[Federal Register Volume 86, Number 11 (Tuesday, January 19, 2021)]
[Rules and Regulations]
[Pages 4877-4883]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-01077]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 86, No. 11 / Tuesday, January 19, 2021 /
Rules and Regulations
[[Page 4877]]
DEPARTMENT OF AGRICULTURE
Office of the Secretary
7 CFR Part 9
[Docket ID: FSA-2020-0006]
RIN 0503-AA65
Coronavirus Food Assistance Program; Additional Assistance
AGENCY: Office of the Secretary, Department of Agriculture (USDA).
ACTION: Final rule.
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SUMMARY: The Coronavirus Food Assistance Program (CFAP) provides
assistance to agricultural producers impacted by the effects of the
COVID-19 outbreak. The Secretary of Agriculture implemented CFAP
through two rounds of payments (CFAP 1 and CFAP 2). This rule amends
the CFAP 1 provisions to provide additional assistance for swine
producers who previously applied for assistance during the CFAP 1
application period. This rule also amends the CFAP 2 provisions to
provide assistance for certain swine and poultry contract producers,
clarify eligible sales-based commodities, add additional commodities
that are eligible for payment, change the payment calculation for
sales-based commodities, and change the yield used to calculate payment
for price-trigger crops for certain applicants. The change to the
payment calculation for sales-based commodities is being made to
implement a change required by the recently enacted Consolidated
Appropriations Act, 2021. Other changes to CFAP in this rule are
discretionary changes being made in response to ongoing evaluation of
CFAP and the need to provide additional assistance.
DATES: Effective January 19, 2021.
FOR FURTHER INFORMATION CONTACT: Kimberly Graham; telephone: (202) 720-
6825; email: Kimberly.Graham@usda.gov. Persons with disabilities who
require alternative means for communication should contact the USDA
Target Center at (202) 720-2600 (voice).
SUPPLEMENTARY INFORMATION:
Background
USDA established CFAP to assist producers of agricultural
commodities marketed in 2020 who face continuing market disruptions,
reduced farm-level prices, and increased production and marketing costs
due to COVID-19 under authority provided by the Coronavirus Aid,
Relief, and Economic Security Act (CARES Act; Pub. L. 116-136) and
sections 5(b), (d), and (e) of the Commodity Credit Corporation Charter
Act (15 U.S.C. 714c(b), (d), and (e)). USDA implemented CFAP through
two rounds of payments (CFAP 1 and CFAP 2). CFAP 1 was implemented
through a final rule published in the Federal Register on May 21, 2020
(85 FR 30825-30835), with corrections published in the Federal Register
on June 12, 2020 (85 FR 35799-35800), July 10, 2020 (85 FR 41328-
41330), August 14, 2020 (85 FR 49593-49594), and September 21, 2020 (85
FR 59174-59175), and documents published in the Federal Register on May
22, 2020 (85 FR 31062- 31065), June 12, 2020 (85 FR 35812), July 10,
2020 (85 FR 41321-41323), and August 14, 2020 (85 FR 49589-49593). USDA
implemented CFAP 2 through a final rule published in the Federal
Register on September 22, 2020 (85 FR 59380-59388).
The Consolidated Appropriations Act, 2021 (Pub. L. 116-260), signed
on December 27, 2020, provided additional funding and made several
changes to CFAP. This rule implements a provision of the Consolidated
Appropriations Act, 2021, to amend the payment calculation for sales
commodities as described below.\1\ Other changes to CFAP in this rule
are discretionary changes being made in response to ongoing evaluation
of CFAP and the need to provide additional assistance.
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\1\ Other changes to CFAP included in the Consolidated
Appropriations Act, 2021, not made in this final rule will be
addressed in a subsequent rulemaking.
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CFAP is administered by USDA's Farm Service Agency (FSA). FSA
accepted CFAP 1 applications from May 26, 2020, through September 11,
2020,\2\ and CFAP 2 applications from September 21, 2020, through
December 11, 2020. This rule amends the provisions for CFAP 1 and CFAP
2 as described below.
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\2\ Certain producers in Louisiana, Oregon, and Texas had
through October 9 to apply due to natural disasters.
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CFAP 1
For eligible producers of hogs and pigs, CFAP 1 provided financial
assistance in an amount equal to the sum of the following two
calculations:
Unpriced livestock sold between January 15, 2020, to April
15, 2020, multiplied by the applicable Coronavirus Aid, Relief, and
Economic Stability Act (CARES Act) payment rate in 7 CFR 9.102; and
Livestock inventory owned between April 16, 2020, to May
14, 2020, multiplied by the applicable Commodity Credit Corporation
(CCC) payment rate in Sec. 9.102.
This rule provides additional CFAP 1 payments for hog and pig
inventory owned between April 16, 2020, and May 14, 2020, based on a
rate of $17 per head (which results in a total CFAP 1 payment rate of
$34 per head for that inventory including the prior $17 per head
payment for CFAP 1). For the swine (hog and pig) sector, the inventory
payment rates were determined to be insufficient to alleviate ongoing
market price losses in the sector.
This additional assistance is also intended to help swine producers
who face continuing market disruptions from changes in U.S. meat
consumption due to the pandemic. These disruptions are reflected in
futures prices. Generic lean hog futures prices at the end of November
2020 were 5.4 percent lower than on January 2, 2020. In contrast,
futures prices for commodities such as soybeans and corn have been
increasing in the second half of 2020 to levels above those in early
January of 2020.
FSA is not reopening the CFAP 1 application period. Only producers
who previously applied for CFAP 1 are eligible to receive this
additional assistance. Eligible producers do not need to submit a new
CFAP 1 application form or take any action to receive the additional
payment. Producers are subject to a payment limitation of $250,000 for
all CFAP 1
[[Page 4878]]
payments,\3\ including this additional assistance, as provided in Sec.
9.7(e).
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\3\ Corporations, limited liability companies, limited
partnerships, trusts, and estates may qualify for an increased CFAP
1 payment limitation. See 7 CFR 9.7(e).
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CFAP 2
In this final rule, USDA is also including certain producers that
raise swine and poultry (including broilers, pullets, layers, chicken
eggs, and turkeys) under a production contract that sustained revenue
losses due to market disruptions and reduced harvesting facility output
resulting from the COVID-19 outbreak. A swine or poultry contract
producer is one who produces swine or poultry owned by someone else
under a production contract. Not all production contracts operate the
same way, so not all contract producers will be eligible. Only those
producers who grow or produce an eligible commodity under contract for
or on behalf of another person or entity and are not entitled to a
share from sales proceeds of the commodity are eligible. For example, a
farmer who raises chickens pursuant to a production contract where such
chickens are owned by a company that produces chicken products could be
an eligible contract grower if such farmer does not receive payment for
chickens that die before reaching maturity or when young animals are
not supplied to the farmer by the company, or whose income is reduced
when fewer young animals than normal are provided by the company.
USDA did not include swine and poultry contract producers in CFAP 1
because the impacts to these producers from COVID-19 was not known at
the time the rule was published in the Federal Register on May 21,
2020. The impacts from COVID-19 on contract producers such as delayed
delivery of young poultry and hogs to contract producers, decreased
housing densities, additional costs for keeping animals longer than
typical durations, and damage caused by animals too large for housing,
were known when USDA published the rule implementing CFAP 2 in the
Federal Register on September 22, 2020. However, those producers could
not be included since CFAP 2 payments were issued using funds
authorized under CCC Charter Act (15 U.S.C. 714c(b), (d), and (e)) to
assist with the transition to a more orderly marketing system, and
swine and poultry contract producers do not ordinarily market the
animals they raise. CARES funding, as authorized, remains available
until expended to support agricultural producers impacted by COVID-19,
including producers of specialty crops, producers that supply local
food systems (including farmers markets, restaurants, and schools), and
livestock producers. This remaining CARES Act funding will assist
contract producers facing reduced revenue due to the impacts noted
above.
Certain contract producers have been eligible for assistance under
the Livestock Indemnity Program (LIP); Emergency Assistance for
Livestock, Honeybees, and Farm-Raised Fish Program (ELAP); and the
Livestock Forage Disaster Program (LFP) since these permanent
supplemental disaster programs were authorized in the 2008 Farm Bill
(Pub. L. 110-234; 7 U.S.C. 9081, see also 7 CFR parts 760 and 1416).
These programs provide financial assistance to contract producers who
are impacted by adverse weather events such as hurricane, flood,
blizzard, disease, drought, or extreme cold or heat. Including certain
swine and poultry contract producers in CFAP 2 parallels their
inclusion in these permanent supplemental disaster programs that
provide financial assistance to contract producers due to weather
events that are not expected. The impacts of a global pandemic are
beyond normal production conditions and have had a negative financial
impact on swine and poultry producers including those raising animals
under a production contract.
USDA is including this subset of contract producers because the
COVID-19 global pandemic not only disrupted protein markets as consumer
consumption abruptly shifted from food service to home preparation, but
also reduced harvesting facility output because of COVID-19 outbreaks
among the workforce and when facilities reduced processing capacity to
ensure worker health. Swine and poultry contract producers provided
data and other information to USDA to illustrate the impact of these
coronavirus disruptions on their operations. The impacts of slowdowns
and shutdowns at processing facilities in late spring and early summer
are still being felt in the poultry and swine industry. In some
instances, companies managed and continue to manage the lack of harvest
capacity by reducing or eliminating new production, which means that
contract producers had fewer animals to produce under contract per
cycle or did not have young animals delivered by the company for some
periods. In other situations, companies required some contract
producers to keep animals longer than they typically keep them before
shipping them to the harvesting facility, which actions increased costs
such as producer labor, and for additional wear and tear and water use
associated with larger animals. In addition, swine and poultry contract
producers cannot use their specialized growing facilities for other
purposes to generate revenue as the sector works through the supply
chain bottlenecks.
Contract producers are eligible for payments if they produced swine
or poultry (including broilers, pullets, layers, chicken eggs, turkeys)
under a contract in both the 2019 and 2020 calendar years, suffered a
loss in eligible revenue for the period from January 1, 2020, through
December 27, 2020, as compared to the period from January 1, 2019,
through December 27, 2019, and meet all other requirements for CFAP
eligibility. Eligible revenue is the revenue received by a contract
producer for contract production of the eligible commodity, as reported
on Internal Revenue Service Form 1099. Payments to eligible contract
producers will be calculated by subtracting the contract producer's
eligible revenue for the period from January 1, 2020, through December
27, 2020, from their eligible revenue for the period from January 1,
2019, through December 27, 2019, and multiplying the result by 80
percent. This calculation is subject to the availability of funds and
will be factored, if needed. Contract producers must submit a complete
CFAP 2 application between January 19, 2021, and February 26, 2021.
Contract producers are subject to a payment limitation of $250,000 for
all CFAP 2 payments,\4\ including any CFAP 2 payments received for
other commodities not grown under a contract, as provided in Sec.
9.7(e).
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\4\ Corporations, limited liability companies, limited
partnerships, trusts, and estates may qualify for an increased CFAP
2 payment limitation. See 7 CFR 9.7(e).
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USDA has determined that producers of pullets, water buffalo, yak,
and turfgrass sod face continuing market disruptions, low farm-level
prices, and significant marketing costs associated with the COVID-19
outbreak, similar to producers of commodities that were previously
determined to be eligible for CFAP 2 assistance. As a result, USDA is
amending the definitions of ``Other livestock'' and ``Sales-based
commodities'' in Sec. 9.201 to include those commodities. USDA will
reopen signup specifically for pullets, turfgrass sod, and contract
growers on January 19, 2021. through February 26, 2021. The change to
accept applications for water buffalo and yak was previously
implemented by USDA; therefore, the
[[Page 4879]]
deadline is not extended for those livestock types. USDA is also
amending the definition of ``Other livestock'' to clarify that reptiles
and bees are ineligible.
This rule also amends the definition of ``Other livestock'' in
Sec. 9.201 to clarify that by-products of live animals included as
``Other livestock'' are eligible for CFAP 2. As provided in Sec.
9.203(i)(1), the payment calculation for sales-based commodities is
based on sales of raw commodities; the portion of sales derived from
adding value to the commodity, such as processing and packaging, is not
included when calculating a payment. For example, sales of alpaca
fleece would be included for payment calculation; however, if the
alpaca fleece is further processed into alpaca yarn prior to sale, the
portion of the sale price derived from that processing is not included.
Eligible by-products of other livestock do not include eggs that are
sold to be hatched for breeding stock. This change was previously
implemented by USDA; therefore, the deadline is not extended for by-
products of ``Other livestock.''
USDA is amending the payment calculation for sales-based
commodities to include the amount of crop insurance indemnities
received and payments made under the Noninsured Crop Disaster
Assistance Program (NAP) and the Wildfires and Hurricanes Indemnity
Program Plus (WHIP+) payments for crop year 2019 in addition to the
amount of the producer's 2019 sales, as required by the Consolidated
Appropriations Act, 2021. CFAP 2 uses a producer's 2019 sales as an
approximation of the amount of what the producer would expect to market
in 2020. This change is intended to more accurately represent what a
producer would expect to have marketed in 2020 by taking into account
commodities that would have been marketed in 2019 if not for losses
covered by crop insurance, NAP or WHIP+. For producers who began
farming in 2020 and had no sales in 2019, CFAP 2 payments will continue
to be based on the farmer's actual 2020 sales, without inclusion of
crop insurance indemnities or NAP or WHIP+ payments, since payments are
based on the actual crop that incurred marketing costs and was impacted
by market disruptions and low farm-level prices. Producers of eligible
sales-based commodities who applied for CFAP 2 before the December 11,
2020, application deadline and received crop insurance indemnities or
NAP or WHIP+ payments for the 2019 crop year may amend their CFAP 2
applications from January 19, 2021, through February 26, 2021, to
include those amounts. This rule is not extending the CFAP 2 deadline
for producers of sales-based commodities who did not previously apply
for CFAP 2, except for producers of pullets and turfgrass sod as
described above.
USDA is also amending the calculation for price-trigger
commodities. As published on September 22, 2020, payments are
calculated using the 2019 Agriculture Risk Coverage-County Option (ARC-
CO) benchmark yield multiplied by 85 percent when FSA is unable to
obtain a 2020 actual production history (APH) approved yield. This rule
amends the calculation to use 100 percent of the ARC-CO benchmark yield
when the applicant:
Has coverage for the crop under an Area Risk Protection
Insurance Plan, Margin Protection Plan, Stacked Income Protection Plan,
Supplemental Coverage Option, or Whole-Farm Revenue Protection Plan
under the Federal Crop Insurance Act (7 U.S.C. 1501-1524);
Is a landlord of the applicable acreage and their share of
the crop is insured by the tenant under a policy or plan of insurance
under the Federal Crop Insurance Act;
Is a tenant of the applicable acreage and their share of
the crop is insured by the landlord under a policy or plan of insurance
under the Federal Crop Insurance Act; or
Is a joint venture and the crop is insured by one of the
members under a policy or plan of insurance under the Federal Crop
Insurance Act.
In these situations, FSA does not have 2020 APH approved yield for
the CFAP 2 applicant because the insurance plan does not require
calculation of an APH approved yield or because the record of the APH
approved yield would not be associated with the CFAP 2 applicant.
However, the crop was insured in these situations and using 100 percent
of the ARC-CO benchmark yield is intended to treat producers with crop
insurance coverage but without an available 2020 APH approved yield in
a more favorable way to other producers who had crop insurance. All
applicants affected by this change were previously eligible under the
original rule; therefore, this rule is not extending the CFAP 2
deadline for those producers who did not previously apply for CFAP 2.
Applicants affected by this change must contact FSA to have their
payment recalculated using 100 percent of the ARC-CO benchmark yield.
This document also makes minor corrections to the definitions of
``fruits'' and ``tree nuts'' in Sec. 9.201 and to the calculation in
Sec. 9.202(c). In Sec. 9.1, it adds the applicable date that
livestock must have been physically located in the United States for
CFAP 2, which was inadvertently omitted from the previous final rule.
These corrections do not affect administration of CFAP 2.
The changes in this document are consistent with our original
intent in creating and administering CFAP 2 and are not expected to
increase expected costs beyond the original approved amount.
Notice and Comment and Effective Date
The Administrative Procedure Act (APA, 5 U.S.C. 553(a)(2)) provides
that the notice and comment and 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 CFAP for
payments to certain commodity producers and therefore falls within the
benefits exemption.
The Office of Management and Budget (OMB) designated this rule as
major under the Congressional Review Act (CRA), as defined by 5 U.S.C.
804(2). Section 808 of the CRA allows an agency to make a major
regulation effective immediately if the agency finds there is good
cause to do so. The beneficiaries of this rule have been significantly
impacted by the COVID-19 outbreak, which has resulted in significant
declines in demand and market disruptions. USDA finds that notice and
public procedure are contrary to the public interest. Therefore, even
though this rule is a major rule for purposes of the Congressional
Review Act, USDA 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 Orders 12866, 13563, and 13777
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
apply to rules that are determined to be significant. Executive
[[Page 4880]]
Order 13777, ``Enforcing the Regulatory Reform Agenda,'' established a
federal policy to alleviate unnecessary regulatory burdens on the
American people.
The Office of Management and Budget (OMB) designated this rule as
economically significant under Executive Order 12866 and therefore, OMB
has reviewed this rule.
In general response to the requirements of Executive Order 13777,
USDA created a Regulatory Reform Task Forces, 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 on-going approach. USDA reviewed this regulation
and made changes to provide better customer service. The costs and
benefits of this rule are summarized below. The full cost benefit
analysis is available on regulations.gov.
Cost Benefit Analysis Summary
CFAP 1 and CFAP 2 assist producers of agricultural commodities
marketed in 2020 who face continuing market disruptions, reduced farm-
level prices, and increased production and marketing costs due to
COVID-19. These additional costs are associated with declines in
demand, surplus production, or disruptions to shipping patterns and
marketing channels.
As mentioned above, in implementing the CFAP 1 and CFAP 2, FSA
received feedback from local office staff and the agricultural
industry. As a result, additional CFAP assistance and other changes are
being made to provide assistance to additional growers that suffered
COVID-related revenue losses, to ensure that calculations most
accurately reflect sales, to provide equitable producer treatment, and
to clarify certain provisions appearing in CFAP 2.
These changes (referred to as ``CFAP Additional Assistance''),
along with the associated gross and net estimated outlays, are shown in
Table 1 (at the end of this section). Payments for item 1 (the ``top
up'' for swine producers) and item 2 (payments to contract livestock
producers) will draw on CARES funding. Payments for items 3, 4, and 5
in Table 1 (all payments referenced as CFAP 2 payments or modified CFAP
2 payments) draw on CCC funding that remains given CFAP 1 and CFAP 2
payments. These payments are authorized by the CCC Charter Act (section
5 (b), (d) and (e)).
Estimated gross outlays for CFAP Additional Assistance are
estimated at $3.10 billion (see Table 1). After taking into account
payment limitations, net outlays are estimated at $2.28 billion.
Payments to contract swine, chicken, egg, and turkey producers account
for 87 percent of the total.
FSA, which implemented CFAP 1 and 2, will start accepting CFAP
Additional Assistance applications for contract producers and turfgrass
sod and pullet producers on January 19, 2021. Producers who did not
apply by the CFAP 1 deadline (September 11, 2020) are not eligible for
the swine top-up payment.
Net payments represent benefits to producers, which is the
government cost of the program. Outlays shown in Table 1 are estimated
at expected maximum levels. Some producers must take additional actions
under this rule if they are interested in receiving benefits. These
producers realize administrative costs associated with participation,
which are estimated at $4.15 million.
Table 1--Summary of CFAP Additional Assistance Regulatory Changes and
Estimated Costs
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Gross estimated Net estimated
Item outlays (in outlays (in
billion $) billion $)
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Item 1--Provide a ``top up'' $0.81............. $0.15.
inventory payment to swine
producers eligible for CFAP 1.
Item 2--Assist contract $1.98............. $1.98.
producers of swine, chickens,
eggs, and turkeys.
Item 3--Include turfgrass sod, $0.21............. $0.10.
pullets, and by-products of
live animals as ``sales-based
commodities'' for CFAP 2
eligibility.
Item 4--Include 2019 crop $0.08............. $0.03.
insurance indemnities and 2019
NAP WHIP+ payments to the
producer's 2019 sales to
compute CFAP 2 payments.
Item 5--Change the calculation $0.02............. $0.02.
for price-trigger commodities
with respect to ARC-CO.
Item 6--Clarify that reptiles No change in No change in
and bees are ineligible for outlays. outlays.
CFAP 2.
Item 7--Make minor corrections No change in No change in
to the definitions of outlays. outlays.
``fruits'' and ``tree nuts'' in
Sec. Sec. 9.201 and 9.202(c).
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Total....................... $3.10............. $2.28.
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Regulatory Flexibility Act
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.
Environmental Review
The environmental impacts of this final rule have been considered
in a manner consistent with the provisions of the National
Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations
of the Council on Environmental Quality (40 CFR parts 1500-1508), and
because USDA will be making the payments to producers the USDA
regulations for compliance with NEPA (7 CFR part 1b).
Although OMB has designated this rule as ``economically
significant'' under Executive Order 12866, ``. . . economic or social
effects are not intended by themselves to require preparation of an
environmental impact statement'' when not interrelated to natural or
physical environmental effects (see 40 CFR 1502.16(b)). CFAP was
designed to avoid skewing planting decisions. Producers continue to
make their planting and production decisions with the market signals in
mind, rather than any expectation of what a new USDA program might look
like. The discretionary aspects of CFAP (for example, determining AGI
and payment limitations) were designed to be consistent with
established USDA and the CCC programs and are not expected to have any
impact on the human
[[Page 4881]]
environment, as CFAP payments will only be made after the commodity has
been produced. Accordingly, the following Categorical Exclusion in 7
CFR part 1b applies: Sec. 1b.3(a)(2), which applies to activities that
deal solely with the funding of programs, such as program budget
proposals, disbursements, and the transfer or reprogramming of funds.
As such, the implementation of and participation in CFAP do not
constitute major Federal actions that would significantly affect the
quality of the human environment. Therefore, an environmental
assessment or environmental impact statement for this regulatory
action, will not be prepared; this rule serves as documentation of the
programmatic environmental compliance decision for this Federal action.
Executive Order 12372
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 in this rule are excluded from
the scope of Executive Order 12372.
Executive Order 12988
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. Before any judicial actions may be brought
regarding the provisions of this rule, the administrative appeal
provisions of 7 CFR parts 11 and 780 are to be exhausted.
Executive Order 13132
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.
Executive Order 13175
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 does not, to our knowledge, have Tribal
implications that required Tribal consultation under Executive Order
13175 at this time. If a Tribe requests consultation, the USDA Office
of Tribal Relations (OTR) will ensure meaningful consultation is
provided where changes, additions, and modifications are not expressly
mandated by law. Outside of Tribal consultation, USDA is working with
Tribes to provide information about CFAP additional assistance and
other issues.
Unfunded Mandates
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 of State, local, and Tribal governments or the
private sector. Agencies generally must prepare a written statement,
including cost benefits 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.
Federal Assistance Programs
The titles and numbers of the Federal Domestic Assistance Programs
found in the Catalog of Federal Domestic Assistance to which this rule
applies are:
10.130--Coronavirus Food Assistance Program 1
10.132--Coronavirus Food Assistance Program 2
Paperwork Reduction Act
FSA is requesting emergency approval on the additional information
collection required for this rule for CFAP to provide assistance for
contract producers of chickens, eggs, turkeys, and swine and to provide
additional assistance for other commodities as clarified in this rule.
The additional assistance for swine producers who previously applied
for assistance under 0560-0297 does not require any new information
collection. All of the information collection uses forms currently
approved under 0560-0297.
E-Government Act Compliance
USDA is committed to complying with the E-Government Act to promote
the use of the internet and other information technologies to provide
increased opportunities for citizen access to Government information
and services, and for other purposes.
List of Subjects in 7 CFR Part 9
Agricultural commodities, Agriculture, Disaster assistance,
Indemnity payments.
For the reasons discussed above, this final rule amends 7 CFR part
9 as follows:
PART 9--CORONAVIRUS FOOD ASSISTANCE PROGRAM
0
1. Revise the authority citation for part 9 to read as follows:
Authority: 15 U.S.C. 714b and 714c; Division B, Title I, Pub.
L. 116-136, 134 Stat. 505; and Division N, Title VII, Subtitle B,
Chapter 1, Pub. L. 116-260.
Subpart A--General Provisions
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2. In Sec. 9.1, revise paragraphs (a)(1) and (2) to read as follows:
Sec. 9.1 Applicability and administration.
(a) * * *
(1) For assistance under subpart B of this part:
(i) On January 15, 2020, and remaining in the United States until
sold, for livestock sold between January 15, 2020, and April 15, 2020;
or
(ii) On the applicable date selected for livestock in inventory
between April 16, 2020, and May 14, 2020; and
(2) For assistance under subpart C of this part, on the applicable
date selected
[[Page 4882]]
for livestock in inventory between April 16, 2020, and August 31, 2020.
* * * * *
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3. Amend Sec. 9.4 as follows:
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a. In paragraph (a)(1), remove ``of this part; and'' and add a
semicolon in its place;
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b. Revise paragraph (a)(2);
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c. Add paragraph (a)(3); and
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d. In paragraph (d), remove the reference to ``Sec. 9.202(a) or (b)''
and add ``Sec. 9.203(a) or (b)'' in its place.
The revision and addition read as follows:
Sec. 9.4 Time and method of application.
(a) * * *
(2) December 11, 2020, for payments issued under Sec. 9.203,
except for applications for pullets, turfgrass sod, and contract
producers; and
(3) February 26, 2021, for payments issued under Sec. 9.203 for
applications for pullets, turfgrass sod, and contract producers.
* * * * *
Subpart C--CFAP 1
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4. Amend Sec. 9.102 as follows:
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a. In paragraph (d) introductory text, remove the word ``two'' and add
the word ``three'' in its place;
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b. In paragraph (d)(1), remove the word ``and'';
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c. In paragraph (d)(2), remove the period and add ``; and'' in its
place;
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d. Add paragraph (d)(3).
The addition reads as follows:
Sec. 9.102 Calculation of payments.
* * * * *
(d) * * *
(3) Hog and pig inventory owned between April 16, 2020, to May 14,
2020, multiplied by a payment rate of $17 per head.
* * * * *
Subpart C--CFAP 2
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5. Amend Sec. 9.201 as follows:
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a. Add the definitions of ``Contract producer'', ``Crop insurance'',
and ``Eligible revenue'' in alphabetical order;
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b. Revise the definition of ``Fruits'';
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c. Add the definitions of ``Layer'' and ``NAP'' in alphabetical order;
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d. Revise the definition of ``Other livestock'';
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e. In the definition of ``Producer'', remove the second sentence;
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f. Add the definition of ``Pullet'' in alphabetical order;
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g. In the definition of ``Sales-based commodities'', remove the words
``and wool'' and add the words ``wool, and turfgrass sod'' in their
place;
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h. Revise the definition of ``Tree nuts''; and
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i. Add the definition of ``WHIP+'' in alphabetical order.
The additions and revisions read as follows.
Sec. 9.201 Definitions.
* * * * *
Contract producer means a producer who grows or produces an
eligible commodity under contract for or on behalf of another person or
entity. The contract producer does not have ownership in the commodity
and is not entitled to a share from sales proceeds of the commodity.
Crop insurance means an insurance policy reinsured by Federal Crop
Insurance Corporation under the provisions of the Federal Crop
Insurance Act, as amended. It does not include private plans of
insurance.
* * * * *
Eligible revenue means the revenue received by a contract producer
for contract production of broilers, pullets, layers, chicken eggs,
turkeys, hogs, or pigs, as reported on Internal Revenue Service Form
1099.
* * * * *
Fruits means any of the following fruits: Abiu, acerola (Barbados
cherry), achachairu, antidesma, apples, apricots, aronia (chokeberry),
atemoya (custard apple), avocados, bananas, blueberries, breadfruit,
cacao, caimito, calabaza melon, canary melon, canary seed, caneberries,
canistel, cantaloupes, carambola (star fruit), casaba melon, cherimoya
(sugar apple), cherries, Chinese bitter melon, citron, citron melon,
coconuts, cranberries, crenshaw melon, dates, donaqua (winter melon),
durian, elderberries, figs, genip, gooseberries, grapefruit, grapes,
ground cherry, guamabana (soursop), guava, guavaberry, honeyberries,
honeydew, huckleberries, Israel melons, jack fruit, jujube,
juneberries, kiwiberry, kiwifruit, Korean golden melon, kumquats,
langsat, lemons, limequats, limes, longan, loquats, lychee, mangos,
mangosteen, mayhaw berries, mesple, mulberries, nectarines, noni,
olives, oranges, papaya, passion fruits, pawpaw, peaches, pears,
persimmons, pineapple, pitaya (dragon fruit), plantain, plumcots,
plums, pomegranates, prunes, pummelo, quinces, raisins, rambutan,
sapodilla, sapote, schizandra berries, sprite melon, star gooseberry,
strawberries, tangelos, tangerines, tangors, wampee, watermelon, wax
jamboo fruit, and wolfberry (goji).
* * * * *
Layer means a chicken producing table or commercial type shell
eggs.
NAP means the Noninsured Crop Disaster Assistance Program under
section 196 of the Federal Agriculture Improvement and Reform Act of
1996 (7 U.S.C. 7333) and part 1437 of this title.
* * * * *
Other livestock means any of the following livestock: Animals
commercially raised for food, fur, fiber, or feathers, including
alpacas, bison, buffalo, beefalo, deer, ducks, elk, emus, geese, goats,
guinea pigs, llamas, mink, ostrich, pheasants, pullets, quail, rabbits,
reindeer, turkey, water buffalo, and yak. It includes by-products of
those live animals (such as fleece). It excludes all equine, reptiles,
bees, breeding stock (including eggs to be hatched for breeding stock),
companion or comfort animals, pets, and animals raised for hunting or
game purposes.
* * * * *
Pullet means a young female chicken that has not laid an egg.
* * * * *
Tree nuts means any of the following tree nuts: Almonds, carob,
cashew, chestnuts, coffee, hazel nuts, jojoba, macadamia nuts, pecans,
pine nuts, pistachios, and walnuts.
* * * * *
WHIP+ means the Wildfires and Hurricanes Indemnity Program Plus
(WHIP+) under part 760, subpart O, of this title.
Sec. 9.202 [Redesignated as Sec. 9.203]
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6. Redesignate Sec. 9.202 as Sec. 9.203.
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7. Add new Sec. 9.202 to read as follows:
Sec. 9.202 Eligibility.
(a) Producers, excluding contract producers, are eligible for
payment under Sec. 9.203(a) through (i) if they meet all other
requirements for eligibility under this part.
(b) Contract producers are not eligible for payment under Sec.
9.203(a) through (i). Contract producers are eligible for payment under
Sec. 9.203(l) if they:
(1) Produced broilers, pullets, layers, chicken eggs, turkeys,
hogs, or pigs under a contract in both the 2019 and 2020 calendar years
and received revenue under such a contract during the period from
January 1, 2020, through December 27, 2020;
(2) Had a loss in eligible revenue for the period from January 1,
2020, through December 27, 2020, as compared to the period from January
1, 2019, through December 27, 2019; and
(3) Meet all other requirements for eligibility under this part.
(c) Contract producers must provide a copy of their contract
pursuant to which they raised an eligible commodity as specified in
paragraph (b)(1) of this section and provide documentation to
[[Page 4883]]
support the information provided on their application if requested by
FSA.
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8. Amend newly redesignated Sec. 9.203 as follows:
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a. Revise paragraph (a)(3);
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b. Add paragraph (a)(4);
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c. In paragraph (c), remove the words ``producer multiplied'' and add
the words ``producer, multiplied'' in their place;
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d. Revise paragraph (i)(1);
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e. In paragraph (i)(2), remove the words ``sales as'' and add the words
``sales, without crop insurance indemnities and NAP and WHIP+ payments,
as'' in their place;
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f. In the heading of the first column of Table 2 to paragraph (j), add
``(including crop insurance indemnities and NAP and WHIP+ payments)''
immediately after ``2019 Sales range''; and
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g. Add paragraph (l).
The additions and revision read as follows:
Sec. 9.203 Calculation of payments.
(a) * * *
(3) Under paragraph (a) of this section, eligible acres include the
producer's share of the determined acres, or reported acres if
determined acres are not present, of the crop planted for the 2020 crop
year, excluding prevented planted and experimental acres. For producers
who insured acres of the crop under a policy or plan of insurance under
the Federal Crop Insurance Act (7 U.S.C. 1501-1524), the yield will be
the average of the producer's 2020 actual production history (APH)
approved yield from all of the producer's insured acres nationwide. For
producers for whom FSA is unable to obtain a 2020 APH approved yield,
the yield will be:
(i) The 2019 Agriculture Risk Coverage-County Option (ARC-CO)
benchmark yield if the applicant:
(A) Has coverage for the crop under an Area Risk Protection
Insurance Plan, Margin Protection Plan, Stacked Income Protection Plan,
Supplemental Coverage Option, or Whole-Farm Revenue Protection Plan
under the Federal Crop Insurance Act;
(B) Is a landlord of the applicable acreage and their share is
insured by the tenant under a policy or plan of insurance under the
Federal Crop Insurance Act;
(C) Is a tenant of the applicable acreage and their share is
insured by the landlord under a policy or plan of insurance under the
Federal Crop Insurance Act; or
(D) Is a joint venture and the crop is insured by one of the
members under a policy or plan of insurance under the Federal Crop
Insurance Act; or
(ii) The 2019 Agriculture Risk Coverage-County Option (ARC-CO)
benchmark yield multiplied by 85 percent for all other applicants.
(4) ARC-CO yields in paragraph (a)(3) of this section for producers
growing a crop in multiple counties will be weighted based on the
producer's crop acreage physically located in each county.
* * * * *
(i)(1) Payments for sales commodities will be equal to the sum of
the results for the following calculation for each 2019 sales range in
Table 2 of paragraph (j) of this section: The sum of the amount of the
producer's eligible sales for the sales commodities in calendar year
2019 and the producer's crop insurance indemnities and NAP and WHIP+
payments for the sales commodities for the 2019 crop year within the
specified range, multiplied by the payment rate for that range in Table
2 of paragraph (j) of this section. Eligible sales only includes sales
of raw commodities grown by the producer; the portion of sales derived
from adding value to the commodity, such as processing and packaging,
and from sales of products purchased for resale is not included in the
payment calculation unless determined eligible by the Secretary.
* * * * *
(l) For eligible contract producers of broilers, pullets, layers,
chicken eggs, turkeys, hogs, or pigs, if eligible revenue for the
period from January 1, 2020, through December 27, 2020, decreased
compared to eligible revenue for the period from January 1, 2019,
through December 27, 2019, then payments will be equal to:
(1) Eligible revenue received from January 1, 2019, through
December 27, 2019, minus eligible revenue received from January 1,
2020, through December 27, 2020; multiplied by
(2) 80 percent.
(3) This calculation is subject to the availability of funds and
will be factored, if needed.
William Northey,
Under Secretary, U.S. Department of Agriculture.
[FR Doc. 2021-01077 Filed 1-15-21; 8:45 am]
BILLING CODE 3410-05-P