Disaster Designation Process, 70368-70374 [2011-29011]

Agencies

• DEPARTMENT OF AGRICULTURE
• Farm Service Agency
• Rural Business-Cooperative Service
• Rural Housing Service
• Rural Utilities Service

[Federal Register Volume 76, Number 219 (Monday, November 14, 2011)]
[Proposed Rules]
[Pages 70368-70374]
From the Federal Register Online via the Government Printing 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: https://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 https://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 
(https://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.

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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.
------------------------------------------------------------------------

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]]

https://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