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).”
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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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