[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: <a href="/cdn-cgi/l/email-protection#c08ba9ada2a5b2acb9ee87b2a1a8a1ad80b5b3a4a1eea7afb6"><span class="__cf_email__" data-cfemail="e1aa888c8384938d98cfa6938089808ca194928580cf868e97">[email protected]</span></a>. 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:
    <bullet> 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
    <bullet> 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).
---------------------------------------------------------------------------

    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:
    <bullet> 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);
    <bullet> 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;
    <bullet> 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
    <bullet> 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
------------------------------------------------------------------------
                                    Gross estimated      Net estimated
              Item                   outlays  (in         outlays (in
                                      billion $)          billion $)
------------------------------------------------------------------------
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).
                                 ---------------------------------------
    Total.......................  $3.10.............  $2.28.
------------------------------------------------------------------------

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

0
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.
* * * * *

0
3. Amend Sec.  9.4 as follows:
0
a. In paragraph (a)(1), remove ``of this part; and'' and add a 
semicolon in its place;
0
b. Revise paragraph (a)(2);
0
c. Add paragraph (a)(3); and
0
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

0
4. Amend Sec.  9.102 as follows:
0
a. In paragraph (d) introductory text, remove the word ``two'' and add 
the word ``three'' in its place;
0
b. In paragraph (d)(1), remove the word ``and'';
0
c. In paragraph (d)(2), remove the period and add ``; and'' in its 
place;
0
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

0
5. Amend Sec.  9.201 as follows:
0
a. Add the definitions of ``Contract producer'', ``Crop insurance'', 
and ``Eligible revenue'' in alphabetical order;
0
b. Revise the definition of ``Fruits'';
0
c. Add the definitions of ``Layer'' and ``NAP'' in alphabetical order;
0
d. Revise the definition of ``Other livestock'';
0
e. In the definition of ``Producer'', remove the second sentence;
0
f. Add the definition of ``Pullet'' in alphabetical order;
0
g. In the definition of ``Sales-based commodities'', remove the words 
``and wool'' and add the words ``wool, and turfgrass sod'' in their 
place;
0
h. Revise the definition of ``Tree nuts''; and
0
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]

0
6. Redesignate Sec.  9.202 as Sec.  9.203.

0
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.

0
8. Amend newly redesignated Sec.  9.203 as follows:
0
a. Revise paragraph (a)(3);
0
b. Add paragraph (a)(4);
0
c. In paragraph (c), remove the words ``producer multiplied'' and add 
the words ``producer, multiplied'' in their place;
0
d. Revise paragraph (i)(1);
0
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;
0
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
0
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


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