Your written comments on this rule should be specific, should be confined to issues pertinent to the rule, and should explain the reason(s) for any change you recommend or oppose. Where possible, you should reference the specific section or paragraph of the rule you are addressing. This rule is effective upon publication. If the Department determines that comments received change any provisions of this rule, the Department will publish a new final rule in the Federal Register . Comments must be received on or before the comment period (see DATES ) to be assured of consideration.

Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. We invite your comments on how to make these regulations easier to understand, including answers to questions such as the following:

(1) Are the requirements in the regulation clearly stated?

(2) Does the rule contain technical language or jargon that interferes with its clarity?

(3) Does the format of the rule ( e.g., grouping and order of sections, use of heading, and paragraphing) make it clearer or less clear?

(4) Would the rule be easier to understand if it was divided into more (but shorter) sections?

(5) Is the description of the rule in the preamble section entitled “Background and Discussion of Final Rule with Request for Comments” helpful in understanding the rule? How could this description be more helpful in making the rule easier to understand?

In the following discussion and regulatory text, the term “State agency,” as defined at 7 CFR 253.2, is used to include ITOs authorized to administer FDPIR and the Food Distribution Program for Indian Households in Oklahoma (FDPIHO) in accordance with 7 CFR parts 253 and 254. The term “FDPIR” is used in this rulemaking to refer collectively to FDPIR and FDPIHO.

The 2018 Farm Bill (Pub. L. 115-334) was signed into law on December 20, 2018. Section 4003 included FDPIR-specific provisions and modified Section 4(b) of the Food and Nutrition Act (FNA) (7 U.S.C. 2013(b)). This rule codifies new and revised statutory requirements included in the 2018 Farm Bill by amending FDPIR regulations at 7 CFR part 253. Upon publication, this rulemaking makes the following changes: (1) Revises the required minimum Federal share of FDPIR administrative costs and State agency/ITO mandatory administrative match amounts; (2) allows State agencies/ITOs to qualify for an administrative match waiver if their required match share would be a substantial burden; (3) limits the reduction of FDPIR benefits or services to State agencies/ITOs that are granted a full or partial administrative match waiver; and (4) allows for other Federal funds to be used to meet the State agency/ITO administrative match requirement, if such use is otherwise consistent with the purpose of the other Federal funds. The amendments are discussed in more detail below.

The Administrative Procedure Act (APA) at 5 U.S.C. 553(a)(2) specifically exempts rules involving grants and benefits from notice-and-comment requirements, giving the Department the authority to issue final rules in grants and benefits programs, like FDPIR. 1 The Department does, however, retain the discretion to issue a final rule with a request for comments, and FNS welcomes comments on the specified sections below. The Department is issuing this final rule with request for comments in order to ensure that the provisions in this rulemaking apply to the next FDPIR administrative grant cycle, fiscal year (FY) 2020, which begins October 1, 2019. State agencies and ITOs that administer FDPIR benefit from the timely implementation of these provisions as they have a direct and positive impact on individual State agency and ITO grant allocations to operate the program. The Department determined that prolonging the implementation of these provisions would negatively impact State agencies and ITOs that administer the FDPIR by delaying their ability to utilize the new flexibilities provided for in the 2018 Farm Bill. As previously stated, if the Department, upon consideration of the comments received, decides to amend any provisions of the rule, the Department will publish a new final rule in the Federal Register with an explanation of the changes.

Under Federal regulations at 7 CFR 253.11(b) and (c), the Department provides 75 percent of FDPIR administrative funds and State agencies/ITOs are required to contribute the remaining 25 percent in matching funds, unless a match waiver is granted by the Department. The State agency/ITO administrative match requirement may be a cash or non-cash ( i.e., in-kind) contribution, per 7 CFR 253.11(c)(1).

Section 4003 of the 2018 Farm Bill modified Section 4(b)(4) of the FNA (7 U.S.C. 2013(b)(4)) to require the Department to pay not less than 80 percent of State agencies and ITOs' administrative costs in FDPIR. Therefore, the corresponding State agency/ITO administrative match requirement would be a maximum of 20 percent. This rule amends 7 CFR 253.11(b) and (c)(1) and (2) to increase the Federal share of FDPIR administrative costs from 75 to 80 percent. This rule also amends 7 CFR 253.11(c)(1) and (2) to reduce the State agency/ITO match requirement from 25 to 20 percent.

The corresponding State agency/ITO match requirement for FY 2019 FDPIR administrative grants is 25 percent as those grants precede this rulemaking. At the time this rulemaking goes into effect (see DATES), the revised Federal share of 80 percent and revised State agency/ITO administrative match requirement amount of 20 percent, as described in this rulemaking, will apply to new FDPIR administrative grants only starting in FY 2020. FDPIR administrative grants for FY 2019 that have a period of performance through September 30, 2020 will retain the Federal share of 75 percent and the State agency/ITO administrative match requirement amount of 25 percent. This rulemaking applies to FY 2020 FDPIR administrative grants and to FDPIR administrative grants annually thereafter.

The Department does not request comments on the minimum amount of the Federal share, as the 80 percent is specified in statute. However, rulemaking is necessary to implement the 80 percent provision because the Department must exercise discretion in determining the inextricably related issues of changes to the standard for receiving an administrative match waiver, the prohibition on reducing benefits and services to State agencies and ITOs in receipt of the administrative match waiver, and the determination of what other Federal funds may count towards the 20 percent State agency/ITO administrative match requirement. This issue is discussed below.

FDPIR regulations at 7 CFR 253.11(c)(2) allow State agencies and ITOs to request an administrative match waiver to reduce or eliminate their match requirement in the event that a State agency/ITO is unable to meet the match requirement. In its request, the State agency/ITO must provide compelling justification and include a summary statement and recent financial documents. Section 4003 of the 2018 Farm Bill adds a provision at Section 4(b)(4)(B)(i) of the FNA (7 U.S.C. 2013(b)(4)(B)(ii)) to codify the existing regulation to allow State agencies and ITOs to submit a match waiver request if they are financially unable to meet the State agency/ITO administrative match requirement. Section 4003 of the 2018 Farm Bill also provides a new provision in Section 4(b)(4)(B)(ii) of the FNA to allow State agencies and ITOs to qualify for the administrative match waiver if funding their share of the costs would be a substantial burden for the State agency/ITO.

The Department interprets substantial burden to mean the State agency/ITO would be substantially negatively impacted if it is required to provide the full or partial share of administrative funds. For example, an ITO may submit an administrative match waiver request demonstrating substantial burden by detailing how providing its share of the administrative match requirement would deplete the Tribe's reserves to a level that would have a substantial negative impact on the Tribe.

The Department has also determined that the submission of a waiver request and corresponding documents for review cannot, in and of itself, constitute a substantial burden for purposes of qualifying for the administrative match waiver. For example, if an ITO submits an administrative match waiver request based solely on the difficulty of collecting compelling justification as a reason to qualify for the waiver under the substantial burden standard, then the Department would deny the administrative match waiver request.

The Department has determined that, in order to approve an administrative match waiver request based on substantial burden, the State agency must submit compelling justification to the FNS Regional Office for review and approval, similar to the current process as outlined at 7 CFR 253.11(c)(2). To apply for a waiver of the administrative match based on substantial burden, the State agency/ITO must submit a signed letter from the leadership of a State agency or, in the case of an Indian Tribal Organization, a signed letter from the Tribal Council, describing why providing the match would be a substantial burden for the State agency/ITO along with supporting documentation, as needed.

This rulemaking revises the existing regulatory requirements at 7 CFR 253.11(c)(2) introductory text and (c)(2)(i) and (ii) to allow for an administrative match waiver request to be submitted under financial burden or substantial burden.

Under the revised 7 CFR 253.11(c)(2), this rule adds language on how a State agency/ITO can qualify for the administrative match waiver based on compelling justification submitted for either of the two standards, the existing financial burden standard and the new substantial burden standard. Under the revised 7 CFR 253.11(c)(2)(i), this rule keeps the existing regulatory requirement in 7 CFR 253.11(c)(2) that a State agency/ITO must submit a summary statement and recent financial documents showing that the State agency/ITO is unable to meet the matching requirement and that additional administrative funds are necessary for the effective operation of the program. Under the revised 7 CFR 253.11(c)(2)(ii), this rule adds new language to allow a State agency/ITO to submit a signed letter from the leadership of a State agency or, in the case of an Indian Tribal Organization, a signed letter from the Tribal Council, describing the State agency/ITO's substantial burden along with supporting documentation, as needed, to qualify for the administrative match waiver based on substantial burden. This option is in lieu of the summary statement and financial documentation currently required under 7 CFR 253.11(c)(2) for waiver requests based on financial inability to meet the match requirement.

The Department requests comments on this section of the rulemaking.

Current FDPIR regulations at 7 CFR 253.11(c)(2) provide the FNS Regional Office with discretion on whether to provide additional Federal administrative funds above the required Federal share when a State agency/ITO is granted a match waiver. For example, if the FNS Regional Office waives a State agency/ITO's current 25 percent match requirement, the FNS Regional Office may provide the State agency/ITO with only 75 percent of its requested funding level or make up the difference by supplementing this amount with additional Federal funds, up to the State agency/ITO's total requested funding level, or 100 percent. The FNS Regional Office decision regarding additional Federal funds is often dependent on funding availability and currently may not account for whether any funding gap would lead to a reduction of FDPIR benefits or services at the State agency/ITO level.

Section 4003 of the 2018 Farm Bill adds a new provision at Section 4(b)(4)(C) of the FNA (7 U.S.C. 2013(b)(4)(C)), prohibiting the Secretary from reducing FDPIR benefits or services to State agencies and ITOs that are granted an administrative match waiver. The Department interprets this limitation to mean that the same level of program benefits or services must be maintained.

This rulemaking adds a new 7 CFR 253.11(c)(3) to require the FNS Regional Office to not reduce any benefits or services to State agencies/ITOs in receipt of an administrative match waiver.

The Department requests comments on this section of the rulemaking.

Current FDPIR regulations at 7 CFR 253.11(c)(1) allow for the State agency/ITO administrative match requirement to be met with cash or non-cash contributions, including in-kind contributions. Furthermore, 7 CFR 253.11(c)(1)(v) provides that such contributions may not be paid for by the Federal Government under another assistance agreement unless authorized under the other agreement and its subject laws and regulations. Section 4003 of the 2018 Farm Bill adds a new provision at Section 4(b)(4)(D) of the FNA (7 U.S.C. 2013(b)(4)(D)) to allow for other Federal funds to be used towards meeting the State agency/ITO administrative match requirement, if that use is otherwise consistent with the purpose of the other Federal funds.

In addition, the Department has determined that existing regulations at 7 CFR 253.11(c)(1)(i), (iii), (iv), and (vi) apply to the use of other Federal funds because matching funds must be verifiable; not be contributed for another Federally-assisted program unless authorized by Federal legislation; be necessary and reasonable to accomplish program objectives; be allowable costs under 7 CFR part 277; and be included in the approved budget.

The Department has also determined that a State agency/ITO seeking to use other Federal funds towards its FDPIR administrative match must demonstrate that such use is not prohibited by law for those funds to be used to meet a Federal match of another program. For example, an ITO has AmeriCorps VISTA volunteers, who are paid from another Federal source, working at the food distribution center in support of FDPIR operations. The ITO could submit the salary of the AmeriCorps VISTA volunteers as an in-kind contribution towards their administrative match requirement. By contrast, the salary of AmeriCorps VISTA volunteers working for an ITO on a project unrelated to FDPIR could not be used as an in-kind contribution towards their administrative match requirement.

This rulemaking, therefore, requires State agencies and ITOs seeking to use other Federal funds to meet their State agency/ITO administrative match requirement to submit documentary evidence for review and approval by the FNS Regional Office that details the source, value, and purpose of those other Federal funds. This rule revises 7 CFR 253.11(c)(1) to allow for the use of other Federal funds, requires documentary evidence to be submitted on the source, value, and purpose of those other Federal funds, and requires approval by the FNS Regional Office for those funds to be used towards the State agency/ITO administrative match. The rule also removes 7 CFR 253.11(c)(1)(ii) as the provision is already captured under part 277, removes existing regulation at § 253.11(c)(1)(v) which prohibits the use of Federal funds, redesignates § 253.11(c)(1)(iii), (iv), and (vi) to § 253.11(c)(1)(ii), (iii), and (iv), and revises newly redesignated § 253.11(c)(1)(iii) (formerly § 253.11(c)(1)(iv)) to add an “and”.

The Department requests comments on this section of the rulemaking.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not a major rule, as defined by 5 U.S.C. 804(2).

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

This final rule with request for comments has been determined to be not significant and was reviewed by the Office of Management and Budget (OMB) in conformance with Executive Order 12866.

This rule has been designated as not significant by the Office of Management and Budget; therefore, no Regulatory Impact Analysis is required.

The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies to analyze the impact of rulemaking on small entities and consider alternatives that would minimize any significant impacts on a substantial number of small entities. Pursuant to that review, it has been certified that this rule would not have a significant impact on a substantial number of small entities. While there may be some burden/impact on State agencies and ITOs that administer FDPIR, the impact is not significant due to this rule providing a reduction in the State agency/ITO administrative match requirement. This rulemaking also provides flexibilities in meeting this requirement.

Executive Order 13771 directs agencies to reduce regulation and control regulatory costs and provides that the cost of planned regulations be prudently managed and controlled through a budgeting process.

This rule is not an E.O. 13771 regulatory action because it is not significant under E.O. 12866.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 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, the Department generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, or tribal governments, in the aggregate, or the private sector, of $146 million or more (when adjusted for inflation; GDP deflator source: Table 1.1.9 at https://apps.bea.gov/iTable/iTable.cfm ) in any one year. When such a statement is needed for a rule, Section 205 of the UMRA generally requires the Department to identify and consider a reasonable number of regulatory alternatives and adopt the most cost effective or least burdensome alternative that achieves the objectives of the rule.

This final rule with request for comments does not contain Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and tribal governments or the private sector of $146 million or more in any one year. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.

The program addressed in this section is listed in the Catalog of Federal Domestic Assistance under No. 10.567 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.)

Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under Section (6)(b)(2)(B) of Executive Order 13132.

The Department has determined that this rule does not have federalism implications. This rule does not impose substantial or direct compliance costs on State and local governments. Therefore, under Section 6(b) of the Executive Order, a federalism summary impact statement is not required.

This final rule with request for comments has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have preemptive effect with respect to any State or local laws, regulations, or policies which conflict with its provisions or which would otherwise impede its full and timely implementation. This rule is not intended to have retroactive effect unless so specified in the Effective Dates section of the final rule. Prior to any judicial challenge to the provisions of the final rule with request for comments, all applicable administrative procedures must be exhausted.

FNS has reviewed this final rule with request for comments in accordance with USDA Regulation 4300-004, “Civil Rights Impact Analysis,” to identify any major civil rights impacts the rule might have on program participants on the basis of age, race, color, national origin, sex, or disability. After a careful review of the rule's intent and provisions, FNS has determined that this rule is not expected to affect the participation of protected individuals in FDPIR.

Executive Order 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. In 2019, the Department engaged in a series of consultative and coordinated sessions with elected Tribal leaders and Tribal representatives from the FDPIR community to discuss these provisions. Reports from the consultative sessions will be made part of the USDA annual reporting on Tribal Consultation and Collaboration. USDA is unaware of any current Tribal laws that could be in conflict with this rule.

The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; 5 CFR 1320) requires the Office of Management and Budget (OMB) to approve all collections of information by a Federal agency before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. This rule contains information collection requirements that have been approved by OMB under OMB# 0584-0594 Food Programs Reporting System (FPRS). This rule, however, does not impact these information collection requirements and therefore they are not subject to review and approval by the Office of Management and Budget under the Paperwork Reduction Act of 1995.

The Department is committed to complying with the E-Government Act of 2002 (Pub. L. 107-347) 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.

Accordingly, 7 CFR part 253 is amended as follows:

Background

The 2018 Farm Bill (Pub. L. 115-334) amended the 2014 Farm Bill (Pub. L. 113-79) and authorized the continuation of the ARC and PLC Programs for the 2019 through 2023 crop years. This rule discusses the how the ARC and PLC Programs will be conducted, which is similar to how they were conducted in 2014 through 2018, with the changes made by the 2018 Farm Bill. ARC continues to have two options: A county option (ARC-CO) or an individual farm coverage option (ARC-IC). ARC and PLC are Commodity Credit Corporation (CCC) programs administered by FSA.

Consistent with the 2018 Farm Bill changes, this rule makes discretionary changes to the ARC and PLC Programs including the treatment of base acres on farms that had all cropland planted to grass or pasture, including cropland that was idle land or fallow, from January 1, 2009, through December 31, 2017; the requirement that producers on the farm in 2019 make an irrevocable program election of ARC or PLC in order for the enrolled farm's producers to be potentially eligible for 2019 benefits; a default program election based on the election that was applicable to the farm under the 2014 Farm Bill; and the opportunity for farm owners to update a covered commodity's PLC yield on the farm in 2020.

This rule discusses the basis for all payments to farms and producers under the ARC and PLC Programs; the program election that is required from all producers on a farm in the 2019 crop year; the opportunity for producers to enroll farms on a covered commodity-by-covered commodity basis in each crop year 2019 through 2023; the opportunity for producers to annually change the program election between ARC and PLC on a covered commodity basis beginning in 2021, and the one-time opportunity for owners to update yields in 2020.

Mandatory changes being made by this rule to implement the 2018 Farm Bill provisions include:

• Permit revised program elections of ARC or PLC in each of the 2021, 2022, and 2023 crop years;

• Establish separate irrigated and non-irrigated ARC-CO county yields;

• Calculate ARC-CO payments based on the physical location of base acres on the farm;

• Increase the percentage of a county's transitional yield (T-yield) that will be used in determining the benchmark yield;

• Provide for trend adjustment ARC-CO yields similar to how yield adjustment is done for crop insurance;

• Specify that Risk Management Agency (RMA) yields will have priority in determining ARC-CO yields;

• Provide for the division of as many as 25 counties each into two administrative units when county size and base acre limitations are reached and where FSA determines it appropriate to have administrative units;

• Provide producers with the option of entering into multiple-year ARC and PLC contracts;

• Specify that for 2019 through 2023, PLC payments will issue when an effective reference price, a new term defined in the 2018 Farm Bill and this rule, is greater than the applicable effective price;

• Specify that if fruits and vegetables are planted on a covered commodity's base acres that are on payment acres there will be a corresponding payment reduction for those, but that those payment reduced covered commodity base acres will be considered planted to the covered commodity that was the subject of the reduction;

• Amend the more than 10-base acres on a farm provision to continue the prohibition of payment eligibility of producers on that farm unless the sum of the base acres on the farm, when combined with the base acres of other farms in which the producer has an interest, is more than 10 acres; and

• Expand those producers not subject to the more than 10-base acre provision to include beginning farmers or ranchers, veteran farmers or ranchers, or limited resource farmers or ranchers.

The rule details the requirements necessary to carry out administration of ARC and PLC. As amended, the rule clarifies and reaffirms which farms are eligible, which producers are eligible, actions that owners and producers can and must perform, election periods, enrollment periods, and, more specifically, the things that owners and producers have to perform in order to ensure producer and farm payment eligibility.

Because of the timing of enactment of the 2018 Farm Bill and when this rule will be published, 2019 farmers will have planted and harvested their 2019 crops before: (1) Producers make election; and (2) producers make annual enrollment decisions. Producers will know their 2019 production and yields before they have to decide whether to elect and subsequently enroll in ARC or PLC. The 2019 producers on a farm must all unanimously elect ARC or PLC on each covered commodity having base acres and may enroll each or all of those covered commodities for 2019. For each of the 2020 and subsequent crop years, the producers on the farm in each crop year are eligible for crop year enrollment. Because the opportunities and actions that owners and producers have or are required to take are specific to the producers or owners that are on a farm in a contract period, the terms “owners” and “producers” under this rule are defined as the person or legal entity for the applicable contract period for which that person or legal entity is signing forms or performing actions under this rule. Many of the actions required under the ARC and PLC Programs (program election, enrollment, yield update, and subsequent opportunity to perform program election) can only be performed by the farm's owners and producers in that contract or program year. For 2019, as is discussed in greater detail below, and as required by the 2014 Farm Bill, as amended, the farm's 2019 producers must unanimously irrevocably elect ARC or PLC during a prescribed election period. FSA will announce the election period.

This rule includes a choice between two types of programs for commodity programs.

The ARC Program is an income support program that provides payments when actual crop revenue declines below a specified guarantee level. The PLC Program provides payments when the price for a covered crop declines below its “effective reference price.” Similar to the 2014 through 2018 crop years, eligible producers are required to make a decision to participate in either ARC-CO or PLC, but not both for a single covered commodity on the farm, for the 2019 through 2023 crop years. An election of ARC-IC will apply to all covered commodities on the farm. Beginning in 2021 and in each subsequent contract year, the farm's producers can unanimously choose a different program election for each of their covered commodities.

Under the 2014 Farm Bill, expected yield, revenue, and price were based on the most recent 5 crop years. Because the most recent yield and price data for the immediately preceding 5 crop years is not available in the current crop year, this rule uses the term “most recent 5 crop years available” which is defined as the 5 years preceding the most immediately preceding crop year. This means that for the 2019 crop year, the most recent 5 years available are 2013 through 2017.

The regulation in 7 CFR part 1412, as implemented in 2014 for the ARC and PLC Programs, specified covered commodities authorized by the 2014 Farm Bill (7 U.S.C. 9011-9019). The Bipartisan Budget Act of 2018 (Pub. L. 115-123) amended the 2014 Farm Bill by adding seed cotton as a “covered commodity” beginning with the 2018 crop year. Accordingly, there are now 22 covered commodities: wheat, oats, and barley (including wheat, oats, and barley used for haying and grazing), corn, grain sorghum, long grain rice, medium grain rice, seed cotton, pulse crops, soybeans, other oilseeds, and peanuts.

Under the 2018 Farm Bill amendments, effective reference prices will be used. An effective reference price is the lesser of 115 percent of the reference price for a covered commodity or an amount equal to the greater of the reference price for the covered commodity or 85 percent of the average of the market year average (MYA) price of the covered commodity for the most recent 5 crop years available, excluding each of the crop years with the highest and lowest MYA price.

Under the 2018 Farm Bill amendments, all of a farm's 2019 producers must make a unanimous program election between the ARC and PLC Programs. That election will be effective for the 2019 through 2023 crop years, unless the farm's 2021 and subsequent crop year producers in each of the 2021 and subsequent crop years choose to change the election. Under the 2014 Farm Bill, once the farm's producers elected ARC or PLC, the decision was irrevocable from the year of election through the 2018 crop year. Under the 2018 Farm Bill, all 2019 producers of covered commodities on the farm are required to affirmatively and unanimously elect PLC or ARC and, if an election is not made, the farm's covered commodity will be ineligible for payments in the 2019 crop year and the producers on the farm will default to the same ARC or PLC for each covered commodity on the farm for the 2020 through 2023 crop years as was applicable for the 2015 through 2018 crop years. This provision is specified in the 2018 Farm Bill and neither FSA nor CCC has any discretion to deviate from the ineligibility of producers for payments on farms that do not have a valid election made during the election period. Farms with 2019 producers who do not make a valid election in the 2019 election period will not be eligible for 2019 crop year payments.

The 2014 Farm Bill, as amended, specifies that a producer on a farm is not eligible to receive ARC and PLC payments if the sum of the base acres on the farm is 10 acres or less unless the sum of the base acres on the farm, when combined with the base acres of other farms in which the producer has an enrolled producer share interest greater than zero, is more than 10 acres. The 10-acre limitation will not apply to a socially disadvantaged farmer or rancher, a beginning farmer or rancher, a veteran farmer or rancher, or a limited resource farmer or rancher as defined in 7 CFR part 718.

The 2018 Farm Bill amended the 2014 Farm Bill to specify that a farm on which all of the cropland was planted to grass or pasture, including cropland that was idle or fallow from January 1, 2009, through December 31, 2017, will have base acres and yields maintained for the covered commodities on the farm, except that no payment will be made with respect to those base acres under this part for the 2019 through 2023 crop years. Additionally, the producers on a farm for which all of the base acres are maintained under this provision are ineligible to change the election applicable to the producers on the farm. The producers are also not permitted to reconstitute the farm to void or change this treatment of base acres.

Base acres are central to the payment formulas for ARC and PLC. Section 1111 of the 2014 Farm Bill provides that the base acres in effect under sections 1001 and 1301 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246; 7 U.S.C. 8702, 8751) (2008 Farm Bill), as adjusted, that were in effect September 30, 2013, constitute the base acres for the ARC and PLC Programs, subject to any reallocation, adjustment, or reduction under section 1112 of the 2014 Farm Bill, as amended. The adjustments to base acres for various reasons including, but not limited to, land no longer being devoted to agricultural uses are required. The term base acres includes unassigned base acres. However, as specified in this rule, payment acres for a covered commodity are a specified percentage of either the farm's specific covered commodity base acres or all the farm's covered commodity base acres (for ARC-IC) and in neither case do covered commodity base acres include unassigned base acres.

Income support under ARC will be provided for producers satisfying all requirements who have a share of eligible base acres of the enrolled covered commodity. The sum of the base acres on a farm are based on the farm's constitution according to 7 CFR part 718. FSA farm records and PLC yields are based on the administrative county of the farm. Based on 2018 Farm Bill amendments, ARC-CO assistance will based on the physical location of base acres on a farm; FSA will:

• Calculate actual crop revenue and ARC guarantee for irrigated and non-irrigated covered commodities;

• Determine a historical irrigated percentage for use in determining actual crop revenue and benchmark revenue for ARC-CO;

• Increase the transitional yield plug to 80 percent;

• Prioritize RMA data in the calculation of the ARC-CO guarantee and actual yields; and

• Implement a trend adjustment yield factor similar to that which is performed under the Federal Crop Insurance endorsement.

For ARC-CO election and enrollment on a covered commodity on a farm, the covered commodity will have its actual crop revenue and ARC guarantee, including an irrigated and non-irrigated covered commodity, weighted and summarized to the farm level in order to determine a per acre payment rate, if applicable, for the covered commodity.

In addition to revising the ARC regulation to accommodate these 2018 Farm Bill amendments with regard to physical location of the farm, FSA is making conforming changes to 7 CFR part 718, which are discussed below.

Additionally, FSA will, for no more than 25 counties nationwide, divide a county into not more than two administrative units. Eligible counties for consideration of administrative units are those that are larger than 1,400 square miles and contain more than 190,000 base acres.

Section 1706 of the 2018 Farm Bill specified that, to the maximum extent practicable, FSA would offer an option to sign a multiyear contract for ARC and PLC. This option will be made available to the producers on the farm and such enrollment, if chosen by the farm's producers, will be considered valid for the year of enrollment and each subsequent year unless there is a change to any of the following:

• The farm's constitution;

• The farm's base acres or PLC yield of any covered commodity;

• Any of the producers or producer shares of covered commodities on the farm;

• Either election or enrollment of any covered commodity on the farm; or

• Any other change, including a withdrawal of any enrolled producer, that would require the producers on the farm to have to reaffirm enrollment.

During the election period that will be announced by FSA, all of the producers on a farm must make a unanimous election of either of the two following options:

• ARC-CO or PLC on a covered commodity-by-covered commodity basis (the election can be for ARC-CO, PLC, or a combination of ARC-CO and PLC); or

• ARC-IC for all covered commodities on a farm.

The election, if valid as described in this rule, will apply to the farm for the 2019 through 2023 crop years, unless changed by the 2021, 2022, or 2023 producers on the farm.

The 2018 Farm Bill amended the 2014 Farm Bill to permit owners of farms an opportunity to update in 2020, for each covered commodity, the payment yield that will be used to calculate PLC payments. An owner's decision to update yields is independent of subsequent decisions of producers to elect or enroll. In other words, an owner can update yields for PLC in 2020 even though the producers on that farm may later elect and enroll in ARC.

If the Secretary at any time designates an oilseed or pulse crop as a covered commodity for PLC, this rule specifies how an equivalent average yield will be established for that commodity for the purpose of PLC.

FSA will use a press release to announce specific periods for the yield update and it is only during this period that owners of a farm can update yields.

As previously discussed, owners are allowed to update records incidental to yield updates for a farm. The 2019 producers of covered commodities on a farm must unanimously elect ARC or PLC. If during the established period in 2020 for yield update, owners exercise the option to update yields, that yield update will apply to the farm unless the yield update is either withdrawn, rescinded, or modified by an owner on the farm during the established yield update period. CCC is under no obligation to notify owners on a farm if a yield update has been filed, rescinded, modified, or withdrawn during the yield update period. If a person or legal entity acquires ownership of a farm that has already had an election of ARC or PLC made by 2019 producers or by 2021, 2022, or 2023 producers, FSA will provide the election status to that person or legal entity on request, but CCC is under no obligation to notify new owners or new producers whether an election has previously been made on that particular farm.

All 2019 producers on a farm must unanimously elect ARC, PLC, or a combination of ARC and PLC for each covered commodity and farm. If producers cannot agree, the farm's covered commodity will default to the same coverage for each covered commodity on the farm for the 2020 through 2023 crop years as was applicable for the 2015 through 2018 crop years and the farm's covered commodity will not be eligible for 2019 payments. Election is not enrollment.

In order to be eligible for payments, producers must annually enroll their respective share interest of base acres or interest of covered commodities. Only producers that annually enroll, or who are subject to a valid multiyear enrollment, may receive payments. In each crop year or program year, the producers on the farm in that crop year or program year may choose to enroll the farm in ARC and PLC on a covered commodity-by-covered commodity basis.

The role of owners versus the roles for producers is specified in the 2014 Farm Bill. FSA does not have the discretion to set different requirements.

As is discussed in significant detail with examples, ARC has two options—a county option (ARC-CO) and an individual farm coverage option (ARC-IC). For ARC-CO, the benchmark revenue is based on average revenues at the county level for covered commodities; for ARC-IC, the benchmark revenue target is based on the average revenue for that specific farm. For ARC-CO, 85 percent of the specific covered commodity base acres for a commodity will be “payment acres” that are used to calculate payments; for ARC-IC, 65 percent of all covered commodity base acres on the farm will be “payment acres.” On a covered commodity-by-covered commodity basis, the farm's 2019 producers can elect either ARC-CO and PLC for a farm. In other words, they can elect ARC-CO for some covered commodities and PLC for others. However, if the farm's current producers elect ARC-IC, the election applies to all the covered commodities and the whole farm.

The regulation specifies the calculations that will be used for payments to producers, the one-time opportunity owners will have to update yields and planting history, the program election that is required from all producers on a farm in the 2019 crop year, and the opportunity for producers to annually enroll on a covered commodity-by-covered commodity basis on each farm (for ARC-CO and PLC program elections) for each year.

There are several factors that affect payments and therefore, the decision making relative to participation in ARC or PLC. ARC and PLC are intended to supplement, not replace, regular crop insurance. ARC payments are limited to 10 percent of the benchmark revenue per acre. The PLC calculation does not include current yields, so if market year prices were above the effective reference price, but current yields were low, there would be no PLC payment.

Both ARC and PLC Programs are subject to a $125,000 per year per person or legal entity payment limitation for all commodities except peanuts, with a separate $125,000 limit for payments for peanuts. Loan Deficiency Payments (LDP), and gains on Market Assistance Loans (MAL) are no longer included in the ARC and PLC per year per person or legal entity payment limitation.

As noted above, PLC is a counter-cyclical price program that makes a payment when the effective price for a covered crop falls below its effective reference price specified in the 2014 Farm Bill, as amended. The effective price is the higher of the national average market price for the 12 month MYA price, or the national average loan rate (the MAL rate) for that crop year. Usually, the market price will be the effective price. The reference prices are set through 2023.

As was the case under the 2014 Farm Bill and in 7 CFR part 1412, temperate japonica rice will have separate reference prices set by USDA for high altitude or high latitude areas versus other areas of the United States where rice is grown. It was determined that the applicable high altitude or high latitude areas of the United States for which this applies is California. Therefore, this rule specifies a separate reference price for temperate japonica rice in § 1412.52.

Since neither the effective price nor the reference price is based on the price the individual producer receives, the producer does not need to provide FSA any price or yield data to qualify for PLC payment.

Payments for a given crop year will be made after October 1 of the following year. For example, 2019 crop year payments will be made after October 1, 2020, and 2020 crop year payments will be made after October 1, 2021.

An example of a PLC payment calculation using the corn reference price is as follows:

As noted above, the payment is based on effective reference prices and the farm's PLC yields. In the example above, the producer would receive a payment of $1,913 for 100 base acres using the farm's PLC yield. Corn base acres are always included for payment in this example, even if no corn was planted on the farm in the year of the payment because the payment is made on the base acres.

As discussed above, ARC is an income support program that is designed to cover a portion of a farmer's out-of-pocket cost when crop revenues fall below guarantee revenue levels, with the benchmark revenue based on either county level historic revenue (ARC-CO) or the individual farm's historic revenue (ARC-IC). Farmers may elect ARC-CO as an alternative to PLC on a covered commodity-by-covered commodity basis, or ARC-IC for all the covered commodities and the whole farm. For both ARC-CO and PLC, the payment calculation is based on covered commodity base acres.

Under ARC-CO, payments are issued when actual county crop revenue of a covered commodity is less than the ARC-CO guarantee for the covered commodity. Since payment is not based on the revenue or yield of the individual farm, the producer does not need to provide FSA any additional price or yield data to qualify for ARC-CO payment. The data used in the calculation is county data for yields and national prices, not individual farm data.

The ARC-CO guarantee is 86 percent of the crop's benchmark revenue in the county. Benchmark revenue is calculated using the most recent available previous 5-year MYA price, excluding years with the highest and lowest prices (the ARC-CO benchmark price), multiplied by the most recent 5-year average county yield available, excluding the years with the highest and lowest yields (the ARC-CO benchmark yield). The payment is equal to 85 percent of a farm's base acres of the covered commodity multiplied by the difference between the county guarantee and the actual county revenue for the covered commodity.

The ARC-CO payment cannot exceed 10 percent of the county benchmark revenue (the ARC-CO average historical benchmark price times the ARC-CO average historical benchmark yield). That is because ARC is intended to supplement crop insurance, so the producer also has crop insurance that would pay for greater losses. An example of an ARC-CO payment calculation using estimated 2019 soybean prices and yields as follows:

ARC-IC provides payments when the actual individual's revenues, averaged across all covered commodities planted on the ARC-IC farm, are less than ARC-IC guarantees, averaged across those covered commodities on the farm. As specified in the 2014 Farm Bill, as amended, the farm for ARC-IC purposes is the sum of the producer's interest in all enrolled ARC-IC farms in the State, meaning that if a producer has an interest in multiple farms that have elected and enrolled in ARC-IC, the ARC-IC benchmark revenue for that producer will be a weighted average of the benchmark revenue from each of those farms. The farm's ARC-IC guarantee equals 86 percent of the farm's individual benchmark guarantee (5-year average of the annual benchmark revenues), excluding the years with the highest and lowest annual benchmark revenues, then averaging across all crops on the farm. The actual revenue is similarly calculated, with both the guarantee and actual revenue calculated using planted acreage on the farm. The ARC-IC payment is equal to 65 percent of the sum of the base acres of all covered commodities on the farm multiplied by the difference between the individual guarantee revenue and the actual individual crop revenue across all covered commodities planted on the farm. Payments may not exceed 10 percent of the individual benchmark revenue. Since the payment is based on yields for that individual farm, the producers enrolled on ARC-IC elected farms must report acreage and yield data to qualify for payment.

An example of an ARC-IC payment calculation is shown in the following table:

Election of ARC and PLC will occur in a defined period that will be announced by FSA in a press release. Producers are those that perform the election. Each election will be based on the farm structure for the 2019 crop year or, as may be applicable, the 2021, 2022, or 2023 crop year. In this context, the term “farm structure” means the farm as last constituted in the crop year. Reconstitutions of farms initiated after August 1, 2019, will not be considered by FSA until after the 2019 election period has ended. Unless changed under provisions of this rule in the 2021, 2022, or 2023 years, the election of ARC and PLC for a farm will apply to that farm in all years 2019 through 2023 and, in the case of that farm being reconstituted, the farms resulting from that reconstitution. Neither the requesting of a farm reconstitution nor the reconstitution of any farm will change either the requirement that all producers of a covered commodity on a farm agree to the unanimous election during the election period or the valid election that was made by those producers.

If no election is made in 2019 for a covered commodity's base acres, the farm will default to the same coverage for the covered commodity on the farm for the 2020 through 2023 crop years as was applicable for the 2015 through 2018 crop years and the producers on that farm will not be eligible for 2019 crop year payments (even if the farm is enrolled in 2019 ARC or PLC). During the 2019 election period, all producers of a covered commodity on a farm must unanimously make the election as discussed in this rule in order to preserve the payment eligibility of all producers of the covered commodity on the farm for 2019. If a valid election is submitted by all producers of a covered commodity's base acres on a farm during the election period, that election will be recognized as valid for the farm in the 2019 through 2023 crop years unless that election is either rescinded or terminated by any 2019 producer on the farm during the election period, or unless the valid 2019 election is modified and replaced by another valid election by 2019 producers during the election period. At any time during the election period, a producer of a covered commodity's base acres can rescind an election or terminate an election by withdrawing from the election or by providing written notice to FSA requesting to have the election rescinded.

If a new producer acquires an interest in a farm on or after the filing of a valid election in an election period by all of a farm's producers, that new producer will be subject to any previously submitted valid election made in an election period unless that new producer changes the election during the remaining time in the election period. While FSA will respond to inquiries submitted by such new producers, neither FSA nor CCC has any obligation to notify new owners or new producers of whether or not a valid election exists or is in place or whether a producer has rescinded or terminated an election. Additionally, neither FSA nor CCC have any role or responsibility of advising any producers or current producers on a farm of who all the farm's current producers are in the election period. It is the responsibility of the current producers on a farm to ensure that a valid election occurs in the prescribed election period.

The election and the requirement that the election reflects the unanimous agreement of all the producers on a farm are specified in the 2014 Farm Bill, as amended, and neither FSA nor CCC has discretion to waive these requirements. Additionally, election is not enrollment. Producers on farms that have completed an election (and those that have not completed an election and who might want to participate in ARC or PLC for the 2020 and subsequent crop years) must still annually enroll in order to be eligible for ARC and PLC payments on farms in those crop years, as applicable.

Election and enrollment can impact eligibility for some forms of crop insurance. Producers who elect and enroll in PLC also have the option of purchasing Supplemental Coverage Option (SCO) through RMA. Producers of covered commodities on farms that have elected under ARC are ineligible for SCO. Producers of upland cotton who choose to enroll upland cotton are ineligible for stacked income protection plan under section 508B of the Federal Crop Insurance Act (7 U.S.C. 1508b). Specifically, section 11003 of the 2014 Farm Bill authorizes SCO under the Federal Crop Insurance Act (7 U.S.C. 1501-1524). SCO covers a portion of the deductible for regular crop insurance on either a yield or revenue basis. As with other forms of crop insurance offered through RMA, SCO premiums are subsidized, and no payment limit or AGI limit applies. Additional details regarding SCO and benefits available under SCO can be obtained from RMA. Only PLC participants are eligible for SCO. Producers of covered commodities with a valid ARC election and enrollment, as well as acres that are enrolled in the stacked income protection plan under section 508B of the Federal Crop Insurance Act (7 U.S.C. 1508b), are not eligible for SCO.

When a farm's base acres are leased on a share basis, neither the landlord nor the tenant will receive 100 percent of payments for the farm. FSA will approve an ARC and PLC contract and approve the division of payment when all the following, as applicable, occur or have been determined to have occurred:

• Landlords, tenants, and sharecroppers sign the application and agree to the payment shares;

• FSA determines that the interests of tenants and sharecroppers are being protected; and

• FSA determines that the payment shares do not circumvent either the provisions of this rule or the payment limitation provisions of 7 CFR part 1400.

CCC and FSA will determine eligibility for payments similarly to how CCC and FSA made those determinations for the 2014 through 2018 crop years for ARC and PLC. Each eligible producer on a farm will be given the opportunity to enroll and receive payments determined to be fair and equitable as agreed to by all the producers on the farm; the contract will be approved by the FSA county committee. At FSA's discretion, each producer leasing a farm will be required to provide a copy of their written lease to the county committee and, in the absence of a written lease, must provide to the county committee a complete written description of the terms and conditions of any oral agreement or lease.

At the discretion of FSA, an owner's or landlord's signature, as applicable, affirming a zero share on a contract may be accepted as evidence of a cash lease between the owner or landlord and tenant, as applicable. This would allow the producer with the cash lease to claim 100 percent of the payments. Such signature or signatures, if entered on the contract to satisfy the requirement of furnishing a written lease, must be entered on the contract by the end of the enrollment period for the contract year, as announced by FSA.

Annual enrollment for each covered commodity and crop year or multiyear contract enrollment will be as announced by FSA.

The contract year is based on the fiscal year, October 1 to September 30 of the next calendar year, with the enrollment occurring in the contract year. For 2019, the 2019 producers will enroll by a deadline announced by FSA for the 2019 crop year, the deadline will be in the 2020 contract year for a retroactive contract period that ended September 30, 2019. For each subsequent year, the enrollment deadline will be for a contract that began on the previous October 1. For example, the producer will enroll by June 1, 2020, for a 2020 contract that runs from October 1, 2019, to September 30, 2020.

The enrollment deadline announced by FSA will be consistent with the deadline for similar FSA and CCC programs and take into consideration the reporting of cropland and crop acreage on the farm. The date is also in advance of compliance activities that are required to occur for the crop year (acreage and production reporting), and the final date for seeking reconstitution of farms.

The general order of activities associated with participation in ARC and PLC is:

• 2019 producers unanimously make ARC and PLC election;

• 2020 owner updates PLC yield;

• 2020 subsequent crop year producers enroll the farm during the crop year's enrollment period announced by FSA; and

• 2021, 2022, and 2023 producers on a farm can unanimously make a new ARC and PLC election and subsequently enroll.

The following is a summary of deadlines for ARC and PLC.

The regulations in 7 CFR part 1412 specify certain requirements to which the participant must agree to be eligible for payments. One such requirement is to effectively control noxious weeds and otherwise maintain the land in accordance with sound agricultural practices.

As was the case under the 2014 Farm Bill, ARC and PLC continue to have provisions for planting flexibility and reductions of payment acreage for plantings of fruits, vegetables, and wild rice on base acres. These reductions are specified in 7 CFR part 1412. The 2018 Farm Bill amendments with regard to this, however, specified that for each crop year for which this reduction in payment acres is made, those acres will be considered to be planted and considered planted (P&CP) to a covered commodity for the purpose of any adjustment or reduction of base acres for the farm. This change is reflected in § 1412.46. FSA is also updating the list of counties in § 1412.46(f) that have been determined to be regions having a history of double-cropping covered commodities or peanuts with fruits, vegetables, or wild rice.

Common provisions in 718 that apply to all FSA and CCC programs, including those for base acres and farm reconstitutions, apply to ARC and PLC. As specified in the 2014 Farm Bill and in 7 CFR part 1400, payment limits and average adjusted gross income (AGI) limits apply to ARC and PLC. A person or legal entity is ineligible for payments if the person's or legal entity's AGI for the applicable ARC and PLC contract or AGI compliance program year is in excess of $900,000. These provisions have not been changed; however, as will be discussed in greater detail in other rulemaking, beginning with the 2019 crop year, the per crop year annual payment limitation for ARC and PLC will no longer take into consideration loan deficiency payments or marketing assistance loan gains.

As was the case under the 2014 Farm Bill, producers eligible for ARC and PLC are required to be a person or legal entity who is actively engaged in farming and otherwise eligible for payment, as specified in 7 CFR part 1400, and who complies with other general program eligibility requirements including, but not limited to, those pertaining to highly erodible land and wetland conservation provisions specified in 7 CFR part 12.

Appeal regulations specified in 7 CFR parts 11 and 780 apply. FSA program requirements and determinations that are not in response to, or result from, an individual disputable set of facts in an individual participant's application for assistance are not matters that can be appealed.

Crop insurance is not required as a condition of eligibility for ARC and PLC, but ARC and PLC elections and enrollment may impact eligibility for crop insurance. Those impacts are covered under separate regulations for crop insurance.

As previously discussed, the 2018 Farm Bill amendments to ARC and PLC provisions require amendments to the provisions applicable to multiple programs in 7 CFR part 718. This rule revises the definitions of “common land unit” and “tract” to clarify these farm record terms in light of a new term “physical location,” and its definition. Changes are being made to explain when FSA will update records and how FSA will go about updating records. Changes also clarify or specify when an owner may request changes to farm records based on physical location and when those changes are effective. FSA is revising § 718.8 to distinguish requests for changes to a servicing FSA county office and when those changes impact a farm's administrative county. This is not so much a change, but rather a clarification. An operator or owner may request a different servicing FSA county office. Generally administrative counties are designated by FSA and an operator or owner does not request an administrative county. This rule also adds the definition for “veteran farmer or rancher,” consistent with how that term is defined in 7 U.S.C. 2279 by the 2018 Farm Bill, and specifies how the definition of “limited resource farmer or rancher” applies to legal entities. This rule specifies in § 718.4 that program participants requesting program benefits as a beginning, limited resource, socially disadvantaged, or veteran farmer or rancher must provide a certification of their status as a member of one of those groups as required by the applicable program provisions. This rule also updates the controlled substance provisions to remove “Direct and Counter-cyclical Program” from the paragraph referring to part 1412 and clarify what benefits are covered by the provisions; updates provisions regarding measurement services in § 718.101 and late-file acreage reports in § 718.104; clarifies that participants may be ineligible for benefits under a program that requires accurate crop acreage reports if their crop acreage report is outside of the tolerance for that crop; makes a minor technical correction to § 718.103(i); and amends provisions in § 718.204 to clarify that FSA will establish procedures regarding when reconstitutions requested after August 1 will become effective. The amendments and clarifications will help to ensure that ARC and PLC are implemented effectively.

As specified in 7 U.S.C. 9091, the regulations to implement the provisions of Title I and the administration of Title I of the 2018 Farm Bill are exempt from

• The notice and comment provisions of 5 U.S.C. 553, and

• The Paperwork Reduction Act (44 U.S.C. chapter 35).

The APA provides that the 30-day delay in the effective date provisions do not apply when the rule involves specified actions, including matters relating to benefits. This rule governs the program for ARC and PLC payments and thus falls within that exemption.

In addition, 7 U.S.C. 9091(c)(3) directs the Secretary to use the authority provided in 5 U.S.C. 808, which provides that when an agency finds for good cause that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, that the rule may take effect at such time as the agency determines. Due to the nature of the rule, the mandatory requirements of the 2018 Farm Bill, and the need to implement the regulations expeditiously to provide assistance to producers, FSA and CCC find that notice and public procedure are contrary to the public interest.

The Office of Management and Budget (OMB) designated this rule as not major under the Congressional Review Act, as defined by 5 U.S.C. 804(2). Therefore, FSA is not required to delay the effective date for 60 days from the date of publication to allow for Congressional review.

Accordingly, this rule is effective upon publication in the Federal Register .

Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasized the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The requirements in Executive Orders 12866 and 13573 for the analysis of costs and benefits to loans apply to rules that are determined to be significant. Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” established a federal policy to alleviate unnecessary regulatory burdens on the American people.

OMB designated this rule as not significant under Executive Order 12866, “Regulatory Planning and Review,” and therefore, OMB has not reviewed this rule and an analysis of costs and benefits to loans is not required under either Executives Orders 12866 or 13563.

Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” requires that in order to manage the private costs required to comply with Federal regulations that for every new significant or economically significant regulation issued, the new costs must be offset by the elimination of at least two prior regulations. As this rule is designated not significant, it is not subject to Executive Order 13771. In a general response to the requirements of Executive Order 13777, USDA created a Regulatory Reform Task Force, and USDA agencies were directed to remove barriers, reduce burdens, and provide better customer service both as part of the regulatory reform of existing regulations and as an ongoing approach. FSA reviewed this regulation and made changes to improve any provision that was determined to be outdated, unnecessary, or ineffective.

The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), generally requires an agency to prepare a regulatory analysis of any rule whenever an agency is required by APA or any other law to publish a proposed rule, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This rule is not subject to the Regulatory Flexibility Act because as noted above, this rule is exempt from notice and comment rulemaking requirements of the APA and no other law requires that a proposed rule be published for this rulemaking initiative.

The environmental impacts of this 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 regulations for compliance with NEPA (7 CFR part 799). The rule implements primarily mandatory changes required by the 2018 Farm Bill; the discretionary aspects are limited to eligibility requirements, enrollment procedures, and payment calculations. ARC and PLC provide revenue support to eligible producers. The discretionary provisions would not alter any environmental impacts resulting from implementing the mandatory changes to ARC and PLC. Accordingly, these discretionary aspects are covered by the following Categorical Exclusion, found at 7 CFR 799.31(b)(6)(vi) Safety net programs administered by FSA, and no Extraordinary Circumstances (§ 799.33) exist. Therefore, as this rule presents only discretionary clarifications of mandatory requirements that will not have an impact to the human environment, individually or cumulatively, FSA will not prepare an environmental assessment or environmental impact statement for this regulatory action; this rule serves as documentation of the programmatic environmental compliance decision for this federal action.

Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with State and local officials that would be directly affected by proposed Federal financial assistance. The objectives of the Executive Order are to foster an intergovernmental partnership and a strengthened federalism, by relying on State and local processes for State and local government coordination and review of proposed Federal financial assistance and direct Federal development. For reasons specified in the final rule related notice regarding 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), the programs and activities within this rule are excluded from the scope of Executive Order 12372.

This rule has been reviewed under Executive Order 12988, “Civil Justice Reform.” This rule will not preempt State or local laws, regulations, or policies unless they represent an irreconcilable conflict with this rule. The rule has retroactive effect in that the contracts will include a retroactive period. Before any judicial action may be brought regarding the provisions of this rule, the administrative appeal provisions of 7 CFR parts 11 and 780 are to be exhausted.

This rule has been reviewed under Executive Order 13132, “Federalism.” The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, except as required by law. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.

This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.

USDA has assessed the impact of this rule on Indian Tribes and determined that this rule has Trial implications that required Tribal consultation under Executive Order 13175. Tribal consultation for this rule was included in the 2018 Farm Bill consultation held on May 1, 2019, at the National Museum of American Indian, in Washington, DC. The portion of the Tribal Consultation relative to this rule was conducted by Bill Northey, USDA Under Secretary for the Farm Production and Conservation mission area, as part of Title I session. There were no specific comments from Tribes on this rule during Tribal consultation. If a Tribe requests additional comments, FSA will work with OTR ensure meaningful consultation is provided with changes, additions, and modifications identified in this rule are expressly mandated by legislation.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 104-4) requires Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments, or the private sector. Agencies generally need to prepare a written statement, including a cost benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures of $100 million or more in any 1 year for State, local, or Tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates, as defined in Title II of UMRA, for State, local, and Tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

The titles and numbers of the Federal Domestic Assistance Program found in the Catalog of Federal Domestic Assistance to which this rule applies are:

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

For the reasons discussed above, CCC and FSA amend 7 CFR parts 718 and 1412 as follows:

(b) If a valid election is not made for a farm in the 2019 crop year, FSA will not make any payments with respect to the farm for the 2019 crop year and the producers on the farm will, subject to § 1412.71(f), default to the same coverage for each covered commodity on the farm for the 2020 through 2023 crop years as was applicable for the 2015 through 2018 crop years.

Discussion

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 777 airplanes. The NPRM published in the Federal Register on December 26, 2018 (83 FR 66178). The NPRM was prompted by reports of uncommanded fore/aft movements of the Captain's and First Officer's seats. The NPRM proposed to require an identification of the part number, and if applicable the serial number, of the Captain's and First Officer's seats, and applicable on-condition actions for affected seats.

The FAA is issuing this AD to address uncommanded fore/aft movement of the Captain's and First Officer's seats. An uncommanded fore/aft seat movement during a critical part of a flight, such as takeoff or landing, could cause a flight control obstruction or unintended flight control input, which could result in the loss of the ability to control the airplane.

The FAA gave the public the opportunity to participate in developing this final rule. The following presents the comments received on the NPRM and the FAA's response to each comment.

Air Line Pilots Association, International (ALPA), supported the intent of the NPRM. FedEx had no objection to the NPRM. United Airlines agreed with the NPRM.

United Airlines asked for clarification regarding what is considered a finding for the determination of Condition 3 (no findings) in Boeing Special Attention Service Bulletin 777-25-0619, Revision 1, dated August 8, 2018 (“BSASB 777-25-0619, Revision 1”). The commenter wanted to know that if the horizontal actuator is found to have part number (P/N) AD8650502 or AD8650503 at Amendment A or Amendment B, is that considered a finding for the determination of Condition 3 (no findings).

The FAA agrees to provide clarification regarding Condition 3 in BSASB 777-25-0619, Revision 1. According to BSASB 777-25-0619, Revision 1, following the procedures in Part 3 of the Accomplishment Instructions can result in Condition 3 (no findings) or Condition 4 (any findings). If the horizontal actuator is found to have P/N AD8650502 or AD8650503 at Amendment A or Amendment B it is considered a finding and meets Condition 4 of BSASB 777-25-0619, Revision 1. If the horizontal actuator is found to have a part number other than P/N AD8650502 or AD8650503 at Amendment A or Amendment B, it is consider a no finding and meets Condition 3 of BSASB 777-25-0619, Revision 1. The FAA has not revised this AD in regard to this issue.

Air New Zealand asked if the work instructions in Part 3.B. of Ipeco Service Bulletin 258-25-14, Issue 4, dated January 29, 2018 (“Ipeco SB 258-25-14, Issue 4”) are compliant with the regulations because the instructions are to remove the original nameplate, which would appear to also be the data plate. Air New Zealand stated that because the data plate should only be created and installed by the original equipment manufacturer these instructions appear to create a bogus part.

The FAA infers the commenter is referring to 14 CFR 21.616, which requires the holder of a technical standard order (TSO) to mark each TSO article in accordance with 14 CFR part 45. FAA Advisory Circular AC 21-25B, Section 8.2.4, provides an acceptable means of compliance for marking modified seating systems.

In this case, since the modifier has no access to the substantiation information, he or she cannot substantiate that the article continues to meet the requirements of the applicable TSO. However, the seat has been modified with a design approval ( i.e., Ipeco SB 258-25-14, Issue 4) mandated by this AD. Therefore, the instructions provided by the Ipeco SB 258-25-14, Issue 4, are appropriate and do not conflict with FAA regulations or guidance. The FAA has not revised this AD in regard to this issue.

Martha Viner requested that the estimated costs in the NPRM be revised to include statistical evidence from the harms of the defective parts. The commenter stated that the NPRM does not address the psychological costs of the unsafe condition including, but not limited to, injuries sustained from the defective parts and how many individuals have been harmed as a result. The commenter did not provide justification for her request. The FAA does not agree with the commenter's request. Because the scope of FAA ADs are limited and technical in nature, the FAA can only provide the actual known costs (labor and materials) for compliance with the requirements of the AD. The FAA has not revised this AD in regard to this issue.

Boeing requested that the parts cost for the replacement of the horizontal actuator be changed from $205 to $7,936.79. The commenter stated that the part manufacturer, Ipeco, provided the parts cost via email.

The FAA agrees with the commenter's request because Boeing has confirmed the part cost with Ipeco, the part supplier. The FAA has revised the Costs of Compliance section of this final rule accordingly.

Boeing requested that in all places where “uncommanded movement” is used in the NPRM that the wording be changed to “uncommanded horizontal movement.” The commenter stated that the Captain's and First Officer's seats have both horizontal and vertical powered movement and the service information specified in the proposed AD addresses only the horizontal movement.

The FAA agrees with the commenter's observation that Captain's and First Officer's seats have both horizontal and vertical powered movement. The FAA does not agree with the commenter's request to change the wording to “uncommanded horizontal movement” because “horizontal movement” could also mean movement anywhere in the horizontal plane of the airplane on which the seat is installed. The FAA has revised this final rule to replace all instance of the term “uncommanded movement” with “uncommanded fore/aft movement.”

Gary Chan asked if the FAA is planning to revise the applicability of the proposed AD to include Model 747 airplanes. The commenter noted that Ipeco seat part number 3A258 is rotable between Model 747 and Model 777 airplanes. The commenter also pointed out that Boeing has released service information for Model 747 airplanes to address flight deck seat issues.

The FAA does not agree with the commenter's request to revise the applicability of this AD. The FAA has already issued an NPRM (84 FR 13840, April 8, 2019) to address the identified unsafe condition and parts rotability concern for Boeing Company Model 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747-8F, and 747-8 series airplanes. The FAA has not revised this AD in regard to this issue.

Air New Zealand expressed concern that replacement parts for the horizontal actuator would not be available in time for operators to comply with the 36-month compliance time specified in the proposed AD. The commenter noted that replacing the horizontal actuator with Artus P/N AD8650503 at Amendment C or later was terminating action for the repetitive checks of the horizontal movement system. The commenter stated it contacted Ipeco regarding pricing and parts availability and was advised that there is a 7-month lead time for the parts. The commenter related that Ipeco may not be able to meet the demand for parts when the AD is released.

The FAA infers that the commenter is requesting the compliance time be extended due to a perceived parts availability issue. The FAA does not agree with the commenter's request. The 36-month compliance time for the required actions was determined taking into consideration the urgency associated with the subject unsafe condition as well as the availability of required parts. The FAA notes that the commenter is considering parts availability for an optional terminating action, which can be done at any time, and does not have to be done within 36 months after the effective date of this AD. However, the FAA will consider requests for approval of an extension of the compliance time if sufficient data are submitted to substantiate that the new compliance time would provide an acceptable level of safety. The operator can submit a request for an alternative means of compliance (AMOC) using the provisions in paragraph (k) of this AD. The FAA has not revised this AD in regard to this issue.

Delta Air Lines requested that paragraph (g) of the proposed AD include a provision to allow operators to do a records review to determine which airplanes have the affected seat part numbers installed. The commenter also requested that paragraph (h) of the proposed AD be revised to include the statements “. . . do an inspection to determine the part number, and serial number as applicable, of the Captain's and First Officer's seats . . .” and “A review of the airplane maintenance records may be used for the seat inspection if the part number can be conclusively determined from that review.”

The commenter stated that the requested changes are in agreement with the language found in BSASB 777-25-0619, Revision 1, which allows maintenance records to be used to determine the part number of the actuator; and the NOTE following step 3.B.2. of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-25-0607, Revision 1, dated July 17, 2018 (“BSASB 777-25-0607, Revision 1”). The commenter stated these added statements would provide an equivalent level of safety for operators that do have affected components installed on airplanes affected by this AD but listed outside of the effectivity specified in the Boeing service information.

The FAA agrees with the commenters' statement that a records review will provide an acceptable means for operators to identify the part numbers of the Captain's and First Officer's seats installed on an airplane. As noted by the commenter, the service information already allows a record review. For clarity, in paragraph (g) of this AD where we specify to do an inspection, the FAA has included the following statement: “A review of airplane maintenance records is acceptable in lieu of this inspection if the part number and serial number of the Captain's and First Officer's seats can be conclusively determined from that review.”

However, paragraph (h) of this AD has not been revised. While paragraph (g) of this AD requires an inspection to determine the part number and serial number, as applicable, of the Captain's and First Officer's seats, paragraph (h) of this AD specifies accomplishing applicable actions in accordance with the service information, which includes both inspection and records review language. The records review provided in the service information referenced in pargraph (h) of this AD is applicable to all airplanes identified in the applicability of this AD. Therefore, a statement clarifying that a records review is acceptable in lieu of an inspection is not necessary for paragraph (h) of this AD.

Lufthansa stated that it is not possible for its mechanics to do the maintenance log review that is included in Part A, paragraph 1.c., of the Accomplishment Instructions of Ipeco SB 258-25-14, Issue 4.

The FAA infers that the commenter is requesting that we clarify the procedures in Ipeco SB 258-25-14, Issue 4. Operators only need to do a review of the maintenance logs if the maintenance logs are available. If maintenance logs are not available then operators do the actions in Part A, paragraph 1.b., of Ipeco SB 258-25-14, Issue 4. Also, Part A, paragraph 1.b. and paragraph 1.c. of the Accomplishment Instructions of Ipeco SB 258-25-14, Issue 4, direct maintenance personnel to do the actions in Part E of the Accomplishment Instructions if the horizontal actuator has P/N AD8650503 at Amendment A or Amendment B. The FAA has not revised this AD in regard to this issue.

Lufthansa remarked that Boeing Special Attention Service Bulletin 777-25-0619, Revision 1, does not include procedures that provide a permanent and acceptable level of safety. The commenter stated that it would have expected a redesign of the horizontal shaft actuator (including the shaft), which would be required to withstand and limit the maximum loads to the horizontal output shaft, and would prevent shafts from failure at any phase of seat operation. The commenter stated that the repetitive inspections would not be effective because shaft failures could occur at any time between inspections.

The commenter recommended that a more effective solution would be a crew procedure ( e.g., a pre-flight inspection of the seat tracks). Furthermore the commenter stated that it would have expected a termination action for modified/compliant airplanes, for example required maintenance documentation amendments. The commenter asked if any maintenance planning document item is being prepared that would require repetitive checks for the part number of the horizontal actuator.

The FAA infers that the commenter is requesting that we require alternative actions to address the unsafe condition than what is proposed in the NPRM. The FAA does not agree with the commenter's request. The FAA has identified the unsafe condition in this final rule as uncommanded fore/aft movement of the Captain's and First Officer's seats. The FAA has determined that the actions required by this AD adequately address the identified unsafe condition, and that the creation of a maintenance planning document item or other service information is not needed. In addition, the FAA notes that a terminating action is detailed in paragraph (j) of this AD. Paragraph (j) of this AD states “Installation of a serviceable Captain's or First Officer's seat as specified in, and in accordance with, the Accomplishment Instructions of BSASB 777-25-0619, Revision 1, terminates the repetitive checks required by paragraph (h) of this AD for that seat only.”

A serviceable Captain's or First Officer's seat is defined in Paragraph 3.A of BSASB 777-25-0619, Revision 1. The horizontal actuator with Artus P/N AD8650503 at Amendment C or later is the redesigned horizontal actuator that is designed to withstand the required limit loads. Additionally, according to the BSASB 777-25-0619, Revision 1, in the case that the horizontal actuator part number is not AD8650503 at Amendment C or later, upon inspection and before further flight, the operator has the option to install a power deactivated seat in lieu of the terminating action or until such a time that the horizontal actuator can be serviced in accordance with the appropriate service information. The FAA has not revised this AD in regard to this issue. However, under the provisions of paragraph (k) of this AD, the FAA will consider requests for approval of alternative actions if sufficient data are submitted to substantiate that alternative actions provide an acceptable level of safety.

Regarding the commenter's statement that shaft failures could occur at any time, the FAA infers that the commenter is referring to the 36-month compliance time and the chance that a shaft failure might occur during this time. The FAA notes that in developing an appropriate compliance time, the FAA considered the urgency associated with the subject unsafe condition, the availability of required parts, and the practical aspect of accomplishing the required actions within a period of time that corresponds to the normal scheduled maintenance for most affected operators. In consideration of all of these factors, the FAA has determined that the compliance time, as proposed, represents an appropriate interval. The FAA further notes that the repetitive checks required by this AD adequately address the unsafe condition, though operators also have the option of installing a serviceable seat to terminate those repetitive checks, as specified in paragraph (j) of this AD.

American Airlines requested that a provision be included in the proposed AD to allow operators to receive credit for actions completed prior to the effective date using the procedures in Boeing Special Attention Service Bulletin 777-25-0607, dated January 9, 2014.

The FAA does not agree with the commenter's request. This AD requires operators to use BSASB 777-25-0607, Revision 1, because it includes seat part numbers that were not included in Boeing Special Attention Service Bulletin 777-25-0607, dated January 9, 2014. The Ipeco service information was revised in support of BSASB 777-25-0607, Revision 1, by updating information included in the Accomplishment Instructions. The FAA has not revised this AD in regard to this issue.

The FAA reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule with the changes described previously and minor editorial changes. The FAA has determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for addressing the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

The FAA also determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.

The FAA reviewed Boeing Special Attention Service Bulletin 777-25-0607, Revision 1, dated July 17, 2018 (“BSASB 777-25-0607, Revision 1”). The service information describes procedures for identification of the part number, and if applicable the serial number, of the Captain's and First Officer's seats, and for applicable on-condition actions for affected seats. The on-condition actions include an inspection of each seat's fore/aft and vertical manual control levers for looseness, installation of serviceable seats, and a seat functional test after any cable adjustment.

The FAA also reviewed Boeing Special Attention Service Bulletin 777-25-0619, Revision 1, dated August 8, 2018 (“BSASB 777-25-0619, Revision 1”). The service information describes procedures for a detailed inspection and repetitive checks of the horizontal movement system for the Captain's and First Officer's seats for findings ( e.g., evidence of cracks, scores, corrosion, dents, deformation or visible wear; and incorrectly assembled microswitch assemblies, actuators, and limit switches), and applicable on-condition actions. The on-condition actions include clearing the seat tracks of foreign object debris (FOD), overhaul of the horizontal movement system and replacement of the horizontal actuator. The service information also describes procedures for an optional terminating action for the repetitive checks by installing a serviceable Captain's or First Officer's seat.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 190 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary on-condition actions that would be required. The FAA has no way of determining the number of aircraft that might need these on-condition actions:

The FAA has received no definitive data that would enable the agency to provide cost estimates for the optional terminating action for the repetitive checks specified in 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.

The FAA is 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.

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.

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) Will not affect intrastate aviation in Alaska, 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.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

Background

On November 15, 2018, we published in the Federal Register a System of Records Notice  2 to provide public notice of our intent to establish a new system of records, Security and Suitability Files (60-0377). On the same day, we also published a Notice of Proposed Rulemaking (NPRM)  3 proposing to add Security and Suitability Files to our existing list of systems of records exempt from specific Privacy Act provisions.

In the NPRM, we provided a 30-day comment period, which ended on December 17, 2018. We received no comments.

We consulted with the Office of Management and Budget (OMB) and determined this final rule does not meet the criteria for a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563.

We also determined that this proposed rule meets the plain language requirement of Executive Order 12866.

We analyzed this rule in accordance with the principles and criteria established by Executive Order 13132, and we determined that the rule will not have sufficient Federalism implications to warrant the preparation of a Federalism assessment. We also determined that this rule will not preempt any State law or State regulation or affect the States' abilities to discharge traditional State governmental functions.

The regulations effectuating Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this rule.

We certify that this rule will not have a significant economic impact on a substantial number of small entities because it affects individuals only. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.

This rule is not subject to the requirements of Executive Order 13771 because it is administrative in nature and results in no more than de minimis costs.

These rules do not create any new or affect any existing collections and, therefore, do not require OMB approval under the Paperwork Reduction Act.

For the reasons stated in the preamble, we amend subpart B of part 401 of title 20 of the Code of Federal Regulations as set forth below:

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. It is impracticable to publish an NPRM because we must establish this zone by August 31, 2019 and lack sufficient time to request comments and respond to those comments before the zone must be established.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be contrary to the public interest because immediate action is needed to respond to the potential safety hazards associated with a marine regatta at Portsmouth, OH.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with the Portsmouth Boat Race starting August 31, 2019, will be a safety concern for anyone from mile marker (MM) 355.5 to MM 356.8 on the Ohio River. The special local regulation will be enforced on a small area of the Ohio River from 9 a.m. through 6 p.m. on August 31, 2019, from 7 a.m. through 5:30 p.m. on September 1, 2019, and from 7 a.m. through 4 p.m. on September 2, 2019. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the special local regulation for the duration of the Portsmouth Boat Race.

This rule establishes a special local regulation from 9 a.m. on August 31, 2019 through 4 p.m. on September 2, 2019. This regulation will cover all navigable waters of the Ohio River from MM 355.5 to MM 356.8. The duration of the special local regulation is intended to protect personnel, vessels, and the marine environment in these navigable waters during the Portsmouth Boat Race. No vessel or person will be permitted to enter the special local regulation without obtaining permission from the COTP or a designated representative. Persons or vessels desiring to enter into or pass through the zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM radio channel 16 or phone at 1-800-253-7465.

Persons and vessels permitted to enter the safety zone must transit at the slowest safe speed and comply with all lawful directions issued by the COTP or a designated representative. The COTP or a designated representative will inform the public through Broadcast Notices to Mariners of the enforcement period for the safety zone, as well as any changes in the dates and times of enforcement.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on size, location, and duration of the special local regulation. The special local regulation will be enforced from mile marker (MM) 355.5 to MM 356.8 on the Ohio River from 9 a.m. through 6 p.m. on August 31, 2019, from 7 a.m. through 5:30 p.m. on September 1, 2019, and from 7 a.m. through 4 p.m. on September 2, 2019. Breaks have been scheduled so that the event does not significantly impede commercial traffic. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule would allow vessels to seek permission to enter or transit the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has 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. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section above.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969(42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves special local regulation lasting from August 31, to September 2, 2019 that would periodically restrict entry into the race course from MM 355.5 to MM 356.8. It is categorically excluded from further review under paragraph L61 in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b) (B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. We must establish this temporary safety zone by September 26, 2019, and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule. The NPRM process would delay establishment of the safety zone until after the date of the electrical line work and compromise public safety.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to public interest because immediate action is necessary to respond to the potential safety hazards associated with electrical line installation over the Illinois River.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Upper Mississippi River (COTP) has determined that potential hazards associated with electrical line installation over the Illinois River will be a safety concern for anyone in the two work zones between MM 162 through MM 166. This rule is needed to protect persons, vessels, and the marine environment on the navigable waters within the safety zone while electrical lines are pulled across the river.

This rule establishes a temporary safety zone for a seven-day period from September 26, 2019 through October 3, 2019, or until the electrical line work is completed, whichever occurs first. The safety zone will be enforced at two work zones on the Illinois River at Peoria Lake between (MM) 162 through 166.

Zone A is between two lines perpendicular to the banks drawn through a mid-channel point at 40°43′28″ N, 89°32′55″ W and the second at 40°43′30″ N, 89°32′40″ W extending the entire width of the river.

Zone B is between two lines perpendicular to the banks drawn through a mid-channel point at 40°40′48″ N, 89°34′24″ W and the second at 40°40′45″ N, 89°34′16″ W.

Transit into and through this safety zone is prohibited during periods of enforcement unless given permission by the COTP or a designated representative. This zone will be enforced for up to eight hours each day between 8 a.m. through 4 p.m. The COTP or a designated representative will inform the public through Broadcast Notices to Mariners (BNMs) at least 12 hours in advance of each enforcement period, and a safety vessel will coordinate all vessel traffic during the enforcement periods. In addition, the COTP or a designated representative will release regular BNMs while the zone is in effect and will also announce the suspension of the zone via VHF-FM marine channel 16.

The duration of this temporary safety zone is intended to protect persons, vessels, and the marine environment on these navigable waters while the electrical lines are being pulled across the river. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector Upper Mississippi River. To seek entry into the safety zone, contact the COTP or the COTP's designated representative by telephone at 314-269-2332 or on VHF-FM channel 16. Persons and vessels permitted to enter this safety zone must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or the designated representative.

The COTP or a designated representative will inform the public of the enforcement dates and times for this safety zone, as well as any emergent safety concerns that may delay the suspension of the zone each day, through BNMs, Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs) as appropriate.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, location, and duration of the safety zone. This safety zone impacts less than a one-mile stretch of the Illinois River for up to eight hours on seven days. Additionally this rule allows vessels to seek permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the temporary safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator because the rule will allow persons and vessels to seek permission to enter the zone and coordinated entry may be arranged on a case by case basis. Additionally, coordination with several waterways users has taken place to mitigate as much impact as possible.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has 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. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section above.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only eight hours each day for seven days that will prohibit entry through an electrical wire work zone. It is categorically excluded from further review under paragraph L60 (a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port San Francisco DHS Department of Homeland Security § Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking with respect to this rule because it is impracticable. The Coast Guard did not receive final details for this event until August 16, 2019. The Coast Guard must establish these safety zones by August 31, 2019 and therefore lacks sufficient time to effectuate the full notice and comment process before issuing the rule in this instance.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . For similar reasons as stated above, notice and comment procedures would be impracticable in this instance due to the short notice provided for this event.

The Coast Guard is issuing this rule under authority 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port San Francisco has determined that potential hazards associated with the 2019 Monte Labor Day Fireworks Display on September 1, 2019, will be a safety concern for anyone within a 100-foot radius of the fireworks barges during loading and staging and anyone within a 420-foot radius of the fireworks barges starting 30 minutes before the fireworks display is scheduled to commence and ending 30 minutes after the conclusion of the fireworks display. For this reason, these safety zones are needed to protect personnel, vessels, and the marine environment in the navigable waters around the fireworks barges during the fireworks display.

This rule establishes a safety zone around each of two separate fireworks barges simultaneously from 7 a.m. on August 31, 2019 until 9:20 p.m. on September 1, 2019, during the loading, staging, and transit of the two fireworks barges in Carnelian Bay, during the fireworks display, and lasting until 30 minutes after completion of the fireworks display. From 7 a.m. on August 31, 2019 to 8 p.m. on September 1, 2019, during the loading, staging, and transit of the fireworks barges until 30 minutes prior to the start of the fireworks display, scheduled for approximately 8:30 p.m., the safety zones will encompass the navigable waters around and under the fireworks barges, from surface to bottom, within a circle formed by connecting all points 100 feet out from the fireworks barges. Loading the pyrotechnics onto the fireworks barges is scheduled from 7 a.m. to 9 a.m. on August 31, 2019, at the Lake Forest boat ramp in Tahoe City, CA.

The fireworks barges will remain at the Lake Forest boat ramp until the start of their transit to the display locations. Towing of the barges from the Lake Forest boat ramp to the display locations is scheduled to take place from 9 a.m. to 10 a.m. on August 31, 2019, where they will remain until the conclusion of the fireworks display.

At 8 p.m. on August 31, 2019, 30 minutes prior to the commencement of the 20-minute 2019 Monte Labor Day Fireworks Display, the safety zones will increase in size and encompass the navigable waters around and under the fireworks barges, from surface to bottom, within a circle formed by connecting all points 420 feet from the circle centers at approximate positions 39°13′17.76″ N, 120°4′47.64″ W (NAD 83) and 39°13′20.22″ N, 120°4′43.44″ W (NAD 83). The safety zones will terminate at 9:20 p.m. on September 1, 2019.

The effect of the safety zones is to restrict navigation in the vicinity of the fireworks loading, staging, transit, and firing sites. Except for persons or vessels authorized by the COTP or the COTP's designated representative, no person or vessel may enter or remain in the restricted areas. These regulations are needed to keep spectators and vessels away from the immediate vicinity of the fireworks firing sites to ensure the safety of participants, spectators, and transiting vessels.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the limited duration and narrowly tailored geographic area of the safety zones. The safety zones impact two 420-foot radius areas of Carnelian Bay for a 38-hour-and-20-minute duration. The vessels desiring to transit through the safety zones may do so upon express permission from the COTP or the COTP's designated representative.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the temporary safety zones may be small entities, for the reasons stated in section V.A. above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has 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. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01 and U.S. Coast Guard Environmental Planning Policy, COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves two safety zones lasting 38 hours and 20 minutes that prevent entry to two 420-foot radius areas. It is categorically excluded from further review under paragraph L60(a) in Table 3-1 of Department of Homeland Security Directive 023-01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

Executive Summary: Purpose: This interim rule expands prioritized examination (“Track I”) practice to increase the number of applications that may be accorded prioritized examination in a fiscal year.

Summary of Major Provisions: The prioritized examination provisions (37 CFR 1.102(e)) currently provide that a request for prioritized examination may be filed with an original utility or plant nonprovisional application under 35 U.S.C. 111(a). The America Invents Act provides that the Office may not accept more than 10,000 requests for prioritization in any fiscal year until regulations are prescribed setting another limit. This interim rule increases the limit on the number of prioritized examination requests that may be accepted in a fiscal year from 10,000 to 12,000.

Costs and Benefits: This rulemaking is not economically significant under Executive Order 12866 (Sept. 30, 1993).

Background: Section 11(h) of the America Invents Act provides for prioritized examination of an application. See Public Law 112-29, 125 Stat. 284, 324 (2011). Section 11(h)(1)(B)(i) of the America Invents Act also provides that the Office may by regulation prescribe conditions for acceptance of a request for prioritized examination, and section 11(h)(1)(B)(iii) provides that “[t]he Director may not accept in any fiscal year more than 10,000 requests for prioritization until regulations are prescribed under this subparagraph setting another limit.” Id.

The Office implemented the prioritized examination provision of the America Invents Act for applications on filing (referred to as “Track I”) in a final rule published on September 23, 2011. See Changes to Implement the Prioritized Examination Track (Track I) of the Enhanced Examination Timing Control Procedures Under the Leahy-Smith America Invents Act, 76 FR 59050 (Sept. 23, 2011) (codified in 37 CFR 1.102(e)). Following its implementation, the Office improved its processes for carrying out prioritized examination and expanded the scope of prioritized examination in view of those improvements. First, the Office implemented prioritized examination for pending applications after the filing of a proper request for continued examination under 35 U.S.C. 132(b) and 37 CFR 1.114. See Changes to Implement the Prioritized Examination for Requests for Continued Examination, 76 FR 78566 (Dec. 19, 2011). Next, the prioritized examination procedures further expanded to permit delayed submission of certain filing requirements while maintaining the Office's ability to timely examine the patent application. See Changes to Permit Delayed Submission of Certain Requirements for Prioritized Examination, 79 FR 12386 (Mar. 5, 2014).

The number of requests for prioritized examination has increased steadily over the last few years to the point that the Office will reach the limit of 10,000 requests for prioritized examination that may be accepted (granted) in any fiscal year if the limit is not increased. Through continued monitoring of the implementation of the Track I program, the Office has determined that the program may be further expanded to permit more applications to undergo prioritized examination while maintaining the ability to timely examine all prioritized applications. Quality metrics used by the Office reveal no loss in examination quality for applications given prioritized examination. In addition, the number of applications accepted for prioritized examination will remain a small fraction of the patent examinations completed in a fiscal year (the Office examines approximately 650,000 applications and requests for continued examination in total per fiscal year). Accordingly, the Office is expanding the availability of prioritized examination by increasing the limit on the number of prioritized examination requests that may be accepted in a fiscal year from 10,000 to 12,000, beginning in fiscal year 2019 (October 1, 2018, through September 30, 2019) and continuing every fiscal year thereafter until further notice.

The following is a discussion of the amendments to title 37 of the Code of Federal Regulations, part 1.

Section 1.102: Section 1.102(e) is revised to increase the limit on the total number of requests for prioritized examination that may be accepted (granted) in any fiscal year from 10,000 to 12,000.

A. Administrative Procedure Act: This interim rule revises the procedures that apply to applications for which an applicant has requested Track I prioritized examination. The changes in this interim rule do not change the substantive criteria of patentability. Therefore, the changes in this rulemaking involve rules of agency practice and procedure, and/or interpretive rules. See JEM Broad. Co. v. F.C.C., 22 F.3d 320, 326 (D.C. Cir. 1994) (“[T]he `critical feature' of the procedural exception [in 5 U.S.C. 553(b)(A)] `is that it covers agency actions that do not themselves alter the rights or interests of parties, although [they] may alter the manner in which the parties present themselves or their viewpoints to the agency.' ” (quoting Batterton v. Marshall, 648 F.2d 694, 707 (D.C. Cir. 1980))); see also Bachow Commc'ns Inc. v. F.C.C., 237 F.3d 683, 690 (D.C. Cir. 2001) (rules governing an application process are procedural under the Administrative Procedure Act); Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 350 (4th Cir. 2001) (rules for handling appeals were procedural where they did not change the substantive standard for reviewing claims). Accordingly, prior notice and opportunity for public comment are not required pursuant to 5 U.S.C. 553(b) or (c) (or any other law). See Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1336-37 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and thus 35 U.S.C. 2(b)(2)(B), does not require notice and comment rulemaking for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” (quoting 5 U.S.C. 553(b)(A)). In addition, the changes in this interim rule may be made immediately effective because this interim rule is not a substantive rule under 35 U.S.C. 553(d).

Moreover, the Office, pursuant to authority at 5 U.S.C. 553(b)(B), finds good cause to adopt the changes in this interim rule without prior notice and an opportunity for public comment, as such procedures would be contrary to the public interest. Delay in the promulgation of this interim rule to provide prior notice and comment procedures would cause harm to those applicants who desire to file a request for Track I prioritized examination with a new application or request for continued examination. Immediate implementation of the changes in this interim rule is in the public interest because: (1) The public does not need time to conform its conduct as the changes in this interim rule do not add any additional requirement for requesting prioritized examination of an application; and (2) those applicants who would otherwise be ineligible for prioritized examination will benefit from the immediate implementation of the changes in this interim rule. See Nat'l Customs Brokers & Forwarders Ass'n of Am., Inc. v. United States, 59 F.3d 1219, 1223-24 (Fed. Cir. 1995). In addition, pursuant to authority at 5 U.S.C. 553(d)(1), the changes in this interim rule may be made immediately effective because they relieve restrictions in the requirements for requesting prioritized examination of an application.

B. Regulatory Flexibility Act: As prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553, or any other law, neither a regulatory flexibility analysis nor a certification under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) is required. See 5 U.S.C. 603.

C. Executive Order 12866 (Regulatory Planning and Review): This rulemaking has been determined to be not significant for purposes of Executive Order 12866 (Sept. 30, 1993).

D. Executive Order 13563 (Improving Regulation and Regulatory Review): The Office has complied with Executive Order 13563 (Jan. 18, 2011). Specifically, the Office has, to the extent feasible and applicable: (1) Made a reasoned determination that the benefits justify the costs of the rule; (2) tailored the rule to impose the least burden on society consistent with obtaining the regulatory objectives; (3) selected a regulatory approach that maximizes net benefits; (4) specified performance objectives; (5) identified and assessed available alternatives; (6) involved the public in an open exchange of information and perspectives among experts in relevant disciplines, affected stakeholders in the private sector, and the public as a whole, and provided on-line access to the rulemaking docket; (7) attempted to promote coordination, simplification, and harmonization across Government agencies and identified goals designed to promote innovation; (8) considered approaches that reduce burdens and maintain flexibility and freedom of choice for the public; and (9) ensured the objectivity of scientific and technological information and processes.

E. Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs): This rulemaking is not an Executive Order 13771 (Jan. 30, 2017) regulatory action because the rulemaking is not significant under Executive Order 12866 (Sept. 30, 1993).

F. Executive Order 13132 (Federalism): This rulemaking does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).

G. Executive Order 13175 (Tribal Consultation): This rulemaking will not: (1) Have substantial direct effects on one or more Indian tribes; (2) impose substantial direct compliance costs on Indian tribal governments; or (3) preempt tribal law. Therefore, a tribal summary impact statement is not required under Executive Order 13175 (Nov. 6, 2000).

H. Executive Order 13211 (Energy Effects): This rulemaking is not a significant energy action under Executive Order 13211 because this rulemaking is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required under Executive Order 13211 (May 18, 2001).

I. Executive Order 13783 (Promoting Energy Independence and Economic Growth): This rulemaking does not potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources under Executive Order 13783 (Mar. 28, 2017).

J. Executive Order 13772 (Core Principles for Regulating the United States Financial System): This rulemaking does not involve regulation of the United States financial system under Executive Order 13772 (Feb. 3, 2017).

K. Executive Order 12988 (Civil Justice Reform): This rulemaking meets applicable standards to minimize litigation, eliminate ambiguity, and reduce burden as set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Feb. 5, 1996).

L. Executive Order 13045 (Protection of Children): This rulemaking does not concern an environmental risk to health or safety that may disproportionately affect children under Executive Order 13045 (Apr. 21, 1997).

M. Executive Order 12630 (Taking of Private Property): This rulemaking will not effect a taking of private property or otherwise have taking implications under Executive Order 12630 (Mar. 15, 1988).

N. Congressional Review Act: Under the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801-808), the United States Patent and Trademark Office will submit a report containing any final rule resulting from this rulemaking and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the Government Accountability Office.

O. Unfunded Mandates Reform Act of 1995: The changes set forth in this rulemaking do not involve a Federal intergovernmental mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, of 100 million dollars (as adjusted) or more in any one year, or a Federal private sector mandate that will result in the expenditure by the private sector of 100 million dollars (as adjusted) or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995. See 2 U.S.C. 1501 et seq.

P. National Environmental Policy Act: This rulemaking will not have any effect on the quality of the environment and is thus categorically excluded from review under the National Environmental Policy Act of 1969. See 42 U.S.C. 4321 et seq.

Q. National Technology Transfer and Advancement Act: The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) are not applicable because this rulemaking does not contain provisions which involve the use of technical standards.

R. Paperwork Reduction Act: The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) requires that the Office consider the impact of paperwork and other information collection burdens imposed on the public. This interim rule involves information collection requirements which are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3549). An applicant who wishes to participate in the prioritized examination program must submit a certification and request to participate in the prioritized examination program, preferably by using Form PTO/AIA/424. OMB has determined that, under 5 CFR 1320.3(h), Form PTO/AIA/424 does not collect “information” within the meaning of the Paperwork Reduction Act of 1995. This rulemaking does not impose any additional collection requirements under the Paperwork Reduction Act which are subject to further review by OMB.

Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.

For the reasons set forth in the preamble, 37 CFR part 1 is amended as follows:

Each state has a SIP containing the control measures and strategies used to attain and maintain the national ambient air quality standards (NAAQS). The SIP is extensive, containing such elements as air pollution control regulations, emission inventories, monitoring networks, attainment demonstrations, and enforcement mechanisms.

Each state must formally adopt the control measures and strategies in the SIP after the public has had an opportunity to comment on them and then submit the proposed SIP revisions to EPA. Once these control measures and strategies are approved by EPA, and after notice and comment, they are incorporated into the federally-approved SIP and are identified in part 52 “Approval and Promulgation of Implementation Plans,” title 40 of the Code of Federal Regulations (40 CFR part 52). The full text of the state regulation approved by EPA is not reproduced in its entirety in 40 CFR part 52, but is “incorporated by reference.” This means that EPA has approved a given state regulation or specified changes to the given regulation with a specific effective date. The public is referred to the location of the full text version should they want to know which measures are contained in a given SIP. The information provided allows EPA and the public to monitor the extent to which a state implements a SIP to attain and maintain the NAAQS and to take enforcement action if necessary.

The SIP is a living document which the state can revise as necessary to address the unique air pollution problems in the state. Therefore, EPA from time to time must take action on proposed revisions containing new and/or revised state regulations. A submission from a state can revise one or more rules in their entirety or portions of rules, or even change a single word. The state indicates the changes in the submission (such as, by using redline/strikethrough) and EPA then takes action on the requested changes. EPA establishes a docket for its actions using a unique Docket Identification Number, which is listed in each action. These dockets and the complete submission are available for viewing on www.regulations.gov.

On May 22, 1997 (62 FR 27968), EPA revised the procedures for incorporating by reference, into the Code of Federal Regulations, materials approved by EPA into each state SIP. These changes revised the format for the identification of the SIP in 40 CFR part 52, streamlined the mechanisms for announcing EPA approval of revisions to a SIP, and streamlined the mechanisms for EPA's updating of the IBR information contained for each SIP in 40 CFR part 52. The revised procedures also called for EPA to maintain “SIP Compilations” that contain the federally-approved regulations and source specific permits submitted by each state agency. These SIP Compilations are updated primarily on an annual basis. Under the revised procedures, EPA must periodically publish an informational document in the rules section of the Federal Register notifying the public that updates have been made to a SIP Compilation for a particular state. EPA applied the 1997 revised procedures to Georgia on May 21, 1999 (64 FR 27699).

This action represents EPA's publication of the Georgia SIP Compilation update, appearing in 40 CFR part 52: Specifically, the materials of paragraph (c) and (d) at 40 CFR 52.570. In addition, this notice also corrects typographical errors and provides notice of the following corrections to Table (c) of § 52.570, as described below:

1. Under the “EPA approval date” column, the period is removed after the Federal Register citation.

2. Under Rule 391-3-1-.02(2)(ooo), “Heavy-Duty Diesel Engine Requirements” the entry was deleted from the table because EPA previously approved removal of this provision from the SIP. See 82 FR 22079 (May 12, 2017).

3. Under Rule 391-3-.20, “Enhanced Inspection and Maintenance” the State effective date was revised to read “6/19/2014” and EPA approval date was revised to read “4/10/2017, 82 FR 17128.”

4. Under Rules 391-3-1-.02(2)(a), 391-3-1-.02(7), 391-3-1-.03(2), and 391-3-1-.03(8), the explanation column was revised to clarify the effect of previous EPA actions on Georgia's SIP submittals.

EPA has determined that this action falls under the “good cause” exemption under section 553(b)(3)(B) of the Administrative Procedure Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make an action effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). This administrative action simply codifies provisions which are already in effect as a matter of law in Federal and approved state programs and makes typographical/ministerial revisions to the tables in the CFR. Under section 553(b)(3)(B) of the APA, an agency may find good cause where public participation procedures are “impracticable, unnecessary, or contrary to the public interest.” Public comment for this administrative action is “unnecessary” and “contrary to the public interest” since the codification (and typographical corrections) only reflect existing law and the revisions are ministerial in nature. Immediate notice of this action in the Federal Register benefits the public by providing the public notice of the updated Georgia SIP Compilation and notice of typographical corrections and ministerial changes to the Georgia “Identification of Plan” portion of the Federal Register . Further, pursuant to section 553(d)(3), making this action immediately effective benefits the public by immediately updating both the SIP Compilation and the CFR “Identification of plan” section (which includes table entry corrections).

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of previously EPA-approved regulations promulgated by Georgia and federally-effective prior to October 1, 2018. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this notice of administrative change does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

EPA also believes that the provisions of section 307(b)(1) of the CAA pertaining to petitions for judicial review are not applicable to this action. This is because prior EPA rulemaking actions for each individual component of the Georgia SIP compilation previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of such rulemaking action. Thus, EPA believes judicial review of this action under section 307(b)(1) is not available.

40 CFR part 52, is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, it is intended to refer to the EPA.

In 2013, the EPA approved revisions related to Idaho's open burning and crop residue burning requirements that established a streamlined permitting process for spot burns, baled agricultural residue burns, and propane flaming. The revisions also made minor changes to the existing crop residue burning rules to update cross references and clarify certain administrative information. More information regarding the revisions that the EPA approved in 2013 can be found in the EPA's proposed and final actions on the state's 2011 SIP submittal. See 78 FR 2359 (January 11, 2013) and 78 FR 16790 (March 19, 2013).

On June 5, 2019, Idaho submitted a SIP revision request to the EPA. The SIP submittal contains two revisions to the federally-approved crop residue burning (CRB) rules. The two revisions were conducted through Idaho's negotiated rulemaking process involving persons having an interest in the development of the revisions and based on recommendations from the Idaho Crop Residue Advisory Committee. Specifically, the June 5, 2019, SIP submittal contains revisions to IDAPA 58.01.01.620.01, .02, and Idaho Code 39-114.

Fee due dates in IDAPA 58.01.01.620.01 were changed from “at least seven (7) days prior to the proposed burn date” to “within thirty (30) days following the receipt of the annual burn fee invoice.” This revision does not change the burn fee amounts, rather it only changes when the fee is due. Idaho revised IDAPA 58.01.01.620.02 to clarify that IDEQ will not accept or process registration for a permit by rule to burn for any person having burn fees delinquent, in full or in part. Idaho Code 39-114 (codification of Idaho Senate Bill 1024, Section 4) was revised by removing the requirement that fees be paid for acres “to be burned” and the requirement that payment be made “prior to burning” to align with revisions to IDAPA 58.01.01.620.01.

These revisions do not change fee structure amounts and do not change the timing of the fee payment for spot and bale burn permits required under IDAPA 58.01.01.624.02.a. All other CRB requirements remain unchanged.

EPA is approving, and incorporating by reference in Idaho's SIP, revisions to Idaho's CRB fee regulations as requested by Idaho on June 5, 2019 to the following provisions:

• IDAPA 58.01.01.620 (Burn Fee, state effective April 11, 2019); and

• Idaho Code 39-114 (Open Burning of Crop Residue, state effective February 26, 2019).

We have determined that the submitted SIP revisions are consistent with section 110 of the Clean Air Act (CAA).

In this rule, the EPA is approving regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, we are incorporating by reference the provisions described above in Section III. Final Action. The EPA has made, and will continue to make, these documents generally available through www.regulations.gov and at the EPA Region 10 Office (please contact the person identified in the “For Further Information Contact” section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the State Implementation Plan, have been incorporated by reference by the EPA into that plan, are fully Federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because this action does not involve technical standards; and

• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 4, 2019. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that the EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

This is a synopsis of the Commission's Order, adopted June 24, 2019 and released June 25, 2019. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street SW, Washington, DC 20554. The full text is also available online at http://apps.fcc.gov/ecfs/. This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. The Commission will not send a copy of the Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A) because the Order is a ministerial action.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:

Background

On November 4, 2013, we, the U.S. Fish and Wildlife Service (Service), published a proposed rule (78 FR 65953) to remove certain regulations concerning control activities for depredating migratory birds from part 21 of title 50 of the Code of Federal Regulations. These regulations, at 50 CFR 21.42, 21.45, and 21.46, set forth provisions for depredation orders that allowed control activities to be conducted without a permit issued by the Service. Prior to 2013, we had received no reports of activities undertaken under these regulations and no requests for authorization of a depredation order under these regulations for many years. Because these regulations apparently were unused, we proposed to remove them.

On March 25, 2015, we published a final rule (80 FR 15689) removing the depredation orders at 50 CFR 21.42 and 21.45, as well as references to those two sections that appeared in 50 CFR 21.41 and 21.53, as we had received no comments on our 2013 proposal to remove those regulations. However, we did receive comments on our proposal to remove 50 CFR 21.46. In the preamble to the March 25, 2015, final rule, we stated that we would address our proposal to remove 50 CFR 21.46 and respond to the comments we received concerning that proposal in a separate document to be published later in the Federal Register .

Under 50 CFR 21.46, landowners, sharecroppers, tenants, or their employees or agents actually engaged in the production of nut crops in Washington and Oregon may, without a permit and in accordance with certain conditions, take scrub jays ( Aphelocoma coerulescens ) and Steller's jays ( Cyanocitta stelleri ) when these species are found committing or about to commit serious depredations to nut crops on the premises owned or occupied by such persons.

In response to our November 4, 2013, proposed rule (78 FR 65953), we requested that all interested parties submit written comments on the proposal by February 3, 2014. During the public comment period, we received eight comments on our proposal to remove 50 CFR 21.46. We received comments from individuals, organizations, a State agency, and the Pacific Flyway Council, an administrative body that forges cooperation among public wildlife agencies for the purpose of protecting and conserving migratory birds in western North America. All comment letters are available at http://www.regulations.gov under Docket No. FWS-R9-MB-2011-0100.

(1) Comment: One commenter was supportive of removing regulations that are no longer used or outdated.

Response: At the time of the proposed rule we had not received a report of activities conducted under 50 CFR 21.46 for 10 years. However, in response to the proposed rule, we received comments stating that this depredation order was being used, but activities had gone unreported due to a lack of knowledge of the reporting requirements. Since publishing the proposed rule, we have received annual permit reports of activities conducted under this depredation order in the period 2014-2017.

(2) Comment: Five commenters were opposed to the proposed removal of 50 CFR 21.46 because it is currently being used by nut farmers in Oregon and Washington; however, the activities have been underreported due to a lack of awareness of reporting requirements.

Response: Since publishing the proposed rule in 2013, we have received reports of activities conducted under 50 CFR 21.46 in 2014-2017. As part of this document, which revises the 2013 proposed rule in regard to 50 CFR 21.46, we have also changed the due date and mailing address for the annual report.

(3) Comment: Two commenters were opposed to lethal take of birds.

Response: Lethal take is authorized under 50 CFR 21.46 as a tool to help reduce damage to nut crops in specific counties of Oregon and Washington caused by scrub jays and Steller's jays. As discussed in the final rule that set forth the provisions of 50 CFR 21.46 (39 FR 31326, August 28, 1974), before allowing the use of lethal take, the Service evaluated other options, such as the use of scaring devices, but such methods of reducing take proved to be ineffective or otherwise unsatisfactory. In addition, § 21.46(a) states that jays may only be taken between 1 August and 1 December in any year, limiting the season when birds can be taken. Take is limited to three counties in Washington and nine counties in Oregon.

In response to the comments submitted and the annual reports received, we are (1) withdrawing our proposal to remove 50 CFR 21.46 from the Code of Federal Regulations, (2) updating the reporting requirements for activities conducted under the depredation order, and (3) updating the taxonomy of scrub jays as stated in the rule.

We are revising paragraph (f) of § 21.46 by: Updating the report due date to January 31 of the year following activities conducted under the depredation order, and updating the mailing address for the submission of the report forms.

We solicited comments on the revised reporting requirements by publishing a notice of information collection under OMB Control Number 1018-0146 (Dec. 8, 2017, 82 FR 58022). No comments were received, and OMB approved the request on January 29, 2018.

We are also revising the common and scientific names of one of the species covered by the depredation order, which pertains to scrub jays and Steller's jays. The scientific name for scrub jay in the introductory text of § 21.46 is Aphelocoma coerulescens. However, that is the currently accepted scientific name for the Florida scrub jay. The currently accepted scientific name for the California scrub jay, which is the species of concern to nut growers in Washington and Oregon, is Aphelocoma californica, as listed in the List of Migratory Birds at 50 CFR 10.13. Accordingly, we are amending § 21.46 to change the scientific name and replace all references to “scrub jays” with “California scrub jays.”

Regulatory Planning and Review (Executive Orders 12866 and 13563) Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. OIRA has determined that this rule is not significant.

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We developed this rule in a manner consistent with these requirements.

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 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. This action will not have a significant economic impact on any small entity, so a regulatory flexibility analysis is not required. There are no costs associated with the nonsubstantive changes we are making to the regulations regarding the depredation order to protect nut crops in Washington and Oregon. Entities that undergo control activities under the depredation order are already required to report on their activities to the Service.

This rule is not a major rule under the SBREFA (5 U.S.C. 804(2)). It will not have a significant 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.

b. This rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, Tribal, or local government agencies, or geographic regions.

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. Unfunded Mandates Reform Act

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.

b. This rule will not produce a Federal mandate of $100 million or greater in any year. It is not a “significant regulatory action.”

This rule does not contain a provision for taking of private property. In accordance with Executive Order 12630, a takings implication assessment is not required.

This rule does not have sufficient federalism effects to warrant preparation of a federalism summary impact statement under Executive Order 13132. It will not interfere with the States' abilities to manage themselves or their funds.

In accordance with Executive Order 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.

This rule does not contain any new collection of information that requires approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). OMB has previously approved the information collection requirements associated with depredation orders and assigned OMB Control Number 1018-0146 (expires January 31, 2021). 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.

We have analyzed this rule in accordance with the National Environmental Policy Act (NEPA), 42 U.S.C. 432-437(f), and U.S. Department of the Interior regulations at 43 CFR part 46. This rule can be classified as a policy, directive, regulation, and guideline that is of an administrative nature (43 CFR 46.210(i)) and are changes to an already approved action and will have no or minor potential environmental impacts (DM Part 516) and therefore can be categorically excluded from the NEPA process. This action will have no significant effect on the quality of the human environment, nor will it involve unresolved conflicts concerning alternative uses of available resources.

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 determined that there are no potential effects on Federally recognized Indian Tribes from this final rule. The regulatory revisions will not interfere with Tribes' abilities to manage themselves or their funds or to regulate migratory bird activities on Tribal lands.

This rule will affect only one depredation order for migratory birds and will not affect energy supplies, distribution, or use. This is not a significant energy action, and no Statement of Energy Effects is required.

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)). Our consultation concluded that the regulations are not likely to jeopardize the continued existence of any endangered or threatened species, nor result in the destruction or adverse modification of their critical habitat.

For the reasons described in the preamble, we hereby amend subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

The fishery for Atlantic cobia in Federal waters is managed under the authority of the Atlantic Coastal Fisheries Cooperative Management Act (Atlantic Coastal Act) by regulations at 50 CFR part 697.

Separate migratory groups of cobia are managed in the Gulf of Mexico and Atlantic. Atlantic cobia is managed from Georgia through New York. The southern boundary for Atlantic cobia is a line that extends due east of the Florida and Georgia state border at 30°42′45.6″ N lat. The northern boundary for Atlantic cobia is the jurisdictional boundary between the Mid-Atlantic and New England Fishery Management Councils, as specified in 50 CFR 600.105(a).

Amendment 31 to the Fishery Management Plan (FMP) for Coastal Migratory Pelagic Resources of the Gulf of Mexico and Atlantic Region (Amendment 31) and the implementing final rule removed Atlantic cobia from Federal management under the Magnuson-Stevens Fishery Conservation and Management Act, while also implementing comparable regulations in Federal waters under the Atlantic Coastal Act (84 FR 4733, February 19, 2019). Under the authority of the Atlantic Coastal Act, that final rule implemented the same commercial quota, recreational bag and possession limits, and commercial trip limits in Federal waters as had been in place prior to implementation of Amendment 31.

Atlantic cobia are unique among federally managed species in the southeast region, because no commercial permit is required to harvest and sell them, and so the distinction between the commercial and recreational sectors is not as clear as with other federally managed species in the southeast region. However, for purposes of this temporary rule, Atlantic cobia that are sold are considered commercially caught, and those that are not sold are considered recreationally caught.

As specified in 50 CFR 697.28(f)(1), the commercial quota for Atlantic cobia is 50,000 lb (22,680 kg) in round or gutted weight for the 2019 fishing year, which runs from January 1 through December 31.

The regulations for the commercial sector of Atlantic cobia, specified at 50 CFR 697.28(f)(1), requires that NMFS file a notification with the Office of the Federal Register to prohibit the sale and purchase of Atlantic cobia for the remainder of the fishing year if commercial landings reach or are projected to reach the commercial quota specified in 50 CFR 697.28(f)(1). NMFS projects that commercial landings of Atlantic cobia will reach the commercial quota on September 4, 2019. Accordingly, the commercial sector for Atlantic cobia is closed in Federal waters beginning on September 4, 2019, and remains closed until the start of the next fishing year on January 1, 2020.

During the commercial closure, the sale and purchase of Atlantic cobia is prohibited. The recreational bag and possession limits for Atlantic cobia, specified at 50 CFR 697.28(e), apply while the recreational sector is open. The prohibition on sale and purchase does not apply to Atlantic cobia that were harvested, landed ashore, and sold before September 4, 2019, and were held in cold storage by a dealer or processor.

The Regional Administrator for the NMFS Southeast Region has determined this temporary rule is necessary for the conservation and management of Atlantic cobia and is consistent with the Atlantic Coastal Act and other applicable laws.

This action is taken under 50 CFR 697.28(f)(1) and is exempt from review under Executive Order 12866.

These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.

This action is based on the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA) finds good cause to waive the requirements to provide prior notice and opportunity for public comment, pursuant to the authority set forth at 5 U.S.C. 553(b)(B), as such prior notice and opportunity for public comment is unnecessary and contrary to the public interest. Such procedures are unnecessary because the regulations associated with the commercial quota for Atlantic cobia have already been subject to notice and comment, and all that remains is to notify the public of the commercial closure for the remainder of the 2019 fishing year. Prior notice and opportunity for public comment on this action is contrary to the public interest, because of the need to immediately implement the commercial closure to protect Atlantic cobia, since the capacity of the fishing fleet allows for rapid harvest of the commercial quota. Prior notice and opportunity for public comment would require time and would potentially result in a harvest that exceeds the commercial quota.

For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR parts 600 and 679.

NMFS closed directed fishing for Pacific cod by catcher vessels less than 60 feet LOA using hook-and-line or pot gear in the BSAI under § 679.20(d)(1)(iii) on January 12, 2019 (84 FR 121, January 16, 2019).

NMFS has determined that as of August 27, 2019, approximately 2,650 metric tons of Pacific cod remain in the 2019 Pacific cod apportionment for catcher vessels less than 60 feet LOA using hook-and-line or pot gear in the BSAI. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully use the 2019 total allowable catch (TAC) of Pacific cod in the BSAI, NMFS is terminating the previous closure and is opening directed fishing for Pacific cod by catcher vessels less than 60 feet LOA using hook-and-line or pot gear in the BSAI. The Administrator, Alaska Region, NMFS, (Regional Administrator) considered the following factors in reaching this decision: (1) The current catch of Pacific cod by catcher vessels less than 60 feet LOA using hook-and-line or pot gear in the BSAI and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels in participating in this fishery.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of directed fishing for Pacific cod by catcher vessels less than 60 feet LOA using hook-and-line or pot gear in the BSAI. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet and processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 27, 2019.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

Without this inseason adjustment, NMFS could not allow the fishery for Pacific cod by catcher vessels less than 60 feet LOA using hook-and-line or pot gear in the BSAI to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until September 18, 2019.

This action is required by § 679.25 and is exempt from review under Executive Order 12866.