CCC published an interim rule on December 29, 2008 (73 FR 79267-79284) implementing the payment eligibility and payment limitation provisions from the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246, the 2008 Farm Bill) that are applicable to most CCC and FSA commodity, price support, and conservation programs. The rule included specific payment limits for affected programs, provisions for how payments are attributed to individuals, average Adjusted Gross Income (AGI) limitation requirements for payment recipients, and other eligibility criteria that included actively engaged in farming requirements and provisions for minors. It included provisions that certain CCC farm program payments will be made only to persons and legal entities actively engaged in farming, as evidenced by contribution of land, capital, or equipment and labor or management to the farming operation. The majority of the provisions in the rule were requirements of the 2008 Farm Bill for which USDA had little or no discretion.

The comment period for the rule closed on January 28, 2009. CCC received comments requesting that the comment period be reopened. CCC reopened the comment period until April 6, 2009 (74 FR 6117). In response to the interim rule, CCC received 5,060 comments, including comments from producers, commodity groups, cooperatives, producer associations, lenders, crop consultants, certified public accountants, attorneys, members of Congress (both House and Senate), State agricultural officials, crop insurance agents, dairy farmers, cotton processors, organic and sustainable crop producers, commodity brokers, the USDA Office of the Inspector General, USDA agencies and employees, teachers, animal scientists, farm implement dealers, taxpayers, and a restaurant chef. The majority of comments raised questions or concerns about specific parts of the rule. The rest of the comments either supported parts of the rule or raised general policy issues about farm programs. Seventy-three percent of the comments stated that the payment eligibility rules need to be made more restrictive, particularly in the area of the requirements of active personal management; two percent asked for an exception for smaller farming operations.

This rule specifies that for most types of legal entities, the requirement that all partners, stockholders, or members must provide active labor or management does not apply if: (1) Interest holders who collectively hold at least 50 percent interest in the legal entity are providing personal labor or active personal management; and (2) they all are receiving, directly or indirectly, total payments less than one payment limitation. This was added to address the comments that the restrictions intended to end abusive practices by passive investors should not negatively impact smaller family farming operations where older members may not be active contributors. It is a change from the interim rule that required all partners, stockholders, and members in a legal entity to provide active personal labor or management for the legal entity to be eligible for 100 percent of the payment otherwise due the legal entity.

Also, in response to comments, this rule makes minor clarifications to ensure that the rule is clear and consistent with our handbook and with our current practice. This rule clarifies that “actively engaged in farming” provisions do not apply to Conservation Reserve Program contracts and extensions to such contracts made effective on or after October 1, 2008. It clarifies that determinations for joint operations with six or more members will be made by the FSA State office. It clarifies that certain “actively engaged in farming” requirements for a person can be met if the spouse of that person meets the requirements. It clarifies that for a change to a farming operation to be considered bona fide, one rather than all of the items in the list of bona fide changes must be met. It changes the April 1 date in the minor child provisions to the same June 1 date used for attribution of payments. This is for consistency since the manner in which payments will be attributed for payment limitation purposes depends in part on whether or not a participant is a minor. It clarifies the provisions for trusts and estates to make them consistent with the other sections regarding requirements for contributions. These changes to the rule are expected to have no substantive impact.

This rule also implements minor technical corrections, such as correcting internal paragraph references and inconsistent terminology, which are expected to have no substantive impact. Some of these changes were made in response to comments received; others were the result of our own review of the regulation for clarity and consistency. This rule amends 7 CFR part 1400 to implement these changes.

The following provides a summary of the comments received that were related to each specific subpart or section and the agency's response, including changes we are making to the regulations.

The following discussion addresses the comments received on Subpart A identified by section.

Comment: Wealthy farmers do not need payments. Put a cap of $25,000 for total payments.

Response: The limitations on payments per person or legal entity for the applicable period for the various CCC and FSA programs are specified in the 2008 Farm Bill. Therefore, we did not make any changes to the rule in response to the comment suggesting a $25,000 cap.

Regarding payments to wealthy farmers, as provided in the 2008 Farm Bill and in § 1400.500 of the regulations, persons and legal entities who exceed certain average AGI limits are not eligible for any payments or benefits for the programs specified in this section; and the average AGI limits in the current regulations are lower than under the Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171, commonly known as the 2002 Farm Bill). Therefore, we did not make any changes to the rule in response to the comment.

Comment: The elimination of a limitation for the Marketing Assistance Loans (MAL) and Loan Deficiency Payments (LDP) payments is consistent with the statute, but opens a potential loophole.

Response: A limitation is applied to a Marketing Loan Gain (MLG) and LDP, not MAL. In any case, as noted in the comment, the elimination of the cap on payments per person or legal entity for the applicable period for MLGs and LDPs is specified in the 2008 Farm Bill. Although there is now no limitation on MLGs and LDPs, persons receiving MLGs and LDPs are subject to other requirements in this part, including average AGI limitation provisions, so there are practical limits to how much a person or legal entity can qualify for while still having to meet the other requirements, particularly average AGI provisions. The regulations comply with the requirements in the 2008 Farm Bill; therefore, we did not make any changes to the rule in response to the comment.

Comment: How will this apply to the Conservation Reserve Program (CRP)? Will FSA release these contracts if over half the ownership fails to qualify (due to AGI or actively engaged)? If so, what incentive is there to follow the conservation practices? The provisions in both §§ 1400.1 and 1400.201 appear to require that a person be actively engaged in farming to be eligible to receive conservation benefits, which was not in the 2008 Farm Bill and therefore should not be in the rule.

Response: We will make a technical correction to this section to clarify that “actively engaged in farming” provisions in the current regulations do not apply to CRP contracts and extensions to such contracts beginning October 1, 2008. CRP contracts are subject to the regulations in place at the time the contract was executed, so the payment limitation, “actively engaged in farming,” and average AGI limits in the current regulation do not apply to contracts executed prior to October 1, 2008. For contracts executed before that date, the regulations in the January 1, 2008 edition of the Code of Federal Regulations apply.

The average AGI limitations in effect when the contract was signed apply to CRP, but those limitations apply only when the initial contract is made; if the person or legal entity's average AGI exceeds the limit in later years, they are still eligible for annual rental payments for the duration of that contract.

Comment: The table that identifies payment limits identifies the Wetland Reserve Program (WRP) limit of $50,000. That is correct, but it needs a footnote that the payment limit does not apply to payments for perpetual or 30 year easements or under 30 year contracts.

Response: We added that footnote in this rule.

Comment: The interim rule should state specifically who will determine payment limitations and payment eligibility for a joint operation with six or more members.

Response: The determination will be made by the FSA State office, as it has been made in the past. We clarified that in this rule.

Comment: If people need to provide additional paperwork to FSA, allow them to withdraw their application for payment and resubmit; “stop” the 60 day determination clock as specified in § 1400.2(f). This has been done sometimes in the past, but it would be appropriate to specify it in the rule.

Response: This is and will continue to be our practice, and is specified in our handbook. Applicants have the option to withdraw or change their farm operating plan at any time. The 60 day determination provision in the rule requires the FSA county office to make a timely determination; it does not require the producer to submit documentation within 60 days. If an unfavorable determination is made, based on the documentation provided, a revised farm operating plan can be provided to the county office. No changes were made to the rule in response to this comment.

Some commenters support the changes to the definition of capital, and the provisions that require funding provided to a farming operation to be independent and separate from funding provided to all other farming operations, and requiring that a person or entity's contribution of capital be independent from others. They also support the clarification that advance program payments are not considered capital contributions, all the changes and recommend they stay in the final rule, and the definitions of contribution and joint operation.

Comment: The definition of “capital” is fine, but it is not used consistently in §§ 1400.202, 1400.203, and 1400.204, which appear to disqualify any land, equipment, or capital acquired with a loan.

Response: The use of the term “capital” in sections §§ 1400.202, 1400.203, and 1400.204 is consistent with the way it is defined, including the provision that capital can include borrowed (loaned) funding. Sections 1400.202, 1400.203, and 1400.204 do further clarify appropriate loan terms, including guarantees and co-signers, for loans used for eligible “actively engaged” contributions of capital, land, and equipment. Those sections do not automatically disqualify all land, equipment, or capital acquired with a loan. No changes were made to the rule based on this comment.

Comment: The rule is not consistent on using the term “joint operation” as defined. Sections 1400.6(a) and 1400.106(b), for example, use slightly different terms. Change the references to general partnerships or joint ventures in those sections to “joint operation.”

Response: We agree that the term “joint operation” should be used consistently. We will change §§ 1400.6 and 1400.106 to use the term “joint operation.”

Comment: Change the definition of “family member” to include nieces and nephews. The definition will not allow some family members to be eligible, for example, a farmer will not be eligible for a direct payment if the farming partner is the spouse's uncle; the farmer is not a direct descendent.

Response: The definition of family member in the rule is the definition that is required by the 2008 Farm Bill. The definition in the 2008 Farm Bill was clear and complete as written. Therefore, we did not make any changes to the rule in response to the comment.

Comments: A more rigorous definition of active personal management is needed; too many people per legal entity are qualifying for payment eligibility based on only active personal management. Change the definition of “active personal management” to be a measurable, quantifiable standard. That term as it is further used in the definitions of “contribution” and “significant contribution” represents a potential loophole. Set a specific monetary or time requirement; ideally, 1000 hours or 50 percent of the total hours necessary to conduct a farming operation of comparable size.

Add the words, “on a regular, substantial, and continuing basis” to the definition of “active personal management,” including “day to day” supervision and “services including but not limited to significant on-site services.”

Response: The definition of what constitutes a significant contribution is provided by regulation, not by statute and could be changed. We recognize the difficulty in determining the significance of a management contribution under the current definition and the desirability of a measurable, quantifiable standard. However, unlike labor, the significance of a management contribution is not appropriately measured by the amount of time a person spends doing the claimed contribution. The current regulatory definition of a significant contribution of active personal management has been in effect for over 20 years; Congress has not mandated a more restrictive definition during that time, including in the 2008 Farm Bill. However, we are currently exploring whether the current definition could be amended in a manner that would be fair, equitable, and enhance program integrity. At this time, no changes were made as the result of this comment and other related comments.

Comment: Do not allow a combined contribution of labor and management to be counted as a “significant contribution” in the definition. Define both with a quantifiable standard.

Response: A strict division of responsibilities between labor and management is not a realistic expectation for many smaller farming operations, where actively engaged members of the operation typically do a combination of both. A significant contribution by an actively engaged farmer often does include a combination of labor and management. No changes were made as a result of this comment.

Comment: “Commensurate” is used throughout, but never defined. Since it is crucial to payment eligibility, need to define it.

Response: “Commensurate” is not defined in this rule, because it is utilized based upon its common dictionary definition and is not used in a special way in the rule. When making a determination regarding commensurate contributions, we have not required and will not require that the contribution be exactly proportional to the ownership share. No changes were made to the rule as a result of this comment.

Comment: It is unfair to consider fallow land or land with no production as an example of a scheme or device. Sometimes producers make mistakes providing information. The current test for scheme or device in the regulation is too difficult to meet and is arbitrary and capricious.

Response: Land where no crops are grown or commodities produced is provided as a factor in an example of a scheme or device in the rule. Also, it is listed as one indicator of a possible scheme or device; it has not and will not be used as the only proof that a scheme or device has occurred. The term “fallow” land did not appear in the previous rule or the preamble.

The requirement to deny program benefits to persons who have participated in a scheme or device is in the 2008 Farm Bill, and the statute also gives the Secretary discretionary authority to decide what other serious actions merit denial of benefits. The expanded provisions on denial of benefits are consistent with the general policy of the 2008 Farm Bill to tighten payment limits and payment eligibility. We agree with Congress that it is important to prevent taxpayer money being used to reward fraud, and particularly to prevent schemes such as “creating a business arrangement using rental agreements and other arrangements to conceal the interest of a person or legal entity in a farm or farming operation for the purpose of obtaining program payments the person or legal entity would otherwise not be eligible to receive.” Therefore, we did not make any change to the rule in response to this comment.

Comment: The section on submitting false information should include the words “knowingly” and “intentionally,” to make it clear that accidentally submitting wrong information will not be considered fraud.

Response: The rule does refer to “knowingly” engaging in the creation of a fraudulent document. By dictionary definition, fraudulent means intentionally false. Therefore, we did not make any changes to the rule in response to the comment.

Comment: Changing “at risk” to “at risk for a loss” is not supported by statute; it is unclear how a person's risk could be measured to determine whether it is commensurate to the claimed share of profits and losses. All members of a partnership are 100 percent liable for a loss. One partner may have substantially greater personal assets at risk outside the partnership than another partner.

Response: This change was intended only to clarify that persons who share no risk in the crop are not eligible for payment; no one should be made eligible or ineligible by this wording change. Also, the dictionary definition of risk includes exposure to the chance of loss. Therefore, we did not make any changes to the rule in response to the comment.

The following discussion addresses the comments received on Subpart B identified by section.

Comments: What about revocable living trusts? The IRS does not recognize this as an entity with independent tax status, but USDA does, so a person can not qualify as actively engaged because land is leased through the trust, and a family member is the trustee.

This rule can be read to require a living trust to be treated as an entity subject to its own payment limitation. There should be an exception for living trusts created by a husband and wife, where they are the sole beneficiaries, the trust uses one of their social security numbers, and the trust income is reported on their individual returns. It looks like this rule requires that with a trust, two people who would normally qualify for two payments would be eligible for only one payment, or be forced to apply as cash rent tenants on their own land.

Response: The 2008 Farm Bill clearly specifies that “a revocable trust shall be considered to be the same person as the grantor of the trust,” which is reflected in the rule. The tax status of such trust is irrelevant for the purposes of payment eligibility. We cannot attribute two payment limitations to one Social Security number. Therefore, we did not make any changes to the rule in response to the comment.

Comment: The provision attributing payments received by a minor to the parent who receives the greater amount of farm payments exceeds the authority. The payments must be attributed equally to the parents, not to the one receiving the greater payments.

Response: The 2008 Farm Bill requires that payments received by a child under the age of 18 be attributed to the parents of the child. It also authorizes the Secretary to “issue regulations specifying the conditions under which the payments received by a child under the age of 18 will not be attributed to the parents of the child.” The 2008 Farm Bill does not require that the payments be attributed equally, and it gives the authority to set exceptions, so the regulation is within the authority. This provision prevents actions to evade the payment limitation provisions through manipulation of the attribution of payments received by minor children. Therefore, we did not make any changes to the rule in response to the comment.

Some commenters support the requirement that payments to States be used to support public schools.

Comment: The 2008 Farm Bill allowed an exception to the payment limits for States with a population of less than 1,500,000. The rule should specify that.

Response: We will add a provision to the rule specifying that the population will be determined using the most recent U.S. Census Bureau data, and specifying the 1,500,000 threshold. Using 2008 data, the list of States that meet the criteria are: Alaska, Delaware, Hawaii, Maine, Montana, North Dakota, New Hampshire, Rhode Island, South Dakota, Vermont, and Wyoming.

Comment: States with populations greater than 1,500,000 should still be eligible for full benefits.

Response: The 2008 Farm Bill states that States may receive direct, counter-cyclical, or Average Crop Revenue Election (ACRE) payments not to exceed $500,000, and that the payments may only be used to maintain a public school; there is an exception for States with a population less than 1,500,000. We do not have the authority to expand that exception to all States. Therefore, we did not make any changes to the rule in response to the comment.

Comment: State lands should still be eligible for CRP.

Response: CRP contracts are administered under the regulations in place when the contract was established. Any State lands already under a CRP contract approved prior to October 1, 2008 will remain subject to the rules in 7 CFR part 1400 in effect when the contract was approved. However, new contracts will be established under the current rules, and State lands will not be eligible for new CRP enrollments or extensions. We did not make any changes to the rule in response to the comment.

Comment: For a farming operation of economically viable size, the requirement to add twenty percent base acres in order to qualify another family member will require adding hundreds of acres to the farm. This is an unreasonable hardship.

Response: As stated in the preamble to the previous publication of the payment eligibility and limitation rule, additional persons or legal entities beyond one for payment limitation purposes may be recognized if an FSA State office specialist determines that the increase in base acres was of a magnitude that would support further additions to the farming operation of persons or legal entities for payment limitation purposes. Also, the “substantive change” provisions were announced well in advance of the 2009 crop year, so that operations would have time to adjust. As specified, the addition of a family member to a farming operation will be considered a bona fide and substantive change if they also meet the “actively engaged in farming” requirements of § 1400.208. One, not all, of the bona fide changes listed in the rule must occur for the change to be considered bona fide; we changed the rule to make it clearer that the list of changes considered bona fide is an “or” list, not an “and” list.

Comment: Is “amount” of equipment or land transferred a dollar value or the number of pieces of equipment or acres of land? Specify which it is in the rule.

Response: The regulation also refers to fair market value, so the regulation is already clear that dollar value is meant. Therefore, we did not make any changes to the rule in response to the comment.

Comments: Several comments address the issue of substantive change, and seller financing, when the buyer or new partner is a non-family member. Prohibiting seller financing of land or equipment is unduly burdensome. The use of seller financing is a key component of succession planning and is critical in attracting young and beginning farmers. In many cases, this provision will eliminate the ability of beginning farmers an opportunity to enter farming.

For example, if a 67-year-old farmer tries to get a new farmer started to take over the farm, the new farmer is likely to be young and have little capital. If they start as partners, this will be a problem under the substantive change rule. If the farmer is only getting one-third of the maximum payment, why is there a problem adding a new person? The rules should be waived for persons who are not near the payment limit.

Another example is a farmer planning to retire who wants to add a niece's husband to the farm. He is not a direct descendent. Why must the farmer lose half the farm payment, which is only a third of the maximum payment anyhow, for helping a new farmer?

This prevents a farmer from buying out his neighbor if there is any kind of seller financing. This is unduly restrictive.

Response: The previous rule did not change the provisions about seller financing when the buyer or new partner is a non-family member; the provisions have been substantially similar for the past twenty years. FSA is not prohibiting seller financing; it is merely setting the regulations for the changes to the farming operation that will justify payment eligibility for another person or legal entity. We did not make any changes to the rule in response to the comments.

Comment: Add a clause in § 1400.104(a)(3)(ii) that the FSA State office makes the substantive determination that the change supports additional persons or entities to the farming operation “based solely on the expectation to benefit from the commercial success of the farming operation.” In other words, the change should be obviously to increase the profits of the farming operation, not just to maximize government payments.

Response: The purpose of § 1400.104 is to specify that substantive changes to the farming operation must in fact be bona fide and substantive to change the payment eligibility for the operation. The 2008 Farm Bill requires these provisions. It does not specify that the change must also be financially prudent; that change would exceed our discretionary authority. The payment limitations regulations are intended to limit farm program payments to persons and legal entities actively engaged in farming and with average AGI below certain thresholds, rather than to limit payments to financially prudent persons and legal entities. Therefore, we did not make any changes to the rule in response to the comment.

Comment: We strongly support the changes in § 1400.104(a)(4) and (a)(5), which end some abusive sales and gifts practices formerly used to dodge the payment limits. To further strengthen these paragraphs, add that the former owner has “no direct or indirect control.”

Response: We will make this change to the rule.

Comment: Under IRS tax law, a C corporation is taxed as a separate entity, and tax liability does not extend to stockholders. How can USDA legally attribute payments to a corporation to the stockholders? C corporations are not “pass through” entities.

Response: The 2008 Farm Bill specifically requires that “attribution of payments made to legal entities be traced through four levels of ownership in legal entities.” The tax status of an entity is irrelevant for the purposes of attribution of payments. Therefore, we did not make any changes to the rule in response to the comment.

Comment: Charitable organizations do not necessarily have members or owners. Add a new paragraph saying that if the charity does not have members or owners, the payment will be attributed as if it had one member, itself.

Response: That is how payments to a charitable organization will be attributed under the current regulations. Therefore, we did not make any changes to the rule in response to this comment.

The following discussion addresses the comments received on Subpart C by section.

Some commenters support the addition of “and separately,” and similar language, as well as the requirement that the risk be commensurate with the share of the operation.

Comment: Remove the “actively engaged in farming” provisions. Farming operations members that have outside jobs cannot work on the farm, but the money from FSA programs helps hire farm hands and buy new equipment, helping the local economy.

Response: The 2008 Farm Bill requires that actively engaged in farming is an eligibility requirement for certain payments. Therefore, we did not make any changes to the rule in response to the comment.

Comment: The requirements in §§ 1400.105 and 1400.204 requiring separate, distinct, identifiable, and documentable contributions, and similar provisions, are not realistic given the ways farms really operate and discriminate against spouses. Decisions and workloads are typically shared by family members on a family farm, and it is hard to separate one person's contribution. The “independently and separately,” “separate and distinct,” etc. requirements for contributions in this section are confusing, possibly redundant, and likely to be inconsistently applied at the local level. Also, it appears to be more restrictive than was required by the 2008 Farm Bill.

Response: The 2008 Farm Bill requires us to determine whether someone is actively engaged in farming based on their contributions to the farming operation and their share of the profits or losses, “commensurate with the contributions of the person to the farming operation.” To determine whether a person's contributions and share of the profits and losses are commensurate with their contributions, we need to know what their separate, distinct, identifiable, and documentable contributions are. In other words, we need to know what specific contributions they made in order to verify that they are actively engaged in farming, and the specific contributions must be documentable. With regards to spouses, as specified in § 1400.202, if one spouse is actively engaged in farming, the other is considered to have made a contribution of labor or management to that farming operation. The 2008 Farm Bill requires us to have actively engaged in farming as an eligibility requirement for certain payments. Therefore, we did not make any changes to the rule in response to the comment.

Comment: Require a person to actually work on a farm to be an “active farmer.” Do not let insurance policyholders and corporate staff receive payments. A conference call is not farming.

Response: The 2008 Farm Bill requires us to have actively engaged in farming as an eligibility requirement for certain payments. Personal labor contributed to a farming operation would, by its nature, require that the person actually work on the farm. However, in lieu of a significant contribution of personal labor, the statute also allows a significant contribution of active personal management. Management encompasses more than on-site supervision; therefore, it would be overly restrictive and not supported by statute to make the change suggested by the comment. However, we are currently exploring whether the current definition could be amended in a manner that would be fair, equitable, and enhance program integrity. Therefore, we did not make a change to the rule in response to this comment and other related comments.

Comment: Except for the spouse provisions, the changes to the actively engaged provisions are not required by the 2008 Farm Bill. Withdraw them, or at least delay implementation. Implement the 2008 Farm Bill that reflects the intent of Congress, no more, no less. Congress could have directed USDA to change the definition of actively engaged, but they did not. They had every opportunity, but chose not to, so it is clear the congressional intent was not to change the actively engaged provisions. So, withdraw the entire actively engaged changes.

Response: The provisions in this rule do not exceed our discretionary authority and are within the provisions set by the 2008 Farm Bill, which does in fact amend the provisions for what constitutes “actively engaged in farming.” We did comply with the requirements of the 2008 Farm Bill; as discussed in further detail in a response to a comment on § 1400.204, we did provide an exception to the requirement that all stockholders or members in a legal entity such as a corporation must contribute personal labor or active personal management.

Comment: Payments should only go to people who are resident farmer operators; people who perform on a regular basis the day-to-day work of that farm unit, or someone who previously farmed that unit and is now renting it out on a crop share basis. Off-farm owners should not be eligible, even if they provide off-site management or supervision.

Response: The suggested change is beyond our statutory authority. As indicated previously, we are exploring whether the current definition of a significant contribution of active personal management could be amended in a manner that would be fair, equitable, and enhance program integrity. Therefore, we did not make a change to the rule in response to this comment and other related comments.

Comment: If one spouse is actively engaged, the other should automatically qualify, whether the land is owned or rented.

Response: Section 1400.202 specifies that if one spouse, or an estate of a deceased spouse, is determined to be actively engaged in farming, the other spouse is considered to have made a significant contribution of active personal labor or management, only to the same farming operation. This is not to say that the spouse will automatically meet the other requirements of being actively engaged in farming; contributions of land, capital, or equipment are generally also required to qualify as actively engaged in farming. There is no difference if the land is owned or rented with respect to spousal eligibility. The 2008 Farm Bill requires us to have actively engaged in farming as an eligibility requirement. Therefore, we did not make any changes to the rule in response to the comment.

Some commenters strongly support the “independently and separately” language.

Comments: Under the old “3 entity” rule, many farms set up complex corporate structures to maintain eligibility. Now, they are being penalized and spouses will not be eligible. Delay the rule so that people have time to meet the new rules. For example, some farmers organized their family business around the 3 entity rule. More time is needed to adjust to the new rules. Also, a “farm wife” should be automatically considered to have made a separate and distinct contribution. Equal spousal qualification rules should apply regardless of the operation's legal structure.

The provision for spouses discriminates against spouses who operate as part of an entity or corporation. All spouses of actively engaged producers should be considered actively engaged.

Response: Equal spousal qualification rules do apply regardless of the operation's legal structure, as specified in further detail in our handbooks. We cannot delay implementation of the rule. We do not agree that the rule penalizes spouses in a farming operation. The previous rule included a provision by which if one spouse is determined to be actively engaged in farming, the other spouse is credited for the purposes of payment eligibility with making significant contributions of active personal labor or active personal management to the farming operation. While each spouse may now have their own respective limitation, each must also meet applicable program and payment eligibility requirements to receive program benefits. This is not to be construed as meaning if one spouse qualifies for payment, the other automatically qualifies as well. As previously mentioned, both spouses must make significant and requisite contributions to the farming operation that are commensurate with their claimed shares to be considered actively engaged in farming and eligible for program benefits. We did not make a change to the rule in response to this comment; we have further clarified in our handbooks that spouse qualification rules apply regardless of the operation's legal structure.

Comment: The provision for spouses discriminates against single people.

Response: The provisions for spouses are as required by the 2008 Farm Bill. Therefore, we did not make any changes to the rule in response to the comment

Comment: To preserve the long term viability of the soil, eligible persons should be owners of the property that they farm and for which they are receiving payments.

Response: The 2008 Farm Bill does not restrict eligibility to landowners although specific provisions for landowners are provided. Therefore, we did not make any changes to the rule in response to the comment.

Comment: If a spouse has arthritis and can not perform labor or management, does that impact eligibility under CRP? It appears that the rule discriminatory towards people with health issues.

Response: Under the provisions of this rule, if one spouse is determined to be actively engaged in farming, the other spouse is credited for the purposes of payment eligibility with making significant contributions of personal labor or active personal management to the farming operation. In any case, actively engaged in farming provisions do not apply to CRP contracts approved on or after October 1, 2008. We did not make any changes to the rule in response to the comment.

Comment: The exemption for minor children for actively engaged should also apply to retired parents.

Response: There is no exemption for minor children for actively engaged in farming in 7 CFR part 1400. This rule changes § 1400.203 to clarify that at least 50 percent, rather than all, of the members, partners, or stockholders in an entity must make a contribution for the members, partners, or stockholders of the joint operation to be considered actively engaged. That provision may help retired parents in a family entity qualify for payment.

Comment: The spouse provision should make it clear that the spouse's active engagement will be considered to be “commensurate” with their interest. Also, it should apply in the context of the cash rent tenant rule.

Response: It does apply, and we believe that it is clear. We have clarified this in our handbooks.

Comment: If an adult child is trying to start a farm and is renting land from their parents, it is unreasonable that the parents cannot cosign or guarantee a loan in order for their adult child to obtain the operating money? If farmers change an operation's structure FSA is now telling them that they are told they will be out of compliance with USDA's Risk Management Agency.

Why is a parent prohibited from co-signing a loan for an adult child that is renting land from them?

Response: The rule does not prevent co-signing a loan; it only determines payment eligibility and payment limitations. A person who is renting land from someone who also co-signed a loan may not meet the requirements for “actively engaged in farming.” We did not change the rule in response to these comments.

Comment: Why does FSA care about interest rates and repayment schedules? Why are you dictating the terms of financial agreements?

Response: The 2008 Farm Bill requires us to determine whether someone is actively engaged in farming based on their contributions to the farming operation and their share of the profits or losses, “commensurate with the contributions of the person to the farming operation.” To determine that the contribution of land, capital, or equipment is in fact from that person, we need this information. If the contribution is funded with a loan, we need this information to ensure that there are not improperly favorable “sweetheart” funding agreements between members of a farming operation set up for the purposes of evading payment eligibility provisions. We did not make any changes to the rule in response to this comment.

Comments: A more rigorous definition or measurable standard for active personal management is needed; too many people per entity are qualifying for payment eligibility based on only active personal management. However, the comments did not represent a consensus on what that standard should be. Use a 1000 hour eligibility (test) for an active contribution of management and labor combined. Require each actively engaged partner to work at least 1000 hours in proving labor or management, or engage in labor or management for hours equal to at least half those required by the share of the operation.

Define active management to include marketing, securing financing, supervising employees, and scheduling field activities.

Close the potential loopholes and end unlimited payments to the nation's largest farms. Require a person to either work half time on a farm or provide half the labor or management to qualify as an active farmer. The “actively engaged” issue is the biggest potential loophole of all. Megafarms with investor partners use this potential loophole to collect unlimited payments.

The excess payments gained from the actively engaged potential loopholes allow megafarms to outbid smaller farmers and beginning farmers for land, leading to the demise of family farming. This potential loophole is strangling the economic future of rural communities and choking off farm entry for the next generation.

Require a person to either work half to three quarters of their time on the farm, or provide half the labor or all the management on the share of the operation to qualify as an active farmer.

To qualify for eligibility based on active personal management and no labor, the rule should require that person to personally provide at least 75 percent of the total management required to run the farm or 90 percent of the total management that would be necessary to conduct a farming operation commensurate in size with their requisite share of the operation.

To clarify separate and distinct contributions of active personal management, add language in § 1400.203(a)(1) specifying that merely participating in meetings and voting is not sufficient. Add similar language in § 1400.204(a)(1).

Response: As indicated previously, the definition of what constitutes a significant contribution is provided by regulation, not by statute and, therefore, could be changed. We recognize the difficulty in determining the significance of a management contribution under the current definition and the appeal of a measurable, quantifiable standard. However, unlike labor, the significance of a management contribution is not appropriately measured by the amount of time a person spends doing the claimed contribution. The current regulatory definition of a significant contribution of active personal management has been in effect for over 20 years; Congress has not mandated a more restrictive definition during that time, including in the 2008 Farm Bill. However, we are currently exploring whether the current definition could be amended in a manner that would be fair, equitable, and enhance program integrity. Therefore, no changes were made at this time as the result of this comment and other related comments.

Comment: The “separate and distinct” requirement is not in the 2008 Farm Bill. The 2008 Farm Bill requires that the stockholders or members collectively make a significant contribution of labor or management. The examples in the preamble are unrealistic and reflect a division of labor that does not happen in the context of family farming. The rule should require that all the members together collectively make a contribution.

Response: As indicated in the comment, the 2008 Farm Bill requires that the stockholders or members in a legal entity that is a corporation or similar entity collectively make a significant contribution of personal labor or active personal management. It does not, however, indicate what percentage of stockholders or members in the legal entity must collectively make that significant contribution. However, if the legal entity is general partnership, joint venture, or similar entity, the statute requires that each partner or member must make a significant contribution of personal labor or active personal management. Therefore, we did not make any changes to the rule in response to the comment.

Comment: The provisions on joint and several liability appear to prohibit owner financing and situations where a third party lender requires secondary liability or other credit enhancements from interested persons where a loan is made to acquire an interest in a farming operation. Sound underwriting principles compel Farm Credit associations to require the very sort of credit enhancements that this rule appears to prohibit. Clarify why CCC is doing this. Why does the rule specify the interest rate and repayment schedule for the activities it appears to prevent?

Provisions in §§ 1400.203 and 1400.204 appear to say that if the capital, land, or equipment of an entity is acquired through a loan that is made to, guaranteed by, or co-signed by a person or entity that owns the farming entity, then that farming entity is not eligible for program payments. The rule does not appear to distinguish between loans made between financial entities and the farming entity, and loans made between persons or entities that may own the farming entity. Many commercial loans to farming entities use these very structures, and therefore this could make it difficult for farmers to both obtain credit and maintain payment eligibility. Similarly, the provisions about “prevailing interest rates” are vague. Rewrite this section so as not to infringe upon the lending relationships of farm entities and their financial institutions.

Response: This rule does not prohibit any owner financing methods; it merely specifies the requirements for payment eligibility. The eligibility requirements include a requirement that contributions by a person or entity be made by that person or entity, which means that in the case of a financed contribution, that the eligible person or entity be responsible for the loan. The provisions on interest rates and repayment schedules are intended to ensure that there are not improperly favorable “sweetheart” funding agreements between members of a farming operation set up for the purposes of evading payment eligibility provisions. We made minor technical corrections to the rule to clarify that the requirements for commensurate contributions are slightly different from those for significant contributions.

Comment: FSA told a farmer that he is not eligible because someone had cosigned his loan. He owns a lot of equipment and rents his house, so he does have risk in the farming operation. How do you expect beginning farmers to get started without a little help?

Response: If the person in question is not actively engaged in farming because they have not made the required contributions, then they are not eligible for payment. A person who is renting land from someone who also co-signed a loan may not meet the requirements for “actively engaged in farming.” We did not make a change to the rule in response to this comment.

Comment: The current language appears to prohibit common joint financing arrangements currently in use. To fix that, replace the words “interest, and” in §§ 1400.203(b)(1)(iii) and 1400.204(c)(1)(iii) with “interest, or.”

The provisions in § 1400.203(b)(1) and (b)(2) appear to contradict each other, as do the provisions of § 1400.204(c)(1) and (c)(2), concerning financing arrangements. If the second paragraph is in each case intended to be the exception to the first, then the words “must not” should be replaced with “should not” and the “and” connecting the two paragraphs should be replaced with an “or.”

Response: We will make a technical correction in the rule to make it more clear which requirements apply to commensurate contributions and which apply to significant contributions.

Comment: In § 1400.203(c), add a requirement that no one person can provide the active labor, active management, or combination of labor and management for multiple farming operations collectively receiving more than one maximum payment.

Response: “Actively engaged in farming” determinations are made based on contributions to a farming operation. A person or legal entity can be legitimately involved in multiple farming operations. We do not believe there is authority for the suggested change. Therefore, we did not make a change to the rule in response to this comment.

Comment: The requirement that each member make a contribution of labor or management does not make sense in this situation where only one payment is being received (for multiple people in the family farm). For example, unless an elderly family member is providing active labor or management, the family will lose that percentage of program payments.

Response: We agree that does not make sense. The intent of the provisions requiring that each member contribute active management or labor was to prevent the share of persons who were strictly passive investors in a legal entity from being eligible for payments. The intent was not to penalize smaller operations that have multiple members sharing payments less than or equal to the payment limit for one person or legal entity. Therefore, we added an exception if at least 50 percent of the stock is held by partners, stockholders, or members that are providing active personal labor or active personal management and the partners, stockholders, or members providing active personal labor or active personal management are collectively receiving total payments equal to or less than one limitation.

Comments: The legal entity should be eligible if some of the members work off the farm because they have to; for example, an operation that is only a few hundred acres.

All of the members should be eligible if the legal entity is solely owned by relatives, especially if they are siblings.

The rule should add an exemption for small operations if 51 percent of the members are actively engaged.

Not all the members in the family farm have the time, ambition, or skills to participate fully. Passive members of the entity may be doing the farm a favor by remaining passive. For farms with family members only, the actively engaged requirement should be either management and labor or land, capital, and equipment.

In a family entity where all the members are a family and no-one is getting payments through another entity, all family members should be considered to be actively engaged.

This section disincentivizes outside investment and distributing shares of a family corporation to family members who are not actively engaged in the operation. Many family farms have non-actively-engaged family members and outside investors as shareholders so that the operation can continue to the next generation. The decision to dilute ownership should not be deterred by the government.

Response: In response to these comments, this rule adds an exemption if members who collectively hold at least 50 percent interest in the entity make a significant contribution, as described above.

Comment: Allow the county committee to grant exceptions for family farms that are bona fide operations, but where some of the members do not provide commensurate contributions due to their age.

Response: This rule adds an exemption if members who collectively hold at least 50 percent interest in the entity make a contribution, as described above. There will not be an additional provision for exceptions by the FSA county committee.

Comment: Drop the requirement that each stockholder in a corporation be actively engaged in labor or management. Corporations can only get one payment; it is partnerships that are the problem.

Response: The rule does not require that each stockholder be actively engaged; it requires that they make a contribution. This rule makes a change to require that stockholders who collectively hold at least 50 percent interest in the entity, rather than all of the stockholders, contribute.

Comment: Allow members of an entity to make a “combined” contribution to qualify as actively engaged, and collectively share one payment limitation through direct attribution.

Response: The changes in this rule to §§ 1400.203 and 1400.204 should permit this to occur in most situations.

Comment: Section 1400.204(c)(1)(ii) has a “such joint operation” with no antecedent. Should this be “such legal entity?”

Response: We corrected that in this rule.

Comment: The 2008 Farm Bill requires that a person's or entity's share of the profits or losses be commensurate to their contribution and at risk, but it does not require that the risk of loss be commensurate with the claimed share of the operation. That is not realistic. There are good business reasons why risk is different, such as preferred stock.

Response: In the case of a legal entity, such as a corporation, the risk of loss pertains to the legal entity, not the stockholders of the legal entity. Therefore, no changes were made in response to this comment.

Comment: Change the definition of actively engaged to exclude corporate partners whose farming is solely to reap government benefits. An investor is not a farmer.

Response: There is no statutory authority to make this specific change. However, if a scheme or device has been adopted, the provisions in § 1400.5 would apply. Additionally, as indicated in response to a related comment, we are exploring whether the current definition of a significant contribution of active personal management could be amended in a manner that would be fair, equitable, and enhance program integrity. Therefore, no changes were made at this time as the result of this comment and other related comments.

Comment: Active managers should be required to live within 20 miles of the farm they claim to manage.

Response: This comment's particular change was not made because it is very specific and might not apply to operations in different locations. It would not be unusual in a rural area for an active manager who works on the farm every day but does not live there to have a daily commute of more than 20 miles to the farm. We made no change to the rule in response to this comment.

Comment: To clarify spousal eligibility, add the words “or their spouses” after the words “ownership interest” in § 1400.204(a)(2).

Response: We made that change in this rule.

Comment: No landowner should get a subsidy if the land is rented by a real farmer and not owner-operated.

Absentee landowners should not get payments unless they are actively engaged.

Response: As specified in the 2008 Farm Bill, the regulation allows landowners to be eligible for payment only if they have a share in the risks and profits of the farming operation. In other words, landowners who receive a fixed rental payment regardless of the success of the farming operation are not “producers,” are not considered to be “actively engaged in farming” and are not eligible for payment. The previous rule added more specific language to clarify that absentee landowners will not be eligible to receive payment unless they have a share in the risks and profits of the farming operation. Therefore, we did not change the rule in response to these comments.

Comment: Are members of a limited liability corporation (LLC) that rents land out on a share crop basis determined to be actively engaged under the landowner exemption? If so, clarify that in the rule.

Response: If an LLC rents land, the LLC, rather than the members, would or would not be eligible for payment based upon a determination of the LLC's eligibility. We did not change the rule in response to this comment.

Comment: Add a paragraph (a)(4) to this section to read “rents the land at a rate that is usual and customary.” This is needed to avoid cut rate leases that are used to evade payment limits.

Response: This language is not in the 2008 Farm Bill, and we do not have the discretionary authority to add such additional requirements. Therefore, we did not change the rule in response to this comment.

Some commenters support all the changes to § 1400.209.

Comment: The AGI limits will force landlords to change from crop share renting to cash basis, which will greatly increase the risk to the (crop share) farmer. The shift of farm payment from the landlord, who probably pays a 40 percent income tax rate on the benefit, to the farmer, who probably pays a 20 percent income tax rate, will reduce income tax revenue for the government. Taxpayers will lose.

The paperwork burden is encouraging landowners to move from share rent to cash rent, which increases the risk for (renting) farmers.

Response: The paperwork burden is necessary to implement payment limitation, payment eligibility, and average AGI provisions. The average AGI provisions are as specified in the 2008 Farm Bill and we must implement them. The argument that the landlord pays a higher tax rate than the cash rent farmer on a farm program payment is not a sufficient justification to change the rule, since the government would spend even less if no payment were made at all due to ineligibility. The rule reflects the requirements of the 2008 Farm Bill; therefore, we did not make any changes in response to the comment.

Comment: Some renters have a landlord and also a separate owner or “waterlord” who owns the water rights to the property. Waterlords are not allowed the same landlord exemption from actively engaged. They should be. If they do not get the exemption, they will shift from share rent to cash rent, which again increases the risk to (renter) farmers.

Response: The 2008 Farm Bill does not mention waterlords; we have no authority to set separate eligibility requirements for them or to apply landowner provisions if, in fact, they are not the owner of the land being farmed. The rule reflects the requirements of the 2008 Farm Bill; therefore, we did not make any changes in response to the comment.

Comment: Explicitly state that if an individual member of a farming operation dies, all the surviving members should continue to receive timely payments for their share of the operation.

Response: The regulation does not prevent payments to surviving persons if a deceased person was a member of the farming operation. The regulation also already specifically allows such payments to the estate of a deceased person, provided that a representative of the person's estate provides the determining authority the requisite documentation that the person was, or intended to be, actively engaged in farming. If this comment is about direct and counter-cyclical payment program (DCP) enrollments, it is outside the scope of this rule; the DCP regulations are in 7 CFR part 1412. If the comment is about payments on behalf of the estate of a deceased person, the rule already addresses this situation; therefore, no change was made as a result of this comment.

The following discussion addresses the comments received on Subpart D by section.

Comment: It is unreasonable to require the tenant to exercise complete control over the leased equipment for an entire crop year, when that equipment is leased from a landlord or from the same source as the hired labor. It is wasteful to leave equipment idle when it could otherwise be put to efficient use.

Response: The section on cash rent tenants did not change significantly with the previous rule, so the requirement of a contribution of equipment and the complete control requirement are not new. The change made in the previous rule was to specify that “complete control” means “exclusive access and use by the tenant.”

To clarify further, the current regulations do not require that a tenant lease equipment for an entire crop year; the regulation only states that if a tenant is eligible for payment based on a contribution of equipment that such equipment be leased for the entire crop year. A cash rent tenant can be eligible for payment by contributing either labor or management and equipment. In other words, no contribution of equipment is required for a cash rent tenant to be eligible for payment if they make a significant contribution of labor to the farming operation instead. We did not change the rule based on this comment.

Comment: The provisions about leased equipment are not feasible for custom farm work. For example, if a farmer hires someone to combine corn for a flat rate, it is impossible to separate into equipment lease and labor for the purposes of the regulation or the 902 forms. With a custom flat rate, there is no risk to the farmer, like there would be if the farmer leases the equipment and breaks a belt, so it is in no way the same thing as a lease or separable into a lease and labor. Clarify in the rule, so it is applied consistently and correctly.

Response: To be “actively engaged” as a cash rent tenant based on a contribution of equipment, the equipment must be leased and other requirements must be met. A custom farming contract is not a lease. The rule is consistent in the sense that it makes no mention of custom farming as qualifying a cash rent tenant as actively engaged. This is consistent with the 2008 Farm Bill, which allows a recipient of custom farming services to be eligible if the person or legal entity is a landowner, adult family member of a family farming operation, sharecropper, or grower of hybrid seed. The 2008 Farm Bill explicitly prohibits us from making any other rules with respect to custom farming in terms of being “actively engaged.” Therefore, we did not make any changes in response to the comment.

Comment: To clarify spousal eligibility, add the words “or their spouses” after the words “each member” in § 1400.301(d).

Response: We made that change in this rule.

The following discussion addresses the comment received on Subpart E by section.

Comment: Section 1400.402, which sets forth notification requirements for both foreign and domestic legal entities, should be combined with section § 1400.107, “Notification of Interests.”

Response: Section 1400.402 is currently located in the subpart on Foreign Persons, because it specifically requires foreign and domestic legal entities to notify the county committee of foreign interests in that entity. We did not change the rule in response to this comment.

The following discussion addresses the comments received on Subpart F by section.

Comment: We support payment limits that deny payments to anyone whose average nonfarm AGI exceeds $500,000, and denying direct payments to anyone whose average farm AGI exceeds $750,000.

Response: These requirements, as specified in the 2008 Farm Bill, were implemented in the previous rule and require no additional changes.

Comment: We support the $1 million AGI cap for conservation program benefits, providing that the 75 percent farm income exemption remains intact.

Response: The $1 million AGI cap for conservation program benefits, as specified in the 2008 Farm Bill, was implemented in the previous rule. There is an exception if not less than 66.66 percent of that income is farm income. That 66.66 percent threshold was specified in the 2008 Farm Bill; there is no authority to change the threshold to 75 percent, as suggested. Therefore, we did not make any changes in response to the comment.

Comment: Consider alternatives to the AGI limits and provisions set in the 2008 Farm Bill. Corporations making more than $250,000 in profit or where the shareholders are not at least 50 percent immediate family members should be excluded.

Reducing the AGI limit to $250,000 might slow down the trend towards bigger and bigger farms driving the small ones out of business.

The subsidy cap should be gross sales over $1 million.

Farm income should exceed all other forms of income to be eligible for any payment.

Farm income should be at least 25 percent of total income to be eligible for any payment.

The current AGI limits in the 2008 Farm Bill would be devastating to America's farmers, and any further reduction could lead us to rely on imported food as we do with oil today. Can you change the limits?

Payment limits should be done by number of acres rather than income, because the big operators will always find a way to get around the AGI limits with shadow partners or big machinery purposes. The coverage should be for a certain number of acres, not a certain AGI.

Use net income instead of gross, so that we can also collect social security.

If there is going to be a gross income limit, it should be at least a million and probably two million, but there does need to be an upper income. Gross income is harder to manipulate than net, so it should probably be gross.

Response: The 2008 Farm Bill was specific on the AGI provisions. The $500,000 limit on nonfarm AGI and the $750,000 limit on farm income were specified in the 2008 Farm Bill, as well as the general categories of what will be considered farm income. Therefore, we did not make any changes in response to the comments.

Comment: Remove or delay implementation of the AGI limits. With no time to plan for these changes we will be forced to lay off farm hands, grow fewer crops and livestock, and increase food prices.

Response: We must implement the requirements of the 2008 Farm Bill; therefore, we did not make any changes in response to the comments.

Comment: Waive the AGI limit for conservation programs for cost-share forestry activities in priority areas identified by States per section 8002 of the 2008 Farm Bill.

Response: The Secretary has the authority, as specified in the 2008 Farm Bill and in § 1400.500, to waive the AGI limit on a case-by-case basis for the protection of environmentally sensitive land of special significance. Forest stewardship activities in priority areas could meet that criteria, but such activities will be reviewed on a case-by-case basis. That is already specified in the rule, so we did not make any changes to the rule in response to this comment.

Comment: Are the “previous 3 tax years” based on the crop year or the time of signup? For example, if one person signs up for 2011 DCP in October 2010, do they have the same 3 years for AGI calculation as someone who signs up for 2011 DCP in January 2011?

Response: For the purposes of determining the 3 applicable tax years, it does not matter when during a crop, fiscal, or program year a person signs up for the program. In this example, the 3 applicable tax years would be 2007 through 2009. We did not make any changes to the rule in response to this comment.

Comments: Make it clear that wages from a farming operation or other entity is considered farm income for AGI purposes.

Specifically reference IRS Schedule T for forest activities.

Take into account that the IRS limits losses that can be claimed if a producer receives benefits, which could understate a producer's losses while exaggerating AGI, unfairly resulting in program ineligibility.

Are dividends from the activities listed here considered farm income?

Include farm income, wages, and dividends as farm income for the purpose of the AGI rule.

Are profits and losses from LLCs involved in the activities listed here considered farm income?

If entities are involved in the list in § 1400.501 and other activities, how are the dividends or profits allocated between farm and non-farm income?

What about income derived or received from interests held in ethanol plants and processing facilities?

Response: The provisions in the previous rule relating the determination of average adjusted gross farm income are based on the provisions in the 2008 Farm Bill. The rule also indicated that the determination of average adjusted gross farm income would include any other activity related to farming, ranching, or forestry, as determined by the Deputy Administrator. Accordingly, the issue on wages and related issues in these comments will be addressed in handbook procedure.

Comment: If a farmer sold some land, there could be a very large income in that year. Use at least a 5 year average AGI instead of a 3 year average AGI to avoid penalizing people in that example.

Response: The 3 year average AGI provision was specified in the 2008 Farm Bill, as were the general categories of what will be considered farm income. Therefore, we did not make any changes to the rule in response to the comments.

Comment: A farmer should not have to certify my AGI every year, nor should the FSA office be reviewing tax returns. Farmers generally do not employ certified tax accountants for preparation of tax returns and that AGI certification would create undue hardship; third party verifiers (CPAs & lawyers) may be reluctant to assume liability for providing certifications.

Response: The requirement to certify average AGI as required by CCC is not new and does not represent an unreasonable requirement. CCC believes that such certification is necessary to ensure that payments are made to persons and legal entities that qualify under the AGI limits set by Congress, and that payments are not made based on fraudulent AGI statements. We did not make any changes to the rule in response to the comment.

Comments: Handle AGI verification in house, by sharing data with IRS. County offices should not be storing AGI records locally for everyone; have county offices verify only those records that do not pass the first screen against IRS data.

Do not let the USDA have access to our IRS files. That is a clear violation of privacy, and the information will somehow, inevitably end up publicly available. Personal IRS data should not end up on an interest group Web site.

Information obtained by USDA from the IRS should not be subject to FOIA.

Investigation of IRS “red flagged” files should be done at a central FSA office, not at the county level, for reasons of expertise and confidentiality.

Response: We are currently working with the Treasury Department to improve our methods for AGI verification while maintaining full privacy and confidentiality of this sensitive information. As in the previous rule, any information gathered for average AGI verification and compliance purposes is not subject to disclosure under FOIA.

Comments: Let farmers use IRS enrolled agents to certify.

Let farmers use tax preparers who are not IRS enrolled agents, attorneys, or CPAs to certify.

Response: For average AGI certification purposes, both the 2002 and 2008 Farm Bill allow a statement from a certified public accountant or from a third party acceptable to the Secretary. The decision was made that only an attorney is an acceptable third party qualified to provide such a statement.

Some comments received on the previous rule provided general comments not related to any specific subpart or section of the interim rule.

• Some of the general comments supported or opposed alternative proposals to the 2008 Farm Bill. In response, CCC is implementing the 2008 Farm Bill and will implement any amendments if and when those amendments become law.

• Some comments expressed general disapproval with the entire farm program, or with certain aspects of the program. In response, CCC does not have the authority to end the direct payments program, or any other program authorized by Congress.

• Some comments expressed general views, rather than making specific suggestions for changes to this rule. In response, CCC welcomes the input but cannot make specific changes to the rule based on general views.

• Some comments suggested changes to USDA programs outside the scope of CCC programs. In response, CCC does not have authority to make changes to rules for non-CCC programs. Also, we cannot change the DCP program or forms for DCP enrollment with this rule, because that is outside the scope of 7 CFR part 1400.

• Some comments and questions were about the forms used to apply for payments or verify income. While the forms were re-numbered in 2008 and have a different appearance than previously, the questions and information requested are essentially the same as for the past twenty years. We will address some of these comments by clarifying and updating our handbooks.

The following comments, which generally fit into the categories just discussed, are outside the scope of this rule:

• Bring back the CRC Plus program.

• Strongly opposed to the current administration's proposal to cap payments based on $500,000 gross farm revenue.

• Strongly support the current administration's proposal to cap payments based on $500,000 gross farm revenue.

• Strongly oppose the proposal to phase out DCP and change the crop insurance program.

• ACRE should be a one year commitment, and not require that the landlord agree.

• New farm land should be eligible for DCP.

• Farmers' health insurance is increasing 40-50 percent this year.

• Write gardening into the school curriculum.

• A guaranteed farmer bailout every year is no less wrong than two or three bailouts for banks. Allowance to fail is part of capitalism.

• Government should not be a reason that children are fat and unhealthy.

• Do something about abuse of downer cows at slaughterhouses.

• Do all you can to help factory farm animals.

• Extend subsidies to farmers who grow vegetables, particularly those grown sustainably. Favor farms that sell locally and sustainably grown vegetables over farmers who sell too much grain that ends up in the international marketplace, devastating farmers in developing nations.

• Create a simple system for vendors at farmers' markets to accept the supplemental nutrition assistance program.

• Help real farmers, not megafarms with investors.

• Support local organic farmers.

• Support community supported agriculture.

• Farmers who are entities should not be banned from receiving USDA low interest loans.

• CCC-509 does not work for Native Americans.

• A guaranteed payment regardless of crop price or profit is not a safety net. With crop insurance, disaster assistance, and price support now in place, direct payments should be phased out.

• Oppose direct payments because they distort the playing field in favor of large corporate farms. Eliminate all direct payments to farmers, and keep in place the price support programs.

• Consider ways that the farm payments program can promote an increase in the acreage of deep-rooted grassland plant cover, preferably native grassland species.

• The government should not be helping any farmer, large or small. Let the free market take place. This would allow small family farms to have a fighting chance against corporate farms.

• Offer tax breaks or subsidies for organic farming or moving away from non-edible corn and into growing fruits and vegetables.

• Re-direct subsidies to support insect, wildlife, and human communities.

As discussed above, in response to the comments, we made changes to the rule. Also, we made a number of additional technical corrections and minor clarifications. The changes are summarized below.

We added an exception for smaller operations to the requirement that every interest holder in a legal entity must provide active personal labor or active personal management. We clarified provisions concerning CRP and other conservation programs, so that the rule is consistent with current practice.

We made the date for minor child determination consistent with the date for payment attribution.

We corrected and clarified cross-references between this part and other parts in this chapter, and corrected and clarified cross-references between sections in this part. We also fixed inconsistent terminology. We removed § 1400.7, “Commensurate Contributions and Risk,” from subpart A because all of the provisions are duplicated in subpart C and to clarify that the provisions apply only to programs to which subpart C applies. We clarified the provisions for trusts and estates to make them consistent with other sections in this part regarding contributions.

On other topics on which we received comments, we did not change the rule, but we provided additional clarification in the preamble and plan to add additional detail to our handbooks. These topics include:

• Spousal eligibility for different types of joint operations,

• Substantive change rules,

• Financing of capital, land, and equipment contributions,

• Withdrawal and resubmission of farm operating plans, and

• The tax status of entities and income that is not relevant for the purposes of this part.

The Office of Management and Budget (OMB) designated this final rule as significant and it was reviewed by the Office of Management and Budget (OMB) under Executive Order 12866. A Cost Benefit Analysis is summarized below and is available from the contact information listed above.

The 2008 Farm Bill requires major revisions of payment eligibility and payment limit regulations, which were implemented with the interim rule.

The exception made by this rule to the requirement that all stockholders, partners, or members in an entity have to contribute personal labor or active personal management is expected to impact fewer than a thousand entities. The monetary impact is not substantial. Although those entities were impacted by the requirement imposed by the interim rule, they were still eligible for reduced payments based on the percentage of stockholders, partners, or members in the entity making the required contributions. The change made by this rule will allow full payment.

This rule also implements minor technical corrections, such as correcting internal paragraph references, which are expected to have no substantive cost or benefit.

There is estimated to be minimal cost to the government in implementing this regulation because the forms and procedures for determining payment eligibility are not changing.

This rule is not subject to the Regulatory Flexibility Act since CCC is not required to publish a notice of proposed rulemaking for this rule. CCC is authorized by section 1601 of the 2008 Farm Bill to issue an interim rule effective on publication with an opportunity for comment, which was done.

CCC received one comment on the previous rule stating an EIS is needed to comply with NEPA.

The environmental impacts of this final rule have been considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4347, the regulations of the Council on Environmental Quality (40 CFR Parts 1500-1508), and FSA's regulations for compliance with NEPA (7 CFR part 799). The changes to Payment Limitation and Payment Eligibility required by the 2008 Farm Bill that are identified in this rule are non-discretionary. Therefore, FSA has determined that NEPA does not apply to this rule and no environmental assessment or environmental impact statement will be prepared.

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

The final rule has been reviewed in accordance with Executive Order 12988. This rule is not retroactive and does not preempt State or local laws, regulations, or policies unless they present an irreconcilable conflict with this rule. Before any judicial action may be brought concerning the provisions of this rule, the administrative appeal provisions of 7 CFR parts 11 and 780 must be exhausted.

The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.

The policies contained in this rule do not impose substantial unreimbursed direct compliance costs on Indian Tribal governments or have Tribal implications that preempt Tribal law.

This rule contains no Federal mandates under the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) for State, local or Tribal governments, or the private sector. In addition, CCC is not required to publish a notice of proposed rulemaking for this rule. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

The title and number of the Federal assistance programs in the Catalog of Federal Domestic Assistance to which this final rule applies are:

This final rule also applies to the following Federal assistance programs that are not in the Catalog of Federal Domestic Assistance:

• ACRE,

• Emergency Assistance Program for Livestock, Honey Bees, and Farm-raised Fish (ELAP),

• Livestock Forage Disaster Program (LFP),

• Livestock Indemnity Program (LIP),

• Supplemental Revenue Assistance Program (SURE),

• Agricultural Water Enhancement Program (AWEP),

• Chesapeake Bay Watershed Program (CBWP),

• Conservation Stewardship Program (CSTP),

• Cooperative Conservation Partnership Initiative (CCPI), and

• Farm and Ranchland Protection Program (FRPP).

The regulations in this rule are exempt from the requirements of the Paperwork Reduction Act (44 U.S.C. Chapter 35), as specified in Section 1601(c)(2) of the 2008 Farm Bill, which provides that these regulations be promulgated and the programs administered without regard to the Paperwork Reduction Act.

We received comments on the previous rule that the forms require disclosure of information that should not be required and the burden for AGI compliance is excessive. The requirement to certify average AGI as required by CCC is not new and does not represent an inappropriate requirement. While the forms were re-numbered in 2008 and have a different appearance than previously, the questions and information requested is essentially the same as for the last 20 years. Therefore, the AGI certification is necessary to ensure that payments are made to persons and legal entities that qualify under the AGI limits set by Congress, and that payments are not made based on fraudulent AGI statements.

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

The FAA proposed to amend 14 CFR part 39 by superseding AD 97-11-05, Amendment 39-10034 (62 FR 28994, May 29, 1997), with a proposed AD. The proposed AD applies to Honeywell International Inc. ALF502 series and LF507 series turbofan engines with certain fuel manifold assemblies installed. We published the proposed AD in the Federal Register on April 13, 2009 (74 FR 16803). That action proposed to continue to require inspecting those fuel manifolds for cracks, would also add leak checks of certain additional P/N fuel manifolds, and would specify replacement of the affected manifolds as an optional terminating action in lieu of the repetitive inspections.

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is provided in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

We provided the public the opportunity to participate in the development of this AD. We received no comments on the proposal or on the determination of the cost to the public.

Paragraph (i) of this AD is partially revised from, “* * * terminates the repetitive inspection requirement specified in paragraphs (f)(1)(iii), (f)(2)(iii), (g), and (h) of this AD.” to “* * * terminates the inspection requirement of this AD.” This change was made because replacing a fuel manifold assembly that has a P/N specified in paragraph (i) of this AD, or an FAA-approved equivalent part, terminates all inspection requirements of this AD.

We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD with the change described previously. We have determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

We estimate that this AD will affect 156 engines installed on airplanes of U.S. registry. We also estimate that it will take about 7 work-hours per engine to perform the required actions, and that the average labor rate is $80 per work-hour. Required parts will cost about $50,000 per engine. Based on these figures, we estimate the total cost of this AD to U.S. operators to be $7,887,360.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866;

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary at the address listed under ADDRESSES.

On October 7, 2009, we issued AD 2009-21-08, Amendment 39-16047 (74 FR 57561, November 9, 2009), to require repetitive functional tests of the manifold system and replacement of any system that does not pass the functional tests (i.e., movement of the steering system) on Piaggio Model PIAGGIO P-180 airplanes.

The language in AD 2009-21-08 incorrectly references not passing the functional tests as “movement of the manifold,” and it should read “movement of the steering system” as specified in the service bulletin. The NPRM referenced it as specified in the service bulletin. This document incorporates the intent of the action as already proposed in the NPRM.

Consequently, the FAA sees a need to clarify AD 2009-21-08 to assure that the proper criteria are utilized for the required functional test and is revising the AD to incorporate the language discussed above and to add the amendment to section 39.13 of the Federal Aviation Regulations (14 CFR 39.13).

Since this action only clarifies the intent of what was originally proposed in the NPRM, it has no adverse economic impact and imposes no additional burden on any person than was already proposed. Therefore, the FAA has determined that prior notice and opportunity for public comment are unnecessary.

On April 28, 2008, we issued AD 2008-10-16, Amendment 39-15512 (73 FR 25990, May 8, 2008). That AD applied to certain Model 747-400, -400D, and -400F series airplanes. That AD required revising the FAA-approved maintenance program by incorporating new airworthiness limitations (AWLs) for fuel tank systems to satisfy Special Federal Aviation Regulation No. 88 requirements. That AD also required the phasing in of certain repetitive AWL inspections, and repair if necessary. That AD resulted from a design review of the fuel tank systems. The actions specified in that AD are intended to prevent the potential for ignition sources inside fuel tanks caused by latent failures, alterations, repairs, or maintenance actions, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.

Critical design configuration control limitations (CDCCLs) are limitation requirements to preserve a critical ignition source prevention feature of the fuel tank system design that is necessary to prevent the occurrence of an unsafe condition. The purpose of a CDCCL is to provide instruction to retain the critical ignition source prevention feature during configuration change that may be caused by alterations, repairs, or maintenance actions. A CDCCL is not a periodic inspection.

Since we issued that AD, we have determined that it is necessary to clarify the AD's intended effect on spare and on-airplane fuel tank system components, regarding the use of maintenance manuals and instructions for continued airworthiness.

Section 91.403(c) of the Federal Aviation Regulations (14 CFR 91.403(c)) specifies the following:

AD 2008-10-06 cites Boeing Temporary Revision 09-010, dated March 2008, to the Boeing 747-400 Maintenance Planning Data (MPD) Document, D621U400-9. Since we issued that AD, Boeing has revised the referenced service information. We have reviewed Revisions April 2008, and March 2009, to Section 9 of the Boeing 747-400 Maintenance Planning Data (MPD) Document, D621U400-9. The revised MPDs add no new procedures, and revise certain others.

The unsafe condition described previously is likely to exist or develop on other airplanes of the same type design. For this reason, we are issuing this AD to revise AD 2008-10-06. This new AD retains the requirements of the existing AD, and adds a new note to clarify the intended effect of the AD on spare and on-airplane fuel tank system components.

AD 2008-10-06 allowed the use of later revisions of the FAA-approved maintenance program. That provision has been removed from this AD. Allowing the use of “a later revision” of specific service documents violates Office of the Federal Register regulations for approving materials that are incorporated by reference. Affected operators, however, may request approval to use a later revision of the referenced service documents as an alternative method of compliance, under the provisions of paragraph (l) of this AD.

We have revised this AD to identify the legal name of the manufacturer as published in the most recent type certificate data sheet for the affected airplane models.

This revision imposes no additional economic burden. The current costs for this AD are repeated for the convenience of affected operators, as follows:

We estimate that this AD affects 596 airplanes of U.S. registry. We also estimate that it takes about 48 work-hours per product to comply with this AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $2,288,640, or $3,840 per product.

This revision merely clarifies the intended effect on spare and on-airplane fuel tank system components, and makes no substantive change to the AD's requirements. For this reason, it is found that notice and opportunity for prior public comment for this action are unnecessary, and good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2009-1222; Directorate Identifier 2009-NM-153-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that the regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

The FAA proposed to amend 14 CFR part 39 by superseding AD 2007-07-07R1, Amendment 39-15179 (72 FR 49183, August 28, 2007) and AD 2007-05-16, Amendment 39-14977 (72 FR 10054, March 7, 2007), with a proposed AD. The proposed AD applies to GE CF34-1A, -3A, -3A1, -3A2, -3B, and -3B1 turbofan engines. We published the proposed AD in the Federal Register on April 17, 2009 (74 FR 17799). That action proposed to require:

• Replacing certain fan disks installed on regional jets within 15 days after the effective date of the proposed AD, and

• On-wing and shop-level inspections of fan disks for electrical arc-out defects on fan disks installed on regional jets, and

• Shop-level inspections of fan disks for electrical arc-out defects on fan disks installed on business jets.

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is provided in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

We provided the public the opportunity to participate in the development of this AD. We have considered the comments received.

Two commenters, GE and Bombardier Flex, ask us to change the compliance requirements for previously inspected CF34-B tier 3 disks from “within 3,500 cycles-since-last inspection (CSLI), but no later than March 19, 2012” to “at the next shop visit.” The commenters state that requiring “within 3,500 CSLI, but no later than March 19, 2012,” make the requirements more conservative than the tier 1 and tier 2 disk reinspection programs.

We agree. We have changed paragraph (m)(2) of this AD from “within 3,500 CSLI, but no later than March 19, 2012” to “at the next shop visit.”

One commenter asks us to include Table 2 of GE ASB CF34-BJ S/B 72-A0212, Revision 04, dated October 27, 2008, in the AD. The commenter states that many owners, lessors, or their respective representatives are routinely denied access to the manufacturer's Web site where the referenced SBs are archived. The commenter states that this makes it very difficult, if not impossible, to evaluate and schedule compliance with this AD.

We don't agree. If operators and others who need the service information can't get the service information from the manufacturer, they can contact the individual or office identified in paragraph (p) of this AD. We didn't change the AD.

One commenter, Air Wisconsin, asks us to allow using the inspections specified in 72-21-00, Inspection, as specified in AD 2002-05-02. The commenter states that this is the same requirement as specified in the accomplishment instructions of the proposed AD.

We disagree. AD 2002-05-02 requires adding the specified inspections to the airworthiness limitation section of the engine manual and to the operators approved maintenance program. We do agree that actions performed under one AD may result in credit for actions performed in another AD. We didn't change this AD.

The same commenter asks us to change paragraph (g) of the proposed AD from “within 8,000 CSN” to “before accumulating 8,000 CSN or within 15 days after the effective date of this AD, whichever is later.” Paragraph (g) currently requires replacing the disks before accumulating 8,000 CSN. The commenter stated that he would like the same 15-day allowance that we provided in paragraph (f) for parts that have close to 8,000 CSN on the effective date of this AD.

We don't agree. The new life limit is 8,000 CSN on the effective date of this AD. We removed the 15-day allowance in paragraph (f) so that both groups use the new life limit.

The same commenter requests that eddy current inspections (ECIs) performed using SEI-756, 72-21-00, Special Procedure 60 or GE ASB CF34-AL S/B 72-A0233, Revision 04, dated October 27, 2008, be acceptable in addition to GE ASB CF34-AL S/B 72A-0252, Dated October 27, 2008. The commenter states that paragraphs (h)(1)(ii), (h)(2)(iii), (l)(1)(ii), and (l)(2)(iii) all say “Use paragraph 3.A. of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0252, dated October 27, 2008, to perform the repetitive ECI.”

The instructions for performing the repetitive ECI in GE ASB CF34-AL S/B 72-A0252, dated October 27, 2008, and ASB CF34-AL S/B 72-A0233, Revision 04, dated October 27, 2008, refer to SEI-756, 72-00-00, SPECIAL PROCEDURE 60—EDDY CURRENT INSPECTION (ECI) PROCEDURES AND REQUIREMENTS OF CRITICAL HARDWARE.”

The commenter wants to be able to track all the requirements to one service bulletin or specific procedure instead of several different service bulletins.

We don't agree. The ECI referenced in the three documents above are not the same. The ASBs mandated by this AD provide a more rigorous ECI. We didn't change the AD.

The same commenter requests that TEV inspections, FPIs, and ECIs performed using GE ASB CF34-AL S/B 72-A0233, Revision 04, dated October 27, 2008, be acceptable to meet the requirements of GE ASB CF34-AL S/B 72A-0253, dated October 27, 2008. The commenter wants to be able to track all the requirements to one service bulletin or specific procedure instead of several different service bulletins. The commenter notes that the instructions for performing the ECI are the same in all three documents.

We partially agree. The procedures for performing the TEV inspection, the FPI, and the ECI are the same in the two ASBs referenced above. We changed paragraphs (h)(1)(i), (i)(1)(i), (j)(1), and (j)(2) of the proposed AD as follows:

• Paragraph (h)(1)(i) from “Use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0233, Revision 04, dated October 27, 2008, * * *” to “Use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0233, Revision 04, dated October 27, 2008, or use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0253, dated October 27, 2008, * * *”

• Paragraph (i)(1)(i) from “Use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0233, Revision 04, dated October 27, 2008, * * *” to “Use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0233, Revision 04, dated October 27, 2008, or use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0253, dated October 27, 2008, * * *”

• Paragraph (j)(1) from “Use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0233, Revision 04, dated October 27, 2008, * * *” to “Use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0233, Revision 04, dated October 27, 2008, or use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0253, dated October 27, 2008, * * *”

• Paragraph (j)(2) from “Use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0233, Revision 04, dated October 27, 2008, * * *” to “Use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0233, Revision 04, dated October 27, 2008, or use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0253, dated October 27, 2008, * * *”

Since the accomplishment procedures in GE ASB CF34-BJ S/B 72-A0212, Revision 04, dated October 27, 2008, and the procedures in GE ASB CF34-BJ S/B 72-0234, dated October 27, 2008, are also the same, we changed paragraphs (k)(1)(i), (l)(1)(i), (m)(1), and (m)(2) of the proposed AD as follows:

• Paragraph (k)(1)(i) from “Use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0212, Revision 04, dated October 27, 2008, * * *” to “Use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0212, Revision 04, dated October 27, 2008, or use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0234, dated October 27, 2008, * * *”

• Paragraph (l)(1)(i) from “Use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0212, Revision 04, dated October 27, 2008, * * *” to “Use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0212, Revision 04, dated October 27, 2008, or use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0234, dated October 27, 2008, * * *”

• Paragraph (m)(1) from “Use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0212, Revision 04, dated October 27, 2008, * * *” to “Use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0212, Revision 04, dated October 27, 2008, or use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0234, dated October 27, 2008, * * *”

• Paragraph (m)(2) from “Use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0212, Revision 04, dated October 27, 2008, * * *” to “Use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-BJ S/B 72-A0212, Revision 04, dated October 27, 2008, or use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-BJ S/B 72-A0234, dated October 27, 2008, * * *”

The same commenter requests that we preface paragraph (j)(2) of the proposed AD with “Unless already done.” We believe the commenter wants to avoid having to perform the same inspection more than once on a disk.

We don't agree that the change is needed. Paragraph (e) of the proposed AD states, “You are responsible for having the actions required by this AD performed within the compliance times specified unless the actions have already been done.”

Two commenters, GE and Air Wisconsin, ask us to correct a typographical error in paragraph (j)(1) of the proposed AD. The commenters inform us that the reference to GE ASB CF34-AL S/B 72-A0253, Revision 4, dated October 27, 2008, is not correct. The commenters inform us that GE ASB CF34-AL S/B 72-A0233, Revision 04, dated October 27, 2008, is the correct reference.

We agree. We have changed paragraph (j)(1) of this AD from “GE ASB CF34-AL S/B 72-A0253, Revision 4, dated October 27, 2008” to “GE ASB CF34-AL S/B 72-A0233, Revision 04, dated October 27, 2008.”

One commenter, GE, recommends adding an additional, repeat section to paragraphs (h), (i), (k), and (l) of the proposed AD. The commenter feels adding the removal requirements to the paragraphs will enhance clarity of the AD.

We don't agree. The mandatory terminating actions are already specified in paragraph (o) of the proposed AD and don't need to be repeated. We didn't change the AD.

One commenter, GE, informs us that paragraphs (k), (l), and (m) in the proposed AD omit reference to the CF34-3A1 application and that the fan drive shaft life limit is incorrectly applied to the CF34-1A application. The commenter states that this is the same requirement as specified in the accomplishment instructions of the proposed AD.

We agree. We changed paragraphs (k), (l), and (m) of the proposed AD from “For CF34-1A turbofan engines with fan drive shaft, P/N 6036T78P02, and airworthiness limitation section life limit of 15,000 CSN, CF34-3A, CF34-3A2, and CF34-3B turbofan engines * * *” to “For CF34-3A1 turbofan engines with fan drive shaft, P/N 6036T78P02, and airworthiness limitation section life limit of 15,000 CSN, CF34-1A, CF34-3A, CF34-3A2, and CF34-3B turbofan engines * * *”

The same commenter asks us to change paragraphs (k)(1)(i) to add a reference to the FPI and ECI. The commenter states that the paragraph currently requires TEV inspection, FPI, and ECI, but the last sentence says only “to perform the TEV inspection.” The commenter feels the paragraph will be more clear by saying “To perform the TEV inspection, FPI, and ECI.”

We agree. We changed paragraph (k)(1)(i) of the proposed AD from “Use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0212, Revision 04, dated October 27, 2008, or use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0234, dated October 27, 2008, to perform the TEV inspection” to “Use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0212, Revision 04, dated October 27, 2008, or use paragraph 3.A of the Accomplishment Instructions of GE ASB CF34-AL S/B 72-A0234, dated October 27, 2008, to perform the TEV inspection, FPI, and ECI.”

The same commenter asks us to correct the typographical error of “CIS” in paragraph (l)(1)(i) to “CSN”. The commenter states that the paragraph should be changed to be consistent with the risk assessment.

We agree. We changed paragraph (l)(1)(i) of the proposed AD from “or within 3,500 CIS after September 12, 2007,” to “or within 3,500 CSN after September 12, 2007,”.

The same commenter asks us to revise paragraphs (h), (i), (j), (l), and (m) to clarify the instructions related to operators who fly a regional jet (RJ) with the CF34-3A1 engine as a business jet (BJ) application. The commenter states that GE ASBs CF34-AL S/B 72-A0233, Revision 04, dated October 27, 2008; CF34-AL S/B 72-A0252, dated October 27, 2008; CF34-AL S/B 72-A0253, dated October 27, 2008; apply to both RJ operators and also to a small number of BJ operators who fly under the RJ manual. These BJ applications may include both CF34-3B1 and CF34-3A1 models. The proposed AD distinguishes between RJ and BJ applications based on engine model, and in the case of the CF34-3A1 model, the life limit of the fan drive shaft, P/N 6036T78P02. Modifying the proposed AD to identify the applications as RJ and BJ, and defining the RJ and BJ designations, would more clearly identify affected populations and still meet the FAA's purpose in issuing ADs.

We don't agree. The CF34-1A is used on both the RJ airplane and the BJ airplane. The engine is modified by service bulletins to allow it to be used on one configuration or the other. There is nothing to prevent an engine that was installed on a BJ airplane from being modified and installed on an RJ airplane: By designating the inspection criteria based on the life limit of the fan drive shaft, we are making the regulatory requirements of the proposed AD specific to the engine configuration instead of the operational configuration. We didn't change the proposed AD.

We have carefully reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

We estimate that this AD will affect 18 engines installed on airplanes of U.S. registry. We also estimate that it would take about 2 work-hours per engine to perform the required actions, and that the average labor rate is $80 per work-hour. No parts are required, so parts would cost about $0. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $2,880.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866;

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary at the address listed under ADDRESSES.

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAP and the corresponding effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.

The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or revoking SIAPS, Takeoff Minimums and/or ODPS. The complete regulators description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, in addition to their complex nature and the need for a special format make publication in the Federal Register expensive and impractical. Furthermore, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their depiction on charts printed by publishers of aeronautical materials. The advantages of incorporation by reference are realized and publication of the complete description of each SIAP.

Takeoff Minimums and ODP listed on FAA forms is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs and the effective dates of the associated Takeoff Minimums and ODPs. This amendment also identifies the airport and its location, the procedure, and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as contained in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPS and Takeoff Minimums and ODPS, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPS contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPS and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedures before adopting these SIAPS, Takeoff Minimums and ODPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste management program that is equivalent to and consistent with the Federal program. States are required to have enforcement authority which is adequate to enforce compliance with the requirements of the hazardous waste management program. Under section 3009, States are not allowed to impose any requirements which are less stringent than the Federal program. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations codified in Title 40 of the Code of Federal Regulations (CFR) Parts 124, 260 through 268, 270, 273, and 279.

EPA has made a final determination that Oregon's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we are granting Oregon final authorization to operate its hazardous waste management program with the changes described in the authorization application. Oregon will have responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders, except in Indian country (18 U.S.C. 1151), and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA, and which are not less stringent than existing requirements, take effect in authorized States before the States are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Oregon, including issuing permits, until the State is granted authorization to do so.

The effect of this action is that a facility in Oregon subject to RCRA will have to comply with the authorized State requirements in lieu of the corresponding Federal requirements in order to comply with RCRA. Additionally, such persons will have to comply with any applicable Federal requirements, such as, for example, HSWA regulations issued by EPA for which the State has not received authorization, and RCRA requirements that are not supplanted by authorized State-issued requirements. Oregon has enforcement responsibilities under its State hazardous waste management program for violations of its currently authorized program and will have enforcement responsibilities for the revisions which are the subject of this final rule. EPA continues to have independent enforcement authority under RCRA sections 3007, 3008, 3013, and 7003, which includes, among others, the authority to:

• Conduct inspections; require monitoring, tests, analyses, or reports;

• Enforce RCRA requirements, including State program requirements that are authorized by EPA and any applicable Federally-issued statutes and regulations; suspend, terminate, modify or revoke permits; and

• Take enforcement actions regardless of whether the State has taken its own actions.

This action approving these revisions will not impose additional requirements on the regulated community because the regulations for which Oregon's program is being authorized are already effective under State law.

On November 18, 2009 (74 FR 59497), EPA published a proposed rule to grant authorization of changes to Oregon's hazardous waste management program subject to public comment. The public comment period opened November 18, 2009 and ended on December 18, 2009. The Agency did not receive any comments on the proposed rule.

Oregon initially received final authorization on January 30, 1986, effective January 31, 1986 (51 FR 3779), to implement the RCRA hazardous waste management program. EPA granted authorization for changes to Oregon's program on March 30, 1990, effective on May 29, 1990 (55 FR 11909); August 5, 1994, effective October 4, 1994 (59 FR 39967); June 16, 1995, effective August 15, 1995 (60 FR 31642); October 10, 1995, effective December 7, 1995 (60 FR 52629); September 10, 2002, effective September 10, 2002 (67 FR 57337); and June 26, 2006 effective June 26, 2006 (71 FR 36216).

EPA is authorizing revisions to Oregon's authorized hazardous waste management program described in Oregon's official program revision application, submitted to EPA on October 15, 2009 and deemed complete by EPA on October 23, 2009. EPA has determined that Oregon's hazardous waste management program revisions, as described in the State's authorization revision application dated October 15, 2009 satisfy the requirements necessary to qualify for final authorization. The following table identifies those equivalent and more stringent State regulatory analogues to the Federal regulations which will be authorized with this action. The referenced analogous State authorities were legally adopted and effective as of June 25, 2009.

This section discusses differences between Oregon's authorized revisions and the Federal regulations. EPA has made a final determination that the State does have more stringent requirements related to the Federal Burden Reduction Rule (70 FR 16862, April 4, 2006).

In 1999, EPA initiated a new Federal program, National Environmental Performance Track. This was a voluntary program designed to recognize facilities that had a sustained record of compliance and implemented high quality environmental management systems. EPA provided exclusive regulatory and administrative benefits to the Performance Track member facilities. The State of Oregon did not participate in the Federal National Environmental Performance Track Program. In May 2009, EPA terminated the Federal National Performance Track Program (74 FR 22742, May 14, 2009); therefore there are no current Federal Performance Track member facilities. However, EPA did not remove the Federal rules applicable to the Performance Track member facilities from its regulations, and if EPA's Performance Track Program were reinstated these Federal rules would continue to be applicable to future member facilities.

The State incorporated by reference the Federal Burden Reduction Rule (70 FR 16862, April 4, 2006), which included special allowances to lower priorities on routine inspections for Performance Track member facilities. The State also adopted rules which deleted those portions of the rule that referenced Federal Performance Track member facilities. The effect of deleting those references is that the State's rules do not allow any special or administrative benefits for Performance Track member facilities. Therefore, the State's rules found at OAR 340-104-0021(1), (2) and (3); OAR 340-105-0140(1), (2), (3), (4) and (5) are more stringent than those corresponding federal counterparts found at 40 CFR 264.15(b)(4) and (5); 40 CFR 264.174; 40 CFR 264.195(e)(1); 40 CFR 265.15(b)(4) and (5); 40 CFR 265.174; 40 CFR 265.195(d); and 40 CFR 265.201(e).

Oregon will continue to issue permits for all the provisions for which it is authorized and administer the permits it issues. If EPA issued permits prior to authorizing Oregon for these revisions, these permits would continue in force until the effective date of the State's issuance or denial of a State hazardous waste permit, at which time EPA would modify the existing EPA permit to expire at an earlier date, terminate the existing EPA permit for cause, or allow the existing EPA permit to otherwise expire by its terms, except for those facilities located in Indian Country. EPA will not issue new permits or new portions of permits for provisions for which Oregon is authorized after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which Oregon is not yet authorized.

Oregon will have responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders, except in Indian country (18 U.S.C. 1151), and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA, and which are not less stringent than existing requirements, take effect in authorized States before the States are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Oregon, including issuing permits, until the State is granted authorization to do so.

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste management program into the Code of Federal Regulations. This is done by referencing the authorized State rules in 40 CFR Part 272. EPA is reserving the amendment of 40 CFR Part 272, Subpart MM for codification to a later date.

EPA's decision to authorize the Oregon hazardous waste management program does not include any land that is, or becomes after the date of this authorization “Indian Country,” as defined in 18 U.S.C. 1151. This includes: (1) All lands within the exterior boundaries of Indian reservations within or abutting the State of Oregon; (2) Any land held in trust by the U.S. for an Indian tribe; and (3) Any other land, whether on or off an Indian reservation, that qualifies as Indian country. Therefore, this action has no effect on Indian country. EPA retains jurisdiction over “Indian Country” as defined in 18 U.S.C. 1151, and EPA will continue to implement and administer the RCRA program on these lands.

This final rule revises the State of Oregon's authorized hazardous waste management program pursuant to section 3006 of RCRA and imposes no requirements other than those currently imposed by State law. This final rule complies with applicable executive orders and statutory provisions as follows:

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether the regulatory action is “significant”, and therefore subject to OMB review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more, or adversely affect in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. EPA has determined that this final rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., because this final rule does not establish or modify any information or recordkeeping requirements for the regulated community and only seeks to authorize the pre-existing requirements under State law and imposes no additional requirements beyond those imposed by State law.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing, and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in Title 40 of the CFR are listed in 40 CFR Part 9.

The Regulatory Flexibility Act (RFA) generally requires Federal agencies to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's final rule on small entities, small entity is defined as: (1) A small business defined by the Small Business Administration's size regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. As part of the State's rule development process, the State of Oregon prepared a “Department of Environmental Quality (DEQ) Chapter 340, Proposed Rulemaking Statement of Need and Fiscal and Economic Impact” which included an analysis on impacts to small businesses. The state concluded that there are no economic or fiscal impacts resulting from DEQ's proposed rulemaking. See the Oregon Environmental Quality Commission Agenda, dated June 19, 2009, Action Item N—Hazardous Waste Omnibus Rulemaking, Attachment E, for the DEQ “Impact to Small Business Analysis” http://www.deq.state.or.us/about/eqc/agendas/2009/2009juneEQCagenda.htm. I certify that this final rule will not have a significant economic impact on a substantial number of small entities because the final rule will only have the effect of authorizing pre-existing requirements under State law and imposes no additional requirements beyond those imposed by State law.

This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. L. 104-4) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the rule an explanation why the alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. Today's action contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector. It imposes no new enforceable duty on any State, local or tribal governments or the private sector. Similarly, EPA has also determined that this action contains no regulatory requirements that might significantly or uniquely affect small government entities. Therefore, today's action is not subject to the requirements of sections 202 and 203 of the UMRA.

This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This final rule authorizes pre-existing State rules. Therefore, Executive Order 13132 does not apply to this final rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (59 FR 22951, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in Executive Order 13175 because EPA retains its authority over Indian Country. Therefore, Executive Order 13175 does not apply to this final rule.

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it approves a state program.

This final rule is not subject to Executive Order 13211, “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a “significant regulatory action” as defined under Executive Order 12866.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, section 12(d) (15 U.S.C. 272), directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This final rulemaking does not involve technical standards. Therefore, EPA will not be considering the use of any voluntary consensus standards.

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations. This final rule does not affect the level of protection provided to human health or the environment because this rule authorizes pre-existing State rules which are equivalent to, and no less stringent than existing federal requirements.

Regulatory History

On October 7, 2008, the NTSB published an NPRM titled “Notification and Reporting of Aircraft Accidents or Incidents and Overdue Aircraft, and Preservation of Aircraft Wreckage, Mail, Cargo, and Records” in 73 FR 58520. This NPRM proposed and the final rule herein codifies the addition of five reportable incidents, the reporting of which the NTSB believes will improve aviation safety. In particular, the new subsections within 49 CFR 830.5(a) will require operators to report the following: failure of any internal turbine engine component that results in the escape of debris other than out the exhaust path; release of all or a portion of a propeller blade from an aircraft, excluding release caused solely by ground contact; a complete loss of information, excluding flickering, from more than 50 percent of an aircraft's cockpit displays, known as Electronic Flight Instrument System displays, Engine Indication and Crew Alerting System displays, Electronic Centralized Aircraft Monitor displays, or other such displays; Airborne Collision Avoidance System (ACAS) resolution advisories issued either (1) when an aircraft is being operated on an instrument flight rules (IFR) flight plan and compliance with the advisory is necessary to avert a substantial risk of collision between two or more aircraft, or (2) to an aircraft operating in class A airspace; damage to helicopter tail or main rotor blades, including ground damage, that requires major repair or replacement of the blade(s); and any event in which an aircraft operated by an air carrier lands or departs on a taxiway, incorrect runway, or other area not designed as a runway, or experiences a runway incursion that requires the operator or the crew of another aircraft or vehicle to take immediate corrective action to avoid a collision. The NPRM also proposed certain wording changes to other existing subsections within 49 CFR 830.5(a) for clarity and proposed a change in the footnote that provides the locations of NTSB regional offices.

The NTSB notes that it further analyzed the potential application of the Regulatory Flexibility Act, as published in Title 5 United States Code (U.S.C.), sections 601-612, to this rule. Prior to publishing the NPRM, the NTSB considered whether this rule would have a significant economic impact on a substantial number of small entities and certified under 5 U.S.C. 605(b) that this rule would not have such an impact. The NTSB verifies this assessment and notes that while this rule will require some affected individuals to complete NTSB Form 6120.1, “Pilot/Operator Accident/Incident Report,” the cost to complete this form is nominal. Therefore, the NTSB verifies that its certification under 5 U.S.C. 605(b) was valid.

In response to the publication of this NPRM, the NTSB received and carefully considered six comments. The NTSB did not receive any requests for a public meeting; therefore, the NTSB did not hold a public meeting on the NPRM. Below is a summary of and response to each concern that commenters raised, arranged by issue.

In the interest of ensuring that the provisions of 49 CFR 830.5 are complete, comprehensible, and enforceable, the NTSB's final rule herein includes revisions to three new subsections of 49 CFR 830.5 that the NTSB proposed, including subsections (a)(9), (a)(10), and (a)(12), which proposed requiring reports of a complete loss of information from certain electronic displays, certain types of resolution advisories, and certain runway incursions, respectively. These changes are described in the sections below.

The NPRM proposed to amend 49 CFR 830.5(a)(3) to require notification of incidents in which “[f]ailure of any internal turbine engine component that results in the escape of debris other than out the exhaust path” occurs. The NTSB received two comments on this proposed addition.

One commenter, an aviation industry manufacturing association, objected to the requirement that the NTSB be notified immediately for the following proposed events: Failure of any internal turbine engine component that results in the escape of the debris other than out the exhaust path and release of all or a portion of a propeller blade from an aircraft, excluding release caused solely by ground contact. The commenter stated that, in accordance with 14 CFR 21.3(c), operators are already required to report such failures to the Federal Aviation Administration (FAA). The commenter further stated that the requirement to report these events to the NTSB would put an additional burden on the operator by requiring duplicate reporting of events. The commenter suggested the development of a joint FAA/NTSB reporting system that would alert both agencies concurrently when one of the reportable events occurs.

The NTSB disagrees with these comments. The NTSB is aware that 14 CFR 21.3 requires holders of type certificates, supplemental type certificates, and parts manufacturing approval to notify the FAA within 24 hours, or the next business day on weekends or holidays, of an engine or component failure. But the NTSB also notes that 14 CFR 21.3(d)(1)(iii) states that a report to the FAA is not required if the event has been reported to the NTSB. The NTSB needs immediate notification of a reportable event to determine the appropriate level of response, which might include immediately dispatching an investigator to the scene. The NTSB continues to believe that utilizing the 14 CFR 21.3 notification system alone that initially reports failures to the FAA presents an unacceptable delay in the notification to the NTSB and the initiation of a response. The NTSB reiterates that it has investigated catastrophic engine failures after being belatedly notified, and critical evidence was lost as a result of the delay in notification, thus hampering the investigation. The NTSB also notes that 49 CFR 830.10 requires the operator of an aircraft involved in a reportable event to preserve the wreckage and all pertinent records until the NTSB takes custody or until the wreckage and records have been released pursuant to 49 CFR 831.12. The NTSB believes that relying on 14 CFR 21.3 reports that would initially be sent to the FAA would delay not only the NTSB's response to the event but also the return of custody of the airplane and/or engine to the operator, thus delaying their repair and return to service. The NTSB is aware that 14 CFR 121.703 and 135.415 require those respective Part 121 or 135 certificate holders to notify their FAA certificate-holding district offices of an engine failure within 24 hours, or the next business day on weekends or holidays. While engine or component failures are relatively rare, the NTSB is not concerned with every engine or component failure that occurs; therefore, this rule will not materially affect operators. However, the NTSB is very concerned about engine failures that result in debris coming out of the engine through a path other than the exhaust, also referred to as uncontained engine failures. These failures can and have liberated debris, resulting in damage to the airplane or its systems and/or injured passengers. Fortunately, these types of reportable events are very rare. Thus, the NTSB does not expect that it will be unduly burdensome for Part 121 and 135 operators who experience engine failures resulting in debris exiting the engine through a path other than the exhaust or one of the other previously reportable events to make the dual notification to their FAA certificate-holding district offices as well as the NTSB.

The commenter also suggested that a system be developed so that the FAA-required 14 CFR 21.3 data would be shared concurrently with the NTSB. While the NTSB appreciates the commenter's suggestion, the NTSB believes that situations could occur in which the notification that the NTSB receives would be delayed, such as occurrences under 14 CFR 21.3 in which notification occurs within 24 hours, or the next business day if the event occurred on the weekend or a holiday.

One commenter, a professional pilots' union, fully concurred with the proposed rule requiring the NTSB to be notified immediately of an event where debris exited an engine through some other path besides the engine's exhaust. The NTSB appreciates the commenter's support on this proposed immediate notification requirement.

In summary, the NTSB understands that this new rule will require Part 121 and 135 operators who, in accordance with 14 CFR 121.703 and 135.415, respectively, must report any engine or component malfunctions or failures to both their FAA certificate-holding district offices and the NTSB. The NTSB continues to believe, however, that the language of the reporting requirement will result in timely notification of incidents in which a failure of an internal engine component resulted in the escape of debris from an exit other than out the exhaust path. Therefore, the NTSB has not amended this addition.

The NPRM proposed to add section 830.5(a)(8) to 49 CFR Part 830 to require the reporting of any “release of all or a portion of a propeller blade from an aircraft, excluding release caused solely by ground contact.” One commenter, a professional pilots' union, dissented with the NTSB regarding the exclusion of a structural failure of a propeller or portion of a propeller caused solely by ground contact. The NTSB disagrees with the commenter's position that the NTSB should broaden the section to include all incidents in which propeller blades or blade sections have separated from an aircraft. The commenter stated that liberated propeller blades or blade segments pose a significant hazard to the crew, passengers, and bystanders.

The NTSB agrees with the commenter regarding the hazards that liberated propeller blades or segments of propeller blades pose to crews, passengers, and bystanders. However, the NTSB notes that propeller blades are designed and certified to operate within the atmosphere and, as such, the expectation is that they remain intact and in place during normal operation. Propeller blades are not designed or expected to continue to remain intact and in place following contact with the ground. The NTSB continues to believe that the language of the reporting requirement will achieve the NTSB's objective of receiving notification of any release of all or a portion of a propeller blade from an aircraft, inconsistent with its design parameters and certification, thus excluding releases caused solely by ground contact. Therefore, the NTSB has not amended this addition.

The NPRM proposed to add section 830.5(a)(9) to 49 CFR Part 830 to require the reporting of “[a] complete loss of information, excluding flickering, from more than 50 percent of an aircraft's certified electronic primary displays.” The NTSB has carefully reviewed the comments received concerning this section and has concluded that the language should be amended to require notification of “[a] complete loss of information, excluding flickering, from more than 50 percent of an aircraft's cockpit displays known as: (A) Electronic Flight Instrument System (EFIS) displays; (B) Engine Indication and Crew Alerting System (EICAS) displays; (C) Electronic Centralized Aircraft Monitor (ECAM) displays; or (D) Other displays of this type, which generally include a primary flight display (PFD), primary navigation display (PND), and other integrated displays.”

The NTSB now recognizes the need to revise the proposed language to avoid capturing an excessive number of failures. For example, under the proposed language, a failed electronic exhaust gas temperature (EGT) gauge that is the only means of monitoring EGT would have been reportable. However, the NTSB would not likely be concerned with collecting data concerning or investigating such events; therefore, the NTSB has narrowed the language of this section. The NTSB maintains that this change in the proposed regulatory language is a logical outgrowth of the proposed rule and therefore does not violate the rulemaking requirements of the Administrative Procedure Act (APA).

The NTSB received three comments that addressed this notification requirement. Two commenters stated that they had difficulty determining exactly what types of failures for which notification was required. One commenter provided an example of an electronic display on a general aviation aircraft where a mechanical indication was also included. This commenter was concerned that when the electronic display failed, this event would have to be reported even though a mechanical display of the information was still available. The other commenter stated that the criteria for reporting should be based on the aircraft's certification requirements.

Based on these comments and the NTSB's careful review of the proposed language of the notification requirement, the NTSB decided that some adjustment of the language of this section was required to ensure that the relevant failures will be reported, as described above. The NTSB's principal goal in promulgating this requirement is to capture “display blanking” events in which many of the newer “glass cockpit” type displays have gone blank. The proposed language of this requirement was intended to capture this type of failure, but the NTSB recognizes that a revision specifically mentioning the various types of displays would be advantageous. Therefore, the NTSB has changed the language of this subsection to require the reporting of any “complete loss of information, excluding flickering, from more than 50 percent of an aircraft's cockpit displays known as: (A) Electronic Flight Instrument System (EFIS) displays; (B) Engine Indication and Crew Alerting System (EICAS) displays; (C) Electronic Centralized Aircraft Monitor (ECAM) displays; or (D) Other displays of this type, which generally include a primary flight display (PFD), primary navigation display (PND), and other integrated displays.”

Furthermore, another commenter disagreed with the exclusion of “flickering” of instrument displays when considering the reporting requirements in this section. The commenter felt that the “flickering” of displays could be an indication of underlying hardware or software problems. The NTSB considered this potential meaning of “flickering” when it originally defined the language of this section. After reviewing this concept, the NTSB has decided against revising the language of this section. While the NTSB agrees that “flickering” can be a symptom of underlying problems, the NTSB feels that the operator's maintenance organization is best equipped to deal with this type of symptom. If the “flickering” becomes so severe that the display is unusable, then it should be reported under this section (providing that over 50 percent of the displays were similarly unusable).

One commenter stated that the requirement to report these types of failures to the NTSB constituted a duplicative reporting requirement, as failures are already required to be reported to the FAA. The NTSB feels that the requirement to report these types of failures directly to the NTSB is essential to aviation safety because it ensures that these events will be investigated by NTSB personnel as quickly as possible. In addition, duplicative notifications are not required because the regulations state that any incident reported to the NTSB does not have to be reported separately to the FAA.

As described above, the NTSB continues to believe that it is in the best interest of aviation safety to receive reports of a complete loss of information from certain types of electronic displays. After carefully considering all comments that addressed this section, the NTSB has determined that it must receive notification of complete losses of information, as described above. Consistent with the above discussion, the NTSB has amended this addition.

The NPRM proposed to add section 830.5(a)(10) to 49 CFR Part 830 to require the reporting of the following: Airborne Collision and Avoidance System (ACAS) resolution advisories issued either: When an aircraft is being operated on an instrument flight rules flight plan and corrective or evasive action is required to maintain a safe distance from other aircraft; or to an aircraft operating in class A airspace.

The intent of this requirement is for the NTSB to be notified of incidents where ACAS-equipped aircraft must actively maneuver to avert a substantial risk of collision with another aircraft and to be notified of incidents where the stringent separation requirements inherent in operations within class A airspace may have been compromised. The NTSB has carefully reviewed the comments received concerning this requirement and amends the language of this requirement to require reports of ACAS resolution advisories issued either (A) when an aircraft is being operated on an IFR flight plan and compliance with the advisory is necessary to avert a substantial risk of collision between two or more aircraft; or (B) to an aircraft operating in class A airspace.

Five commenters were concerned that the original proposed requirement would result in an unmanageable number of reports. In general, regarding the proposed rule's effect outside class A airspace, commenters placed most of their emphasis on the “corrective or evasive action” language, despite the language that a report would be necessary only when such maneuvers are “* * * required to maintain a safe distance from other aircraft.” The NTSB fully recognizes that when a resolution advisory occurs, it does not necessarily follow that an unsafe encounter is about to occur. The NTSB intends to require reports only when failure to comply with a resolution advisory would lead to an unsafe encounter with another aircraft, that is, an encounter presenting a substantial risk of collision. The NTSB's expectation is that there are not an unmanageable number of such encounters occurring in the air traffic control (ATC) system. However, if reports show that a large number of these incidents are occurring, the circumstances leading up to the incidents would certainly be a safety issue of major interest to the NTSB. Concern about dealing with the associated reports is not a persuasive rationale for not requiring them, especially if the number of serious incidents is unexpectedly high. The NTSB believes that by further clarifying the definition of incidents to be reported, the burden on both aircraft operators and the NTSB will be limited to addressing high-risk events that warrant further examination and potentially full investigation.

The NTSB recognizes that “substantial risk of collision” is somewhat subjective, but the infinite variety of encounter geometries does not lend itself to specific guidance that would apply to every possible scenario. The FAA's definition of a near midair collision is “an incident associated with the operation of an aircraft in which a possibility of collision occurs as a result of proximity of less than 500 feet to another aircraft, or a report is received from a pilot or a flight crew member stating that a collision hazard existed between two or more aircraft.” This definition is not incorporated to limit or precisely define the reports desired, but it may be useful in illustrating the nature of the types of incidents for which the NTSB will require notification. Resolution advisories that command maximum vertical speed, “reversal” advisories that require a change in vertical direction after the initial advisory is issued, or encounters that result in zero vertical separation between the aircraft involved are all examples of the types of advisories that the NTSB believes may be indicative of substantial collision risk. Conversely, resolution advisories issued to aircraft operating on closely spaced parallel approaches or in other circumstances where there is no substantial risk of collision need not be reported under this rule.

Four commenters stated that this requirement would effectively mandate the reporting of all resolution advisories. As stated above, the NTSB does not intend for all resolution advisories to be reported. The NTSB expects that the revised language fully addresses this concern and explicitly limits the need for reporting to situations where compliance with a resolution advisory is necessary to avert a significant risk of collision.

Two commenters expressed concern about the potential need to download flight recorder data or remove recorders from aircraft, thereby incurring expense and potential schedule disruption to the aircraft operator. As the NTSB has previously noted, requiring an operator to provide flight recorder data can be disruptive and burdensome. The NTSB carefully considers the need for such information in determining how to investigate serious incidents properly and limits requests to situations where the data is clearly required to understand the sequence of events because other available information, such as recorded radar data, is inadequate. Unless a large number of unreported serious incidents occur, the NTSB does not expect to substantially increase the number of recorder requests made to support this reporting requirement.

Two commenters stated that the NTSB should rely on the FAA for reports of traffic alert and collision avoidance system (TCAS) events. The NTSB does not believe that the FAA's processes for assessing and reporting incidents, particularly those involving losses of separation, are sufficiently reliable. Recent Department of Transportation Inspector General investigations have documented repeated failures to report incidents, misclassification of incidents, and other circumstances which lead the NTSB, as an independent agency, to seek additional means of monitoring the performance of the ATC system. The NTSB expects that information provided by aircraft operators under this reporting requirement will help validate the effectiveness of the FAA's reporting process, especially relating to more serious incidents occurring in the system. One of the commenters noted that the NTSB should, in lieu of the proposed reporting requirement, correct the FAA's procedures. The NTSB does occasionally interact with the FAA regarding the efficacy of its internal processes. However, the NTSB has no authority to direct changes to FAA procedures. The NTSB believes that for the significant types of incidents the NTSB expects to investigate under this requirement, occasional duplicative reports are worthwhile to ensure that a complete examination of the circumstances takes place.

Five commenters stated that the proposed reporting requirement should be dropped in favor of existing voluntary confidential data collection systems such as the Aviation Safety Action Program (ASAP), Flight Operational Quality Assurance (FOQA) programs, and the MITRE-operated Aviation Safety Information Analysis and Sharing program. While the NTSB does support such programs in principle, the de-identified and otherwise filtered information available through them is not useful for investigative purposes. The NTSB's duty is to define the types of events that may warrant a safety investigation, evaluate those events as they occur, and investigate as necessary. Existing NTSB reporting requirements predated and, to a large extent, overlap with the types of incidents and accidents for which reports are made to these programs. Nonetheless, the NTSB continues to define reporting requirements and investigate safety incidents as necessary to protect the public interest. The NTSB cannot delegate such responsibilities to external organizations, become wholly dependent on information such organizations may or may not see fit to share, or limit the investigative use of that information to comply with accompanying restrictions. Therefore, the NTSB does not view the data collection programs suggested by the commenters as an adequate substitute for the proposed reporting requirement.

One commenter noted that pilots may not report incidents without the protection of an ASAP or FOQA program and further inquired about the possible consequences of failing to report such incidents. While a pilot's decision to disregard a reporting requirement is an unfortunate possibility, it is beyond the control of the NTSB. The NTSB presumes good faith on the part of professional aviators with regard to reporting, and the NTSB does not intend to use this requirement to prompt enforcement actions.

The NTSB emphasizes that the intent of this reporting requirement is to identify, evaluate, and investigate (when appropriate) serious incidents where aircraft maneuvers were required to avert substantial risk of collision between TCAS-equipped aircraft and other aircraft in the system and to evaluate situations where resolution advisories occur between aircraft under positive control in class A airspace. The NTSB's intent is not to require the reporting of all resolution advisories or, outside of class A airspace, to require the reporting of any resolution advisory resulting from an encounter between aircraft where no substantial risk of collision exists.

In summary, the NTSB continues to believe that this reporting requirement will achieve the NTSB's objective of receiving notification of aircraft encounters that present a significant risk of collision. The NTSB, however, has determined that amending the language will provide further clarity and assist operators, crews, and other individuals and entities affected by this rule in recognizing that the NTSB seeks notification of the category of occurrences in which hazardous encounters involving ACAS-equipped aircraft occur. As such, the NTSB will require notification of the following: Airborne Collision and Avoidance System (ACAS) resolution advisories issued either: when an aircraft is being operated on an instrument flight rules flight plan and compliance with the advisory is necessary to avert a substantial risk of collision between two or more aircraft; or to an aircraft operating in class A airspace.

The NPRM proposed to add section 830.5(a)(11) to 49 CFR Part 830 to require that the public report “[d]amage to helicopter tail or main rotor blades, including ground damage, that requires major repair or replacement of the blade(s).” The NTSB did not receive any comments concerning this proposed requirement. Moreover, the NTSB continues to believe that the proposed reporting requirement will achieve the NTSB's objective of receiving notification of all rotor blade strikes that result in damage, regardless of what the blades strike. Therefore, the NTSB has not amended this addition and will require notification of any damage to helicopter tail or main rotor blades that requires major repair or replacement of the blade(s).

The NPRM proposed to add section 830.5(a)(12) to 49 CFR Part 830 to require that the public report the following: Any runway incursion event in which an operator, when operating an aircraft as an air carrier: lands or departs on a taxiway, incorrect runway, or other area not designed as a runway; or experiences a reduction in separation that requires the operator or another aircraft or vehicle to take immediate corrective action to avoid a collision.

The NTSB received one comment on this section, which partially concurred with the proposal and provided suggestions. The commenter stated that the phrase “runway incursion” in the qualifying statement should be deleted because landing and taking off on a taxiway is not a runway incursion. Additionally, the commenter stated that the reporting requirements should include nonrevenue operations (such as ferry flights, maintenance flights/taxi, and reposition flights/taxi). Finally, the commenter believed that events resulting in a go-around should be excluded because that would require a report each time a go-around was conducted if an aircraft or vehicle was on the runway. Although the commenter believed that the events as stated should be reportable, the commenter felt that the language should be clarified.

The NTSB agrees that the term “runway incursion” should be deleted from the beginning of the statement for the reasons provided by the commenter. However, to clarify that the NTSB is requesting reports of separation issues on the runway, the NTSB hereby amends subsection (B) to restrict reports to runway operations. The NTSB also agrees with the commenter's suggestion to include nonrevenue flights because the same pilots fly both revenue and nonrevenue flights.

Finally, the commenter opined that all go-around maneuvers conducted because the runway was not clear would need to be reported. The NTSB disagrees with this assessment. For example, if a controller instructs the pilot to go around because an aircraft or vehicle is on the runway, that is a controlled situation. The tower controller was aware of the situation and directed a go around. However, if the pilot had to execute a go-around on his own and the tower controller was not aware of the situation, the NTSB would want to know about that event because it may go unreported. Similarly, a tower controller could clear an aircraft to land and inadvertently clear another aircraft onto the runway; if the arriving pilot has to conduct a go-around because of the airplane on the runway, the NTSB should receive a report of the incident.

Based on the NTSB's careful review of the above commentary, the NTSB will now require the reporting of “[a]ny event in which an aircraft operated by an air carrier: (A) [l]ands or departs on a taxiway, incorrect runway, or other area not designed as a runway; or (B) [e]xperiences a runway incursion that requires the operator or the crew of another aircraft or vehicle to take immediate corrective action to avoid a collision.”

The NTSB has concluded that this clarification in the regulatory language is a logical outgrowth of the proposed language and is therefore consistent with the rulemaking requirements of the APA.

Background

On October 8, 2008, we published a final rule in the Federal Register (73 FR 59448) to revise our regulations governing falconry in the United States. We eliminated the requirement for a Federal permit to practice falconry, and made other changes to make it easier to understand the requirements for the practice of falconry, including take of raptors from the wild, and the procedures for obtaining a falconry permit. The rule also added a provision allowing us to approve falconry regulations that Indian Tribes, States, or U.S. territories adopt. The rule became effective November 7, 2008, and changed the Code of Federal Regulations (CFR) at 50 CFR parts 21 and 22.

After publication of the rule, we received questions from the public about some aspects of the final rule. On July 22, 2009, we proposed revisions to the falconry rule in the Federal Register (75 FR 36158) to clarify or correct some provisions in the rule.

We received 13 comments on the proposed rule. Several of the comments were about provisions in the falconry regulations for which we did not propose changes, and therefore are not summarized here.

Comment. “With one exception the changes are well thought out and will improve the regulations. The exception is your plan to now cite for the first time the Birds of Conservation Concern 2008 as restricting the take of raptors for falconry. I am not in favor of citing or using this document to place further restrictions on the take of raptors for falconry. The Federal lists of endangered and threatened wildlife, including raptors, currently place appropriate restrictions on the take of raptors by falconers. Your agency's environmental assessments have repeatedly shown that the take of raptors for falconry has no measurable environmental impact on wild raptor populations. Past Federal Falconry Regulations have not cited the Birds of Conservation Concern 2008. Therefore, citing the Birds of Conservation Concern 2008 in the new Federal Falconry Regulations does not seem necessary or justified from a biological standpoint.

Furthermore, the thrust of the new Federal Falconry Regulations is to turn the regulation of falconry over to the States. States do monitor non-game wildlife and have and will in the future place restriction of the take of raptors for falconry when there is a biological reason to do so. It seems reasonable to let the States address the take of Federally non-threatened and non-endangered raptors for falconry without a new layer of Federal restrictions. Adding the Birds of Conservation Concern 2008 to the new Federal Falconry Regulations will have the effect of adding a new layer of restrictions that are simply not needed or justified.”

Response. We have removed the reference to the Birds of Conservation Concern (BCC) list, and have specified the raptor species that may not be taken from the wild by Apprentices. The listing may appear to add a new restriction to the falconry rules, but it does not. With the exceptions of eagles and threatened or endangered species, the species that Apprentices may take from the wild are already based on the status of raptors in the 2002 BCC list, although the regulations did not explicitly cite the BCC list. This regulations change is made to make the list better match the status of raptor species found in the United States. We may change the regulations at a later date if any raptor species is added to, or removed from, the BCC list of species of national concern.

Comment. “The prohibition of a threatened or endangered species is unnecessary. This blocks possession of a bird which could come from many sources, including rehabilitation where a bird could be flown for a season to be trained to survive in the wild. Since the States are effectively applying this limitation, this is unnecessary language. At the least the prohibition should be for take of these species, not for possession.”

Response. We believe that this comment is about the prohibition on possession of threatened or endangered species by Apprentice falconers. The list of species available to Apprentices was expanded considerably when we revised the falconry regulations. However, because they are learning care of raptors and the practice of falconry, we do not believe it is advisable for Apprentices to possess threatened or endangered species. Apprentices are precluded from possessing only six species of threatened or endangered Falconiformes or Strigiformes—only one of which is suitable for falconry.

Comment. “This proposed change remains unclear regarding `organizations' [sic] use of falconry raptors. NAFA and other associations as well as State falconry associations appear to be negatively impacted by this proposed language. An interpretation of this regulation could mean that falconry associations may not use a depiction of a falconry raptor in a pamphlet, brochure, video, or other medium promoting its organization * * *. We respectfully request this be clarified to permit falconry organizations the use of depictions of falconry raptors for purposes directly related to falconry and the promotion of falconry associations and organizations.

“While I appreciate enabling the use of a falconry bird for demonstrating and advertising falconry equipment, this is still more constrictive than necessary, and certainly more restrictive than other countries who are also party to our treaties. This would still block use of a falconry bird to photograph for education, such as illustrating a medical condition. It would block the photography of a bird and the videotaping of the bird to demonstrate training, flying, or hunting. And much of the sport is about enjoyment—of our birds, our relationship, and the activities. Just filming them for our own enjoyment or even profit. As long as these birds held under a falconry permit are used primarily for falconry, there is nothing wrong with allowing them to be used for many other purposes. I applaud the efforts to allow their use for education, abatement, breeding, and even rehabilitation (such as parenting orphaned raptors). However this section can be interpreted to make anything from falconry catalogs to training videos illegal. It appears aimed to ensure no falconer uses their bird in a Harry Potter movie, but the potential problems in that space are so incredibly minor compared to the risk this introduces to activities at the core of falconry. I support erasing the entire section which is ill conceived and poorly formed.”

Response. We agree with some of the concerns expressed by commenters, and we have changed the provisions in this paragraph. For example, it is acceptable to use a falconry bird in a publication about the care or health of raptors. However, we continue to disallow the use of falconry raptors in purely commercial endeavors.

Comment. “ `[I]mprint' definition—I certainly do not try to isolate an `imprint' falconry bird from other raptors during the period as described in proposed definition. In order to raise a successful imprint, one that is not adversely affected by `new' objects & circumstance, many feel that it is important to expose the bird to as much of the world as one might encounter after training, while out hunting, and while in the mew or weathering, & while traveling. Being able to raise & train as a falconer deems necessary is important to the continued success of the raptor's integration into a different aspect of the taking of prey—that means exposure to other raptors (to be seen & to see). This is a normal part of a raptor's world and part of a falconry bird's learning process. This definition is simply not the truth and may be construed to mean that when one trains an imprint, they must isolate the bird and part of that is not to allow the bird to see other raptors. I understand the need for discussing imprints however in truth all birds are imprints. This is not what I believe the regulations are speaking to. Encarta dictionary uses a definition for imprint as `zoology intransitive verb to learn an attraction to members of the same species or substitutes very early in life.' Clearly the terminology as correctly used in the course of falconry is that an imprint is denoted as a hand raised raptor meaning raising by or assisted by human contact * * * [T]he restriction and definition provided is invalid and unnecessary and that the reason for hand raising is for the young raptor to have an attraction for or to bond with others, the falconer especially.”

Response. We believe that the point of this comment is that falconry birds need not be isolated from other raptors to imprint on humans. We changed the definition accordingly.

We make the following significant changes to the proposed rule in paragraphs (d)(1)(ii)(A)(4), (e)(3), and (f)(9)(ii). In addition to these changes, we implement numerous small clarifications or changes to make the information or requirements in the regulations consistent.

(1) We clarify the definition of the term “imprint” in 50 CFR 21.3 by changing the definition to mean a bird that is hand-raised from 2 weeks of age until it has fledged, and has identified itself with humans rather than its own species.

(2) After publishing the final rule in October 2008, we received inquiries about the prohibition in 50 CFR 21.29(c)(3)(i)(E) on possession of captive-bred raptors by Apprentice falconers. We neglected to clearly prohibit possession of wild raptors of threatened or endangered species in this subsection of our final rule. We continue to disallow take and possession of eagles and of threatened and endangered species by Apprentice falconers, as well as take of raptor species of conservation concern, though Apprentice falconers may possess lawfully acquired BCC species. We revise paragraph (c)(3)(i)(E) to clarify this issue for the public and to clarify that an Apprentice falconer may have a hybrid raptor of most species.

(3) In our October 2008 final rule, we stated in § 21.29(c)(3)(ii)(C) that, to advance to the level of General Falconer, an Apprentice Falconer must “have practiced falconry with wild raptor(s) at the Apprentice Falconer level or equivalent for at least 2 years, including maintaining, training, flying, and hunting the raptor(s) for at least 4 months in each year.” However, because apprentices need not use wild raptors to advance to the General Falconer level, we remove the word “wild” from this requirement. Likewise, we correct § 21.29(g)(5)(ii), to make the requirements listed match those in § 21.29(c)(3)(ii)(C). Finally, for the same reason, we remove the word “wild” from § 21.29(d)(1)(ii)(A).

(4) We revise paragraph (c)(7)(i) to require banding by replacing the words “in lieu of a” with the words “in addition to the” in the second sentence. The four species named in that paragraph must be banded with a nonreusable band that we will provide to the State, tribe, or territory.

(5) In our October 2008 final rule, we stated in § 21.29(d)(1)(ii)(A)(4) that for housing falconry raptors that “[e]ach raptor must have a pan of clean water available.” In cold weather conditions and with some perch types, this requirement is impractical, and potentially harmful. We change the requirement to clarify that, if practical, a water pan should be made available for a falconry bird.

(6) In an oversight, our October 2008 final rule stated at § 21.29(e)(3)(ii) that General or Master falconers “may take raptors less than 1 year of age from the wild during any period or periods specified by the State, tribe, or territory.” We clarify § 21.29(e)(3)(i) to disallow take of nestlings by Apprentice falconers.

(7) We correct language in § 21.29(e)(iii) to clarify take of golden eagles by Master falconers.

(8) After our October 2008 final rule was published, we were asked about the use of falconry birds in demonstrating or advertising falconry-related items such as hoods and telemetry equipment. We add a sentence to § 21.29(f)(9)(ii) clarifying that filming, photography, or illustration of falconry birds to demonstrate or advertise falconry equipment or educational materials, for scientific purposes, and for the purposes of nonprofit falconry organizations is allowed.

(9) We revise the language in paragraph 22.24(b) to make it clear that a federal permit is required to take golden eagles under a Federal depredation permit or under a depredation control order.

(10) Finally, we also correct paragraph designations for several subparagraphs by indicating that the designations should have published in italics to conform with style requirements of the Office of the Federal Register, which requires that paragraph designations in the CFR follow this order: (a), (1), (i), (A), (1), and (i).

The Office of Management and Budget (OMB) has determined that this proposed rule is not significant under Executive Order 12866. OMB bases its determination upon the following four criteria:

a. Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.

b. Whether the rule will create inconsistencies with other Federal agencies' actions.

c. Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.

d. Whether the rule raises novel legal or policy issues.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (that is, small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities.

SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide the statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. We have examined this rule's potential effects on small entities as required by the Regulatory Flexibility Act, and have determined that this action will not have a significant economic impact on a substantial number of small entities because the changes we are proposing are intended primarily to clarify and correct small problems with the published regulations.

Consequently, we certify that because this proposed rule will not have a significant economic effect on a substantial number of small entities, a regulatory flexibility analysis is not required.

This rule is not a major rule under the SBREFA (5 U.S.C. 804(2)). It will not have a significant economic impact on a substantial number of small entities.

a. This rule does not have an annual effect on the economy of $100 million or more. There are no costs to permittees or any other part of the economy associated with these regulation changes.

b. This rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. The practice of falconry does not significantly affect costs or prices in any sector of the economy.

c. This rule will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. Falconry is an endeavor of private individuals. Neither regulation nor practice of falconry significantly affects business activities.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we have determined the following:

a. This rule will not “significantly or uniquely” affect small governments. A small government agency plan is not required. Neither regulation nor practice of falconry affects small government activities.

b. This rule will not produce a Federal mandate of $100 million or greater in any year; i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. Though States may have to revise their falconry regulations to comply with the proposed revisions, nearly every State already has falconry regulations in place. Therefore, revisions of the State regulations should not be significant.

In accordance with E.O. 12630, the rule does not have significant takings implications. A takings implication assessment is not required. This rule does not contain a provision for taking of private property.

This rule does not have sufficient Federalism effects to warrant preparation of a Federalism assessment under E.O. 13132. It will not interfere with the States' ability to manage themselves or their funds. No significant economic impacts are expected to result from the regulation of falconry. However, this rule provides the opportunity for States to cooperate in management of falconry permits and to ease the permitting process for permit applicants.

In accordance with E.O. 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

We examined this rule under the Paperwork Reduction Act of 1995. OMB has approved the information collection requirements of the Migratory Bird Permits Program and assigned OMB control number 1018-0022, which expires November 30, 2010. This regulation change does not add to the approved information collection. Information from the collection is used to document take of raptors from the wild for use in falconry and to document transfers of raptors held for falconry between permittees. A Federal agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.

We evaluated the environmental impacts of the significant changes to these regulations, and determined that the clarifications and corrections in this rule do not have any environmental impacts. Within the spirit and intent of the Council on Environmental Quality's regulations for implementing the National Environmental Policy Act (NEPA), and other statutes, orders, and policies that protect fish and wildlife resources, we determined that these regulatory changes do not have a significant effect on the human environment.

Under the guidance in Appendix 1 of the Department of the Interior Manual at 516 DM 8, we conclude that the regulatory changes are categorically excluded because they “have no or minor potential environmental impact” (516 DM 8.5(A)(1)). No more comprehensive NEPA analysis of the regulations change is required.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have evaluated potential effects on Federally recognized Indian Tribes and have determined that this rule will not interfere with tribes' ability to manage themselves or their funds or to regulate falconry on Tribal lands.

E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Because this rule only affects the practice of falconry in the United States, it is not a significant regulatory action under E.O. 12866, and will not significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

The changes we propose are primarily in the combining, reorganizing, and rewriting of the regulations. The environmental impacts of this action are negligible.

Socioeconomic. The proposed action will have no socioeconomic impacts.

Raptor populations. This rule will not change the effects of falconry on raptor populations.

Endangered and Threatened Species. This proposed rule has language additions or changes that clarify protections for endangered and threatened species. The rule does not itself make any changes to those protections.

Section 7 of the Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 1531 et seq.), requires that “The Secretary [of the Interior] shall review other programs administered by him and utilize such programs in furtherance of the purposes of this chapter” (16 U.S.C. 1536(a)(1)). It further states that the Secretary must “insure that any action authorized, funded, or carried out * * * is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat” (16 U.S.C. 1536(a)(2)). These regulatory corrections and clarifications will not affect threatened or endangered species or their habitats in the United States.

The CPS FMP, which is implemented by regulations at 50 CFR part 660, subpart I, divides management unit species into two categories: actively managed and monitored. The HGs for actively managed species (Pacific sardine and Pacific mackerel) are based on formulas applied to current biomass estimates.

During public meetings each year, the biomass for each actively managed species within the CPS FMP is presented to the Pacific Fishery Management Council's (Pacific Council) Coastal Pelagic Species Management Team (Team), the Council's Coastal Pelagic Species Advisory Subpanel (Subpanel) and the Council's Scientific and Statistical Committee (SSC). At that time, the biomass, maximum HG and the status of the fisheries are reviewed and discussed. This information is then presented to the Council along with annual HG recommendations and comments from the Team and Subpanel. Following review by the Council and after hearing public comments, the Council makes its HG recommendation to NOAA's National Marine Fisheries Service (NMFS). The annual HG is published in the Federal Register as close as practicable to the start of the fishing season.

For the 2009-2010 Pacific mackerel management season a full assessment for Pacific mackerel was conducted and then reviewed by a Stock Assessment Review (STAR) Panel in May 2009. This most recent full assessment for Pacific mackerel estimates the current biomass to be 282,049 mt. Applying this biomass estimate to the harvest control rule (established in the CPS FMP) a maximum HG of 55,408 mt is produced.

At the June 2009 Pacific Council Meeting, the Council reviewed the current Pacific mackerel stock assessment, biomass numbers, ABC and STAR Panel Report, as well as heard statements/reports from the SSC, Team and Subpanel. Although the assessment for Pacific mackerel was reviewed by a STAR Panel and was approved by the SSC as the best available science for use in management, concerns were expressed by all the advisory groups regarding the data sources that informed the assessment and the uncertainty in the assessment results. Taking into consideration these reports and statements, the Council adopted and NMFS approved the most recent assessment for Pacific mackerel along with the calculated ABC, but recommended setting an overall HG for the July 1, 2009, through June 30, 2010, fishing season at 10,000 mt. The Council also recommended and NMFS approved that 8,000 mt of this total HG be allocated for a directed fishery and 2,000 mt be set aside for incidental Pacific mackerel landings in other fisheries should the 8,000 mt directed fishery HG be attained. Should the directed Pacific mackerel fishery attain landings of 8,000 mt NMFS will close the directed fishery and establish a 45 percent incidental catch allowance when Pacific mackerel are landed with other CPS (no more than 45% by weight of the CPS landed per trip may be Pacific mackerel), except that up to 1 mt of Pacific mackerel can be landed without landing any other CPS.

On September 29, 2009, a proposed rule was published for this action that solicited public comments (74 FR 4845). One comment was received, which was in support of the proposed action.

Information on the fishery and the stock assessment can be found in the report Pacific mackerel (Scomber japonicus) Stock Assessment for U.S. Management in the 2009-10 Fishing Season (see ADDRESSES).

The Administrator, Southwest Region, NMFS, determined that this final rule is necessary for the conservation and management of the CPS fishery and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

This final rule is exempt from Office of Management and Budget review under Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule (74 FR 4845) and is not repeated here.

No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.