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Coronavirus Food Assistance Program (rule, 85 FR 30825, May 21, 2020)

Summary

A final rule from the Office of the Secretary, USDA, published in the Federal Register on May 21, 2020 (Vol. 85, No. 99), Docket ID FSA–2020–0004, RIN 0503–AA65, implementing the Coronavirus Food Assistance Program (CFAP). It establishes direct payments to producers of eligible commodities and specifies eligibility requirements, payment calculations and application procedures. The rule states that it implements the $9.5 billion provided under the CARES Act, and that Commodity Credit Corporation funds available for these purposes are limited to $6.5 billion. Eligible non-specialty crops listed include malting barley, canola, corn, upland cotton, millet, oats, sorghum, soybeans, sunflowers, durum wheat and hard red spring wheat; payments also cover specialty crops, dairy, cattle, lambs and yearlings, wool, and hogs and pigs. It took effect May 21, 2020.

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“Coronavirus Food Assistance Program (rule, 85 FR 30825, May 21, 2020).” Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/coronavirus-food-assistance-program-rule-85-fr-30825-may-21-2020-fa489fca2c/, SHA-256 f25e2491470d818f106615d2960773bb55ce28ae762e0b3a29759a40b8988065.

Full text

                                                                                                                                                     30825

     Rules and Regulations                                                                                         Federal Register
                                                                                                                   Vol. 85, No. 99

                                                                                                                   Thursday, May 21, 2020



     This section of the FEDERAL REGISTER                    is designated by the Congress as being                over a specified time resulting from the
     contains regulatory documents having general            for an emergency requirement pursuant                 COVID–19 outbreak or face additional
     applicability and legal effect, most of which           to section 251(b)(2)(A)(i) of the Balanced            significant marketing costs for
     are keyed to and codified in the Code of                Budget and Emergency Deficit Control                  inventories. COVID–19 price losses are
     Federal Regulations, which is published under           Act of 1985.                                          due to significant declines in certain
     50 titles pursuant to 44 U.S.C. 1510.
                                                                This rule implements the $9.5 billion              types of demand. Additional marketing
     The Code of Federal Regulations is sold by              provided under the CARES Act to                       costs from COVID–19 are due to surplus
     the Superintendent of Documents.                        support agricultural producers to                     production or to disruptions to shipping
                                                             prevent, prepare for, and respond to                  patterns and the orderly marketing of
                                                             coronavirus. In addition, in accordance               commodities. In addition, due to the
     DEPARTMENT OF AGRICULTURE                               with 15 U.S.C. 714b, the Secretary is                 COVID–19 outbreak, many farmers
                                                             using funds of the Commodity Credit                   markets, restaurants, and schools have
     Office of the Secretary                                 Corporation (CCC) to assist producers                 temporarily or permanently closed, thus
                                                             with the purchase of materials and                    causing significantly decreased demand
     7 CFR Part 9                                            facilities required in connection with                for commodities grown by producers
     [Docket ID: FSA–2020–0004]                              the production and marketing of                       that are ordinarily supplied to these
                                                             agricultural commodities and to remove                places. Non-specialty crops eligible for
     RIN 0503–AA65
                                                             surplus commodities from normal                       CFAP payments are malting barley,
     Coronavirus Food Assistance Program                     marketing channels. At this time, the                 canola, corn, upland cotton, millet, oats,
                                                             amount of CCC funds available for these               sorghum, soybeans, sunflowers, durum
     AGENCY: Office of the Secretary, USDA.                  purposes is limited to $6.5 billion.                  wheat, and hard red spring wheat.
     ACTION: Final rule.                                     While section 11002 of the CARES Act                  Payments also will be available for
                                                             provides for a $14 billion replenishment              specialty crops (including, but not
     SUMMARY: The Secretary of Agriculture                   of CCC’s borrowing authority, these                   limited to almonds, beans, broccoli,
     is issuing this rule to implement the                   funds will not be available to CCC until              sweet corn, lemons, iceberg lettuce,
     Coronavirus Food Assistance Program                     after June 2020.                                      spinach, squash, strawberries, and
     (CFAP). CFAP provides assistance to                        Taking into account these two                      tomatoes), dairy, cattle, lambs and
     agricultural producers impacted by the                  funding sources, the Secretary has                    yearlings, wool, and hogs and pigs.
     effects of the COVID–19 outbreak. This                  established CFAP to provide producers                 Additional eligible commodities, such
     rule establishes provisions for direct                  with financial assistance that helps                  as aquaculture and nursery crops
     payments to producers of eligible                       offset sales losses and increased                     (including cut flowers) will be
     commodities. This rule specifies the                    marketing costs associated with the                   announced in a subsequently
     eligibility requirements, payment                       COVID–19 pandemic. Income losses                      announced Notice of Funding
     calculations, and application                           will be partially compensated under the               Availability (NOFA) issued by FSA on
     procedures for CFAP.                                    CARES Act. CCC authorities will be                    behalf of the Secretary; any additional
     DATES: Effective Date: May 21, 2020.                    used to partially compensate producers                commodities would also need to meet
     FOR FURTHER INFORMATION CONTACT:                        for the purchase of materials and                     the eligibility requirements in this rule.
     William L. Beam; telephone: (202) 720–                  facilities required in connection with                Throughout this rule, ‘‘producer’’ refers
     3175; email: Bill.Beam@usda.gov.                        the production and marketing of                       to a person or legal entity who shares in
     Persons with disabilities who require                   agricultural commodities and the                      the risk of producing a crop or livestock
     alternative means for communication                     disposal of surplus commodities from                  and who is entitled to a share in the
     should contact the USDA Target Center                   normal marketing channels that may be                 crop or livestock available for
     at (202) 720–2600 (voice).                              currently unavailable. In order to reduce             marketing.
     SUPPLEMENTARY INFORMATION:                              the exposure of producers to COVID–19                    CFAP will provide eligible producers
                                                             and to reduce the workload of USDA                    with financial assistance that helps
     Background                                              employees during this pandemic, one                   them offset sales losses and increased
       In response to the COVID–19                           payment application and one payment                   marketing costs resulting from the
     outbreak, the Coronavirus Aid, Relief,                  will be issued by USDA to eligible                    COVID–19 pandemic. With respect to
     and Economic Stability Act (CARES                       producers by combining CARES Act and                  commodity and livestock losses due to
     Act; Pub. L. 116–136) was enacted. Title                CCC funds.                                            price declines that occurred between
     1 of Division B, of that Act provides                      Two principal USDA agencies will be                mid-January 2020 and mid-April 2020
     $9.5 billion to remain available until                  used by the Secretary to implement                    and, in the case of specialty crops, for
     expended, for the Office of the Secretary               CFAP, the Farm Service Agency (FSA)                   products that were shipped but spoiled
     to use to prevent, prepare for, and                     and the Agricultural Marketing Service                and no payment was received, CARES
     respond to coronavirus by providing                     (AMS). FSA will be the principal agency               Act funds will be used in accordance
     support for agricultural producers                      charged with implementing CFAP and                    with authority under the CARES Act.
     impacted by coronavirus, including                      AMS will assist FSA with respect to                   Funds available to CCC will be used as
     producers of specialty crops, producers                 matters dealing with producers of                     authorized by sections 5(b), (d), and (e)
     that supply local food systems,                         specialty crops.                                      of the CCC Charter Act (15 U.S.C.
     including farmers markets, restaurants,                    Generally, in order to be eligible for             714c(b), (d), and (e)). These authorities
     and schools, and livestock producers,                   a payment, a producer must have                       will be used to partially compensate
     including dairy producers. The amount                   suffered a 5-percent-or-greater price loss            producers for on-going market


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     30826               Federal Register / Vol. 85, No. 99 / Thursday, May 21, 2020 / Rules and Regulations

     disruptions and assist with the                         the average for the week of January 13–                 will be based on the volume of shipped,
     transition to a more orderly marketing                  17, 2020, and the average for the week                  spoiled crops multiplied by a pre-
     system as the pandemic wanes by:                        of April 6–9, 2020.2 Only the                           specified payment rate expected to
        • Assisting with the purchase of                     comparison between those two-week                       represent 30 percent of the crop’s sales
     materials and facilities required in                    periods is used. If the decline in futures              value. For producers with specialty crop
     connection with the production and                      prices is 5 percent or greater between                  shipments that have not left the farm or
     marketing of agricultural commodities;                  those time periods, a payment for that                  mature crops that were unharvested
        • Aiding in the removal or                           commodity is triggered and eligible                     between January 15, 2020 and April 15,
     disposition of surplus agricultural                     producers are paid based on inventory                   2020, and which have not been and will
     commodities; and                                        held on January 15, 2020. Eligible                      not be sold, payments will be based on
        • Aiding in the development of new                   inventory for the purpose of non-                       the volume of unharvested and/or
     and additional markets, marketing                       specialty crops is the lower of self-                   unshipped crops multiplied by a pre-
     facilities, and uses for such                           certified unpriced inventory that an                    specified payment rate expected to
     commodities.                                            eligible producer has vested ownership                  represent 5.875 percent of the crop’s
        USDA will track funds from the                       in as of January 15, 2020, or 50 percent                value.
     CARES Act and the CCC Charter Act                       of the eligible producer’s 2019                            For cattle, hog and pig, and lamb and
     separately, to ensure that the payments                 production of that commodity. CARES                     yearling producers, payments will be
     are consistent with each respective                     Act funds will be used to make a                        made using CARES Act funds by
     authority. Payment for income loss is                   payment for a producer by multiplying                   multiplying a payment rate per head—
     consistent with the authority provided                  50 percent of the producer’s eligible                   specified by species and class—by the
     in the CARES Act. Payment to aid in the                 inventory on January 15, 2020, by a pre-                volume of sales occurring between
     removal or disposition of surplus                       specified payment rate calculated as 50                 January 15 and April 15, 2020, by the
     agricultural commodities and for                        percent of the calculated futures (or                   applicable payment rate. CCC funds will
     additional marketing and production                     cash, if futures are unavailable) price                 be used to make a payment to the
     costs is consistent with the authority                  decline. CCC funds will be used to make                 producer by multiplying a payment rate
     provided in the CCC Charter Act. All                    a payment to the producer by                            per head—specified by species—by the
     payments will be tracked by the type of                 multiplying 50 percent of the eligible                  highest inventory number between
     funding. If a single payment includes a                 inventory by a pre-specified payment                    April 16 and May 14, 2020.
     portion from each type of funding,                      rate calculated as 55 percent of the                       For producers of wool, a single
     USDA will track the funds separately.                   futures (or cash, if futures are                        average payment rate on a clean basis
                                                             unavailable) price decline. These two                   per pound will be determined using the
     Payments                                                                                                        Eastern Market Indicator, as reported by
                                                             separate payments will be issued as one
        Payments will be calculated using                    payment to the eligible producer.                       AMS in the National Wool Review, for
     payment rates as specified in Tables 1                     For producers of specialty crops                     the weeks ending with January 17, 2020,
     & 2 in the CFAP regulation in 7 CFR 9.5.                (including, but not limited to, almonds,                and April 10, 2020. Only the
     USDA will make an initial payment of                    beans, broccoli, sweet corn, lemons,                    comparison between those two-week
     80 percent of an eligible 2020 CFAP                     iceberg lettuce, spinach, squash,                       periods is used. Producers are paid
     participant’s calculated 2020 CFAP                      strawberries, and tomatoes) that                        based on inventory held on January 15,
     payment. By issuing initial payments,                   incurred a 5-percent-or-greater                         2020. Eligible inventory for the purpose
     FSA can quickly provide assistance to                   reduction in sales price between the                    of wool is the lower of self-certified
     those eligible participants that                        average for the week of January 13–17,                  unpriced inventory that an eligible
     immediately apply for assistance while                  2020, and the average for the week of                   producer has vested ownership in as of
     trying to ensure that 2020 CFAP                         April 6–10, 2020, payments will be                      January 15, 2020, or 50 percent of the
     payments do not exceed the $16 billion                  based on the producer’s sales (volume)                  eligible producer’s 2019 production of
     funding limit to ensure those funds are                 during that timeframe multiplied by a                   that commodity. CARES Act funds will
     distributed equitably among all eligible                pre-specified payment rate calculated as                be used to make a payment for a
     producers. If funds remain available                    80 percent of the given crop’s mid-                     producer by multiplying 50 percent of
     after the initial payment to eligible                   January to mid-April price change. For                  the producer’s January 15, 2020, eligible
     applicants, USDA will disburse the                      producers of specialty crops that have                  inventory, by a pre-specified payment
     remainder of available funding not to                   been shipped from the farm by April 15,                 rate calculated as 50 percent of the
     exceed the $16 billion funding limit and                2020, but subsequently spoiled due to                   calculated price decline. CCC funds will
     funds may prorated if necessary. The                    loss of marketing channels, payments                    be used to make a payment to the
     payment rates will be applied as                                                                                producer by multiplying 50 percent of
     discussed below.                                        Canadian dollars, which are exchanged into U.S.
                                                                                                                     such inventory by a pre-specified
        For producers of non-specialty crops,                dollars). The price for sorghum is calculated as 95     payment rate calculated as 55 percent of
     an average payment rate per unit                        percent of the corn futures price, which is             such price decline.
     (bushel, pound, or hundredweight) will                  consistent with the multiplicative factor used by the      For dairy producers, payments using
                                                             Risk Management Agency (RMA) under the                  funding from the CARES Act will be
     be determined for each eligible                         Commodity Exchange Price Provisions (CEPP). The
     commodity based on the decline in the                   price of durum wheat is calculated as 103.4 percent     determined by multiplying a producer’s
     weekly average of the futures prices (or                of the Hard Red Spring Wheat futures price, which       milk production for the first quarter of
     weekly average of the cash prices, if                   is the multiplicative factor used under CEPP for        calendar year 2020 by a pre-specified
                                                             Montana, North Dakota, and South Dakota. The            payment rate calculated as 80 percent of
     futures prices are unavailable) 1 between               price of sunflowers is the soybean oil price divided
                                                             by two plus one cent, which is consistent with the      the decline in prices as determined by
       1 Futures market (May contracts quoted on the         CEPP for oil-type sunflowers. AMS data is used for      USDA during that quarter. Payments
     Chicago Board of Trade for all crops other than         other crops where futures contracts are not traded.     under the CCC Charter Act will be
     wheat and cotton. Wheat uses the May contract              2 The futures markets were closed on Friday,
                                                                                                                     determined by multiplying a producer’s
     quoted on the Minneapolis Grain Exchange and            April 10, 2020, for Good Friday, so the weekly
     upland cotton uses the May contract quoted on the       average futures price for the week starting on
                                                                                                                     milk production for the first quarter of
     Intercontinental Exchange. Canola uses the May          Monday, April 6, 2020, does not include Friday,         calendar year 2020 by a factor of 1.014
     contract on the Intercontinental Exchange in            April 10, 2020.                                         —in order to account for increased


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                         Federal Register / Vol. 85, No. 99 / Thursday, May 21, 2020 / Rules and Regulations                                          30827

     production in the second quarter of                     $750,000 if at least three members                    a legal entity is owned in whole or in
     calendar year 2020—by a pre-specified                   contribute substantial labor or                       part by a foreign person, then in order
     payment rate calculated as 25 percent of                management with respect to the                        for the legal entity to receive a payment
     the decline in prices as determined by                  operation of the corporate entity. If                 that is representative of the foreign
     USDA during the first quarter of                        payments are calculated for a corporate               person’s interest in the entity, the
     calendar year 2020.                                     entity and those payments exceed the                  foreign person must provide a
       Payments under the CARES Act and                      applicable limit of $250,000, $500,000                substantial amount of active personal
     CCC Charter Act will be issued as one                   or $750,000, the reduction will be                    labor in the operation of the legal entity.
     payment to the producer if such                         attributed to all members of the entity               Additionally, United States Federal,
     producer is eligible to receive both                    to ensure that a net payment to the                   State, and local governments are not
     parts, and disbursed in a combination of                entity is not in excess of the applicable             eligible for CFAP payments.
     initial and final payments as previously                limitation. A corporate entity may                       There is no requirement to have crop
     described.                                              receive more than $250,000 in CFAP                    insurance coverage or coverage under
                                                             payments if the applicant, under                      the Noninsured Crop Disaster
     Producer Eligibility Requirements
                                                             penalty of perjury, certifies that two or             Assistance Program (NAP) for an
       To be eligible for a CFAP payment, a                  three members of the corporation each                 eligible CFAP commodity to be eligible
     person or legal entity must:                            provide at least 400 hours of active                  for participation in CFAP.
       (1) Complete a CFAP application form                  personal management or personal active                   Appeal regulations specified in 7 CFR
     and provide any required                                labor, in which case the corporate entity             parts 11 and 780 apply to
     documentation (as specified in this final               may be eligible to receive up to                      determinations under CFAP. The
     rule); and                                              $500,000 or $750,000, respectively.                   determination of matters of general
       (2) Be a producer having a share in                      A person or legal entity, other than a             applicability that are not in response to,
     the eligible commodity between January                  joint venture or general partnership, is              or result from, an individual set of facts
     15, 2020, and April 15, 2020, or April                  ineligible for payments if the person’s or            in an individual participant’s
     16, 2020, through May 14, 2020.                         legal entity’s average adjusted gross                 application for payment are not matters
     Average Adjusted Gross Income                           income (AGI), using the average of the                that can be appealed. Such matters of
     Limitation and Payment Limitation                       adjusted gross incomes for the 2016,                  general applicability include, but are
                                                             2017 and 2018 tax years, is more than                 not limited to, the determination of
        CFAP payments are subject to a per                   $900,000, unless at least 75 percent of               payment rates and commodities
     person and legal entity payment                         that person’s or legal entity’s average               included in CFAP.
     limitation of $250,000. This limitation                 AGI is derived from farming, ranching,
     applies to the total amount of CFAP                                                                           Application Process
                                                             or forestry-related activities. If at least
     payments made with respect to all                       75 percent of the person’s or legal                      USDA will accept CFAP applications
     eligible commodities. Similar to the                    entity’s AGI is derived from farming,                 beginning May 26, 2020. To apply for
     manner in which statutory payment                       ranching, or forestry-related activities              CFAP payments, producers must submit
     limitations are applied in the major                    and the participant provides the                      a completed CFAP application either in
     commodity and disaster assistance                       required certification and                            person, by mail, email, or facsimile to
     programs administered by FSA,                           documentation, the person or legal                    an FSA county office. If a producer who
     payments will be attributed to an                       entity is eligible to receive CFAP                    applies must submit additional
     individual through the direct attribution               payments up to the applicable payment                 documentation for eligibility, such as
     process used in those programs. The                     limitation noted above. With respect to               certifications of compliance with
     total payment amount of CFAP                            joint ventures and general partnerships,              adjusted gross income provisions and
     payments attributed to an individual                    this AGI provision will be applied to                 conservation compliance activities,
     will be determined by taking into                       each member of the joint venture and                  those additional documents and forms
     account the direct and indirect                         general partnership.                                  must be submitted no later than 60 days
     ownership interests of the individual in                                                                      from the date a producer signs the
     all legal entities participating in CFAP.               CFAP General Requirements                             application. Payments will not be made
        Unlike other FSA administered                          General requirements that apply to                  until all necessary eligibility
     programs, special payment limitation                    other FSA-administered commodity                      documentation is received, and will be
     rules will be applied to participants that              programs also apply to CFAP, including                reduced or not issued to the individuals
     are corporations, limited liability                     compliance with the provisions of 7                   or members of the entity when the
     companies, and limited partnerships                     CFR part 12, ‘‘Highly Erodible Land and               documentation is not submitted timely.
     (corporate entities). These corporate                   Wetland Conservation.’’                                  If supporting documentation is
     entities may receive up to $750,000                       The regulations in 7 CFR part 1400,                 requested to verify the amounts
     based upon the number of shareholders                   subpart E, are applicable to foreign                  specified on the application, the
     (not to exceed three shareholders) who                  persons and legal entities containing                 producer must provide records that
     are contributing substantial labor or                   members, stockholders, or partners who                substantiate the reported amounts. The
     management with respect to the                          are foreign persons applying for CFAP.                producer’s production for the
     operation of the corporate entity. For a                Under the subpart E regulations, in                   commodity, which includes non-
     corporate entity with one such                          order for a foreign person to receive a               specialty crops, dairy, and specialty
     shareholder, the payment limit for the                  CFAP payment, the person must                         crops, is based on production records.
     entity is $250,000; for a corporate entity              provide land, capital, and a substantial              The producer’s inventory, which
     with two such shareholders, the                         amount of active personal labor to the                includes livestock, non-specialty crops,
     payment limit for the entity is $500,000                farming operation. For the purposes for               and wool, is based on inventory records.
     if at least two members contribute                      this rule, USDA has established that 400              Examples of supporting documentation
     substantial labor or management with                    hours of active personal labor or active              include evidence provided by the
     respect to the operation of the corporate               personal management as defined in 7                   producer that is used to substantiate the
     entity; and for a corporate entity with                 CFR 1400.3 is considered a substantial                amount of production or inventory
     three such shareholders, the limit is                   contribution to the farming operation. If             reported, including copies of receipts,


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     30828               Federal Register / Vol. 85, No. 99 / Thursday, May 21, 2020 / Rules and Regulations

     ledgers of income, income statements of                 in the effective date provisions do not               Cost Benefit Analysis Summary
     deposit slips, veterinarian records,                    apply when the rule involves specified                   USDA is implementing CFAP for
     register tapes, invoices for custom                     actions, including matters relating to                producers of agricultural commodities
     harvesting, and records to verify                       benefits. This rule governs CFAP for                  who have suffered a 5-percent-or-greater
     production costs, contemporaneous                       payments to certain commodity                         price loss due to COVID–19 and face
     measurements, truck scale tickets, or                   producers and therefore falls within that             additional significant marketing costs
     contemporaneous diaries that are                        exemption.                                            associated that are eligible for
     determined acceptable by USDA.                             The Office of Management and Budget                compensation under section 5(b), (d),
       For specialty crops, FSA will process                                                                       and (e) of the CCC Charter Act for
                                                             (OMB) designated this rule as major
     applications from producers who                                                                               currently held inventories. These
     experienced loss due to the 5-percent-                  under the Congressional Review Act
                                                             (CRA), as defined by 5 U.S.C. 804(2).                 additional significant marketing costs
     or-greater reduction in sales price. FSA                                                                      are associated with lower prices given
     will send some applications to AMS to                   Section 808 of the CRA allows an
                                                             agency to make a major regulation                     significant declines in demand, surplus
     be spot-checked prior to payment. AMS
                                                             effective immediately if the agency finds             production, or by disruptions to
     will review the applications and
                                                             there is good cause to do so. The                     shipping patterns and the orderly
     provide payment recommendations to
                                                             beneficiaries of this rule have been                  marketing of commodities. Non-
     FSA.
       The CFAP application period will end                  significantly impacted by the COVID–19                specialty crops eligible for CFAP
     August 28, 2020. If any supporting                      outbreak, which has resulted in income                payments are malting barley, canola,
     documentation or form is required in                    losses due to significant declines in                 corn, upland cotton, millet, oats,
     order to process the CFAP application                   demand and market disruptions. USDA                   soybeans, sorghum, sunflowers, durum
     and that documentation or form is not                   finds that notice and public procedure                wheat, and hard red spring wheat.
     submitted to FSA within 60 days of the                  are contrary to the public interest.                  Payments also will be available to
     producer’s signature date on the                        Therefore, even though this rule is a                 producers of specialty crops (including,
     application, the CFAP application that                  major rule for purposes of the                        but not limited to, almonds, beans,
     had been submitted will not be                          Congressional Review Act, USDA is not                 broccoli, sweet corn, lemons, iceberg
     processed and will not be acted on by                   required to delay the effective date for              lettuce, spinach, squash, strawberries,
     USDA.                                                   60 days from the date of publication to               and tomatoes) and livestock
                                                             allow for Congressional review.                       commodities (including dairy, cattle,
     Provisions Requiring Refund to USDA                                                                           hogs and pigs, lambs and yearlings, and
                                                             Accordingly, this rule is effective upon
        In the event that any application for                publication in the Federal Register.                  wool). CFAP eligibility for certain other
     a CFAP payment resulted from                                                                                  agricultural commodities including
     erroneous information reported by the                   Executive Orders 12866, 13563, and                    agricultural commodities for which
     producer, the payment will be                           13777                                                 sufficient information is not currently
     recalculated, and the producer must                                                                           available to USDA may be announced
                                                                Executive Order 12866, ‘‘Regulatory                through a NOFA. Approximately 4
     refund any excess payment to USDA. If
                                                             Planning and Review,’’ and Executive                  percent of the CFAP budget—$637
     the error was the producer’s error, the
     refund must include interest 3 to be                    Order 13563, ‘‘Improving Regulation                   million— is available to provide
     calculated from the date of the                         and Regulatory Review,’’ direct agencies              assistance to producers of other
     disbursement to the producer.                           to assess all costs and benefits of                   commodities that are identified through
        If USDA determines that the                          available regulatory alternatives and, if             the NOFA process.
     producer’s application misrepresented                   regulation is necessary, to select                       CFAP will provide producers of
     either the total amount or producer’s                   regulatory approaches that maximize                   agricultural commodities with financial
     share of the crop, head of livestock, or                net benefits (including potential                     assistance that gives them the ability to
     production, or if the CFAP payment                      economic, environmental, public health                absorb sales losses and increased
     would exceed the payment as calculated                  and safety effects, distributive impacts,             marketing costs associated with the
     based on the correct amount of                          and equity). Executive Order 13563                    COVID–19 pandemic. Producers will
     production and share, the application                   emphasizes the importance of                          receive payments under the CARES Act,
     will be disapproved and the participant                 quantifying both costs and benefits, of               in the amount of $9.5 billion, to
     must refund to USDA all CFAP                            reducing costs, of harmonizing rules,                 partially compensate producers for
     payments made to the producer with                      and of promoting flexibility. The                     losses due to price declines that
     interest from the date of disbursement.                 requirements in Executive Orders 12866                occurred between mid-January 2020 and
        If any corrections to the ownership                  and 13563 for the analysis of costs and               mid-April, 2020, and for specialty crops
     interest in the crop are made and would                 benefits apply to rules that are                      that have been shipped from the farm by
     result in a lower CFAP payment, the                     determined to be significant. Further,                April 15th but subsequently spoiled due
     producer must refund the difference                     Executive Order 13777, ‘‘Enforcing the                to loss of marketing channel. Producers
     with interest from date of disbursement.                Regulatory Reform Agenda,’’ established               will also receive payments under
        Any required refunds must be                         a federal policy to alleviate unnecessary             sections 5(b), (d), and (e) of the CCC
     resolved in accordance with debt                        regulatory burdens on the American                    Charter Act to partially compensate
     settlement regulations at 7 CFR part 3.                 people.                                               producers for $6.5 billion for on-going
     Effective Date and Notice and Comment                      The Office of Management and Budget                market disruptions and will assist with
                                                             (OMB) designated this rule as                         the transition to a more orderly
       The Administrative Procedure Act (5                   economically significant under                        marketing system as the COVID–19
     U.S.C. 553(a)(2)) provides that the                     Executive Order 12866, ‘‘Regulatory                   pandemic wanes. CCC funds will assist
     notice and comment and 30-day delay                     Planning and Review,’’ and therefore,                 producers with the purchase of
       3 The program interest rate is based on the CCC
                                                             OMB has reviewed this rule. The costs                 materials and facilities required in
     borrowing rate in effect for the month the payment
                                                             and benefits of this rule are summarized              connection with the production and
     was disbursed. The CCC borrowing rate for May is        below. The full cost benefit analysis is              marketing of agricultural commodities
     0.125 percent.                                          available on regulations.gov.                         and aid in the development of new and


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                         Federal Register / Vol. 85, No. 99 / Thursday, May 21, 2020 / Rules and Regulations                                              30829

     additional markets, marketing facilities,               5.875 percent of the crop’s value. The                    producers. If funds remain available
     and uses for such commodities.                          5.875 percent is calculated as 25 percent                 after the initial payment to eligible
        For producers of non-specialty crops,                coverage of the average price loss across                 applicants, USDA will disburse the
     a single average payment rate per unit                  specialty crops for which data are                        remainder of available funding not to
     (bushel, pound, or hundredweight) will                  available.4 (That average price loss is                   exceed the $16 billion funding limit and
     be determined for each eligible                         23.5 percent).                                            funds may prorated if necessary.
     commodity based on the decline in the                      For dairy, cattle, hogs and pigs, and
     average of such futures price (or cash                                                                            Regulatory Flexibility Act
                                                             lambs and yearlings, payments will be
     price, if futures price is unavailable)                 made in a manner similar to crops—                           The Regulatory Flexibility Act (5
     using the average of such future price                  inventory (or sales) of the commodity                     U.S.C. 601–612), as amended by the
     for the week of January 13–17, 2020, in                 (hundredweight or number of animals)                      Small Business Regulatory Enforcement
     a comparison with the average of such                   times the payment rate per unit for the                   Fairness Act of 1996 (SBREFA, Pub. L.
     future price for the week of April 6–9,                 commodity (again, in a comparison of                      104–121), generally requires an agency
     2020. If the decline of such futures price              mid-January to mid-April price data).                     to prepare a regulatory flexibility
     over this time frame is 5 percent or                    For dairy, CARES Act funds will be                        analysis of any rule whenever an agency
     greater, a payment for that commodity is                used to partially compensate producers                    is required by the Administrative
     triggered and producers are paid based                  for price losses from the first quarter of                Procedure Act or any other law to
     on unpriced inventory held on January                   calendar year 2020. CCC funds will be                     publish a proposed rule, unless the
     15, 2020. For non-specialty crops,                      used to partially compensate for                          agency certifies that the rule will not
     inventory held is defined as the lower                  increased marketing and adjustment                        have a significant economic impact on
     of self-certified unpriced inventory that               costs for additional milk production in                   a substantial number of small entities.
     an eligible producer has vested                         the second quarter of 2020 associated                     This rule is not subject to the Regulatory
     ownership in on January 15, 2020, or 50                 with COVID–19 disruptions to                              Flexibility Act because USDA is not
     percent of the eligible producer’s 2019                 marketing channels and demand                             required by the Administrative
     production of that commodity.                           destruction. For hogs and pigs, cattle,                   Procedure Act or any other law to
     Payments made under the CARES Act                       and lambs and yearlings, payments                         publish a proposed rule for this
     will be made by multiplying 50 percent                  using CARES Act funds are based on                        rulemaking initiative.
     of the producer’s unpriced inventory                    actual sales between January 15 to April                  Environmental Review
     held on January 15, 2020, by 50 percent                 15, 2020; payments using CCC funds
     of the calculated price decline.                                                                                     The environmental impacts of this
                                                             will be based on spring inventories.                      final rule have been considered in a
     Payments made using CCC funds will be                      USDA will accept CFAP applications
     determined by multiplying 50 percent of                                                                           manner consistent with the provisions
                                                             starting on May 26, 2020, and payments                    of the National Environmental Policy
     the unpriced inventory held on January                  to eligible producers are expected to be
     15, 2020, by 55 percent of the same                                                                               Act (NEPA), the regulations of the
                                                             made once applications are processed.                     Council on Environmental Quality (40
     price decline used with respect to                      Total payments to eligible producers,
     payments made using CARES Act’s                                                                                   CFR parts 1500–1508), and because
                                                             after accounting for payment limit                        USDA will be making the payments to
     funds. The producer will receive one                    reductions, are estimated at $16 billion.
     payment consisting of funds made                                                                                  producers the USDA regulations for
                                                             USDA estimates that payments made                         compliance with NEPA (7 CFR part 1b).
     available under the CARES Act and the                   using CARES Act funding will total $9.5
     CCC Charter Act.                                                                                                     Although OMB has designated this
                                                             billion and based upon funds available                    rule as ‘‘economically significant’’
        For producers of specialty crops                     to CCC on the date of issuance of this
     (including, but not limited to, almonds,                                                                          under Executive Order 12866, ‘‘. . .
                                                             rule, will total $6.5 billion. The                        economic or social effects are not
     beans, broccoli, sweet corn, lemons,
                                                             payments represent benefits to                            intended by themselves to require
     iceberg lettuce, spinach, squash,
                                                             producers, which is the government cost                   preparation of an environmental impact
     strawberries, and tomatoes) that realized
                                                             of CFAP.                                                  statement’’ when not interrelated to
     a 5-percent-or-greater reduction in sales                  USDA will make an initial payment of
     price between the average for the week                                                                            natural or physical environmental
                                                             80 percent of an eligible 2020 CFAP                       effects (see 40 CFR 1508.14). CFAP was
     of January 13–17, 2020, in a comparison
                                                             participant’s calculated 2020 CFAP                        designed to avoid skewing planting
     with the average for the week of April
                                                             payment. By issuing initial payments,                     decisions. Producers continue to make
     6–10, 2020, payments will be based on
                                                             FSA can quickly provide assistance to                     their planting and production decisions
     the grower’s sales volume, multiplied by
                                                             those eligible participants that                          with the market signals in mind, rather
     80 percent of the given crop’s price
                                                             immediately apply for assistance while                    than any expectation of what a new
     change between mid-January and mid-
                                                             trying to ensure that 2020 CFAP                           USDA program might look like. The
     April 2020. Producers with specialty
                                                             payments do not exceed the $16 billion                    discretionary aspects of CFAP (for
     crops that have been shipped from the
                                                             funding limit to ensure those funds are                   example, determining AGI and payment
     farm by April 15 but subsequently
                                                             distributed equitably among all eligible                  limitations) were designed to be
     spoiled due to loss of marketing channel
     and were not paid are eligible to apply                   4 The price data for specialty crops was provided
                                                                                                                       consistent with established USDA and
     for up to 30 percent of the crop’s sales                by AMS and represents an average of all units
                                                                                                                       CCC programs and are not expected to
     value of that shipment. The 30 percent                  shipped of domestic production, whether                   have any impact on the human
     was determined assuming the field                       conventional or organic. The raw data source for the      environment, as CFAP payments will
     value of the crop is 60 percent of the                  prices is the AMS Market News Portal, https://            only be made after the commodity has
                                                             www.ams.usda.gov/market-news/fruits-vegetables.
     sales value; the field value is then                    The prices are for the shipping point if available,
                                                                                                                       been produced. Accordingly, the
     multiplied by a 50 percent coverage                     or terminal market if not. For any particular crop,       following Categorical Exclusion in 7
     level. Producers of specialty crop                      shipping point and terminal market prices are not         CFR part 1b applies: § 1b.3(a)(2), which
     shipments that did not leave the farm or                mixed. The list of crops for which AMS has data           applies to activities that deal solely with
                                                             for domestic production for the time periods of
     mature crops that remained unharvested                  interest is covered by Table 5 in the full cost benefit
                                                                                                                       the funding of programs, such as
     by April 15, 2020, are eligible to submit               analysis, which is available on regulations.gov in        program budget proposals,
     a loss claim for compensation of up to                  docket FSA–2020–0004.                                     disbursements, and the transfer or


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     30830               Federal Register / Vol. 85, No. 99 / Thursday, May 21, 2020 / Rules and Regulations

     reprogramming of funds. As such, the                    Executive Order 13175                                 subject to the requirements of sections
     implementation of and participation in                                                                        202 and 205 of UMRA.
     CFAP do not constitute major Federal                       This rule has been reviewed for
                                                             compliance with Executive Order                       Federal Assistance Programs
     actions that would significantly affect
                                                             13175, ‘‘Consultation and Coordination                  The title and number of the Federal
     the quality of the human environment,
                                                             with Indian Tribal Governments.’’                     Domestic Assistance Program found in
     individually or cumulatively. Therefore,
                                                             Executive Order 13175 requires Federal                the Catalog of Federal Domestic
     an environmental assessment or                          agencies to consult and coordinate with
     environmental impact statement for this                                                                       Assistance to which this rule applies is
                                                             Tribes on a government-to-government                  Coronavirus Food Assistance Program
     regulatory action, will not be prepared;                basis on policies that have Tribal
     this rule serves as documentation of the                                                                      and 10.130.
                                                             implications, including regulations,
     programmatic environmental                              legislative comments proposed                         Paperwork Reduction Act
     compliance decision for this Federal                    legislation, and other policy statements                In accordance with the Paperwork
     action.                                                 or actions that have substantial direct               Reduction Act of 1995, the following
     Executive Order 12372                                   effects on one or more Indian Tribes, on              new information collection request that
                                                             the relationship between the Federal                  supports CFAP was submitted to OMB
        Executive Order 12372,                               Government and Indian Tribes or on the                for emergency approval. OMB approved
     ‘‘Intergovernmental Review of Federal                   distribution of power and                             the 6-month emergency information
     Programs,’’ requires consultation with                  responsibilities between the Federal                  collection. A request for comments on
     State and local officials that would be                 Government and Indian Tribes.                         the information collection will be
     directly affect by proposed Federal                        USDA has assessed the impact of this               included in the NOFA issued
     financial assistance. The objectives of                 rule on Indian Tribes and determined                  subsequent to this rule.
     the Executive Order are to foster an                    that this rule does not, to our                       E-Government Act Compliance
     intergovernmental partnership and a                     knowledge, have Tribal implications
     strengthened Federalism, by relying on                  that required Tribal consultation under                 USDA is committed to complying
     State and local processes for State and                 Executive Order 13175. If a Tribe                     with the E-Government Act to promote
     local government coordination and                       requests consultation, the USDA Office                the use of the internet and other
     review of proposed Federal Financial                    of Tribal Relations (OTR) will ensure                 information technologies to provide
     assistance and direct Federal                           meaningful consultation is provided                   increased opportunities for citizen
     development. For reasons specified in                   where changes, additions, and                         access to Government information and
     the final rule related notice to 7 CFR                  modifications are not expressly                       services, and for other purposes.
     part 3015, subpart V (48 FR 29115, June                 mandated by Congress.                                 List of Subjects in 7 CFR Part 9
     24, 1983), the programs and activities                     Outside of Tribal consultation, USDA                 Agricultural commodities,
     within this rule are excluded from the                  is working with Tribes to provide                     Agriculture, Disaster assistance,
     scope of Executive Order 12372, which                   information about CFAP and other                      Indemnity payments.
     requires intergovernmental consultation                 issues. Specifically, to date, USDA held
                                                                                                                   ■ For the reasons discussed above,
     with State and local officials.                         a call with Navajo Nation on Tuesday,
                                                             May 12, 2020; CFAP was one of the                     USDA adds part 9 to title 7 of the Code
     Executive Order 12988                                   items presented—there were no                         of Federal Regulations to read as
                                                             questions raised about CFAP. OTR will                 follows:
        This rule has been reviewed under
     Executive Order 12988, ‘‘Civil Justice                  host a listening session between FSA,                 PART 9—CORONAVIRUS FOOD
     Reform.’’ This rule will not preempt                    AMS, and Tribal leaders on Thursday,                  ASSISTANCE PROGRAM
     State or local laws, regulations, or                    May 21, 2020, at 3:00 p.m.
                                                                                                                   Sec.
     policies unless they represent an                       The Unfunded Mandates Reform Act of                   9.1 Applicability and administration.
     irreconcilable conflict with this rule.                 1995                                                  9.2 Definitions.
     The rule will not have retroactive effect.                                                                    9.3 Producer eligibility requirements.
     Before any judicial action may be                          Title II of the Unfunded Mandates
                                                                                                                   9.4 Time and method of application.
     brought regarding the provisions of this                Reform Act of 1995 (UMRA, Pub. L.                     9.5 Calculation of payments.
     rule, the administrative appeal                         104–4) requires Federal agencies to                   9.6 Eligibility subject to verification.
     provisions of 7 CFR parts 11 and 780                    assess the effects of their regulatory                9.7 Miscellaneous provisions.
     must be exhausted.                                      actions on State local, and Tribal                    9.8 Perjury.
                                                             governments or the private sector.                      Authority: 15 U.S.C. 714b and 714c; and
     Executive Order 13132                                   Agencies generally must prepare a                     Division B, Title I, Pub. L. 116–136.
                                                             written statement, including a cost
       This rule has been reviewed under                     benefit analysis, for proposed and final              § 9.1    Applicability and administration.
     Executive Order 13132, ‘‘Federalism.’’                  rules with Federal mandates that may                    (a) This part specifies the eligibility
     The policies contained in this rule do                  result in expenditures of $100 million or             requirements and payment calculations
     not have any substantial direct effect on               more in any 1 year for State, local, or               for the Coronavirus Food Assistance
     States, on the relationship between the                 Tribal governments, in the aggregate, or              Program (CFAP). CFAP will provide
     Federal Government and the States, or                   to the private sector. UMRA generally                 payments with respect to commodities
     on the distribution of power and                        requires agencies to consider                         that have been significantly impacted by
     responsibilities among the various                      alternatives and adopt the more cost                  the effects of the COVID–19 outbreak.
     levels of government, except as required                effective or least burdensome alternative             Payments will be made with respect to
     by law. Nor does this rule impose                       that achieves the objectives of the rule.             only commodities produced in the
     substantial direct compliance costs on                  This rule contains no Federal mandates,               United States; commodities imported
     State and local governments. Therefore,                 as defined in Title II of UMRA, for State,            into the United States may not be used
     consultation with the States is not                     local, and Tribal governments or the                  to determine any payment made under
     required.                                               private sector. Therefore, this rule is not           this part.


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                         Federal Register / Vol. 85, No. 99 / Thursday, May 21, 2020 / Rules and Regulations                                              30831

       (b) The program is administered                       slaughter cattle-fed cattle as defined in             iceberg; lettuce, romaine; mushrooms;
     under the general supervision and                       this section.                                         onions, dry; onions, green; oranges;
     direction of the Administrator, Farm                       Feeder cattle less than 600 pounds                 papayas; peaches; pears; pecans;
     Service Agency (FSA) with the                           means cattle weighing less than 600                   peppers, bell type; peppers, other;
     assistance of the Agricultural Marketing                pounds.                                               potatoes; raspberries; rhubarb; spinach;
     Service (AMS).                                             First quarter means January, February,             squash; strawberries; sweet potatoes;
       (c) The FSA State committee will take                 and March of 2020.                                    tangerines; taro; tomatoes; walnuts;
     any action required by this part that an                   Foreign entity means a corporation,                watermelons; and any crops for which
     FSA county committee has not taken.                     trust, estate, or other similar                       funds are made available and
     The FSA State committee will also:                      organization that has more than 10                    announced in a NOFA. The term
       (1) Correct, or require an FSA county                 percent of its beneficial interest held by            excludes crops intended for grazing.
     committee to correct, any action taken                  individuals who are not:                                 Unpriced inventory means any
     by such county FSA committee that is                       (1) Citizens of the United States; or              production that is not subject to an
     not in accordance with the regulations                     (2) Lawful aliens possessing a valid               agreed-upon price in the future through
     of this part; or                                        Alien Registration Receipt Card.                      a forward contract, agreement, or similar
       (2) Require an FSA county committee                      Foreign person means any person who                binding document.
     to withhold taking any action that is not               is not a citizen or national of the United               Wool means the fiber sheared from a
     in accordance with this part.                           States or who is admitted into the                    live sheep and includes, unless noted
       (d) No provision or delegation to an                  United States for permanent residence                 otherwise, graded and nongraded wool.
     FSA State or county committee will                      under the Immigration and Nationality                 Graded wool is paid on a clean basis,
     preclude the FSA Administrator, the                     Act and possesses a valid Alien                       and ungraded wool is paid on a greasy
     Deputy Administrator, or a designee or                  Registration Receipt Card issued by the               basis.
     other such person, from determining                     United States Citizenship and
     any question arising under the programs                 Immigration Services, Department of                   § 9.3    Producer eligibility requirements.
     of this part, or from reversing or                      Homeland Security.                                       To be eligible for a CFAP payment, a
     modifying any determination made by                        Hogs means any swine 120 pounds or                 producer must:
     an FSA State or county committee.                       more.                                                    (a) Meet all of the requirements in this
                                                                Lambs and yearlings means all sheep                part;
     § 9.2   Definitions.                                    less than 2 years old.                                   (b) Be a:
       The following definitions apply to                       NOFA means a Notice of Funding                        (1) Citizen of the United States;
     CFAP. The definitions in parts 718 and                  Availability under this part published in                (2) Resident alien, which for purposes
     1400 of this title apply, except where                  the Federal Register.                                 of this part means ‘‘lawful alien’’ as
     they conflict with the definitions in this                 Non-specialty crop means any of the                defined in part 1400 of this title;
     section.                                                following crops: Malting barley, canola,                 (3) Partnership of citizens of the
       All other cattle means commercially                   corn, upland cotton, millet, oats,                    United States;
     raised or maintained bovine animals not                 sorghum, soybeans, sunflowers, durum                     (4) Corporation, limited liability
     meeting the definition of another                       wheat, hard red spring wheat, and any                 company, or other organizational
     category of cattle in this part excluding               crops announced in a NOFA. The term                   structure organized under State law;
     beefalo, bison, and animals used for                    excludes crops intended for grazing.                     (5) Indian Tribe or Tribal
     dairy production or intended for dairy                     Pigs means any swine weighing less                 organization, as defined in section 4(b)
     production.                                             than 120 pounds.                                      of the Indian Self-Determination and
       AMS means USDA’s Agricultural                            Producer means a person or legal                   Education Assistance Act (25 U.S.C.
     Marketing Service.                                      entity who shares in the risk of                      5304); or
       Application means the CFAP                            producing a crop or livestock and who                    (6) Foreign person or foreign entity
     application form.                                       is entitled to a share in the crop or                 who meets all requirements as described
       Aquaculture means only those species                  livestock available for marketing or                  in part 1400 of this title; and
     as announced in a NOFA.                                 would have shared had the crop or                        (c) Have had a share in the eligible
       Cattle means commercially raised or                   livestock been produced and marketed.                 commodity on January 15, 2020, or
     maintained bovine animals, excluding                    A contract grower who does not own the                April 16, 2020, through May 14, 2020.
     beefalo, bison, and animals used for                    livestock, will be considered a producer
     dairy production or intended for dairy                  if the contract allows the grower to have             § 9.4    Time and method of application.
     production.                                             risk in the livestock.                                  (a) An application under this subpart
       Cattle raised or maintained for                          Slaughter Cattle—fed cattle means                  must be submitted in person, by mail,
     breeding purposes means animals                         cattle with an average weight in excess               email, or facsimile to any FSA county
     commercially raised or maintained for                   of 1,400 pounds which yield average                   office by the close of business on August
     use as either a sire or dam for the                     carcass weights in excess of 800 pounds               28, 2020.
     production of livestock offspring or                    and are intended for slaughter.                         (b) Failure of an individual, entity, or
     lactation.                                                 Slaughter cattle—mature cattle means               a member of an entity to submit the
       Commodity means an agricultural                       culled cattle raised or maintained for                following payment limitation and
     commodity produced in the United                        breeding purposes, but which were                     payment eligibility forms within 60-
     States and intended to be marketed for                  removed from inventory and are                        days from the date of signing the CFAP
     commercial production that has been                     intended for slaughter.                               application, may result in no payment
     designated as eligible for payments                        Specialty crops means any of the                   or a reduced payment:
     under CFAP.                                             following crops: Almonds; apples;                       (1) A farm operating plan for an
       Crop means non-specialty crops and                    artichokes; asparagus; avocados; beans;               individual or legal entity as provided in
     specialty crops.                                        blueberries; broccoli; cabbage;                       part 1400 of this title;
       Feeder cattle 600 pounds or more                      cantaloupe; carrots; cauliflower; celery;               (2) Form CCC–901 Member
     means cattle weighing more than 600                     corn, sweet; cucumbers, eggplant; garlic;             Information for Legal Entities (if
     pounds but less than the weight of                      grapefruit; kiwifruit; lemons; lettuce,               applicable);


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     30832                      Federal Register / Vol. 85, No. 99 / Thursday, May 21, 2020 / Rules and Regulations

        (3) An average adjusted gross income                                      (2) Unpriced inventory as of January                                      (1) Hogs and pigs sold between
     statement for the 2020 program year for                                    15, 2020, not to exceed 50 percent of                                     January 15, 2020, to April 15, 2020,
     the person or legal entity, including the                                  2019 total production, multiplied by 50                                   multiplied by the CARES Act payment
     legal entity’s members, partners, or                                       percent, multiplied by the Commodity                                      rate in paragraph (h) of this section; and
     shareholders, as provided in part 1400                                     Credit Corporation (CCC) payment rate                                       (2) Unpriced hog and pig inventory
     of this title; form CCC–941 Average                                        in paragraph (h) of this section.                                         between April 16, 2020, to May 14,
     Adjusted Gross Income (AGI)                                                  (b) Payments for eligible specialty                                     2020, multiplied by the CCC payment
     Certification and Consent to Disclosure                                    crops will be the sum of:                                                 rate in paragraph (h) of this section.
     of Tax Information;                                                          (1) For specialty crops listed in
        (4) CCC–942 Certification of Income                                     paragraph (h) of this section that were                                     (e) Payments for dairy will be equal to
     From Farming, Ranching and Forestry                                        sold between January 15, 2020, and                                        the sum of the results of the following
     Operations (optional); and                                                 April 15, 2020, the quantity sold                                         two calculations:
        (5) A highly erodible land                                              multiplied by the payment rate in                                           (1) First quarter production,
     conservation (sometimes referred to                                        column 2 of Table 1 in paragraph (h) of                                   multiplied by the CARES Act payment
     elsewhere as HELC) and wetland                                             this section;                                                             rate in paragraph (h) of this section; and
     conservation certification as provided in                                    (2) For specialty crops harvested and                                     (2) First quarter production,
     part 12 of this title (form AD–1026                                        shipped but subsequently spoiled due to                                   multiplied by 1.014, multiplied by the
     Highly Erodible Land Conservation                                          loss of marketing channels between                                        CCC payment rate in paragraph (h) of
     (HELC) and Wetland Conservation (WC)                                       January 15, 2020, and April 15, 2020,                                     this section.
     Certification for CFAP applicant and                                       the harvested and shipped quantity that
     applicable affiliates).                                                                                                                                (f) Payments for lambs and yearlings
                                                                                spoiled multiplied by the payment rate                                    will be equal to the sum of the results
        (c) If requested by USDA, the                                           in column 3 of Table 1 in paragraph (h)
     applicant must provide documentation                                                                                                                 of the following two calculations:
                                                                                of this section; and
     that:                                                                        (3) For unpriced specialty crops that                                     (1) Lambs and yearlings sold between
        (1) Establishes the applicant’s ability                                 did not leave the farm or mature crops                                    January 15, 2020, to April 15, 2020,
     and intent to harvest, transport, and                                      that remained unharvested between                                         multiplied by the CARES Act payment
     market the commodity for the intended                                      January 15, 2020 and April 15, 2020 due                                   rate in paragraph (h) of this section; and
     market or crop’s expected production in                                    to loss of marketing channel, the sum of                                    (2) Unpriced lambs and yearlings in
     a quantity determined based on the                                         the quantity of crops that did not leave                                  inventory between April 16, 2020, to
     producer’s approved yield, expected                                        the farm and the quantity of mature                                       May 14, 2020, multiplied by the CCC
     level of production, or inventory of the                                                                                                             payment rate in paragraph (h) of this
                                                                                crops that remained unharvested,
     livestock, crop, or commodity;                                                                                                                       section.
                                                                                multiplied by the payment rate in
        (2) Establishes the applicant’s
     ownership share in the commodity; and                                      column 4 of Table 1 in paragraph (h) of                                     (g) Payments for wool are the sum of:
        (3) Establishes the applicant’s value at                                this section.                                                               (1) Unpriced inventory on January 15,
     risk in the commodity.                                                       (c) Payments for cattle will be the sum                                 2020, not to exceed 50 percent of 2019
                                                                                of the results of the following two                                       total production, multiplied by 50
     § 9.5     Calculation of payments.                                         calculations:                                                             percent, multiplied by the CARES Act
       (a) Payments for eligible non-specialty                                    (1) Cattle sold between January 15,                                     payment rate paragraph (h) of this
     crops will be the sum of:                                                  2020, to April 15, 2020, multiplied by                                    section; and
       (1) Unpriced inventory that is                                           the CARES Act payment rate in
     harvested but held in inventory as of                                      paragraph (h) of this section; and                                          (2) Unpriced inventory on January 15,
     January 15, 2020, not to exceed 50                                           (2) Unpriced cattle inventory between                                   2020, not to exceed 50 percent of 2019
     percent of 2019 total production,                                          April 16, 2020, to May 14, 2020,                                          total production, multiplied by 50
     multiplied by 50 percent, multiplied by                                    multiplied by the CCC payment rate in                                     percent, multiplied by the CCC payment
     the Coronavirus Aid, Relief, and                                           paragraph (h) of this section.                                            rate in paragraph (h) of this section.
     Economic Stability Act (CARES Act)                                           (d) Payments for hogs and pigs will be                                    (h) The payment rates in Tables 1 and
     payment rate in paragraph (h) of this                                      equal to the sum of the results of the                                    2 of this paragraph (h) will be used to
     section; and                                                               following two calculations:                                               calculate CFAP payments:

                                                   TABLE 1 TO PARAGRAPH (h)—PAYMENT RATES FOR SPECIALTY CROPS
                                                                            [Including, but not limited to, the listed commodities]

                                                                                                                                                       CARES Act payment
                                                                                                                                                      rate for product that left
                                                                                                             CARES Act payment                       the farm but spoiled due      CCC Payment rate
                                            Commodity                                                        rate for sales losses                      to loss of marketing            ($/lb)
                                                                                                                     ($/lb)                                    channel
                                                                                                                                                                ($/lb)

     Almonds .......................................................................................                                     $0.26                            $0.57                 $0.11
     Apples ..........................................................................................    ........................................                         0.18                  0.03
     Artichokes ....................................................................................                                       0.66                            0.49                  0.10
     Asparagus ....................................................................................       ........................................                         0.38                  0.07
     Avocados .....................................................................................       ........................................                         0.14                  0.03
     Beans ...........................................................................................                                     0.17                            0.16                  0.03
     Blueberries ...................................................................................      ........................................                         0.62                  0.12
     Broccoli ........................................................................................                                     0.62                            0.49                  0.10
     Cabbage ......................................................................................                                        0.04                            0.07                  0.01
     Cantaloupe ...................................................................................       ........................................                         0.10                  0.02
     Carrots .........................................................................................                                       0.2                           0.11                  0.02
     Cauliflower ...................................................................................                                       0.11                            0.31                  0.06



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                                 Federal Register / Vol. 85, No. 99 / Thursday, May 21, 2020 / Rules and Regulations                                                                                                30833

                                        TABLE 1 TO PARAGRAPH (h)—PAYMENT RATES FOR SPECIALTY CROPS—Continued
                                                                              [Including, but not limited to, the listed commodities]

                                                                                                                                                           CARES Act payment
                                                                                                                                                          rate for product that left
                                                                                                                CARES Act payment                        the farm but spoiled due             CCC Payment rate
                                              Commodity                                                         rate for sales losses                       to loss of marketing                   ($/lb)
                                                                                                                        ($/lb)                                     channel
                                                                                                                                                                    ($/lb)

     Celery ...........................................................................................      ........................................                              0.07                                    0.01
     Corn, sweet ..................................................................................                                           0.09                                 0.13                                    0.03
     Cucumbers ...................................................................................                                            0.13                                 0.15                                    0.03
     Eggplant .......................................................................................                                         0.07                                 0.15                                    0.03
     Garlic ............................................................................................     ........................................                              0.85                                    0.17
     Grapefruit .....................................................................................        ........................................                              0.11                                    0.02
     Kiwifruit ........................................................................................      ........................................                              0.32                                    0.06
     Lemons ........................................................................................                                          0.08                                 0.21                                    0.04
     Lettuce, iceberg ...........................................................................                                             0.20                                 0.15                                    0.03
     Lettuce, romaine ..........................................................................                                              0.07                                 0.12                                    0.02
     Mushrooms ..................................................................................            ........................................                              0.59                                    0.11
     Onions, dry ..................................................................................                                           0.01                                 0.05                                    0.01
     Onions green ...............................................................................            ........................................                              0.30                                    0.06
     Oranges .......................................................................................         ........................................                              0.14                                    0.03
     Papaya .........................................................................................        ........................................                              0.32                                    0.06
     Peaches .......................................................................................                                          0.08                                 0.32                                    0.06
     Pears ............................................................................................                                       0.08                                 0.18                                    0.03
     Pecans .........................................................................................                                         0.28                                 0.93                                    0.18
     Peppers, bell type ........................................................................                                              0.14                                 0.22                                    0.04
     Peppers, other .............................................................................                                             0.15                                 0.22                                    0.04
     Potatoes .......................................................................................        ........................................                              0.04                                    0.01
     Raspberries ..................................................................................          ........................................                              1.45                                    0.28
     Rhubarb .......................................................................................                                          0.15                                 1.03                                    0.20
     Spinach ........................................................................................                                         0.37                                 0.37                                    0.07
     Squash .........................................................................................                                         0.72                                 0.39                                    0.08
     Strawberries .................................................................................                                           0.84                                 0.72                                    0.14
     Sweet potatoes ............................................................................             ........................................                              0.18                                    0.04
     Tangerines ...................................................................................          ........................................                              0.22                                    0.04
     Taro ..............................................................................................     ........................................                              0.23                                    0.05
     Tomatoes .....................................................................................                                           0.64                                 0.38                                    0.07
     Walnuts ........................................................................................        ........................................                              0.45                                    0.09
     Watermelons ................................................................................            ........................................                              0.02   ........................................


                        TABLE 2 TO PARAGRAPH (h)—PAYMENT RATES FOR NON-SPECIALTY CROPS, DAIRY, AND LIVESTOCK
                                                                                                                                                                            CARES Act              CCC payment rate
                                                            Commodity                                                                                   Unit               payment rate                ($/unit)
                                                                                                                                                                              ($/unit)

     Barley (malting) .........................................................................................................           bu .........................                    0.34                            0.37
     Canola .......................................................................................................................       lb ..........................                   0.01                            0.01
     Corn ...........................................................................................................................     bu .........................                    0.32                            0.35
     Durum wheat .............................................................................................................            bu .........................                    0.19                            0.20
     Hard red spring wheat ..............................................................................................                 bu .........................                    0.18                            0.20
     Millet ..........................................................................................................................    bu .........................                    0.31                            0.34
     Oats ...........................................................................................................................     bu .........................                    0.15                            0.17
     Sorghum ....................................................................................................................         bu .........................                    0.30                            0.32
     Soybeans ..................................................................................................................          bu .........................                    0.45                            0.50
     Sunflowers .................................................................................................................         lb ..........................                   0.02                            0.02
     Upland cotton ............................................................................................................           lb ..........................                   0.09                            0.10
     Dairy ..........................................................................................................................     cwt ........................                    4.71                            1.47
     Slaughter cattle—mature cattle .................................................................................                     head .....................                        92                              33
     Slaughter cattle—fed cattle .......................................................................................                  head .....................                       214                              33
     Feeder cattle less than 600 pounds .........................................................................                         head .....................                       102                              33
     Feeder cattle 600 pounds or more ...........................................................................                         head .....................                      139                               33
     All other cattle ...........................................................................................................         head .....................                       102                              33
     Pigs ...........................................................................................................................     head .....................                        28                              17
     Hogs ..........................................................................................................................      head .....................                        18                              17
     Lambs and yearlings .................................................................................................                head .....................                        33                               7
     Wool (graded, clean basis) .......................................................................................                   lb ..........................                   0.71                            0.78
     Wool (non-graded, greasy basis) ..............................................................................                       lb ..........................                   0.36                            0.39




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     30834               Federal Register / Vol. 85, No. 99 / Thursday, May 21, 2020 / Rules and Regulations

        (i) Payments for cattle and hogs will                § 9.7     Miscellaneous provisions.                     company, or a limited partnership may
     be calculated separately for the                           (a) If a CFAP payment resulted from                  receive is $500,000 if two different
     following categories:                                   erroneous information provided by a                     individual owners of the legal entity
        (1) Slaughter cattle—mature cattle;                  participant, or any person acting on                    each provided at least 400 hours of
        (2) Slaughter cattle—fed cattle;                     their behalf, the payment will be                       active personal labor or active personal
        (3) Feeder cattle less than 600 pounds;              recalculated and the participant must                   management or combination thereof
        (4) Feeder cattle 600 pounds or more;                refund any excess payment with interest                 with respect to the production of 2019
        (5) All other cattle;                                calculated from the date of the                         commodities for which an application
        (6) Pigs; and                                        disbursement of the payment. Any                        or applications are made in accordance
        (7) Hogs.                                            required refunds must be resolved in                    with this part.
        (j)(1) USDA may make payments with                   accordance with part 3 of this title.                      (iii) The total amount of CFAP
     respect to other commodities. In order                     (b) The regulations in parts 11 and                  payments a corporation, limited liability
     to determine whether other                              780 of this title apply to determinations               company, or a limited partnership may
     commodities will be included in CFAP,                   made under this part.                                   receive is $750,000 if three different
     a notice will be issued that will specify                  (c) Any payment under this part will                 individual owners of the legal entity
     the types of market information the                     be made without regard to questions of                  each provided at least 400 hours of
     public may submit for consideration by                  title under State law and without regard                active personal labor or active personal
     USDA. After receipt of the information                  to any claim or lien against the                        management or combination thereof
     and the use of other related information                commodity or proceeds from the sale of                  with respect to the production of 2019
     available to USDA, a NOFA will specify                  the commodity. The regulations                          commodities for which an application
     the other eligible commodities and the                  governing offsets in part 3 of this title               or applications are made in accordance
     manner in which payments will be                        do not apply to payments made under                     with this part.
     determined.                                             this part.                                                 (3) In accordance with § 1400.105 of
        (2) Producers that are privately owned                  (d) The $900,000 average AGI                         this title, a CFAP payment made to any
     aquaculture businesses growing                          limitation provisions in part 1400 of this              legal entity will be attributed to
     freshwater and saltwater products in                    title relating to limits on payments for                individuals or legal entities with an
     controlled environments, including                      persons or legal entities, excluding joint              ownership interest in the legal entity.
     raceways, ponds, tanks, and                             ventures and general partnerships,                      Payments attributed to a legal entity
     recirculating systems, extending to all                 apply to each applicant for CFAP unless                 with an ownership interest in the legal
     farmed shrimp and salmonids (trout and                  at least 75 percent of the person or legal              entity will be further attributed as
     salmon) are included in CFAP to the                     entity’s average AGI is derived from                    provided in § 1400.105 of this title. If
     extent USDA determines individual                       farming, ranching, or forestry-related                  the total amount of CFAP payments
     types of the products have incurred a                   activities. The average AGI will be                     made directly or indirectly to an
     decline in prices of 5 percent or more                  calculated for a person or such legal                   individual or legal entity has met the
     between January 15, 2020, and April 15,                 entity based on the 2016, 2017, and                     applicable amounts specified in
     2020. The determination of which                        2018 tax years. If the person or such                   paragraphs (e)(1) and (2) of this section,
     species are included will be specified in               legal entity’s average AGI is below                     the payment to the legal entity will be
     the NOFA referenced in paragraph (j)(1)                 $900,000 or at least 75 percent of the                  reduced commensurate with the amount
     of this section.                                        person or legal entity’s average AGI is                 of the ownership interest of the
        (k) An initial payment will be issued                derived from farming, ranching, or                      individual or legal entity in the legal
     for 80 percent of each CFAP payment                     forestry-related activities, the person or              entity. CFAP payments will be
     calculated. A final payment will be                     legal entity, is eligible to receive                    attributed to individuals and legal
     issued on a date determined by the                      payments under this part.                               entities until the attribution is made
     Secretary, to the extent such funds are                    (e)(1) The total amount of CFAP                      only to an individual except the
     available. The total of all CFAP                        payments that a program applicant who                   attribution will stop at the fourth level
     payments made, including all initial                    is an individual may receive directly or                of ownership.
     and final payments, cannot exceed a                     through the attribution of payments as                     (4) If an individual or legal entity is
     total of $9.5 billion for CARES Act                     provided in paragraph (e)(3) of this                    not eligible to receive CFAP payments
     funds and $6.5 billion for CCC funds.                   section is $250,000. The total amount of                due to the individual or legal entity
                                                             payments that a program applicant who                   failing to satisfy some other payment
     § 9.6   Eligibility subject to verification.            is a legal entity created under State law               eligibility provision such as AGI in or
       (a) Producers who are approved for                    may receive is $250,000, except as                      conservation compliance provisions or
     participation in CFAP are required to                   provided in paragraph (e)(2) of this                    some other payment eligibility
     retain documentation in support of their                section. Payments made to a program                     impediment, the payment made either
     application for 3 years after the date of               applicant who is a joint venture or a                   directly or indirectly to the individual
     approval.                                               general partnership are limited to the                  or legal entity will be reduced to zero.
       (b) Participants receiving CFAP                       aggregated amount of payments that                      The amount of the reduction for the
     payments or any other person who                        individual or legal entity members of                   direct payment to the applicant will be
     furnishes such information to USDA                      the joint venture or general partnership                commensurate with the direct or
     must permit authorized representatives                  may otherwise receive.                                  indirect ownership interest of the
     of USDA or the Government                                  (2)(i) The total amount of CFAP                      ineligible individual or ineligible legal
     Accountability Office, during regular                   payments a corporation, limited liability               entity. The application of this
     business hours, to enter the agricultural               company, or a limited partnership may                   ineligibility to receive a CFAP payment
     operation and to inspect, examine, and                  receive is $250,000 unless the owners of                due to the excessive AGI of an
     to allow representatives to make copies                 the legal entity meet the provisions of                 individual or legal entity will stop at the
     of books, records, or other items for the               paragraphs (e)(2)(ii) and (iii) of this                 fourth level of ownership.
     purpose of confirming the accuracy of                   section.                                                   (f) For the purposes of the effect of a
     the information provided by the                            (ii) The total amount of CFAP                        lien on eligibility for Federal programs
     participant.                                            payments a corporation, limited liability               (28 U.S.C. 3201(e)), USDA waives the


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                           Federal Register / Vol. 85, No. 99 / Thursday, May 21, 2020 / Rules and Regulations                                        30835

     restriction on receipt of funds under                     SMALL BUSINESS ADMINISTRATION                         consider to be CBI and explain why you
     CFAP but only as to beneficiaries who,                                                                          believe SBA should hold this
     as a condition of the waiver, agree to                    13 CFR Parts 120 and 121                              information as confidential. SBA will
     apply the CFAP payments to reduce the                     [Docket Number SBA–2020–0030]                         review the information and make the
     amount of the judgment lien.                                                                                    final determination whether it will
                                                               RIN 3245–AH44                                         publish the information.
       (g) In addition to any other Federal
     laws that apply to CFAP, the following                    Business Loan Program Temporary                       FOR FURTHER INFORMATION CONTACT: A
     laws apply: 15 U.S.C. 714; 18 U.S.C.                      Changes; Paycheck Protection                          Call Center Representative at 833–572–
     286, 287, 371, 1001; and 31 U.S.C. 1001.                  Program—Treatment of Entities With                    0502, or the local SBA Field Office; the
       (h) This part applies to applications                   Foreign Affiliates                                    list of offices can be found at https://
     submitted under CFAP through August                                                                             www.sba.gov/tools/local-assistance/
                                                               AGENCY: U.S. Small Business                           districtoffices.
     28, 2020, or until funds made available
                                                               Administration.
     for CFAP are exhausted.                                                                                         SUPPLEMENTARY INFORMATION:
                                                               ACTION: Interim final rule.
     § 9.8   Perjury.                                                                                                I. Background Information
                                                               SUMMARY: On April 2, 2020, the U.S.
       In either applying for or participating                 Small Business Administration (SBA)                      On March 13, 2020, President Trump
     in CFAP, or both, the producer is                         posted an interim final rule announcing               declared the ongoing Coronavirus
     subject to laws against perjury and any                   the implementation of the Coronavirus                 Disease 2019 (COVID–19) pandemic of
     penalties and prosecution resulting                       Aid, Relief, and Economic Security Act                sufficient severity and magnitude to
     therefrom, with such laws including but                   (CARES Act). The CARES Act                            warrant an emergency declaration for all
     not limited to 18 U.S.C. 1621. If the                     temporarily adds a new program, titled                States, territories, and the District of
     producer willfully makes and represents                   the ‘‘Paycheck Protection Program,’’ to               Columbia. With the COVID–19
     as true any verbal or written declaration,                the SBA’s 7(a) Loan Program. The                      emergency, many small businesses
     certification, statement, or verification                 CARES Act also provides for forgiveness               nationwide are experiencing economic
     that the producer knows or believes not                   of up to the full principal amount of                 hardship as a direct result of the
     to be true, in the course of either                       qualifying loans guaranteed under the                 Federal, State, tribal, and local public
     applying for or participating in CFAP, or                 Paycheck Protection Program (PPP). The                health measures that are being taken to
     both, then the producer is guilty of                      PPP is intended to provide economic                   minimize the public’s exposure to the
     perjury and, except as otherwise                          relief to small businesses nationwide                 virus. These measures, some of which
     provided by law, may be fined,                            adversely impacted by the Coronavirus                 are government-mandated, are being
     imprisoned for not more than 5 years, or                  Disease 2019 (COVID–19). SBA posted                   implemented nationwide and include
     both, regardless of whether the producer                  additional interim final rules on April 3,            the closures of restaurants, bars, and
     makes such verbal or written                              2020, April 14, 2020, April 24, 2020,                 gyms. In addition, based on the advice
     declaration, certification, statement, or                 April 28, 2020, April 30, 2020, May 5,                of public health officials, other
     verification within or without the                        2020, May 8, 2020, May 13, 2020, and                  measures, such as keeping a safe
     United States.                                            May 14, 2020, and the Department of                   distance from others or even stay-at-
     Stephen L. Censky,                                        the Treasury posted an additional                     home orders, are being implemented,
                                                               interim final rule on April 28, 2020.                 resulting in a dramatic decrease in
     Vice Chairman, Commodity Credit
     Corporation, and Deputy Secretary, U.S.                   This interim final rule supplements the               economic activity as the public avoids
     Department of Agriculture.                                previously posted interim final rules by              malls, retail stores, and other
     [FR Doc. 2020–11025 Filed 5–20–20; 8:45 am]
                                                               providing guidance on additional                      businesses.
                                                               eligibility requirements related to                      On March 27, 2020, the President
     BILLING CODE 3410–05–P
                                                               entities with foreign affiliates, and                 signed the Coronavirus Aid, Relief, and
                                                               requests public comment.                              Economic Security Act (the CARES Act)
     DEPARTMENT OF AGRICULTURE                                 DATES:                                                (Pub. L. 116–136) to provide emergency
                                                                 Effective date: This rule is effective              assistance and health care response for
     Rural Housing Service                                     May 21, 2020.                                         individuals, families, and businesses
                                                                 Applicability date: This interim final              affected by the coronavirus pandemic.
     7 CFR Part 1951                                           rule applies to applications submitted                The Small Business Administration
                                                               under the Paycheck Protection Program                 (SBA) received funding and authority
     [Docket No. RHS–20–CF–0011]                               through June 30, 2020, or until funds                 through the CARES Act to modify
                                                               made available for this purpose are                   existing loan programs and establish a
     Notification of Direct Loan Payment                       exhausted.                                            new loan program to assist small
     Deferrals for the Community Facilities                      Comment date: Comments must be                      businesses nationwide adversely
     Direct Loan Program                                       received on or before June 22, 2020.                  impacted by the COVID–19 emergency.
                                                               ADDRESSES: You may submit comments,                   Section 1102 of the CARES Act
     Correction                                                identified by number SBA–2020–0030                    temporarily permits SBA to guarantee
       In rule document 2020–08429                             through the Federal eRulemaking Portal:               100 percent of 7(a) loans under a new
     beginning on page 22009 in the issue of                   http://www.regulations.gov. Follow the                program titled the ‘‘Paycheck Protection
     Tuesday, April 21, 2020, make the                         instructions for submitting comments.                 Program.’’ Section 1106 of the CARES
     following correction:                                     SBA will post all comments on                         Act provides for forgiveness of up to the
                                                               www.regulations.gov. If you wish to                   full principal amount of qualifying
       On page 22009, in the DATES section,                    submit confidential business                          loans guaranteed under the Paycheck
     ‘‘May 12, 2020’’ should read ‘‘April 21,                  information (CBI) as defined in the User              Protection Program (PPP). On April 24,
     2020’’.                                                   Notice at www.regulations.gov, please                 2020, the President signed the Paycheck
     [FR Doc. C1–2020–08429 Filed 5–20–20; 8:45 am]            send an email to ppp-ifr@sba.gov.                     Protection Program and Health Care
     BILLING CODE 1301–00–D                                    Highlight the information that you                    Enhancement Act (Pub. L. 116–139),


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