub. L. 111-212) enacted on July 
29, 2010, limited BCAP funding to $552 million in fiscal year 2010 and 
$432 million in fiscal year 2011. The Department of Defense and Full-
Year Continuing Appropriations Act, 2011 (Pub. L. 112-10, referred to 
as the 2011 Appropriations Act) enacted on April 15, 2011, reduced 
further the total amount of money available for BCAP in FY 2011 to $112 
million.
    BCAP has two parts--one is for `project areas' to support the 
establishment of new sources of bioenergy. CCC provides establishment 
and annual payments to agricultural and forest land owners for the 
production of new crops for bioenergy and bio-based products. The other 
part of BCAP is for matching payments for the collection, harvest, 
storage and transportation (CHST) of existing sources of biomass. The 
limited funding available for BCAP means that not all BCAP requests can 
be funded. This interim rule explicitly provides a priority for funding 
establishment and annual payments for project area activities because 
such activities will produce the greatest long term good in BCAP by 
providing an on-going supply of new biomass. CHST would only be funded 
if resources are available after funding all eligible project area 
applications. The rule also enables prioritization among project area 
proposals if eligible requests exceed available funding. Future funding 
for BCAP could make such prioritizing unnecessary.
    Under prioritization, FSA will issue a notice inviting project area 
proposals by a specified deadline. Applicants will be given at least 30 
days to prepare their proposals. After the application period closes, 
FSA will review all proposals as a batch against a set of selection 
criteria, including, but not limited to, the following criteria as 
specified in 7 CFR 1450.202(a):
    (1) The dry tons of the eligible crops proposed to be produced in 
the proposed project area and the probability that such crops will be 
used for BCAP purposes;
    (2) The dry tons of renewable biomass projected to be available 
from sources other than the eligible crops grown on contract acres;
    (3) The anticipated economic impact in the proposed project area;
    (4) The opportunity for producers and local investors to 
participate in the ownership of the biomass conversion facility in the 
proposed project area;
    (5) The participation rate by beginning or socially disadvantaged 
farmers or ranchers;
    (6) The impact on soil, water, and related resources;
    (7) The variety in biomass production approaches within a project 
area, including agronomic conditions, harvest and postharvest 
practices, and monoculture and polyculture crop mixes; and
    (8) The range of eligible crops among project areas.
    This interim rule also makes technical changes to the existing 
regulations to clarify a provision dealing with the eligibility of 
woody materials from forest lands, and corrects the use of the word 
``chapter'' instead of ``title,'' and the word ``applies'' instead of 
``apply.'' The clarification of the woody material eligibility 
provision is needed because as inadvertently written in the previous 
final rule, any herbaceous biomass (such as switchgrass) would not 
qualify for a matching payment unless it was removed to reduce forest 
fire, disease or insect infestation, or restore forest ecosystem 
health--conditions that are intended for woody biomass outside of BCAP 
project areas. The clarifying change would not affect woody biomass 
eligibility; rather it ensures that all herbaceous biomass (not just 
crop residues) qualifies for matching payments.
    In addition, during our review of the final rule, we discovered a 
few inconsistencies between the text in the

[[Page 56950]]

preamble and the rule. Those inconsistencies do not require corrections 
to the rule, therefore, we identified the problems and the correct text 
in a separate document. That clarification document further describes 
these corrections and is available on the FSA Web site at http://www.fsa.usda.gov/FSA/federalNotices?area=home&subject=lare&topic=frd-ii 
and on regulations.gov.

Notice and Comment

    Because this rule addresses an immediate need produced by a change 
in the funding level for BCAP and otherwise makes technical changes, it 
has been determined that it would be contrary to the public interest to 
delay the effective date of this rule. Therefore, prior comment and a 
delay in the effective date of this rule are not required by the 
Administrative Procedures Act (5 U.S.C. 553), the Small Business 
Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), or by 
the memorandum of the Secretary of Agriculture published in the Federal 
Register on July 24, 1971 (36 FR 13804).

Executive Order 12866

    The Office of Management and Budget (OMB) designated this rule as 
significant under Executive Order 12866, ``Regulatory Planning and 
Review,'' and has reviewed this rule. A summary of the cost benefit 
analysis is provided below and is available from the contact 
information listed above.

Summary of Costs and Benefits

    This interim rule will allow CCC to prioritize available funds for 
the establishment of BCAP crops to maximize the benefits of BCAP. For 
FY2011, $196 million was initially made available to CCC, reflecting 
the estimate in the cost-benefit analysis accompanying the BCAP final 
rule and the authority in the 2008 Farm Bill for ``such sums as are 
necessary'' from CCC to operate the program. The 2011 Appropriations 
Act provides a final level of funding for BCAP in FY 2011 of $112 
million, a reduction of $84 million from the previously available 
amount. In 2011, CCC received over 40 project area proposals well 
exceeding $160 million in funding need, therefore exceeding available 
funding. Given the limits in appropriated funds and the prioritization 
provisions of this interim rule, the cost of BCAP is therefore 
estimated to be $112 million in 2011. In FY 2011, $83.2 million of the 
total annual cost is estimated to be establishment and annual payments 
for project areas including technical assistance, with the remaining 
costs comprising CHST payments and a 1 percent reserve.

Regulatory Flexibility Act

    It has been determined that the Regulatory Flexibility Act is not 
applicable to this interim rule because CCC is not required by 5 U.S.C. 
553 or any other provision of law to publish a notice of proposed 
rulemaking for this rule. As noted above in the Notice and Comment 
section, CCC is using the good cause justification of the 
Administrative Procedures Act to issue an interim rule effective on 
publication with an opportunity for comment.

Environmental Review

    The environmental impacts of this rule have been considered in a 
manner consistent with the provisions of the National Environmental 
Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council 
on Environmental Quality (40 CFR parts 1500-1508), and FSA regulations 
for compliance with NEPA (7 CFR part 799). The technical corrections 
identified in this interim rule do not change the structure or goals of 
BCAP and can be considered simply administrative in nature. Therefore, 
CCC has determined that NEPA does not apply to this interim rule and no 
environmental assessment or environmental impact statement will be 
prepared.

Executive Order 12372

    Executive Order 12372, ``Intergovernmental Review of Federal 
Programs,'' requires consultation with State and local officials. The 
objectives of the Executive Order are to foster an intergovernmental 
partnership and a strengthened Federalism, by relying on State and 
local processes for State and local government coordination and review 
of proposed Federal Financial assistance and direct Federal 
development. This rule neither provides Federal financial assistance or 
direct Federal development; it does not provide either grants or 
cooperative agreements. Therefore, this program is not subject to 
Executive Order 12372.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, ``Civil 
Justice Reform.'' The provisions of this rule will not have preemptive 
effect with respect to any State or local laws, regulations, or 
policies that conflict with such provision or which otherwise impede 
their full implementation. The rule will not have retroactive effect. 
Before any judicial action may be brought regarding this rule, all 
administrative remedies must be exhausted.

Executive Order 13132

    This rule has been reviewed under Executive Order 13132, 
``Federalism.'' The policies contained in this rule will not have any 
substantial direct effect on States, the relationship between the 
Federal Government and the States, or the distribution of power and 
responsibilities among the various levels of government. Nor would this 
rule impose substantial direct compliance costs on State and local 
governments. Therefore, consultation with the States is not required.

Executive Order 13175

    This rule has been reviewed for compliance with Executive Order 
13175, ``Consultation and Coordination with Indian Tribal 
Governments.'' The policies contained in this rule do not have tribal 
implications that preempt tribal law.

Unfunded Mandates

    Title II of the Unfunded Mandate Reform Act of 1995 (UMRA, Pub. L. 
104-4) requires Federal agencies to assess the effects of their 
regulatory actions on State, local, or tribal governments or the 
private sector. Agencies generally must prepare a written statement, 
including a cost benefit analysis, for proposed and final rules with 
Federal mandates that may result in expenditures of $100 million or 
more in any 1 year for State, local, or tribal governments, in the 
aggregate, or to the private sector. UMRA generally requires agencies 
to consider alternatives and adopt the more cost effective or least 
burdensome alternative that achieves the objectives of the rule. This 
rule contains no Federal mandates under the regulatory provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 
104-4) for State, local, or tribal governments, or the private sector. 
In addition, CCC is not required to publish a notice of proposed 
rulemaking for this rule. Therefore, this interim rule is not subject 
to the requirements of sections 202 and 205 of UMRA.

Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)

    This rule has not been determined to be major under SBREFA (Pub. L. 
104-121). SBREFA normally requires that an agency delay the effective 
date of a major rule for 60 days from the date of publication to allow 
for Congressional review. Section 808 of SBREFA allows an agency to 
make a major regulation effective immediately if the agency

[[Page 56951]]

finds, as was set out above, there is good cause to do so.

Paperwork Reduction Act

    The information collection required for this rule has been approved 
by OMB under OMB control number 0560-0082.

E-Government Act Compliance

    CCC is committed to complying with the E-Government Act, to promote 
the use of the Internet and other information technologies to provide 
increased opportunities for citizen access to Government Information 
and services, and for other purposes.

List of Subjects in 7 CFR Part 1450

    Administrative practice and procedure, Agriculture, Energy, 
Environmental protection, Grant programs--agriculture, Natural 
resources, Reporting and recordkeeping requirements, Technical 
assistance.

    For the reasons discussed above, this rule corrects and amends 7 
CFR part 1450 as follows:

PART 1450--BIOMASS CROP ASSISTANCE PROGRAM (BCAP)

0
1. The authority citation for part 1450 continues to read as follows:

    Authority:  7 U.S.C. 8111.

0
2. Amend Sec.  1450.1 to add paragraph (f) to read as set forth below:


Sec.  1450.1  Administration.

* * * * *
    (f) Subject to the availability of funds and all other eligibility 
provisions of this part, this part provides the terms, conditions and 
requirements of BCAP. In the event that CCC determines that available 
funds are insufficient to accommodate the demand for establishment and 
annual payments as well as all potential applications for matching 
payments for collection, harvest, storage, and transportation of 
eligible material, without any advance notice other than that stated 
here, CCC may prioritize the expenditure of program funds in favor of 
funding for the selection of BCAP project areas and the establishment 
and annual payments related to those project areas, and may make such 
other priorities in approvals that will, in the determination of the 
Deputy Administrator, advance the purposes of BCAP.


Sec.  1450.2  [Amended]

0
3. Amend Sec.  1450.2(a) by removing the word ``chapter'' and adding, 
in its place, the word ``title''.


Sec.  1450.5  [Amended]

0
4. Amend Sec.  1450.5, in paragraph (a), by removing the word 
``applies'' and adding, in its place, the word ``apply''.


Sec.  1450.102  [Amended]

0
5. Amend Sec.  1450.102, in paragraph (a)(3), by removing the words 
``not crop residues'' and adding, in their place, the words ``woody 
eligible material collected and harvested on land other than contract 
acreage''.


Sec.  1450.206  [Amended]

0
6. Amend Sec.  1450.206, in paragraph (a)(3), by removing the word 
``chapter'' and adding, in its place, the word ``title''.

    Signed on September 6, 2011.
Bruce Nelson,
Executive Vice President, Commodity Credit Corporation.
[FR Doc. 2011-23596 Filed 9-14-11; 8:45 am]
BILLING CODE 3410-05-P