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10959
Rules and Regulations Federal Register
Vol. 85, No. 38
Wednesday, February 26, 2020
(Pub. L. 115–334). This rule also makes For ELAP, this rule makes mandatory
This section of the FEDERAL REGISTER
contains regulatory documents having general minor clarifying amendments and changes to conform with the 2018 Farm
applicability and legal effect, most of which corrections to the regulations in 7 CFR Bill to:
are keyed to and codified in the Code of part 1416. • Provide that a veteran farmer or
Federal Regulations, which is published under rancher’s payment will be calculated
50 titles pursuant to 44 U.S.C. 1510. Payment Limitation based on a national payment rate of 90
The Code of Federal Regulations is sold by The 2018 Farm Bill removed ELAP percent;
the Superintendent of Documents. from the combined $125,000 per year • Add assistance for costs related to
payment limitation with LFP, effectively inspection for cattle tick fever,
removing the annual payment limitation regardless of findings from the
DEPARTMENT OF AGRICULTURE for ELAP. LIP has no annual payment inspection;
limitation as well because of changes • Remove assistance for livestock
Commodity Credit Corporation made by the Bipartisan Budget Act of death losses due to disease transmitted
2018 (Pub. L. 115–123). Accordingly, by vectors that cannot be controlled by
7 CFR 1416 LFP is the only supplemental disaster vaccination or acceptable management
[Docket No. FSA–2019–0011] program to have a $125,000 per person practices, as the 2018 Farm Bill
and legal entity program year payment authorizes payments for these losses
RIN 0560–AI50 limitation. However, the average under LIP; and
Supplemental Agricultural Disaster adjusted gross income (AGI) limitation • Provide that ELAP payments,
Assistance Programs provisions in part 1400 of this chapter beginning with the 2019 program year,
relating to limits on payments for are not subject to an annual program
AGENCY: Commodity Credit Corporation persons or legal entities, excluding joint payment limitation.
and Farm Service Agency, USDA. ventures and general partnerships, In addition, FSA is making
ACTION: Final rule. continue to apply to each applicant for discretionary changes to ELAP for
ELAP, LFP, LIP, and TAP. Specifically, clarity and to improve program
SUMMARY: The Agriculture Improvement a person or legal entity with an AGI that integrity. The definition of ‘‘eligible
Act of 2018 (2018 Farm Bill) amends the exceeds $900,000 will not be eligible to winter storm’’ is amended to be
Agricultural Act of 2014 to make receive benefits under 7 CFR part 1416. consistent with how this term is used
changes to the Supplemental Further, the direct attribution provisions for LIP. In order to be consistent with
Agricultural Disaster Assistance in 7 CFR part 1400 apply to ELAP, LFP, the LFP and ELAP provisions in
Programs, which include the Livestock LIP, and TAP. §1416.104 and §1416.105, the
Indemnity Program (LIP), the Livestock As required by the 2018 Farm Bill, definition of ‘‘livestock owner’’ is
Forage Disaster Program (LFP), the effective with the 2019 and subsequent amended to specify that an owner must
Emergency Assistance for Livestock, program years, direct or indirect have legal ownership of the livestock for
Honeybees, and Farm-Raised Fish payments to a person or legal entity which ELAP benefits are being
Program (ELAP), and the Tree under the LFP are limited to $125,000 requested during the 60 calendar days
Assistance Program (TAP). The rule per program year. The limitation does before the eligible adverse weather or
includes changes required by the 2018 not apply to payments issued under eligible loss condition as opposed to
Farm Bill, as well as discretionary ELAP, LIP, and TAP. only or just on the day of the eligible
changes intended improve General Provisions adverse weather or eligible loss
administration of the programs and The 2018 Farm Bill amends the condition. The definition of ‘‘grazing
clarify existing program requirements. definition of ‘‘eligible producer on a animal’’ is amended to clarify that
DATES: Effective: February 26, 2020. farm’’ to include an Indian Tribe or unweaned livestock are not included in
FORFURTHERINFORMATIONCONTACT: Tribal organization. This rule amends the definition. The program year for
Kimberly Graham; telephone (202) 720– the definition in the regulation. ELAP has always run as a fiscal year
7641, or email kimberly.graham@ Additionally, miscellaneous provisions while the other disaster programs LFP,
usda.gov. Persons with disabilities or are being amended to specify that in LIP and TAP had program years that
who require alternative means for order to be eligible for benefits, were based on the calendar year. This
communication should contact the participants must submit an accurate rule amends the 2019 and subsequent
USDA Target Center at (202) 720–2600 acreage report annually as required by program years for ELAP; for 2019 the
(voice). applicable program provisions. ELAP program year is from October 1,
SUPPLEMENTARYINFORMATION: ELAP 2018, through December 31, 2019; for
Background 2020 and subsequent years, the ELAP
ELAP provides financial assistance to program year is the same as the calendar
The disaster assistance programs, eligible producers of livestock, year, January 1 through December 31.
payment limitations, and payment honeybees, and farm-raised fish for This is for ease in program
eligibility provisions in this rule are losses due to disease, certain adverse administration and for producers to
Commodity Credit Corporation (CCC) weather events, or loss conditions, better understand the program year for
funded and are administered by the including blizzards and wildfires, as ELAP consistent with other similar
Farm Service Agency (FSA). This final determined by the Secretary. ELAP disaster assistance programs. The
rule implements specific changes to the assistance is provided for losses that are change should not impact the extent of
programs required by the 2018 Farm Bill not covered by LFP and LIP. any producer’s payment eligibility.
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10960 Federal Register/Vol. 85, No. 38/Wednesday, February 26, 2020/Rules and Regulations
This rule amends §1416.103 to 2020 and subsequent program years to ‘‘grazing animals’’ to make clear that
include costs for transporting water for 15 days of when the loss is first unweaned animals are excluded
eligible adverse weather, as determined apparent to the producer. For losses (consistent with ELAP) from this
by the Deputy Administrator. other than honeybee and honeybee hive definition and therefore ineligible for
Previously, only drought was an eligible losses, the notice of loss deadline payment. This rule adds a definition for
condition for costs for transporting remains at 30 days from the date loss is ‘‘unweaned livestock’’.
water. This change is being made to first apparent to the producer. This rule This rule amends §1416.203 to clarify
address the actual loss sustained by specifies that, in addition to all other that as of the date of the qualifying
producers when an eligible disaster (not existing eligibility requirements, that in drought or fire for LFP, the owner or
just drought) causes a loss for transport the event a participant was paid for a contract grower of grazing animals must
of water (water transportation costs that loss of honeybee colony or honeybee provide pastureland or grazing land for
absent that disaster would not have hive in either or both of the previous 2 covered livestock that is physically
been incurred by the eligible producer). years, the participant must provide, located in a county affected by a
As was the case for drought, the cost of along with any notice of loss and qualifying drought during the normal
water is not eligible. The program will application for payment in the current grazing period for the specific forage
not pay for transporting water to year, documentation acceptable to FSA crop acreage in the county. This is not
livestock on land enrolled in CRP. substantiating beginning inventory for a change in policy, but rather a
This rule amends §1416.104 to that current year for which the notice of clarification in the regulatory text.
remove the eligibility requirement for loss and application for payment is Further, consistent with ELAP, this rule
contract growers that their income be being submitted. The rule specifies that, clarifies that livestock excluded from
dependent on survival of the livestock, in addition to all other existing being eligible include livestock
which was sometimes being interpreted eligibility requirements, for honeybee intended for consumption by the owner
to require a contract grower to colony losses due to Colony Collapse or contract grower. This rule also
indemnify owners for livestock deaths. Disorder (CCD), the participant must clarifies provisions in §1416.205
Contract growers have beneficial risk provide a producer certification that the regarding grazing losses on irrigated
interest in livestock when their loss was a direct result of at least 3 of land, which are not eligible for payment
compensation is based on their inputs, the 5 symptoms of CCD. Further, in under LFP unless they are due to a lack
which are subject to loss and addition to the notice of loss required by of surface water as a result of a
performance of the livestock as §1416.107, this rule clarifies that an qualifying eligible drought condition.
specified in the contract grower’s application for payment is due within Finally, consistent with amendments to
contract. While some contracts may 30 calendar days of the end of the other subparts of part 1416, this rule
make the contract grower liable for applicable program year. This is not a removes provisions that were applicable
death of livestock, such a condition is change; however, with the change in to only prior program years.
not required in order for a contract program years, the regulation is LIP
grower to be able to show beneficial risk amended to tie the application deadline
interest in the livestock. The intent is to to the program year. LIP provides benefits to livestock
specify that eligibility of contract LFP owners and contract growers for
growers is for those persons or legal livestock deaths in excess of normal
entities who do not own the livestock, Other than the change made to mortality or injured livestock sold at a
but who derive income from weight gain payment limitations that removed ELAP reduced price caused by adverse
of livestock, production of livestock from the combined $125,000 annual weather or by attacks by animals
products, or number of livestock payment limit with LFP therefore reintroduced into the wild by the
produced. This rule also removes a making LFP the only supplemental Federal Government. LIP payments are
provision that eligible livestock must disaster program subject to the $125,000 equal to 75 percent of the average fair
not have been in a feedlot on the limit, the 2018 Farm Bill did not make market value of the livestock. There is
beginning date of the eligible adverse changes to the LFP. However, consistent no payment limitation for LIP. The 2018
weather or loss condition to be eligible with other discretionary changes for Farm Bill amends LIP to include
under ELAP as the location of an clarity and program integrity, FSA is coverage for:
owner’s livestock on the beginning date making the following changes in this 1. Death loss resulting from diseases
of an eligible disaster is not relevant to rule. caused by, or transmitted by, a vector
whether an eligible loss has occurred for This rule clarifies §1416.201 to that cannot be controlled by vaccination
an owner’s grazing animals. specify that eligible livestock owners or or acceptable management practices;
For program integrity, this rule contract growers of livestock who are and
specifies that a notice of loss for eligible producers of grazed forage crop 2. Death of unweaned livestock due to
honeybee colony or honeybee hive acreage are eligible for LFP payment extreme cold and without regard to
losses must be accompanied by consideration. Persons or legal entities management protocols.
acceptable documentation to FSA that that are not both an eligible owner or FSA is amending the regulations to
demonstrates that an eligible loss contract grower of livestock and a conform to the mandatory changes
occurred and was associated with an producer of grazed forage are not under the 2018 Farm Bill changes to:
eligible loss condition. eligible. This is not a change to existing • Amend eligible livestock losses to
This rule removes regulatory policy, rather a clarification. This rule include death loss of unweaned
provisions that applied only to ELAP for amends the definition of ‘‘contract livestock due to extreme cold, without
prior program years. grower’’ to remove the requirement that regard to management practices,
Further, consistent with the 15-day the contract grower’s income be vaccination protocols, or lack of
notice of loss period that applies to dependent on survival of the livestock, vaccinations by the eligible producer;
producers of honey under the consistent with the intent of the and
Noninsured Crop Disaster Assistance program as well as with the ELAP • Amend the definition of ‘‘eligible
Program, for honeybee losses the rule provision covering contract growers. disease’’ to include disease caused or
amends the notice of loss deadline for This rule amends the definition of transmitted by a vector and not be
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Federal Register/Vol. 85, No. 38/Wednesday, February 26, 2020/Rules and Regulations 10961
susceptible to control by vaccination or provisions in §1416.305 that were Effective Date, Notice and Comment,
acceptable management practices (this applicable only to prior program years and Paperwork Reduction Act
was previously an eligible loss under (for example, on or after October 1, The Administrative Procedure Act (5
ELAP; it will now be covered under LIP 2011, and before January 1, 2015) have U.S.C.553) provides that the notice and
together with any other eligible death been removed. comment and 30-day delay in the
loss of eligible livestock). With these TAP effective date provisions do not apply
amendments, compensation for eligible when the rule involves specified
livestock deaths will only be under LIP. TAP assists eligible orchardists and actions, including matters relating to
In addition, this rule makes minor nursery tree growers that have incurred benefits. This rule governs
discretionary changes to LIP to improve tree, bush, or vine mortality losses in Supplemental Agricultural Disaster
program integrity. FSA is amending excess of 15 percent, adjusted for Assistance Programs, which include
§1416.302 to remove references to normal mortality, due to natural ELAP, LIP, LFP, and TAP for benefit
‘‘open range’’ livestock. The term was payments and thus falls within that
previously used where the rule allowed disaster. TAP is a cost-reimbursement exemption.
for establishment of beginning inventory program, which means that payments Further, as specified in 7 U.S.C. 9091,
of calf and lamb operations based on are calculated based on estimated actual the regulations to implement the
livestock beginning inventory history costs to replace or rehabilitate lost or provisions of the Title I of the 2018
(LBIH). The regulation will retain LBIH damaged trees, bushes, or vines. The Farm Bill are:
and its use will be applicable in any replacement and rehabilitation activities • Exempt from the notice and
livestock operation, not only those that must take place within 12 months after comment provisions of 5 U.S.C. 553,
were referred to as ‘‘open range,’’ for the application is approved, and and
establishment of beginning inventory of payment is not made until the activities • Exempt from the Paperwork
unweaned livestock of calves, kids, or are completed. Reduction Act (44 U.S.C. chapter 35.
lambs. Accordingly, corresponding The rule amends §1416.402 to add • To use the authority in 5 U.S.C. 808
amendments are being made throughout the term ‘‘commercially viable’’ for related to Congressional review and any
the subpart to remove references to open those eligible trees, bushes, or vines, potential delay in the effective date.
range and to replace the reference to that are damaged but which may In addition, 7 U.S.C. 9091(c)(3) directs
calves and lambs with unweaned the Secretary to use the authority
livestock. This rule also amends rejuvenate and return to a level of
§1416.304, where applicable, by expected production through provided in 5 U.S.C. 808, which
replacing the words ‘‘adverse weather rehabilitation and without planting. The provides that when an agency finds for
event or date of the attack by animals term is added to §1416.403 to permit good cause that notice and public
reintroduced into the wild by the eligible trees, bushes, or vines that are procedure are impracticable,
Federal Government or protected by determined not commercially viable to unnecessary, or contrary to the public
Federal law, including wolves and avian be included in order to meet the interest, that the rule may take effect at
predators or the transmission by vectors requisite mortality in §1416.403(a). This such time as the agency determines. Due
and is not susceptible to control by rule also amends the definition of to the mandatory requirements of the
vaccination or acceptable management ‘‘natural disaster’’ to specify the 2018 Farm Bill and the need to
practices’’ with ‘‘eligible loss included natural occurrences must be implement the regulations expeditiously
condition,’’ for ease in reading. This extreme, abnormal, and damaging, to provide assistance to producers who
rule amends §1416.304 to clarify that consistent with the intent of the suffered disaster losses because of
that eligible livestock includes only program. adverse weather and other natural
those livestock produced and disasters, FSA and CCC find that notice
maintained for commercial use for sale This rule amends §1416.405 to and public procedure are contrary to the
of the production of livestock products remove provisions that applied only to public interest.
such as milk or eggs (or livestock). prior program years. It amends The Office of Management and Budget
Excluded livestock are the same before §1416.406 to implement a change (OMB) designated this rule as not major
including, but not limited to, wild free required by the 2018 Farm Bill to under Congressional Review Act, as
roaming animals; animals produced or increase the reimbursement amount for defined by 5 U.S.C. 804(2). Therefore,
maintained for consumption by the a beginning farmer and rancher and a FSA is not required to delay the
owner or contract grower; livestock used veteran farmer and rancher from 65 effective date for 60 days from the date
for recreational purposes; and livestock percent to 75 percent for the cost of of publication to allow for
used for pleasure, hunting, roping, pets, replanting trees, bushes, or vines lost Congressional review.
or for show. due to a natural disaster, in excess of 15 Accordingly, this rule is effective
As is the case for other subparts, this percent mortality (adjusted for normal upon publication in the Federal
rule amends §1416.305 to remove mortality) or, at the option of the Register.
provisions that were only applicable to Secretary, sufficient seedlings to Executive Orders 12866, 13563, 13771,
prior program years. However, to relieve reestablish a stand. The 2018 Farm Bill and 13777
the burden some livestock owners may also increases the reimbursement
have in qualifying for assistance, amount for beginning farmers and Executive Order 12866, ‘‘Regulatory
§1416.305 is amended to permit, for ranchers and veteran farmers and Planning and Review,’’ and Executive
losses sustained due to an eligible Order 13563, ‘‘Improving Regulation
adverse weather event or eligible ranchers from 50 percent to 75 percent and Regulatory Review,’’ direct agencies
disease, as defined in the rule, that the of the cost of pruning, removal, and to assess all costs and benefits of
participant must, at a minimum, other costs incurred for salvaging the available regulatory alternatives and, if
provide reliable records of inventory existing plants, or in the case of plant regulation is necessary, to select
and reliable records as proof of death or mortality, to prepare land for replanting, regulatory approaches that maximize
injury. Finally, consistent with other subject to the maximum allowable FSA net benefits (including potential
amendments to 7 CFR part 1416, rate. economic, environmental, public health
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10962 Federal Register/Vol. 85, No. 38/Wednesday, February 26, 2020/Rules and Regulations
and safety effects, distributive impacts, Environmental Review Executive Order 12988
and equity). Executive Order 13563 In general, the environmental impacts This rule has been reviewed under
emphasized the importance of of rules are to be considered in a Executive Order 12988, ‘‘Civil Justice
quantifying both costs and benefits, of manner consistent with the provisions Reform.’’ This rule will not preempt
reducing costs, of harmonizing rules, of the National Environmental Policy State or local laws, regulations, or
and of promoting flexibility. The Act (NEPA, 42 U.S.C. 4321–4347), the policies unless they represent an
requirements in Executive Order 12866 regulations of the Council on irreconcilable conflict with this rule.
and 13563 for the analysis of costs and Environmental Quality (40 CFR parts Before any judicial actions may be
benefits apply to rule that are 1500–1508), and FSA regulations for brought regarding the provisions of this
determined to be significant. Executive compliance with NEPA (7 CFR part rule, the administrative appeal
Order 13777, ‘‘Enforcing the Regulatory 799). Some of the changes being made provisions of 7 CFR parts 11 and 780 are
Reform Agenda,’’ established a federal by the rule were self-enacting and have to be exhausted.
policy to alleviate unnecessary already been implemented Executive Order 13132
regulatory burdens on the American administratively. The rule implements
people. primarily changes required by the 2018 This rule has been reviewed under
OMB designated this rule as not Farm bills for ELAP, LIP and TAP; and Executive Order 13132, ‘‘Federalism.’’
significant under Executive Order the discretionary aspects are to improve The policies contained in this rule do
12866, ‘‘Regulatory Planning and administration of the programs and not have any substantial direct effect on
Review,’’ and therefore, OMB has not clarify existing program requirements. States, on the relationship between the
reviewed this rule and analysis of the FSA is providing the disaster Federal Government and the States, or
costs and benefits is not required under assistances, payment limitations, and on the distribution of power and
either Executive Order 12866 and payment eligibility provisions under the responsibilities among the various
13563. LIP, LFP, ELAP, and TAP to the eligible levels of government, except as required
Executive Order 13771, ‘‘Reducing producers. The discretionary provision by law. Nor does this rule impose
Regulation and Controlling Regulatory would not alter any environmental substantial direct compliance costs on
Costs,’’ requires that in order to manage impacts resulting from implementing State and local governments. Therefore,
the private costs required to comply the mandatory changes to those consultation with the States is not
with Federal regulations that for every programs. Accordingly, these required.
new significant or economically discretionary aspects are coved by the Executive Order 13175
significant regulation issued, the new following Categorical Exclusion, found This rule has been reviewed in
costs must be offset by the elimination at 7 CFR part 799.31(b)(6)(vi) safety net accordance with the requirements of
of at least two prior regulations. As this programs administrated by FSA and no Executive Order 13175, ‘‘Consultation
rule is designated not significant, it is Extraordinary Circumstances (§799.33) and Coordination with Indian Tribal
not subject to Executive Order 13771. In exist. Therefore, as this rule presents Governments.’’ Executive Order 13175
a general response to the requirements only discretionary clarifications of requires Federal agencies to consult and
of Executive Order 13777, USDA mandatory requirements that will not coordinate with tribes on a government-
created a Regulatory Reform Task Force, have an impact to the human to-government basis on policies that
and USDA agencies were directed to environments, individually or have Tribal implications, including
remove barriers, reduce burdens, and cumulatively, FSA will not prepare an regulations, legislative comments or
provide better customer service both as environmental assessment or proposed legislation, and other policy
part of the regulatory reform of existing environmental impact statement for this statements or actions that have
regulations and as an ongoing approach. rule; this rule serves as documentation substantial direct effects on one or more
FSA reviewed this regulation and made of the programmatic environmental Indian Tribes, on the relationship
changes to improve any provision that compliance decision for this federal between the Federal Government and
was determined to be outdated, action. Indian Tribes or on the distribution of
unnecessary, or ineffective. Executive Order 12372 power and responsibilities between the
Regulatory Flexibility Act Federal Government and Indian Tribes.
Executive Order 12372, USDA has assessed the impact of this
The Regulatory Flexibility Act (5 ‘‘Intergovernmental Review of Federal rule on Indian Tribes and determined
U.S.C. 601–612), as amended by the Programs,’’ requires consultation with that this rule has Trial implications that
Small Business Regulatory Enforcement State and local officials that would be required Tribal consultation under
Fairness Act of 1996, generally requires directly affected by proposed Federal Executive Order 13175. Tribal
an agency to prepare a regulatory financial assistance. The objectives of consultation for this rule was included
analysis of any rule whenever an agency the Executive Order are to foster an in the 2018 Farm Bill consultation held
is required by APA or any other law to intergovernmental partnership and a on May 1, 2019, at the National Museum
publish a proposed rule, unless the strengthened Federalism, by relying on of American Indian, in Washington, DC.
agency certifies that the rule will not State and local processes for State and The portion of the Tribal Consultation
have a significant economic impact on local government coordination and relative to this rule was conducted by
a substantial number of small entities. review of proposed Federal financial Bill Northey, USDA Under Secretary for
This rule is not subject to the Regulatory assistance and direct Federal the Farm Production and Conservation
Flexibility Act because as noted above, development. For reasons specified in mission area, as part of Title I session.
this rule is exempt from notice and the final rule related notice regarding 7 If a Tribe requests additional
comment rulemaking requirements of CFR part 3015, subpart V (48 FR 29115, consultation, FSA will work with the
the APA and no other law requires that June 24, 1983), the programs and USDA Office of Tribal Relations to
a proposed rule be published for this activities in this rule are excluded from ensure meaningful consultation is
rulemaking initiative. the scope of Executive Order 12372. provided.
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