Daily Rules, Proposed Rules, and Notices of the Federal Government
This final rule amends procedures for designating counties as disaster areas. Some USDA programs past and present, administered by FSA have eligibility criteria that include whether losses occurred within a disaster area. For example, the Secretary of Agriculture is authorized to make emergency loans available (7 U.S.C. 1961) to farmers whose operations have been substantially affected by a natural disaster in a designated disaster county. Disaster designations have been used to qualify producers in those counties for other programs, such as certain crop disaster payment programs under past legislation and it is possible that future legislation will also tie program eligibility to Secretarial designations. The authority to make those designations and administer the designation system has been delegated to FSA. Until now, FSA regulations regarding the disaster designation process were in 7 CFR part 1945.
On November 14, 2011, FSA published a proposed rule to amend the disaster designation regulations to provide for changes in the designation process (76 FR 70368-70374). In general, that rule proposed to simplify the disaster designation process and to delegate the authority for designation to the State level of FSA. It also proposed to move the disaster designation regulations from 7 CFR part 1945 to 7 CFR part 759. The latter (part 759) is in a part of the CFR where there are general regulations that apply to multiple programs administered by FSA. We received 18 comments during the 60-day comment period. Commenters included individuals, State agencies, universities, FSA employees, and producer associations. Almost all of the comments supported the rule. Some supporting comments asked for minor clarifications or changes. The comments opposing the rule included suggestions that are beyond FSA's authority, such as a suggestion requiring State agencies to participate in our disaster designation process. In response to comments, we are removing a proposed definition because it is not actually used in the other parts of the regulations, and we are clarifying the Secretary's delegation authority in several respects with minor changes to those in the proposed rule. For example, some references to the eligibility of contiguous counties are amended to refer to the separate regulations that apply to the disaster assistance programs. The delegation authority change clarifies that the delegation authority for disaster declarations may be delegated to the State level of FSA but that such a delegation is not automatic, or assumed, but is discretionary and will require specific delegation action. That is a change from the proposed rule, which proposed a delegation to the FSA State level as the default procedure. There were also a few comments asking for clarification of internal FSA procedures. We will provide clarification on internal FSA procedures in the handbooks, because we believe that in this instance that is the appropriate location for the level of detail about internal procedures reflected in the comments. FSA handbooks are available to the public.
This document first discusses the disaster designation process as specified in this rule, and then discusses our responses to the comments received. Except for the changes in response to comments noted above (removing a definition not used, changing delegation of authority from a default process to an optional process, and clarifying contiguous county applicability), the disaster designation process specified in this rule is the same as in the proposed rule.
There are four types of disaster determinations that can affect the administration of benefits by FSA:
(1) USDA Secretarial disaster designations,
(2) Presidential major disaster and Presidential emergency declarations,
(3) FSA Administrator's Physical Loss Notifications, and
(4) Quarantine designations by the Secretary under the Plant Protection Act or animal quarantine laws as defined in section 2509 of the Food, Agriculture, Conservation and Trade Act of 1990 (referenced in 7 CFR part 761, which includes a definition of “quarantine” in accordance with 7 U.S.C. 1961).
FSA administers the making of USDA Secretarial disaster designations. Those declarations specify:
(1) The specific disaster that resulted in the designation,
(2) The incidence period (dates) of that disaster, and
(3) The specific counties that are included in the designation.
Of the four types of disaster determinations listed above, the USDA Secretarial disaster designation is the one that most often impacts FSA programs. Previously, its process was the most complicated of the four. This rule simplifies the process of making those determinations.
This rule reduces the number of steps in the process. Before, the process required actions by the Secretary of Agriculture, a State Governor or Indian Tribal Council, FSA National office, the FSA State Executive Director (SED), FSA county offices, the County Emergency Board (CEB), and the State Emergency Board (SEB). This process specified in this rule will in the most complex case only require action by the Secretary (or the Secretary's designee), the CEB, the SEB, and the SED. In the case of a severe drought, it will only require action by the Secretary (or the Secretary's designee). While the Secretary retains the authority to make any and all determinations, this rule provides procedures for that responsibility to be delegated to FSA at the State level. If the Secretary chooses, the SED will be delegated authority to make the designation on behalf of the Secretary, based on a recommendation from the SEB. (The SED is the chairperson of the SEB.) The Secretary retains the authority and flexibility to determine which SEDs will be delegated authority and when.
The rule eliminates the requirement that a request from a State Governor or Indian Tribal Council is needed before a disaster designation can be made. Under this rule, an Indian Tribal Council or Governor may still initiate a request for designation to the County Emergency Board (CEB), SEB, or Secretary, but that request would no longer be required to initiate the process. In response to a request by a Governor or Tribal Council for information about pending potential disaster designations with respect to a specific disaster, the Secretary will advise the Governor or Indian Tribal Council(s) of any designation requests that are under review in their State or Tribal region. This rule also eliminates the requirement for FSA National office review of the information submitted by the SEB to justify a disaster designation for a county. However, the FSA National office will perform spot check reviews.
This rule provides for a nearly automatic designation of any county in which drought conditions as reported in the U.S. Drought Monitor (
This rule also revises the definition of “natural disaster” to be consistent with other existing FSA regulations that use that term.
In addition to the substantive changes to the disaster designation process, this rule implements the provisions specified in the proposed rule that reorganize the disaster designation regulations. This rule moves the disaster designation regulations from 7 CFR part 1945 to 7 CFR part 759. This rule also makes the clarifying changes that were in the proposed rule, including changes to remove internal FSA processes that are not needed in the rule, but are instead made in the handbook, where they more properly belong. A conforming change is made to amend 7 CFR part 762, “Guaranteed Farm Loans,” to remove a reference to 7 CFR part 1945 and replace it with a reference to new part 759.
The following provides a summary of public comments received on the proposed rule and FSA's response, including changes we are making in response to the comments.
This rule also removes the abbreviation for NASS, the USDA National Agricultural Statistics Service, which only appeared in a definition in the proposed rule that is not included in this final rule.
The administrative procedure provisions in 5 U.S.C. 553(d) require that a substantive rule be published “not less than 30 days before its effective date.” As specified in 5 U.S.C. 553(d), exceptions to the 30-day post publication effective period include: (1) A substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretative rules and statements of policy; and (3) as otherwise provided by the agency for good cause found and published with the rule. Here, however, the substance of this final rule was published in the proposed rule that was published more than 30 days prior to the publication of this final rule. Moreover, even if that should not be deemed to suffice, FSA finds that all of the exceptions apply. In fact, the rule relieves restrictions that the Secretary had placed on USDA's own internal processes, policy, and rules in order to expedite and make more efficient timely designations. Also, this rule makes substantive changes only with respect to USDA's own operations and thus involves matters of agency policy not of regulations in the normal sense. This rule accordingly involves, in terms of its changes, an agency statement of policy. Further, this rule will, with no negative countervailing considerations, provide a benefit to the public by providing more timely disaster relief. For that reason, any delay in implementing this rule is in the opinion of the agency, contrary to the public interest. Accordingly, this rule is made effective immediately upon filing for public inspection.
Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasized the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
The Office of Management and Budget (OMB) designated this rule as not significant under Executive Order 12866 and, therefore, OMB has not reviewed this final rule.
The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to the notice and comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 553) or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. FSA has determined that this rule will not have a significant impact on a substantial number of small entities. New provisions of this rule will not impact a substantial number of small entities to a greater extent than large entities. FSA anticipates that the rule will not require submission of any additional information by the public. It is expected to be revenue neutral, neither increasing nor decreasing benefits for producers as a whole. Therefore, FSA certifies that this rule will not have a significant economic impact on a substantial number of small entities.
FSA has determined that these changes would not constitute a major Federal action that would significantly affect the quality of the human environment. Therefore, in accordance 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), no environmental assessment or environmental impact statement will be prepared.
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 rule is not subject to Executive Order 12372.
This rule has been reviewed in accordance with Executive Order 12988, “Civil Justice Reform.” This rule preempts State and local laws, regulations, or policies that are in conflict with the provisions of this rule. The rule will not have retroactive effect.
This rule has been reviewed under Executive Order 13132, “Federalism.” As this rule does not require any action by any State, the policies contained in this rule do 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 does this final rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.
This rule has been reviewed for compliance with Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” This Executive Order imposes requirements on the development of regulatory policies that have Tribal implications or preempt Tribal laws. The USDA Office of Tribal Relations has concluded that the policies contained in this rule do not, to our knowledge conflict with any Tribal law and therefore does not preempt Tribal law. Were there a conflict, the provisions of the regulations would prevail as far as administering the federal programs that are affected by the rule.
Before publishing the proposed rule, FSA consulted with the USDA Office of Tribal Relations and has concluded that this rule will not, to our knowledge, have a substantial direct effect on Indian tribes and no formal Tribal consultation under E.O. 13175 is required. FSA will conduct an informational forum (telephone call or webinar) to answer questions about this rule from all interested Indian Tribes soon after this rule has been published.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 104-4) requires Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments or the private sector. Agencies generally must prepare a written statement, including a cost
The amendments in this final rule require no revision to the information collection that was previously approved by OMB under control number 0560-0170. Although this rule streamlines the disaster designation process, including removing the requirement for a State Governor or Indian Tribal Council to initiate a request for a Secretarial disaster designation, it does not prohibit that action and may therefore not result in a reduction in burden hours. Any change in burden hours will be documented in the next information collection request.
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.
These changes affect the following FSA program listed in the Catalog of Federal Domestic Assistance:
Administrative practice and procedure, Agriculture, Authority delegations, Disaster assistance, Loan programs—Agriculture, Reporting and recordkeeping requirements.
Agriculture, Credit, Loan programs—Agriculture.
Agriculture, Disaster assistance, Drug traffic control, Loan programs—Agriculture, Reporting and recordkeeping requirements.
For the reasons discussed above, FSA adds 7 CFR part 759, amends 7 CFR part 762, and under the authority of 7 U.S.C. 1989, removes 7 CFR part 1945 as follows:
5 U.S.C. 301, 7 U.S.C. 1961 and 1989.
(a) This part will be administered under the general supervision and direction of the Administrator, Farm Service Agency (FSA).
(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.
(c) The Administrator will take any action required by the regulations of this part that the Administrator determines has not already been taken. The Administrator will also:
(1) Correct or require correction of any action taken that is not in accordance with the regulations of this part; or
(2) Require withholding taking any action that is not in accordance with this part.
(d) No provision or delegation in these regulations will preclude the Administrator or a designee or other such person, from determining any question arising under this part, or from reversing or modifying any determination made under this part.
(e) Absent a delegation to the contrary, this part will be administered by the Deputy Administrator for Farm Programs of FSA on behalf of the Administrator of FSA or the Secretary, but nothing in this part will inhibit the ability of the Administrator of FSA or the person holding the equivalent position in the event of a reorganization to delegate the functions of DAFP under these regulations to another person. Likewise, nothing shall inhibit the ability of the Secretary to reassign any duties with respect to the designations of disasters under this part.
(a) This part specifies the types of incidents that can result in an area being determined a disaster area, which under other regulations makes qualified farmers in such areas eligible for Emergency loans (EM) or eligible for such other assistance that may be available, based on Secretarial disaster designations. Nothing in this part overrides provision of those regulations that govern the actual administration and availability of the disaster assistance regulations.
(b) This part specifies the responsibility of the County Emergency Board (CEB), State Emergency Board (SEB), and the State Executive Director (SED) in regard to Secretarial Designations with regards to disasters. It also addresses matters relating to the handling of a Presidential declaration of disaster or the imposition of a USDA quarantine by the Secretary with respect to triggering the availability of EM loans.
(1) If any portion of a county is physically located in an area with a Drought Monitor Intensity Classification value of D3 (drought-extreme) or higher during any part of the growing season of the crops affected by the disaster in the county, then the county will be designated a disaster area by the Secretary.
(2) If any portion of a county meets the threshold Drought Monitor Intensity Classification value of D2 (drought-severe) for at least 8 consecutive weeks during the growing season of affected crops, then the county will be designated a disaster area by the Secretary.
(1) A LAR is required as part of a CEB disaster designation request. CEB will submit a disaster designation request with a LAR to SEB for review and recommendation for approval by the Secretary. CEB's written request and SEB recommendation must be submitted within three months of the last day of the occurrence of a natural disaster.
(2) If SEB determines a qualifying natural disaster and loss have occurred, SEB will forward the recommendation to the Administrator. The natural disaster may include drought conditions that were not sufficiently severe to meet the criteria in paragraph (a) of this section. Since the U.S. Drought Monitor tracks only drought conditions, not specifically agricultural losses resulting from those conditions, it is possible for
(3) The Secretary or the Secretary's designee will make disaster area determinations. The Secretary may delegate the authority to the SED. In such case, the SED will act on behalf of the Secretary, subject to review by DAFP as may be appropriate and consistent with the delegation. The delegation of authority to the SED may be revoked by the authority making that delegation or by other authorized person. In all cases, DAFP may reverse any SED determination made in accordance with this section unless the delegation to the SED specifies that such review is not allowed.
(a) For purposes of the EM Program under part 764, subpart I, of this chapter, a county will be considered an eligible disaster area as designated by FSA for coverage of the EM Program as follows:
(i) The Presidential declaration is not solely for Category A or Category B Public Assistance or Hazard Mitigation Grant Assistance, and
(ii) The Presidential Major Disaster declaration is for losses due t