[Federal Register Volume 76, Number 219 (Monday, November 14, 2011)]
[Proposed Rules]
[Pages 70368-70374]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29011]
[[Page 70368]]
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DEPARTMENT OF AGRICULTURE
Farm Service Agency
Rural Business-Cooperative Service
Rural Housing Service
Rural Utilities Service
7 CFR Parts 759, 1945 and 762
RIN 0560-AH17
Disaster Designation Process
AGENCY: Farm Service Agency, Rural Business-Cooperative Service, Rural
Housing Service, and Rural Utilities Service USDA.
ACTION: Proposed rule.
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SUMMARY: The Farm Service Agency (FSA) proposes to amend the disaster
designation regulations with simplified procedures for designating USDA
Secretarial disaster areas. Proposed changes to the regulation would
delegate the designation authority to FSA State officials, remove the
requirement that a request for designation of a disaster area be
initiated and submitted by a State Governor or Indian Tribal Council to
the Secretary, add a simplified disaster designation in severe drought
situations, and change the USDA Secretarial disaster designation
process from six steps to two steps for natural disasters, including
special provisions for certain drought situations. FSA proposes to move
the regulations to the same chapter of the Code of Federal Regulations
(CFR) as the FSA Emergency Loan (EM) Program regulations. FSA expects
the amended procedures would result in faster designations of disaster
areas, and result in more timely disaster assistance.
DATES: We will consider comments that we receive by January 13, 2012.
ADDRESSES: We invite you to submit comments on this rule. In your
comment, include the Regulation Identifier Number (RIN) and 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: http://www.regulations.gov.
Follow the online instructions for submitting comments.
Mail: Steve Peterson, Disaster Assistance Program Branch
Chief, Production, Emergencies, and Compliance Division, Farm Programs,
FSA, USDA, 1400 Independence Ave., SW., Mail Stop 0517, Washington, DC
20250-0517.
Hand Delivery or Courier: USDA FSA Farm Programs,
Production, Emergencies, and Compliance Division, Disaster Assistance
Branch, 1400 Independence Ave., SW., Mail Stop 0517, Washington, DC
20250.
Comments will be available for inspection online at
www.regulations.gov and at the mail address listed above between 8 a.m.
and 4:30 p.m., Monday through Friday, except holidays. A copy of this
proposed rule is also available through the FSA home page at http://www.fsa.usda.gov/.
FOR FURTHER INFORMATION CONTACT: Steve Peterson; telephone: (202) 720-
5172. Persons with disabilities who require alternative means for
communication (Braille, large print, audiotape, etc.) should contact
the USDA Target Center at (202) 720-2600 (voice and TDD).
SUPPLEMENTARY INFORMATION:
Background
Declaring or determining counties to be disaster areas is important
to the conduct of some programs administered by USDA. These include EM
Program administered by FSA. The Secretary of Agriculture is authorized
to designate counties as disaster areas to make emergency loans
available (7 U.S.C. 1961) and those designations have been used to
qualify counties for other programs such as crop disaster payment
programs. The current disaster designation process is set out in 7 CFR
part 1945.
Depending on the nature of the program involved FSA can,
potentially, be called upon to administer four types of area disaster
determinations:
(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).
A disaster designation specifies:
(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 that FSA
administers, the USDA Secretarial disaster designation is the one that
most often impacts FSA programs and, currently, its process is the most
complicated. This regulation proposes to amend FSA responsibilities for
administering the USDA Secretarial disaster designation process. FSA
proposes to simplify the processes and delegate them to the FSA State
level. This regulation would not amend or change the process to make
any other disaster determinations and the Presidential declarations
made outside of USDA. Likewise, this document does not propose to amend
the definition of ``physical losses'' or the documentation of those
losses for the Administrator's Physical Loss Notification administered
under 7 CFR parts 761 and 764.
Proposed Change in Natural Disaster Definition
Under the current regulations, producers with eligible losses may
apply for EM in counties named as primary disaster counties or those
counties contiguous to such primary disaster counties under a disaster
designation under any of the four types of determinations listed above.
Eligible applicants for EM include ``established farmers'' as defined
in 7 CFR part 761, who meet other regulatory requirements specified in
7 CFR part 764. This rule proposes to include in 7 CFR 759.3 a
definition of ``natural disaster'' that is consistent with the
definition of ``natural disaster'' in 7 CFR part 761, which provides
the definitions used for emergency loans. It would remove the specific
examples of unusual and adverse weather conditions from the definition
of ``natural disaster'' that is currently in 7 CFR part 1945. This
would give FSA the flexibility to determine on the basis of production
losses what events merit a disaster designation, rather than on whether
the event fits one of the types on the list. The existing regulations
in 7 CFR part 1945 define ``Major disaster,'' ``Presidential
emergency,'' and ``Natural disaster'' uniquely, each with different
events. The current lists of events in the existing regulations are
inconsistent, include events such as storms that often do not cause
widespread production losses, and do not include rare disaster types.
``Major disaster'' and ``Presidential emergency'' in 7 CFR part 1945
include ``[a]ny hurricane, tornado, storm, flood, high water, wind-
driven water, tidal wave, tsunami, earthquake, volcanic eruption,
landslide, mudslide, snowstorm, drought, fire, explosion, or other
catastrophe.'' The definition of natural disaster in 7 CFR part 1945
includes:
[[Page 70369]]
unusual and adverse weather conditions or natural phenomena include
such things as: a major single natural occurrence or event such as a
blizzard, cyclone, earthquake, hurricane or tornado; a single storm,
or series of storms, accompanied by severe hail, excessive rain,
heavy snow, ice and/or high wind; an electrical storm; or a severe
weather pattern over a period of time which, due to excessive
rainfall, unusual lack of rainfall, or periods of high or low
temperatures, causes flooding, substantial water damage, drought or
freezing, or which results in the spreading and flourishing of
insects or pests, or in plant or animal diseases spreading into
epidemic proportions, or prevents the control of fire, however
caused.
Removing the lists of events from the definition of natural
disaster would clarify that the Secretary has the authority to
determine what constitutes a natural disaster, based on production
losses, and add integrity to the process of disaster designation. It
would also make the definition of ``natural disaster'' consistent
within the FSA chapter of the CFR.
Eligibility Requirements That Would Not Change With This Rule
To be eligible for EM loans and sometimes for other FSA disaster
assistance program benefits, an operation must have been substantially
affected by a disaster in the United States and be located in a county
(or contiguous to such a county) that was designated as a disaster area
by the Secretary, declared a major disaster or emergency by the
President, received an FSA Administrator's physical loss notification,
or under a quarantine imposed by the Secretary in accordance with 7
U.S.C. 1961. If a Presidential declaration is made, the Secretary will
make emergency loans available, provided that the Presidential
declaration is not solely for so-called ``Category A'' and ``Category
B'' Public Assistance or Hazard Mitigation Grant Assistance made
available by the Federal Emergency Management Agency. This policy would
not change with this rule. (Category A and Category B Public Assistance
provides assistance for other than actual disaster losses and Hazard
Mitigation Grant Assistance provides assistance to alleviate or
eliminate future disaster losses; neither of these categories are
necessarily correlated with agricultural losses.) The basic eligibility
requirements for emergency loans and FSA disaster assistance benefits
would not change under the proposed amendments to the regulations. The
eligibility requirements are set by the laws authorizing each program.
Some FSA disaster programs, such as the Supplemental Revenue Assistance
Payments Program (SURE), can only be triggered by a Secretarial
disaster designation, as specified in the authorizing law. Regulations
for SURE are in 7 CFR part 760, subpart G.
A Secretarial designation or a Presidential declaration may be
required in order to make applicants in the designated counties
eligible for Small Business Administration (SBA) Economic Injury loans
for agriculture related businesses; however, if the county is
designated for individual assistance in the Presidential declaration,
applicants will also be eligible for SBA assistance and a Secretarial
designation will not be necessary. Existing procedures to avoid
duplication of assistance between FSA and SBA programs would not change
with this rule.
Current Six-Step Disaster Designation Process
The current USDA Secretarial disaster designation process described
in 7 CFR 1945.20 is a six-step process that requires certain actions by
the Secretary of Agriculture, a State Governor or Indian Tribal
Council, the FSA National office, the FSA State Executive Director
(SED), FSA county offices, the County Emergency Board (CEB), and the
State Emergency Board (SEB). Some of the entities specified in the
current regulations are identified by obsolete titles. The current
regulations in 7 CFR part 1945 refer to the ``State Food and
Agriculture Council'' and the ``Local Food and Agriculture Council''
responsibilities, which are currently performed by the SEB and CEB,
respectively. Similarly, the functions of County Supervisor and State
Director as described in 7 CFR part 1945 are now performed by the FSA
County Executive Director and the FSA SED. This rule would update the
language to reflect current practice.
The current regulations require that a request to the Secretary of
Agriculture for designation of a disaster area must be made only by a
State Governor or Indian Tribal Council. (That request is Step One of
six steps in the current process.) As specified in the current
regulations, this triggers review of the request at the FSA National
office (Step Two), and the relevant County and State offices are
required to prepare and send a Loss Assessment Report (LAR) to the FSA
National Office for each county named in the request. (The LAR is
referred to as the Damage Assessment Report or DAR in 7 CFR part 1945.)
At the county level, when the LAR is complete, the CEB conducts
meetings and approves or disapproves the LAR. (Step Three) The CEB is a
county-level board that includes representatives of USDA agencies
providing services in the area, which can include, but are not limited
to, the Forest Service, the Natural Resources Conservation Service, and
the National Institute of Food and Agriculture. The CEB representatives
are responsible for reporting the occurrence of a disaster and
assessing the damage caused by a disaster, that is, whether the natural
phenomena substantially affected farmers with physical or production
losses. The CEB submits the county-level approved LAR to the SEB for
review and processing. (Step Four) At the State level, the SEB reviews
and processes the LAR, prepares comments and recommendations, and
submits it to the FSA National office. (Step Five) The FSA National
office reviews the loss information on the LAR, determines eligibility
as a ``natural disaster'' under part 1945, and prepares a package,
including a letter of approval or disapproval, to be signed by the
Secretary of Agriculture. (Step Six)
The current USDA Secretarial designation process has been in place
for at least 20 years. The regulations have not been substantively
revised since 1988. The Secretary received 183 requests for a
Secretarial designation for Calendar Year 2009. Approximately 119 were
approved.
Proposed Two-Step Disaster Designation Process
This rule proposes to simplify the USDA Secretarial designation
process from a six-step process to a two-step process for natural
disasters. In addition, as discussed below, for severe drought
occurrences, the disaster designation process would be simplified even
further. This rule proposes that the determination of eligibility for
counties to be named in USDA Secretarial disaster designations would be
made at the State level. The SED would make the designation on behalf
of the Secretary with a recommendation from the SEB. USDA Secretarial
disaster designations could therefore be made more quickly. The rule
also proposes to remove the requirement that a request must be
initiated from the State Governor or Indian Tribal Council to the
Secretary, and the requirement for National Office review of the
information submitted by the SEB. Under the proposed regulation, Indian
Tribal Councils and governors would still be able to initiate such a
request to the CEB, SEB, or Secretary, but that request would no longer
be required to initiate the disaster designation process. The proposed
process would include the SED, CEB, and SEB. The SED would also be
involved as the chairperson of
[[Page 70370]]
the SEB. This proposed change is intended to simplify and speed up the
process for USDA Secretarial disaster designations.
Under the new process proposed in this rulemaking:
Step 1--The CEB would identify a disaster area and submit a request
to the SEB for a disaster area recommendation.
Step 2--The SEB, subject to such review as would prove appropriate,
would make a disaster area recommendation on the basis of production
losses and the SED would make the disaster designation on behalf of the
Secretary.
After a disaster designation was made using this proposed two-step
process, the Secretary would inform the Governor and Indian Tribal
Council(s) of the designation. The SED would inform the FSA county
offices, the FSA national office, and SEDs in neighboring states of the
disaster-affected contiguous counties in those states.
A farmer, Indian Tribal Council, or the local governing body could
initiate the process by reporting production losses or drought
conditions to the CEB or SEB or, if the Indian Tribal Council or local
governing body so chooses, initiate the process directly to the
Secretary. If the CEB found that drought conditions were not
sufficiently severe to trigger the streamlined process for drought
disaster determinations, losses could still be sufficient to initiate
the proposed two-step Secretarial disaster designation process. A
farmer, Indian Tribal Council, or local governing body could also
provide information to support a determination of an Administrator's
Physical Loss Notification.
The determination of a disaster does not and would not remove or
replace any other eligibility requirements for any producer under any
programs. The process of qualifying for EM would still require
determination of individual production losses. This proposed rule would
not represent a change from the current regulation with regards to loss
thresholds. The current regulations use a threshold of 30 percent loss
countywide of the normal year's dollar value of all crops or loss by a
single enterprise. That threshold would not change with this rule.
However, consistent with current regulations, the proposed rule would
continue to allow for disaster determinations to be made for EM
purposes only if the Secretary determines that, although the 30 percent
loss countywide threshold has not been met, the unusual and adverse
weather conditions or natural phenomena have resulted in such
significant production losses, or have produced such extenuating
circumstances as to warrant a finding that a qualifying natural
disaster has occurred.
This proposed rule would consolidate provisions regarding instances
in which EM eligibility is generated by a general crop loss in a
county, the losses of a particular enterprise, or other special
circumstances. These changes are needed to streamline the structure of
the regulations, but are not intended to cause any substantive change.
To streamline the process for disaster determinations in the case
of certain drought occurrences, the proposed amendments to the
regulation would add a nearly automatic designation for any county in
which drought conditions, as reported in the U.S. Drought Monitor
(http://www.drought.unl.edu/dm/monitor.html), meet the drought
intensity value of at least D2 (Drought-Severe) for 8 consecutive
weeks. The U.S. Drought Monitor is the only such tool currently
available; it is a widely recognized and objective source of drought
information. It is specifically referenced in the 2008 Farm Bill as one
of the eligibility ``triggers'' for the Livestock Forage Disaster
program. Under the proposed rule, once a county meets the D2 threshold
for 8 consecutive weeks, the SED will automatically designate the
county; no LAR will be required. Any county that has a portion of its
area in a drought intensity value of D3 (Drought--Extreme) or higher at
any time during the growing season of the affected crops would be
considered a disaster area. Streamlining the process for disaster
determinations for severe drought would help reduce paperwork and
documentation requirements at the FSA local level, and is intended to
make the process more efficient and reduce FSA costs. It would not
remove all documentation requirements; documentation of loss above the
thresholds would still be required. Individual producer losses would
still need to be documented for EM eligibility. This rule would not
change the paperwork or documentation requirements for producers. This
proposed amendment would both streamline the process and add a
quantifiable standard for determining primary county eligibility due to
drought and drought-related disasters.
Summary of Proposed Changes to the Disaster Designation Process
Regulations
This rule proposes changes to the regulations to simplify the
disaster designation process and to reorganize the disaster designation
regulations. In addition to the substantive changes described in this
document, FSA proposes to move the disaster designation regulations
from 7 CFR part 1945 to 7 CFR part 759. This would better organize the
FSA regulations and incorporate the disaster designation process near
the FSA EM regulations in 7 CFR part 764 and the Indemnity Payment
Programs regulations in 7 CFR part 760. The CCC disaster program
regulations will be in 7 CFR parts 1439 and 1480; chapter XIV of title
7 of the CFR is designated for CCC. The current 7 CFR part 1945
includes information relevant to internal actions in designating
disaster areas, relationships with other federal government
organizations, EM training, and providing notifications; such
information is not required to be in the regulation because it does not
impose requirements on the public or define benefit eligibility. For
example, the processes on extending termination dates and the
relationship between the Administrator's notification and a Secretarial
designation from Sec. 1945.20 are not changing; they are being removed
from the rule because they are internal processes and not substantive
such that need to remain in the rule. Similarly, this rule would remove
information in the regulations about internal FSA processes for 24-hour
``flash reports.'' FSA proposes to remove this internal and procedural
information from the regulations. This information will be included in
FSA internal operating guidelines and directives that are anticipated
to be issued at approximately the same time as the final regulation.
FSA also proposes to make a conforming change 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 the new part 759.
The following table summarizes section by section the amendments
FSA proposes in moving the regulations into the new part 759, using the
Table of Contents from the existing part 1945.
[[Page 70371]]
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New proposed section (
Current section ( and heading) and brief explanation of
change)
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Sec. Sec. 1945.1, 1945.3-4, and None--Section would be removed.
1945.7-17--Reserved.
Sec. 1945.2--Purpose................. Sec. 759.1--Purpose.--Section
would be amended to reflect
proposed streamlined disaster
designation process.
Sec. 1945.5--Abbreviations........... Sec. 759.2--Abbreviations and
Sec. 1946.6.--Definitions............ Definitions. Abbreviations for
agencies not involved in the
FSA process would be removed.
Abbreviations no longer used
in the section would be
removed. Abbreviations for
entities now involved
including SEB, CEB, etc.,
would be added. Definitions
would be consolidated and
edited to be consistent with 7
CFR part 761. Except for EM,
provisions allowing exceptions
for production loss thresholds
would be removed. Definitions
of disaster and farmers would
be removed; there are suitable
definitions in 7 CFR part 761.
Definition of normal year's
dollar value would be amended
for plain language and to
remove references to entities
no longer involved in the FSA
process. Definitions of
incidence period and national
office would be removed.
Sec. 1945.18--United States None--Section would be removed.
Department of Agriculture (USDA) Food The responsibilities of the
and Agriculture Council (FAC). State and local FAC are now
performed by the SEB and CEB,
as would be described in Sec.
759.5.
Sec. 1945.19--Reporting Potential Sec. 759.5--Secretarial
Natural Disasters and Initial Actions. Disaster Area Determination
and Notification Process. This
section would describe the
streamlined Secretarial and
SEB regular and drought
determination processes. The
internal processes described
in Sec. 1945.19 would be
removed.
Sec. 1945.20--Making EM loans Sec. 759.6--EM to be made
available. available. This section would
describe the ``trigger'' for
EM availability under the 4
types of disaster
designations, which would be
the same 4 types as under Sec.
1945.20. Provisions
concerning the internal
processes of notification
within FSA and with other
departments would be removed.
The processes on extending
termination dates and the
relationship between the
Administrator's notification
and a Secretarial designation
would not change; these would
be removed from the rule
because they are internal
processes.
Sec. 1945.21--Reporting and None--Section would be removed.
Coordination Requirements. Provisions concerning the
internal processes of
notification within FSA and
with other departments would
be removed.
Sec. 1945.25--Relationship Between None--Section would be removed.
FmHA or Its Successor Agency under Provisions concerning the
Public Law 103-354 and FEMA. processes of notification
between FmHA and FEMA would be
removed.
Sec. 1945.26--Relationship between None--Section would be removed.
FmHA or its successor agency under Provisions concerning the
Public Law 103-354 and SBA. processes of notification
between FmHA and the SBA would
be removed.
Sec. 1945.27--Relationship between None--Section would be removed.
FCIC and FmHA or its successor agency Provisions concerning the
under Public Law 103-354. processes of notification
between FmHA and FCIC would be
removed.
Sec. 1945.28--Relationship between None--Section would be removed.
ASCS and FmHA or its successor agency Provisions concerning the
under Public Law 103-354. processes of notification
between FmHA and ASCS would be
removed.
Sec. 1945.30--FmHA or its successor None--Section would be removed.
agency under Public Law 103-354 Provisions concerning the
Emergency Loan Support Teams (ELST). processes of notification
internal to FmHA would be
removed.
Sec. 1945.31--FmHA or its successor None--Section would be removed.
agency under Public Law 103-354 Provisions concerning the
Emergency Loan Assessment Teams (ELAT). processes of notification
internal to FmHA would be
removed.
Sec. 1945.35--Special EM loan None--Section would be removed.
training. Informational section about
internal training program has
been removed.
Sec. 1945.45--Public information None--Section would be removed.
function. Non-regulatory informational
section has been removed.
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Executive Orders 12866 and 13563
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, ``Regulatory Planning and
Review,'' and therefore, OMB has not reviewed this proposed rule.
Clarity of the Regulation
Executive Order 12866, as supplemented by Executive Order 13563,
requires each agency to write all rules in plain language. In addition
to your substantive comments on these proposed rules, we invite your
comments on how to make them easier to understand. For example:
Are the requirements in the rule clearly stated? Are the
scope and intent of the rule clear?
Does the rule contain technical language or jargon that is
not clear?
Is the material logically organized?
Would changing the grouping or order of sections or adding
headings make the rule easier to understand?
Could we improve clarity by adding tables, lists, or
diagrams?
Would more, but shorter, sections be better? Are there
specific sections that are too long or confusing?
What else could we do to make the rule easier to
understand?
[[Page 70372]]
Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act (5 U.S.C. 601),
FSA is certifying that this rule would not have a significant economic
effect on a substantial number of small entities. New provisions in
this rule would not impact a substantial number of small entities to a
greater extent than large entities. FSA anticipates that the proposed
rule would 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.
Environmental Review
FSA has determined that the simplifying procedures for designating
USDA Secretarial disasters identified in this proposed rule is
considered administrative in nature and does 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
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 proposed 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.
Executive Order 13132
This rule has been reviewed under Executive Order 13132,
``Federalism.'' The policies contained in this rule would not have any
substantial direct effect on States, on the relationship between the
Federal government and the States, or on 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. Although this rule removes the requirement for a disaster
designation request by a governor or Tribal governor, it still allows
such a request. 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.'' This Executive Order imposes requirements on the
development of regulatory policies that have Tribal implications or
preempt Tribal laws. The policies contained in this rule do not preempt
Tribal law.
FSA has consulted with the USDA Office of Tribal Relations and has
concluded that this rule will not have a substantial direct effect on
Indian tribes and no formal Tribal consultation under EO 13175 is
required. FSA has committed to conduct an informational webinar to
explain this rule to all interested Indian Tribes once this rule has
been finalized.
The Unfunded Mandates Reform Act of 1995
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 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
proposed rule contains no Federal mandates, as defined under title II
of the UMRA, for State, local, and Tribal governments or the private
sector. Thus, this proposed rule is not subject to the requirements of
sections 202 and 205 of UMRA.
Paperwork Reduction Act of 1995
The amendments in this proposed rule require no revision to the
information collection that was previously approved by OMB under
control number 0560-0170. Although this proposed rule would streamline
the disaster designation process, 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.
E-Government Act Compliance
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.
Federal Assistance Program
These changes affect the following FSA program listed in the
Catalog of Federal Domestic Assistance: 10.404--Emergency Loans.
List of Subjects
7 CFR Part 759
Administrative practice and procedure, Agriculture, Authority
delegations, Disaster assistance, Loan programs--Agriculture, Reporting
and recordkeeping requirements.
7 CFR Part 762
Agriculture, Grant programs--Agriculture, Reporting and
recordkeeping requirements.
7 CFR Part 1945
Agriculture, Disaster assistance, Drug traffic control, Loan
programs--Agriculture, Reporting and recordkeeping requirements.
For the reasons discussed above, FSA proposes to amend 7 CFR
chapters VII and XVIII as follows:
7 CFR Chapter VII
1. Add part 759 to read as follows:
PART 759--DISASTER DESIGNATIONS AND NOTIFICATIONS
Sec.
759.1 Administration.
759.2 Purpose.
759.3 Abbreviations and definitions.
759.5 Secretarial disaster area determination and notification
process.
759.6 EM to be made available.
[[Page 70373]]
Authority: 5 U.S.C. 301, 7 U.S.C. 1961 and 1989.
Sec. 759.1 Administration.
(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.
Sec. 759.2 Purpose.
(a) This part describes and explains the types of incidents that
can result in an area being determined a disaster area, making
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.
(b) This part specifies the responsibility of the County Emergency
Board (CEB), State Emergency Board (SEB), and the State Executive
Director (SED) on behalf of the Secretary of Agriculture in regard to
Secretarial Designations; the factors used in making a natural disaster
determination; the availability of EM when a Presidential declaration
is made or a USDA quarantine is imposed by the Secretary; and provides
SED actions in regard to requesting a physical loss notification and
USDA quarantines.
Sec. 759.3 Abbreviations and definitions.
(a) Abbreviations.
CEB means the County Emergency Board.
CED means the County Executive Director.
DAFP means the Deputy Administrator for Farm Programs of the Farm
Service Agency.
EM means Emergency loan.
FSA means the Farm Service Agency.
LAR means the Loss Assessment Report.
NASS means the National Agricultural Statistics Service.
SEB means the State Emergency Board.
SED means the State Executive Director.
USDA means the United States Department of Agriculture.
(b) Definitions.
Contiguous county is used in reference to another county, any
county whose boundary touches at any point with that of the other
county.
County is used when referring to a geographical area, a local
administrative subdivision of a State or a similar political
subdivision of the United States generally considered to be in county
usage, for example, a ``county'' or ``parish.'' Except where otherwise
specified, the use of the term county or similar political subdivision
is for administrative purposes only.
CEB or the County Emergency Board is comprised of the
representatives of several USDA agencies that have responsibilities for
reporting the occurrence of, and assessing the damage caused by, a
disaster, and for requesting approval in declaring a county a disaster
area.
CED or the County Executive Director is the person who is in charge
of administering the local FSA county office for a particular county.
Disaster area is the county or counties declared or designated as a
disaster area as a result of natural disaster related losses. This
includes primary counties and counties named as contiguous to those
counties declared or designated as a disaster area.
LAR is a loss assessment report prepared by the CEB relating to the
State and county where the potential disaster occurred and for which
county or counties the CEB is responsible. The LAR includes as
applicable, but is not limited to, starting and ending dates of the
disaster, crop year affected, type of disaster incident, area of county
affected by disaster; total number of farms affected, crop loss or
pasture loss data associated with the applicable disaster (or both
types of losses), livestock destroyed, and other property losses.
Natural disaster is a disaster in which unusual and adverse weather
conditions or other natural phenomena have substantially affected
farmers by causing severe physical losses or severe production losses
or both.
Normal year's dollar value is the average yield of the 5 years
immediately preceding the disaster year for each cash crop, including
hay and pasture, grown in the county, multiplied by the average
commodity price for the 36 months immediately preceding the disaster
year for each crop, using data from NASS where available.
Presidential declaration is a declaration of a disaster by the
President under the Robert T. Stafford Disaster Relief and Emergency
Assistance Act (42 U.S.C. 5121-2) requiring Federal emergency
assistance to supplement State and local efforts to save lives and
protect property, public health and safety, or to avert or lessen the
threat of a disaster.
Primary county is a county determined to be a disaster area.
Production losses (severe) within a county are those in which there
has been a reduction county-wide of at least a 30 percent or more loss
of at least one crop in the county.
SEB is comprised of the representatives of several USDA agencies
having emergency program responsibilities at the State level. The board
is required to respond to emergencies and carry out the Secretary's
emergency preparedness responsibilities. The FSA State Executive
Director serves as the Chairperson of the USDA SEB in each State and is
responsible for providing the leadership and coordination for all USDA
emergency programs at the State level.
Severe physical losses mean, for the purpose of determining an
Administrator's declaration of physical loss, losses that consist of
severe damage to, or destruction of: Physical farm property including
farmland (except sheet erosion); structures on the land including, but
not limited to, building, fences, dams; machinery, equipment, supplies,
and tools; livestock, livestock products, poultry and poultry products;
harvested crops and stored crops.
Substantially affected is when there has been a natural disaster as
defined in this section, and the applicant has sustained qualifying
physical or production losses, as defined in this section.
Termination date is the date specified in a disaster declaration,
designation, or notification that establishes the final date after
which EM applications can no longer be accepted. The termination date
is the first business day that occurs on or after 8 months from the
date of the disaster declaration or designation.
U.S. Drought Monitor is a collaborative effort between Federal and
academic partners that is produced on a weekly basis to synthesize
multiple indices, outlooks, and drought impacts on a map and in
narrative form. This synthesis of indices is reported by the National
Drought Mitigation Center at
[[Page 70374]]
http://www.drought.unl.edu/dm/monitor.html.
United States means each of the several States, the Commonwealth of
Puerto Rico, the Virgin Islands of the United States, Guam, American
Samoa, and the Commonwealth of the Northern Mariana Islands.
Sec. 759.5 Secretarial disaster area determination and notification
process.
(a) U.S. Drought Monitor. In the case of severe or extreme drought,
as defined in this section, the SED will designate the relevant area as
a disaster area. A LAR will not be required.
(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 SED.
(2) Any county that 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 will be designated a
disaster area by the SED.
(b) CEB and SEB recommendations. CEB will identify potential
disaster areas and make a disaster designation recommendation request
to SEB when a disaster has resulted in severe production losses. A
farmer(s), Indian Tribal Council, or the local governing body may
initiate the process, by reporting production losses or drought
conditions to the CEB.
(1) Except as provided for extreme or severe drought in paragraph
(a) of this section, CEB will submit a request with a LAR to SEB for
review and recommendation for approval by the SED. CEB's written
request and SEB recommendation must be submitted to SED within three
months of the last day of the occurrence of a natural disaster as
determined by the SED.
(2) If SEB determines a natural disaster has occurred, SEB will
forward the recommendation to SED. 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 a drought
that does not meet the criteria in paragraph (a) of this section to
result in production losses that constitute a natural disaster.
(3) SED will make the disaster area determination on behalf of the
Secretary subject to such review by DAFP as may be appropriate,
including that the delegation of authority to the SED may be revoked.
In all cases, DAFP may reverse any SED determination.
(c) Eligible production losses. Except as provided in paragraph (d)
of this section, to be determined to be a disaster area, the county
must have had production losses of 30 percent of at least one crop in
the county due to an unusual and adverse weather condition or natural
phenomena.
(d) Discretionary exception to production losses for EM. The SED or
Secretary may determine that although the conditions specified in Sec.
795.5(c) have not been met, the unusual and adverse weather conditions
or natural phenomena have resulted in such significant production
losses, or have produced such extenuating circumstances, as to warrant
a finding that a natural disaster has occurred for the purpose of
making EM available only. In making this determination, the SED or
Secretary may consider such factors as the nature and extent of
production losses; the number of farmers who have sustained qualifying
production losses; the number of farmers that other lenders in the
county indicate they will not be in position to provide emergency
financing; whether the losses will cause undue hardship to a certain
segment of farmers in the county; whether damage to particular crops
has resulted in undue hardship; whether other Federal or State benefit
programs, which are being made available due to the same disaster, will
consequently lessen undue hardship and the demand for EM loans; and any
other factors considered relevant.
Sec. 759.6 EM to be made available.
EM will be made available under part 764 of this chapter in
disaster areas determined as follows:
(a) Secretarial designations. When production losses meet the
requirements in Sec. 759.5 or if the discretionary exception to
production losses for EM under Sec. 759.5(d) has been exercised and
the SED has acted on behalf of the Secretary to make a disaster area
determination.
(b) Physical loss notification. When only physical losses occur,
the SED will submit a request to the FSA Administrator to make a
determination that a natural disaster has occurred in a county,
resulting in severe physical losses. If the FSA Administrator
determines that such a natural disaster has occurred, then EM physical
loss loans can be made available to eligible farmers for physical
losses only.
(c) USDA quarantine. Any quarantine imposed by the Secretary of
Agriculture under the Plant Protection Act or the animal quarantine
laws, as defined in section 2509 of the Food, Agriculture,
Conservation, and Trade Act of 1990, automatically authorizes EM for
production and physical losses resulting from the quarantine.
(d) Presidential declaration. Whenever the President declares a
Major Disaster Declaration or an Emergency Declaration, the Secretary
will make EM available to eligible applicants in declared and
contiguous counties, provided:
(1) The Presidential declaration is not solely for Category A or
Category B Public Assistance or Hazard Mitigation Grant Assistance.
(2) The Presidential Major Disaster declaration is for losses due
to severe, general disaster conditions including but not limited to
conditions such as flood, hurricane, or earthquake.
PART 762--GUARANTEED FARM LOANS
2. The authority citation for part 762 continues to read as
follows:
Authority: 5 U.S.C. 301 and 7 U.S.C. 1989.
Sec. 762.106 [Amended]
3. Amend Sec. 762.106(b)(2) and (c)(4) by removing the reference
``part 1945, subpart A of this title'' and adding in its place each
time it appears ``Sec. 761.2(b) and part 759 of this chapter''.
PART 1945--[REMOVED]
4. Under the authority of 5 U.S.C. 301, part 1945 is removed.
Signed on October 20, 2011.
Karis T. Gutter,
Acting Under Secretary, Farm and Foreign Agricultural Services.
[FR Doc. 2011-29011 Filed 11-10-11; 8:45 am]
BILLING CODE 3410-05-P