Coronavirus Food Assistance Program; Additional Assistance (rule, 86 FR 4877, January 19, 2021)
Summary
A final rule from the Office of the Secretary, USDA, published in the Federal Register on January 19, 2021 (Vol. 86, No. 11), Docket ID FSA–2020–0006, RIN 0503–AA65, amending the Coronavirus Food Assistance Program (CFAP). It amends the CFAP 1 provisions to provide additional payments for hog and pig inventory owned between April 16, 2020, and May 14, 2020. The added rate is $17 per head, for a total CFAP 1 payment rate of $34 per head for that inventory. The rule amends the CFAP 2 provisions to provide assistance for certain swine and poultry contract producers, clarify eligible sales-based commodities, add commodities eligible for payment and change the payment calculation for sales-based commodities. It states that the Consolidated Appropriations Act, 2021 (Pub. L. 116–260), signed on December 27, 2020, made several changes to CFAP.
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“Coronavirus Food Assistance Program; Additional Assistance (rule, 86 FR 4877, January 19, 2021).”
Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/coronavirus-food-assistance-program-additional-assistance-rule-86-fr-4-08e4ded758/
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4877
Rules and Regulations Federal Register
Vol. 86, No. 11
Tuesday, January 19, 2021
This section of the FEDERAL REGISTER require alternative means for and CFAP 2 applications from
contains regulatory documents having general communication should contact the September 21, 2020, through December
applicability and legal effect, most of which USDA Target Center at (202) 720–2600 11, 2020. This rule amends the
are keyed to and codified in the Code of (voice). provisions for CFAP 1 and CFAP 2 as
Federal Regulations, which is published under
SUPPLEMENTARY INFORMATION: described below.
50 titles pursuant to 44 U.S.C. 1510.
Background CFAP 1
The Code of Federal Regulations is sold by
the Superintendent of Documents. USDA established CFAP to assist
producers of agricultural commodities For eligible producers of hogs and
marketed in 2020 who face continuing pigs, CFAP 1 provided financial
DEPARTMENT OF AGRICULTURE market disruptions, reduced farm-level assistance in an amount equal to the
prices, and increased production and sum of the following two calculations:
Office of the Secretary marketing costs due to COVID–19 under • Unpriced livestock sold between
authority provided by the Coronavirus January 15, 2020, to April 15, 2020,
7 CFR Part 9 Aid, Relief, and Economic Security Act multiplied by the applicable
[Docket ID: FSA–2020–0006] (CARES Act; Pub. L. 116–136) and Coronavirus Aid, Relief, and Economic
sections 5(b), (d), and (e) of the Stability Act (CARES Act) payment rate
RIN 0503–AA65 Commodity Credit Corporation Charter in 7 CFR 9.102; and
Act (15 U.S.C. 714c(b), (d), and (e)).
Coronavirus Food Assistance
USDA implemented CFAP through two • Livestock inventory owned between
Program; Additional Assistance April 16, 2020, to May 14, 2020,
rounds of payments (CFAP 1 and CFAP
AGENCY: Office of the Secretary, 2). CFAP 1 was implemented through a multiplied by the applicable
Department of Agriculture (USDA). final rule published in the Federal Commodity Credit Corporation (CCC)
ACTION: Final rule. Register on May 21, 2020 (85 FR 30825– payment rate in § 9.102.
30835), with corrections published in This rule provides additional CFAP 1
SUMMARY: The Coronavirus Food the Federal Register on June 12, 2020 payments for hog and pig inventory
Assistance Program (CFAP) provides (85 FR 35799–35800), July 10, 2020 (85 owned between April 16, 2020, and May
assistance to agricultural producers FR 41328–41330), August 14, 2020 (85 14, 2020, based on a rate of $17 per head
impacted by the effects of the COVID– FR 49593–49594), and September 21, (which results in a total CFAP 1
19 outbreak. The Secretary of 2020 (85 FR 59174–59175), and payment rate of $34 per head for that
Agriculture implemented CFAP through documents published in the Federal
two rounds of payments (CFAP 1 and inventory including the prior $17 per
Register on May 22, 2020 (85 FR 31062–
CFAP 2). This rule amends the CFAP 1 head payment for CFAP 1). For the
31065), June 12, 2020 (85 FR 35812),
provisions to provide additional July 10, 2020 (85 FR 41321–41323), and swine (hog and pig) sector, the
assistance for swine producers who August 14, 2020 (85 FR 49589–49593). inventory payment rates were
previously applied for assistance during USDA implemented CFAP 2 through a determined to be insufficient to alleviate
the CFAP 1 application period. This final rule published in the Federal ongoing market price losses in the
rule also amends the CFAP 2 provisions Register on September 22, 2020 (85 FR sector.
to provide assistance for certain swine 59380–59388). This additional assistance is also
and poultry contract producers, clarify The Consolidated Appropriations Act, intended to help swine producers who
eligible sales-based commodities, add 2021 (Pub. L. 116–260), signed on face continuing market disruptions from
additional commodities that are eligible December 27, 2020, provided additional changes in U.S. meat consumption due
for payment, change the payment funding and made several changes to to the pandemic. These disruptions are
calculation for sales-based commodities, CFAP. This rule implements a provision reflected in futures prices. Generic lean
and change the yield used to calculate of the Consolidated Appropriations Act,
hog futures prices at the end of
payment for price-trigger crops for 2021, to amend the payment calculation
for sales commodities as described November 2020 were 5.4 percent lower
certain applicants. The change to the
below.1 Other changes to CFAP in this than on January 2, 2020. In contrast,
payment calculation for sales-based
rule are discretionary changes being futures prices for commodities such as
commodities is being made to
implement a change required by the made in response to ongoing evaluation soybeans and corn have been increasing
recently enacted Consolidated of CFAP and the need to provide in the second half of 2020 to levels
Appropriations Act, 2021. Other additional assistance. above those in early January of 2020.
changes to CFAP in this rule are CFAP is administered by USDA’s FSA is not reopening the CFAP 1
discretionary changes being made in Farm Service Agency (FSA). FSA application period. Only producers who
response to ongoing evaluation of CFAP accepted CFAP 1 applications from May previously applied for CFAP 1 are
26, 2020, through September 11, 2020,2
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and the need to provide additional eligible to receive this additional
assistance. assistance. Eligible producers do not
1 Other changes to CFAP included in the
DATES: Effective January 19, 2021. Consolidated Appropriations Act, 2021, not made need to submit a new CFAP 1
FOR FURTHER INFORMATION CONTACT: in this final rule will be addressed in a subsequent application form or take any action to
rulemaking. receive the additional payment.
Kimberly Graham; telephone: (202) 720– 2 Certain producers in Louisiana, Oregon, and
6825; email: Kimberly.Graham@ Texas had through October 9 to apply due to
Producers are subject to a payment
usda.gov. Persons with disabilities who natural disasters. limitation of $250,000 for all CFAP 1
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4878 Federal Register / Vol. 86, No. 11 / Tuesday, January 19, 2021 / Rules and Regulations
payments,3 including this additional agricultural producers impacted by facility, which actions increased costs
assistance, as provided in § 9.7(e). COVID–19, including producers of such as producer labor, and for
specialty crops, producers that supply additional wear and tear and water use
CFAP 2
local food systems (including farmers associated with larger animals. In
In this final rule, USDA is also markets, restaurants, and schools), and addition, swine and poultry contract
including certain producers that raise livestock producers. This remaining producers cannot use their specialized
swine and poultry (including broilers, CARES Act funding will assist contract growing facilities for other purposes to
pullets, layers, chicken eggs, and producers facing reduced revenue due generate revenue as the sector works
turkeys) under a production contract to the impacts noted above. through the supply chain bottlenecks.
that sustained revenue losses due to Certain contract producers have been Contract producers are eligible for
market disruptions and reduced eligible for assistance under the payments if they produced swine or
harvesting facility output resulting from Livestock Indemnity Program (LIP); poultry (including broilers, pullets,
the COVID–19 outbreak. A swine or Emergency Assistance for Livestock, layers, chicken eggs, turkeys) under a
poultry contract producer is one who Honeybees, and Farm-Raised Fish contract in both the 2019 and 2020
produces swine or poultry owned by Program (ELAP); and the Livestock calendar years, suffered a loss in eligible
someone else under a production Forage Disaster Program (LFP) since revenue for the period from January 1,
contract. Not all production contracts these permanent supplemental disaster 2020, through December 27, 2020, as
operate the same way, so not all contract programs were authorized in the 2008 compared to the period from January 1,
producers will be eligible. Only those Farm Bill (Pub. L. 110–234; 7 U.S.C. 2019, through December 27, 2019, and
producers who grow or produce an 9081, see also 7 CFR parts 760 and meet all other requirements for CFAP
eligible commodity under contract for or 1416). These programs provide financial eligibility. Eligible revenue is the
on behalf of another person or entity assistance to contract producers who are revenue received by a contract producer
and are not entitled to a share from sales impacted by adverse weather events for contract production of the eligible
proceeds of the commodity are eligible. such as hurricane, flood, blizzard, commodity, as reported on Internal
For example, a farmer who raises disease, drought, or extreme cold or Revenue Service Form 1099. Payments
chickens pursuant to a production heat. Including certain swine and to eligible contract producers will be
contract where such chickens are owned poultry contract producers in CFAP 2 calculated by subtracting the contract
by a company that produces chicken parallels their inclusion in these producer’s eligible revenue for the
products could be an eligible contract permanent supplemental disaster period from January 1, 2020, through
grower if such farmer does not receive programs that provide financial December 27, 2020, from their eligible
payment for chickens that die before assistance to contract producers due to revenue for the period from January 1,
reaching maturity or when young weather events that are not expected. 2019, through December 27, 2019, and
animals are not supplied to the farmer The impacts of a global pandemic are multiplying the result by 80 percent.
by the company, or whose income is beyond normal production conditions This calculation is subject to the
reduced when fewer young animals and have had a negative financial availability of funds and will be
than normal are provided by the impact on swine and poultry producers factored, if needed. Contract producers
company. including those raising animals under a must submit a complete CFAP 2
USDA did not include swine and production contract. application between January 19, 2021,
poultry contract producers in CFAP 1 USDA is including this subset of and February 26, 2021. Contract
because the impacts to these producers contract producers because the COVID– producers are subject to a payment
from COVID–19 was not known at the 19 global pandemic not only disrupted
limitation of $250,000 for all CFAP 2
protein markets as consumer
time the rule was published in the payments,4 including any CFAP 2
consumption abruptly shifted from food
Federal Register on May 21, 2020. The payments received for other
service to home preparation, but also
impacts from COVID–19 on contract commodities not grown under a
reduced harvesting facility output
producers such as delayed delivery of contract, as provided in § 9.7(e).
because of COVID–19 outbreaks among USDA has determined that producers
young poultry and hogs to contract
the workforce and when facilities
producers, decreased housing densities, of pullets, water buffalo, yak, and
reduced processing capacity to ensure
additional costs for keeping animals turfgrass sod face continuing market
worker health. Swine and poultry
longer than typical durations, and disruptions, low farm-level prices, and
contract producers provided data and
damage caused by animals too large for significant marketing costs associated
other information to USDA to illustrate
housing, were known when USDA with the COVID–19 outbreak, similar to
the impact of these coronavirus
published the rule implementing CFAP producers of commodities that were
disruptions on their operations. The
2 in the Federal Register on September previously determined to be eligible for
impacts of slowdowns and shutdowns
22, 2020. However, those producers CFAP 2 assistance. As a result, USDA is
at processing facilities in late spring and
could not be included since CFAP 2 amending the definitions of ‘‘Other
early summer are still being felt in the
payments were issued using funds poultry and swine industry. In some livestock’’ and ‘‘Sales-based
authorized under CCC Charter Act (15 instances, companies managed and commodities’’ in § 9.201 to include
U.S.C. 714c(b), (d), and (e)) to assist continue to manage the lack of harvest those commodities. USDA will reopen
with the transition to a more orderly capacity by reducing or eliminating new signup specifically for pullets, turfgrass
marketing system, and swine and production, which means that contract sod, and contract growers on January 19,
poultry contract producers do not producers had fewer animals to produce 2021. through February 26, 2021. The
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ordinarily market the animals they raise. under contract per cycle or did not have change to accept applications for water
CARES funding, as authorized, remains young animals delivered by the buffalo and yak was previously
available until expended to support company for some periods. In other implemented by USDA; therefore, the
3 Corporations, limited liability companies,
situations, companies required some 4 Corporations, limited liability companies,
limited partnerships, trusts, and estates may qualify
contract producers to keep animals limited partnerships, trusts, and estates may qualify
for an increased CFAP 1 payment limitation. See 7 longer than they typically keep them for an increased CFAP 2 payment limitation. See 7
CFR 9.7(e). before shipping them to the harvesting CFR 9.7(e).
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Federal Register / Vol. 86, No. 11 / Tuesday, January 19, 2021 / Rules and Regulations 4879
deadline is not extended for those rule is not extending the CFAP 2 have been physically located in the
livestock types. USDA is also amending deadline for producers of sales-based United States for CFAP 2, which was
the definition of ‘‘Other livestock’’ to commodities who did not previously inadvertently omitted from the previous
clarify that reptiles and bees are apply for CFAP 2, except for producers final rule. These corrections do not
ineligible. of pullets and turfgrass sod as described affect administration of CFAP 2.
This rule also amends the definition above. The changes in this document are
of ‘‘Other livestock’’ in § 9.201 to clarify USDA is also amending the consistent with our original intent in
that by-products of live animals calculation for price-trigger creating and administering CFAP 2 and
included as ‘‘Other livestock’’ are commodities. As published on are not expected to increase expected
eligible for CFAP 2. As provided in September 22, 2020, payments are costs beyond the original approved
§ 9.203(i)(1), the payment calculation for calculated using the 2019 Agriculture amount.
sales-based commodities is based on Risk Coverage-County Option (ARC–CO)
Notice and Comment and Effective Date
sales of raw commodities; the portion of benchmark yield multiplied by 85
sales derived from adding value to the percent when FSA is unable to obtain a The Administrative Procedure Act
commodity, such as processing and 2020 actual production history (APH) (APA, 5 U.S.C. 553(a)(2)) provides that
packaging, is not included when approved yield. This rule amends the the notice and comment and 30-day
calculating a payment. For example, calculation to use 100 percent of the delay in the effective date provisions do
sales of alpaca fleece would be included ARC–CO benchmark yield when the not apply when the rule involves
for payment calculation; however, if the applicant: specified actions, including matters
alpaca fleece is further processed into • Has coverage for the crop under an relating to benefits. This rule governs
alpaca yarn prior to sale, the portion of Area Risk Protection Insurance Plan, CFAP for payments to certain
the sale price derived from that Margin Protection Plan, Stacked Income commodity producers and therefore
processing is not included. Eligible by- Protection Plan, Supplemental Coverage falls within the benefits exemption.
products of other livestock do not Option, or Whole-Farm Revenue The Office of Management and Budget
include eggs that are sold to be hatched Protection Plan under the Federal Crop (OMB) designated this rule as major
for breeding stock. This change was Insurance Act (7 U.S.C. 1501–1524); under the Congressional Review Act
previously implemented by USDA; • Is a landlord of the applicable (CRA), as defined by 5 U.S.C. 804(2).
therefore, the deadline is not extended acreage and their share of the crop is Section 808 of the CRA allows an
for by-products of ‘‘Other livestock.’’ insured by the tenant under a policy or agency to make a major regulation
USDA is amending the payment plan of insurance under the Federal effective immediately if the agency finds
calculation for sales-based commodities Crop Insurance Act; there is good cause to do so. The
to include the amount of crop insurance • Is a tenant of the applicable acreage beneficiaries of this rule have been
indemnities received and payments and their share of the crop is insured by significantly impacted by the COVID–19
made under the Noninsured Crop the landlord under a policy or plan of outbreak, which has resulted in
Disaster Assistance Program (NAP) and insurance under the Federal Crop significant declines in demand and
the Wildfires and Hurricanes Indemnity Insurance Act; or market disruptions. USDA finds that
Program Plus (WHIP+) payments for • Is a joint venture and the crop is notice and public procedure are
crop year 2019 in addition to the insured by one of the members under a contrary to the public interest.
amount of the producer’s 2019 sales, as policy or plan of insurance under the Therefore, even though this rule is a
required by the Consolidated Federal Crop Insurance Act. major rule for purposes of the
Appropriations Act, 2021. CFAP 2 uses In these situations, FSA does not have Congressional Review Act, USDA is not
a producer’s 2019 sales as an 2020 APH approved yield for the CFAP required to delay the effective date for
approximation of the amount of what 2 applicant because the insurance plan 60 days from the date of publication to
the producer would expect to market in does not require calculation of an APH allow for Congressional review.
2020. This change is intended to more approved yield or because the record of Accordingly, this rule is effective upon
accurately represent what a producer the APH approved yield would not be publication in the Federal Register.
would expect to have marketed in 2020 associated with the CFAP 2 applicant.
However, the crop was insured in these Executive Orders 12866, 13563, and
by taking into account commodities that
situations and using 100 percent of the 13777
would have been marketed in 2019 if
not for losses covered by crop ARC–CO benchmark yield is intended Executive Order 12866, ‘‘Regulatory
insurance, NAP or WHIP+. For to treat producers with crop insurance Planning and Review,’’ and Executive
producers who began farming in 2020 coverage but without an available 2020 Order 13563, ‘‘Improving Regulation
and had no sales in 2019, CFAP 2 APH approved yield in a more favorable and Regulatory Review,’’ direct agencies
payments will continue to be based on way to other producers who had crop to assess all costs and benefits of
the farmer’s actual 2020 sales, without insurance. All applicants affected by available regulatory alternatives and, if
inclusion of crop insurance indemnities this change were previously eligible regulation is necessary, to select
or NAP or WHIP+ payments, since under the original rule; therefore, this regulatory approaches that maximize
payments are based on the actual crop rule is not extending the CFAP 2 net benefits (including potential
that incurred marketing costs and was deadline for those producers who did economic, environmental, public health
impacted by market disruptions and low not previously apply for CFAP 2. and safety effects, distributive impacts,
farm-level prices. Producers of eligible Applicants affected by this change must and equity). Executive Order 13563
sales-based commodities who applied contact FSA to have their payment emphasized the importance of
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for CFAP 2 before the December 11, recalculated using 100 percent of the quantifying both costs and benefits, of
2020, application deadline and received ARC–CO benchmark yield. reducing costs, of harmonizing rules,
crop insurance indemnities or NAP or This document also makes minor and of promoting flexibility. The
WHIP+ payments for the 2019 crop year corrections to the definitions of ‘‘fruits’’ requirements in Executive Orders 12866
may amend their CFAP 2 applications and ‘‘tree nuts’’ in § 9.201 and to the and 13573 for the analysis of costs and
from January 19, 2021, through February calculation in § 9.202(c). In § 9.1, it adds benefits apply to rules that are
26, 2021, to include those amounts. This the applicable date that livestock must determined to be significant. Executive
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4880 Federal Register / Vol. 86, No. 11 / Tuesday, January 19, 2021 / Rules and Regulations
Order 13777, ‘‘Enforcing the Regulatory costs due to COVID–19. These payments. These payments are
Reform Agenda,’’ established a federal additional costs are associated with authorized by the CCC Charter Act
policy to alleviate unnecessary declines in demand, surplus (section 5 (b), (d) and (e)).
regulatory burdens on the American production, or disruptions to shipping Estimated gross outlays for CFAP
people. patterns and marketing channels. Additional Assistance are estimated at
The Office of Management and Budget As mentioned above, in implementing $3.10 billion (see Table 1). After taking
(OMB) designated this rule as the CFAP 1 and CFAP 2, FSA received into account payment limitations, net
economically significant under feedback from local office staff and the outlays are estimated at $2.28 billion.
Executive Order 12866 and therefore, agricultural industry. As a result, Payments to contract swine, chicken,
OMB has reviewed this rule. additional CFAP assistance and other egg, and turkey producers account for
In general response to the changes are being made to provide 87 percent of the total.
requirements of Executive Order 13777, assistance to additional growers that
USDA created a Regulatory Reform Task suffered COVID-related revenue losses, FSA, which implemented CFAP 1 and
Forces, and USDA agencies were to ensure that calculations most 2, will start accepting CFAP Additional
directed to remove barriers, reduce accurately reflect sales, to provide Assistance applications for contract
burdens, and provide better customer equitable producer treatment, and to producers and turfgrass sod and pullet
service both as part of the regulatory clarify certain provisions appearing in producers on January 19, 2021.
reform of existing regulations and as an CFAP 2. Producers who did not apply by the
on-going approach. USDA reviewed this These changes (referred to as ‘‘CFAP CFAP 1 deadline (September 11, 2020)
regulation and made changes to provide Additional Assistance’’), along with the are not eligible for the swine top-up
better customer service. The costs and associated gross and net estimated payment.
benefits of this rule are summarized outlays, are shown in Table 1 (at the end Net payments represent benefits to
below. The full cost benefit analysis is of this section). Payments for item 1 (the producers, which is the government cost
available on regulations.gov. ‘‘top up’’ for swine producers) and item of the program. Outlays shown in Table
2 (payments to contract livestock 1 are estimated at expected maximum
Cost Benefit Analysis Summary producers) will draw on CARES levels. Some producers must take
CFAP 1 and CFAP 2 assist producers funding. Payments for items 3, 4, and 5 additional actions under this rule if they
of agricultural commodities marketed in in Table 1 (all payments referenced as are interested in receiving benefits.
2020 who face continuing market CFAP 2 payments or modified CFAP 2 These producers realize administrative
disruptions, reduced farm-level prices, payments) draw on CCC funding that costs associated with participation,
and increased production and marketing remains given CFAP 1 and CFAP 2 which are estimated at $4.15 million.
TABLE 1—SUMMARY OF CFAP ADDITIONAL ASSISTANCE REGULATORY CHANGES AND ESTIMATED COSTS
Gross estimated Net estimated outlays
Item outlays (in billion $)
(in billion $)
Item 1—Provide a ‘‘top up’’ inventory payment to swine producers eligible for CFAP 1 ............ $0.81 ........................... $0.15.
Item 2—Assist contract producers of swine, chickens, eggs, and turkeys .................................. $1.98 ........................... $1.98.
Item 3—Include turfgrass sod, pullets, and by-products of live animals as ‘‘sales-based com- $0.21 ........................... $0.10.
modities’’ for CFAP 2 eligibility.
Item 4—Include 2019 crop insurance indemnities and 2019 NAP WHIP+ payments to the pro- $0.08 ........................... $0.03.
ducer’s 2019 sales to compute CFAP 2 payments.
Item 5—Change the calculation for price-trigger commodities with respect to ARC–CO ........... $0.02 ........................... $0.02.
Item 6—Clarify that reptiles and bees are ineligible for CFAP 2 ................................................. No change in outlays .. No change in outlays.
Item 7—Make minor corrections to the definitions of ‘‘fruits’’ and ‘‘tree nuts’’ in §§ 9.201 and No change in outlays .. No change in outlays.
9.202(c).
Total ....................................................................................................................................... $3.10 ........................... $2.28.
Regulatory Flexibility Act proposed rule be published for this economic or social effects are not
The Regulatory Flexibility Act (5 rulemaking initiative. intended by themselves to require
U.S.C. 601–612), as amended by the Environmental Review preparation of an environmental impact
Small Business Regulatory Enforcement statement’’ when not interrelated to
Fairness Act of 1996 (SBREFA), The environmental impacts of this natural or physical environmental
generally requires an agency to prepare final rule have been considered in a effects (see 40 CFR 1502.16(b)). CFAP
a regulatory analysis of any rule manner consistent with the provisions was designed to avoid skewing planting
whenever an agency is required by APA of the National Environmental Policy decisions. Producers continue to make
or any other law to publish a proposed Act (NEPA, 42 U.S.C. 4321–4347), the their planting and production decisions
rule, unless the agency certifies that the regulations of the Council on with the market signals in mind, rather
rule will not have a significant Environmental Quality (40 CFR parts than any expectation of what a new
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economic impact on a substantial 1500–1508), and because USDA will be USDA program might look like. The
number of small entities. This rule is making the payments to producers the discretionary aspects of CFAP (for
not subject to the Regulatory Flexibility USDA regulations for compliance with example, determining AGI and payment
Act because as noted above, this rule is NEPA (7 CFR part 1b). limitations) were designed to be
exempt from notice and comment Although OMB has designated this consistent with established USDA and
rulemaking requirements of the APA rule as ‘‘economically significant’’ the CCC programs and are not expected
and no other law requires that a under Executive Order 12866, ‘‘. . . to have any impact on the human
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Federal Register / Vol. 86, No. 11 / Tuesday, January 19, 2021 / Rules and Regulations 4881
environment, as CFAP payments will consultation with the States is not Assistance to which this rule applies
only be made after the commodity has required. are:
been produced. Accordingly, the 10.130—Coronavirus Food Assistance
Executive Order 13175
following Categorical Exclusion in 7 Program 1
CFR part 1b applies: § 1b.3(a)(2), which This rule has been reviewed in
accordance with the requirements of 10.132—Coronavirus Food Assistance
applies to activities that deal solely with Program 2
the funding of programs, such as Executive Order 13175, ‘‘Consultation
program budget proposals, and Coordination with Indian Tribal Paperwork Reduction Act
disbursements, and the transfer or Governments.’’ Executive Order 13175
requires Federal agencies to consult and FSA is requesting emergency approval
reprogramming of funds. As such, the on the additional information collection
implementation of and participation in coordinate with Tribes on a
government-to-government basis on required for this rule for CFAP to
CFAP do not constitute major Federal provide assistance for contract
actions that would significantly affect policies that have Tribal implications,
including regulations, legislative producers of chickens, eggs, turkeys,
the quality of the human environment.
comments or proposed legislation, and and swine and to provide additional
Therefore, an environmental assessment
other policy statements or actions that assistance for other commodities as
or environmental impact statement for
have substantial direct effects on one or clarified in this rule. The additional
this regulatory action, will not be
more Indian Tribes, on the relationship assistance for swine producers who
prepared; this rule serves as
between the Federal Government and previously applied for assistance under
documentation of the programmatic
Indian Tribes, or on the distribution of 0560–0297 does not require any new
environmental compliance decision for
power and responsibilities between the information collection. All of the
this Federal action.
Federal Government and Indian Tribes. information collection uses forms
Executive Order 12372 USDA has assessed the impact of this currently approved under 0560–0297.
Executive Order 12372, rule on Indian Tribes and determined E-Government Act Compliance
‘‘Intergovernmental Review of Federal that this rule does not, to our
Programs,’’ requires consultation with knowledge, have Tribal implications USDA is committed to complying
State and local officials that would be that required Tribal consultation under with the E-Government Act to promote
directly affected by proposed Federal Executive Order 13175 at this time. If a the use of the internet and other
financial assistance. The objectives of Tribe requests consultation, the USDA information technologies to provide
the Executive order are to foster an Office of Tribal Relations (OTR) will increased opportunities for citizen
intergovernmental partnership and a ensure meaningful consultation is access to Government information and
strengthened federalism, by relying on provided where changes, additions, and services, and for other purposes.
State and local processes for State and modifications are not expressly List of Subjects in 7 CFR Part 9
local government coordination and mandated by law. Outside of Tribal
review of proposed Federal financial consultation, USDA is working with Agricultural commodities,
assistance and direct Federal Tribes to provide information about Agriculture, Disaster assistance,
development. For reasons specified in CFAP additional assistance and other Indemnity payments.
the final rule related notice regarding 7 issues. For the reasons discussed above, this
CFR part 3015, subpart V (48 FR 29115, final rule amends 7 CFR part 9 as
Unfunded Mandates
June 24, 1983), the programs and follows:
activities in this rule are excluded from Title II of the Unfunded Mandates
the scope of Executive Order 12372. Reform Act of 1995 (UMRA, Pub. L. PART 9—CORONAVIRUS FOOD
104–4) requires Federal agencies to ASSISTANCE PROGRAM
Executive Order 12988 assess the effects of their regulatory
This rule has been reviewed under actions of State, local, and Tribal ■ 1. Revise the authority citation for part
Executive Order 12988, ‘‘Civil Justice governments or the private sector. 9 to read as follows:
Reform.’’ This rule will not preempt Agencies generally must prepare a Authority: 15 U.S.C. 714b and 714c;
State or local laws, regulations, or written statement, including cost Division B, Title I, Pub. L. 116–136, 134 Stat.
policies unless they represent an benefits analysis, for proposed and final 505; and Division N, Title VII, Subtitle B,
irreconcilable conflict with this rule. rules with Federal mandates that may Chapter 1, Pub. L. 116–260.
Before any judicial actions may be result in expenditures of $100 million or
brought regarding the provisions of this more in any 1 year for State, local or Subpart A—General Provisions
rule, the administrative appeal Tribal governments, in the aggregate, or
■ 2. In § 9.1, revise paragraphs (a)(1) and
provisions of 7 CFR parts 11 and 780 are to the private sector. UMRA generally
to be exhausted. requires agencies to consider (2) to read as follows:
alternatives and adopt the more cost § 9.1 Applicability and administration.
Executive Order 13132
effective or least burdensome alternative
This rule has been reviewed under (a) * * *
that achieves the objectives of the rule.
Executive Order 13132, ‘‘Federalism.’’ This rule contains no Federal mandates, (1) For assistance under subpart B of
The policies contained in this rule do as defined in Title II of UMRA, for State, this part:
not have any substantial direct effect on local and Tribal governments or the (i) On January 15, 2020, and
States, on the relationship between the private sector. Therefore, this rule is not remaining in the United States until
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Federal Government and the States, or subject to the requirements of sections sold, for livestock sold between January
on the distribution of power and 202 and 205 of UMRA. 15, 2020, and April 15, 2020; or
responsibilities among the various (ii) On the applicable date selected for
levels of government, except as required Federal Assistance Programs livestock in inventory between April 16,
by law. Nor does this rule impose The titles and numbers of the Federal 2020, and May 14, 2020; and
substantial direct compliance costs on Domestic Assistance Programs found in (2) For assistance under subpart C of
State and local governments. Therefore, the Catalog of Federal Domestic this part, on the applicable date selected
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4882 Federal Register / Vol. 86, No. 11 / Tuesday, January 19, 2021 / Rules and Regulations
for livestock in inventory between April ■ i. Add the definition of ‘‘WHIP+’’ in section 196 of the Federal Agriculture
16, 2020, and August 31, 2020. alphabetical order. Improvement and Reform Act of 1996 (7
* * * * * The additions and revisions read as U.S.C. 7333) and part 1437 of this title.
■ 3. Amend § 9.4 as follows:
follows. * * * * *
■ a. In paragraph (a)(1), remove ‘‘of this § 9.201 Definitions. Other livestock means any of the
part; and’’ and add a semicolon in its * * * * * following livestock: Animals
place; Contract producer means a producer commercially raised for food, fur, fiber,
■ b. Revise paragraph (a)(2); who grows or produces an eligible or feathers, including alpacas, bison,
■ c. Add paragraph (a)(3); and buffalo, beefalo, deer, ducks, elk, emus,
commodity under contract for or on
■ d. In paragraph (d), remove the geese, goats, guinea pigs, llamas, mink,
behalf of another person or entity. The
reference to ‘‘§ 9.202(a) or (b)’’ and add contract producer does not have ostrich, pheasants, pullets, quail,
‘‘§ 9.203(a) or (b)’’ in its place. ownership in the commodity and is not rabbits, reindeer, turkey, water buffalo,
The revision and addition read as and yak. It includes by-products of
entitled to a share from sales proceeds
follows: those live animals (such as fleece). It
of the commodity.
§ 9.4 Time and method of application. Crop insurance means an insurance excludes all equine, reptiles, bees,
policy reinsured by Federal Crop breeding stock (including eggs to be
(a) * * *
Insurance Corporation under the hatched for breeding stock), companion
(2) December 11, 2020, for payments
provisions of the Federal Crop or comfort animals, pets, and animals
issued under § 9.203, except for
Insurance Act, as amended. It does not raised for hunting or game purposes.
applications for pullets, turfgrass sod,
and contract producers; and include private plans of insurance. * * * * *
(3) February 26, 2021, for payments * * * * * Pullet means a young female chicken
issued under § 9.203 for applications for Eligible revenue means the revenue that has not laid an egg.
pullets, turfgrass sod, and contract received by a contract producer for * * * * *
producers. contract production of broilers, pullets, Tree nuts means any of the following
* * * * * layers, chicken eggs, turkeys, hogs, or tree nuts: Almonds, carob, cashew,
pigs, as reported on Internal Revenue chestnuts, coffee, hazel nuts, jojoba,
Subpart C—CFAP 1 Service Form 1099. macadamia nuts, pecans, pine nuts,
* * * * * pistachios, and walnuts.
■ 4. Amend § 9.102 as follows: Fruits means any of the following
■ a. In paragraph (d) introductory text,
* * * * *
fruits: Abiu, acerola (Barbados cherry), WHIP+ means the Wildfires and
remove the word ‘‘two’’ and add the achachairu, antidesma, apples, apricots,
word ‘‘three’’ in its place; Hurricanes Indemnity Program Plus
aronia (chokeberry), atemoya (custard
■ b. In paragraph (d)(1), remove the (WHIP+) under part 760, subpart O, of
apple), avocados, bananas, blueberries,
word ‘‘and’’; this title.
breadfruit, cacao, caimito, calabaza
■ c. In paragraph (d)(2), remove the melon, canary melon, canary seed, § 9.202 [Redesignated as § 9.203]
period and add ‘‘; and’’ in its place; caneberries, canistel, cantaloupes,
■ d. Add paragraph (d)(3). ■ 6. Redesignate § 9.202 as § 9.203.
carambola (star fruit), casaba melon,
The addition reads as follows: cherimoya (sugar apple), cherries, ■ 7. Add new § 9.202 to read as follows:
§ 9.102 Calculation of payments. Chinese bitter melon, citron, citron § 9.202 Eligibility.
melon, coconuts, cranberries, crenshaw
* * * * * (a) Producers, excluding contract
melon, dates, donaqua (winter melon),
(d) * * * producers, are eligible for payment
durian, elderberries, figs, genip,
(3) Hog and pig inventory owned under § 9.203(a) through (i) if they meet
gooseberries, grapefruit, grapes, ground
between April 16, 2020, to May 14, all other requirements for eligibility
cherry, guamabana (soursop), guava,
2020, multiplied by a payment rate of under this part.
guavaberry, honeyberries, honeydew,
$17 per head. (b) Contract producers are not eligible
huckleberries, Israel melons, jack fruit,
* * * * * jujube, juneberries, kiwiberry, kiwifruit, for payment under § 9.203(a) through (i).
Korean golden melon, kumquats, Contract producers are eligible for
Subpart C—CFAP 2 payment under § 9.203(l) if they:
langsat, lemons, limequats, limes,
longan, loquats, lychee, mangos, (1) Produced broilers, pullets, layers,
■ 5. Amend § 9.201 as follows:
■ a. Add the definitions of ‘‘Contract mangosteen, mayhaw berries, mesple, chicken eggs, turkeys, hogs, or pigs
producer’’, ‘‘Crop insurance’’, and mulberries, nectarines, noni, olives, under a contract in both the 2019 and
‘‘Eligible revenue’’ in alphabetical order; oranges, papaya, passion fruits, 2020 calendar years and received
■ b. Revise the definition of ‘‘Fruits’’; pawpaw, peaches, pears, persimmons, revenue under such a contract during
■ c. Add the definitions of ‘‘Layer’’ and pineapple, pitaya (dragon fruit), the period from January 1, 2020,
‘‘NAP’’ in alphabetical order; plantain, plumcots, plums, through December 27, 2020;
■ d. Revise the definition of ‘‘Other pomegranates, prunes, pummelo, (2) Had a loss in eligible revenue for
livestock’’; quinces, raisins, rambutan, sapodilla, the period from January 1, 2020,
■ e. In the definition of ‘‘Producer’’, sapote, schizandra berries, sprite melon, through December 27, 2020, as
remove the second sentence; star gooseberry, strawberries, tangelos, compared to the period from January 1,
■ f. Add the definition of ‘‘Pullet’’ in tangerines, tangors, wampee, 2019, through December 27, 2019; and
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alphabetical order; watermelon, wax jamboo fruit, and (3) Meet all other requirements for
■ g. In the definition of ‘‘Sales-based wolfberry (goji). eligibility under this part.
commodities’’, remove the words ‘‘and * * * * * (c) Contract producers must provide a
wool’’ and add the words ‘‘wool, and Layer means a chicken producing copy of their contract pursuant to which
turfgrass sod’’ in their place; table or commercial type shell eggs. they raised an eligible commodity as
■ h. Revise the definition of ‘‘Tree NAP means the Noninsured Crop specified in paragraph (b)(1) of this
nuts’’; and Disaster Assistance Program under section and provide documentation to
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Federal Register / Vol. 86, No. 11 / Tuesday, January 19, 2021 / Rules and Regulations 4883
support the information provided on (ii) The 2019 Agriculture Risk DEPARTMENT OF ENERGY
their application if requested by FSA. Coverage-County Option (ARC–CO)
■ 8. Amend newly redesignated § 9.203 benchmark yield multiplied by 85 10 CFR Part 430
as follows: percent for all other applicants. [EERE–2020–BT–STD–0001]
■ a. Revise paragraph (a)(3);
(4) ARC–CO yields in paragraph (a)(3)
■ b. Add paragraph (a)(4); RIN 1904–AE86
■ c. In paragraph (c), remove the words
of this section for producers growing a
‘‘producer multiplied’’ and add the crop in multiple counties will be Energy Conservation Program:
words ‘‘producer, multiplied’’ in their weighted based on the producer’s crop Establishment of New Product Classes
place; acreage physically located in each for Residential Clothes Washers and
■ d. Revise paragraph (i)(1); county. Consumer Clothes Dryers; Correction
■ e. In paragraph (i)(2), remove the * * * * *
words ‘‘sales as’’ and add the words AGENCY: Office of Energy Efficiency and
‘‘sales, without crop insurance (i)(1) Payments for sales commodities Renewable Energy, Department of
indemnities and NAP and WHIP+ will be equal to the sum of the results Energy.
payments, as’’ in their place; for the following calculation for each ACTION: Final rule; correction.
■ f. In the heading of the first column 2019 sales range in Table 2 of paragraph
of Table 2 to paragraph (j), add (j) of this section: The sum of the SUMMARY: On December 16, 2020, the
‘‘(including crop insurance indemnities amount of the producer’s eligible sales U.S. Department of Energy (‘‘DOE’’)
and NAP and WHIP+ payments)’’ for the sales commodities in calendar published a final rule establishing
immediately after ‘‘2019 Sales range’’; year 2019 and the producer’s crop separate product classes for top-loading
and insurance indemnities and NAP and consumer clothes washers and
■ g. Add paragraph (l). WHIP+ payments for the sales consumer clothes dryers that offer cycle
The additions and revision read as commodities for the 2019 crop year times for a normal cycle of less than 30
follows: within the specified range, multiplied minutes, and for front-loading
by the payment rate for that range in residential clothes washers that offer
§ 9.203 Calculation of payments.
Table 2 of paragraph (j) of this section. cycle times for a normal cycle of less
(a) * * * than 45 minutes. This correction
(3) Under paragraph (a) of this Eligible sales only includes sales of raw
commodities grown by the producer; the responds to specific comments
section, eligible acres include the
submitted by the Pacific Gas and
producer’s share of the determined portion of sales derived from adding
Electric Company (‘‘PG&E’’), San Diego
acres, or reported acres if determined value to the commodity, such as
Gas and Electric (‘‘SDG&E’’), and
acres are not present, of the crop processing and packaging, and from Southern California Edison (‘‘SCE’’) in
planted for the 2020 crop year, sales of products purchased for resale is response to DOE’s notice of proposed
excluding prevented planted and not included in the payment calculation rulemaking (‘‘NOPR’’), which were
experimental acres. For producers who unless determined eligible by the inadvertently omitted from the final
insured acres of the crop under a policy Secretary. rule. DOE has considered the comments
or plan of insurance under the Federal
* * * * * and determined that in most instances,
Crop Insurance Act (7 U.S.C. 1501–
1524), the yield will be the average of (l) For eligible contract producers of these comments raise issues
the producer’s 2020 actual production broilers, pullets, layers, chicken eggs, substantially similar to those raised by
history (APH) approved yield from all of turkeys, hogs, or pigs, if eligible revenue other commenters that DOE previously
the producer’s insured acres for the period from January 1, 2020, considered and addressed in the final
nationwide. For producers for whom rule. To the extent these comments raise
through December 27, 2020, decreased
FSA is unable to obtain a 2020 APH issues not explicitly addressed in the
compared to eligible revenue for the
approved yield, the yield will be: preamble of the final rule, DOE
period from January 1, 2019, through determined that the comments
(i) The 2019 Agriculture Risk December 27, 2019, then payments will
Coverage-County Option (ARC–CO) submitted by PG&E, SDG&E, and SCE do
be equal to: not alter any of the conclusions reached
benchmark yield if the applicant:
(A) Has coverage for the crop under (1) Eligible revenue received from in support of the final rule and would
an Area Risk Protection Insurance Plan, January 1, 2019, through December 27, not have resulted in an outcome
Margin Protection Plan, Stacked Income 2019, minus eligible revenue received different than as set forth in the final
Protection Plan, Supplemental Coverage from January 1, 2020, through December rule.
Option, or Whole-Farm Revenue 27, 2020; multiplied by DATES: Effective January 15, 2021.
Protection Plan under the Federal Crop (2) 80 percent. FOR FURTHER INFORMATION CONTACT: Ms.
Insurance Act;
(3) This calculation is subject to the Kathryn McIntosh, U.S. Department of
(B) Is a landlord of the applicable
acreage and their share is insured by the availability of funds and will be Energy, Office of the General Counsel,
tenant under a policy or plan of factored, if needed. GC–33, 1000 Independence Avenue SW,
insurance under the Federal Crop Washington, DC 20585. Telephone:
William Northey, (202) 586–2002. Email:
Insurance Act;
(C) Is a tenant of the applicable Under Secretary, U.S. Department of Kathryn.McIntosh@hq.doe.gov.
acreage and their share is insured by the Agriculture. SUPPLEMENTARY INFORMATION: DOE
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landlord under a policy or plan of [FR Doc. 2021–01077 Filed 1–15–21; 8:45 am] published a final rule in the Federal
insurance under the Federal Crop BILLING CODE 3410–05–P Register on December 16, 2020 (the
Insurance Act; or ‘‘December 2020 final rule’’),
(D) Is a joint venture and the crop is establishing separate product classes for
insured by one of the members under a top-loading consumer clothes washers
policy or plan of insurance under the and consumer clothes dryers that offer
Federal Crop Insurance Act; or cycle times for a normal cycle of less
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