E6-19245. Definition of Indian Tribe for Payment Eligibility and Payment Limitation

AGENCY:

Commodity Credit Corporation, USDA.

ACTION:

Final rule.

SUMMARY:

This rule amends the regulations of the Commodity Credit Corporation (CCC) governing payment limitation and payment eligibility and the limitation on the maximum allowable adjusted gross income (AGI) for program participants. Currently, 7 CFR part 1400, subpart G, exempts Indian tribes from all requirements of the AGI limitation for payment eligibility without providing a definition of Indian tribe. This rule defines “Indian tribe” consistent with the definition used by the United States Department of the Interior, Bureau of Indian Affairs (BIA), and other rules utilized by CCC, FSA and the Natural Resources Conservation Service (NRCS) in their programs.

DATES:

This rule is effective on November 15, 2006.

FOR FURTHER INFORMATION CONTACT:

James Baxa, Production, Emergencies and Compliance Division, United States Department of Agriculture (USDA), Stop 0517, 1400 Independence Ave., SW., Washington, DC 20250-0517. Telephone: [phone]. Electronic mail: [e-mail].

Persons with disabilities who require alternative means for communication (Braille, large print, audio tape, etc.) should contact the USDA Target Center at [phone] (voice and TDD).

SUPPLEMENTARY INFORMATION:

Notice and Comment

Section 1601(c) of the Farm Security and Rural Investment Act of 2002 (the 2002 Act) provides that the regulations needed to implement Title I of the 2002 Act, including those involved here, are to be promulgated without regard to the notice and comment provisions of 5 U.S.C. 553 or the Statement of Policy of the Secretary of Agriculture effective July 24, 1971, (36 FR 13804) relating to notices of proposed rulemaking and public participation in rulemaking.

Background

Subpart G of 7 CFR part 1400 was promulgated to implement the requirements of 7 U.S.C. 1308-3a (68 FR 33341). This statute and the rule prohibit CCC or FSA program payments from being paid to any program participant if their income exceeds a certain level—established in the law at an “adjusted gross income” of $2.5 million. Since the statute, continually and throughout, refers explicitly to “individual or entity” CCC provided an exception to the maximum AGI requirement in 7 CFR 1400.600(g) by expressly excluding from the rule's coverage, “Payments to States, counties, political subdivisions and agencies thereof, and Indian tribes.” However, while these regulations refer to “American Indian” and “Indian tribal venture” at 7 CFR 1400.100, part 1400 contains no definition of “Indian tribe” nor a cross-reference to an applicable definition in another regulation.

Indian tribes have been developing the agricultural lands that they own as a source of economic and social benefits for the tribes and their members. The United States, under its trust responsibilities and the unique government to government relationship with Indian tribes, provides various forms of assistance to Indian tribes and its members. One means of economic assistance from the United States government on agricultural lands is use of farm programs established by Congress and implemented by various agencies of USDA. An Indian tribe and its members, as holders of agricultural lands, may participate in such programs the same as any other producer and owner of domestic agricultural lands.

This rule adds a definition of “Indian tribe” to 7 CFR 1400.3 consistent with that used by other government agencies. See, for example, the definition at 25 U.S.C. 3703(10). The change will reduce confusion as to types of organizations that qualify for the exemption in 7 CFR 1400.600(g) that was intended only for Indian tribes. Also, this rule will reduce the likelihood that this exemption will be applied to a group that was not intended to be exempt from the AGI requirements.

Executive Order 12866

This final rule has been determined to be not significant under Executive Order 12866 and has been reviewed by the Office of Management and Budget (OMB).

Federal Assistance Programs

This final rule has a potential impact on all programs listed in the Catalog of Federal Domestic Assistance in the Agency Program Index under the Department of Agriculture, Farm Service Agency and Natural Resources Conservation Service. Other assistance programs are also impacted.

Regulatory Flexibility Act

The Regulatory Flexibility Act is not applicable to this rule because the Commodity Credit Corporation (CCC) is not required by 5 U.S.C. 553 or any other law to publish a notice of proposed rulemaking for the subject matter of this rule.

Environmental Assessment

The environmental impacts of this rule have been considered consistent with 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 regulations of the Farm Service Agency (FSA) of the Department of Agriculture (USDA) for compliance with NEPA, 7 CFR part 799. An Environmental Evaluation was completed and the proposed action has been determined not to have the potential to significantly impact the quality of the human environment and no environmental assessment or environmental impact statement is necessary. A copy of the environmental evaluation is available for inspection and review upon request.

Executive Order 12778

This rule has been reviewed under Executive Order 12778. This rule preempts State laws that are inconsistent with it; however, this rule is not retroactive. Before judicial action may be brought concerning this rule, all administrative remedies must be exhausted.

Executive Order 12372

This program is not subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. See the notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115 (June 24, 1983).

Unfunded Mandates

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) does not apply to this rule because CCC was not required by 5 U.S.C. 553 or any other law to publish a notice of proposed rulemaking for the subject matter of this rule. Also, this rule contains no mandates as defined in sections 202 and 205 of UMRA.

Paperwork Reduction Act

Section 1601(c) of the 2002 Act provides that the promulgation of regulations and the administration of Title I of the 2002 Act shall be done without regard to chapter 5 of title 44 of the United States Code (the Paperwork Reduction Act). Accordingly, these regulations and the forms and other information collection activities needed to administer the program authorized by these regulations are not subject to review by the Office of Management and Budget under the Paperwork Reduction Act.

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 form that applicants will use to certify their payment eligibility has been developed for on-line use.

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. For information pertinent to E-GOV compliance related to this rule, please contact the person named above under the information contact section.

List of Subjects in 7 CFR Part 1400

• Agriculture
• Price support programs
• Reporting and recordkeeping requirements

For the reasons stated in the preamble, 7 CFR part 1400 is amended as follows:

PART 1400—PAYMENT LIMITATION AND PAYMENT ELIGIBILITY

1. The authority section for part 1400 continues to read as follows:

Authority: 7 U.S.C. 1308 et seq.

2. Section 1400.3 (b) is amended by adding a definition of “Indian tribe” in alphabetical order to read as follows:

§ 1400.3

Definitions.

* * * * *

(b) * * *

Indian tribe means any Indian tribe, band, nation, pueblo, or other organized group or community, including any Alaska Native village or regional corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.

* * * * *

Signed in Washington, DC, on October 25, 2006.

Thomas B. Hofeller,

Acting Executive Vice President, Commodity Credit Corporation.