Pandemic Assistance Programs and Agricultural Disaster Assistance Programs (rule, 88 FR 1862, January 11, 2023)
Summary
A final rule from the Commodity Credit Corporation and the Farm Service Agency (FSA), U.S. Department of Agriculture, announcing the second phase of the Emergency Relief Program (ERP), which assists producers who suffered crop losses due to wildfires, hurricanes, floods, derechos, winter storms, qualifying droughts and other disasters in calendar years 2020 and 2021. It was published in the Federal Register on January 11, 2023 (Vol. 88, No. 7) and took effect that day (docket ID USDA–2021–0012). Where loss information is not already on file, FSA uses a producer's decrease in gross revenue to approximate losses. The rule also announces the Pandemic Assistance Revenue Program (PARP), a new program for agricultural producers impacted by the COVID–19 pandemic. The Extending Government Funding and Delivering Emergency Assistance Act provides $10 billion for crop losses.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Cite this document
“Pandemic Assistance Programs and Agricultural Disaster Assistance Programs (rule, 88 FR 1862, January 11, 2023).”
Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/pandemic-assistance-programs-and-agricultural-disaster-assistance-prog-628c524375/
, SHA-256 728bb7763ab4e0632302700b8f537772241a55161ce7c63f664b052433641669.Full text
1862 Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations
DEPARTMENT OF AGRICULTURE • Federal eRulemaking Portal: Go to: commodities, crops prevented from
www.regulations.gov and search for planting in 2020 and 2021, and
Office of the Secretary docket ID USDA–2021–0012. Follow the harvested adulterated wine grapes),
online instructions for submitting trees, bushes, and vines, as a
7 CFR Part 9 comments. consequence of droughts, wildfires,
• Mail, Hand-Delivery, or Courier: hurricanes, floods, derechos, excessive
Farm Service Agency Director, Safety Net Division, FSA, heat, winter storms, freeze (including a
USDA, 1400 Independence Avenue SW, polar vortex), smoke exposure, quality
7 CFR Parts 701 and 760 Stop 0510, Washington, DC 20250– losses of crops, and excessive moisture
0522. In your comment, specify the occurring in calendar years 2020 and
Commodity Credit Corporation docket ID USDA–2021–0012. 2021. FSA previously announced ERP
Comments will be available for Phase 1 through a notice of funds
7 CFR Parts 1400, 1416, 1437, and 1450 inspection online at http:// availability on May 18, 2022 (87 FR
[Docket ID: USDA–2021–0012]
www.regulations.gov. Copies of the 30164–30172),2 which provided
information collection may be requested
RIN 0503–AA75 assistance for crop, tree, bush, and vine
by contacting Kathy Sayers or Shanita
losses through a streamlined process
Landon, respectively (see FOR FURTHER
Pandemic Assistance Programs and with pre-filled applications using data
INFORMATION CONTACT below). You may
Agricultural Disaster Assistance also send comments to the Desk Officer already on file with FSA or the Risk
Programs for Agriculture, Office of Information Management Agency (RMA), as a result
and Regulatory Affairs, Office of of the producer previously receiving a
AGENCY: Commodity Credit Corporation
Management and Budget, Washington, NAP payment or a crop insurance
(CCC), Farm Service Agency (FSA), and
DC 20503. indemnity. This rule provides the
Office of the Secretary, Department of
eligibility requirements, application
Agriculture (USDA). FOR FURTHER INFORMATION CONTACT: For
process, and payment calculations for
ACTION: Final rule. CFAP, ERP, ELAP, LFP, LIP, NAP,
ERP Phase 2, which is intended to
PARP, and PARP information collection
SUMMARY: This rule announces Phase 2 address eligible crop losses not included
activity, and payment eligibility, Kathy
of the Emergency Relief Program (ERP), Sayers; telephone: (202) 720–6825; in ERP Phase 1.3 ERP Phase 2 provides
which provides assistance to producers email: kathy.sayers@usda.gov. For ECP, assistance for necessary expenses
who suffered crop losses due to EFRP, and BCAP, Shanita Landon; related to both production and quality
wildfires, hurricanes, floods, derechos, telephone: (202) 690–1612; email: losses of eligible crops. Where loss
excessive heat, winter storms, freeze shanita.landon@usda.gov. Persons with information is not already on file with
(including a polar vortex), smoke disabilities who require alternative FSA or RMA through NAP or Federal
exposure, excessive moisture, and means for communication should crop insurance, and therefore included
qualifying droughts occurring in contact the USDA Target Center at (202) in ERP Phase 1, FSA has determined
calendar years 2020 and 2021. It also 720–2600 (voice). that the best approximation of such
announces Pandemic Assistance SUPPLEMENTARY INFORMATION:
losses is a producer’s decrease in gross
Revenue Program (PARP), a new revenue, which will reflect losses in
program that provides support for Background both production and quality without
agricultural producers impacted by the This rule announces ERP Phase 2 and requiring the more extensive
COVID–19 pandemic. In addition, this PARP, a new program. In addition, this calculations and documentation
rule makes changes to the Coronavirus rule amends the CFAP regulations to required under previous programs
Food Assistance Program (CFAP); the provide an additional CFAP 2 payment addressing crop losses due to disaster
Emergency Conservation Program (ECP); for underserved producers; 1 makes events.4 Using a decrease in gross
the Emergency Forest Restoration clarifying changes based on previously revenue in the calculation of ERP Phase
Program (EFRP); the Emergency implemented provisions of the 2 payments also captures a producer’s
Assistance for Livestock, Honeybees, Consolidated Appropriations Act, 2021 loss due to a qualifying disaster event
and Farm-Raised Fish Program (ELAP); (CAA); and amends the payment regardless of whether the loss occurs
the Livestock Forage Disaster Program provisions for producers of swine. It before harvest or after harvest while the
(LFP); the Livestock Indemnity Program also updates provisions for and makes
(LIP); the Noninsured Crop Disaster technical changes to the regulations for 2 A clarification to the notice of funds availability
Assistance Program (NAP); and general BCAP, ECP, ELAP, LFP, LIP, NAP, and for ERP Phase 1 was published on August 18, 2022
payment eligibility provisions. This rule payment eligibility provisions of 7 CFR (87 FR 50828–50830).
3 Additional assistance authorized by the
also makes a technical correction to the part 1400, as described in this Extending Government Funding and Delivering
Biomass Crop Assistance Program document. Emergency Assistance Act for losses to milk and
(BCAP). livestock will be announced in subsequent
ERP Phase 2 documents to be published in the Federal Register.
DATES:
FSA previously announced Phase 1 of the
Effective date: January 11, 2023. Division B, Title I, of the Extending Emergency Livestock Relief Program (ELRP), which
Comment due date: For PARP, ECP, Government Funding and Delivering provided payments to producers who faced
and ERP, we will consider comments on Emergency Assistance Act (Pub. L. 117– increased supplemental feed costs as a result of
the information collection requirements 43) provides $10 billion for necessary forage losses due to a qualifying drought or wildfire
in calendar year 2021 on April 4, 2022 (87 FR
under the Paperwork Reduction Act that expenses related to losses of crops 19465–19470).
lotter on DSK11XQN23PROD with RULES2
we receive by March 13, 2023. (including milk, on-farm stored 4 Assistance for crop losses that occurred prior to
ADDRESSES: We invite you to submit harvest due to disaster events in the 2018 and 2019
1 Throughout this document, the term calendar years was provided through two separate
comments on the information collection
‘‘underserved farmer or rancher’’ refers to a programs: the Wildfires and Hurricanes Indemnity
requirements. You may submit beginning farmer or rancher, limited resource Program Plus (WHIP+) for production losses, and
comments by any of the following farmer or rancher, socially disadvantaged farmer or the Quality Loss Adjustment (QLA) Program for
methods: rancher, or veteran farmer or rancher. quality losses.
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations 1863
crop is in storage, further streamlining to a share in the eligible crop available • NAP payments, minus the amount
the delivery of assistance. for marketing or would have shared had of service fees and premiums;
Decreases in gross revenue are the eligible crop been produced and • ELAP payments for an aquaculture
strongly correlated to crop production marketed. In addition, to be eligible for crop;
and quality losses due to disaster ERP Phase 2, a producer must be one of • Payments issued through grant
events. Gross revenue is essentially the the following: agreements with FSA for losses of
aggregation of the value of all of a (1) Citizen of the United States; eligible crops;
producer’s crops, and a decrease in (2) Resident alien, which for purposes • Grants from the Department of
gross revenue in a year when a producer of this subpart means ‘‘lawful alien’’ as Commerce, National Oceanic and
suffered a loss due to a disaster event defined in 7 CFR part 1400; Atmospheric Administration, and State
reflects the producer’s crop losses (3) Partnership organized under State program funds providing direct
resulting from decreased production or Law; payments for the loss of eligible crops
from obtaining a lower price due to a (4) Corporation, limited liability or the loss of revenue from eligible
reduction in quality for that year. company, or other organizational crops;
Previous FSA disaster assistance structure organized under State law; or • Other revenue directly related to
programs have similarly been based on (5) Indian Tribe or Tribal the production of eligible crops that IRS
a producer’s loss of value compared to organization, as defined in section 4(b) requires the producer to report as
their expected value, using payment of the Indian Self-Determination and income;
calculations based on crop acres, price, Education Assistance Act (25 U.S.C. • For the applicable disaster year
and yield (or inventory and price for 5304). only, ERP Phase 1 payments issued to
value loss crops) as a way to estimate another person or entity for the
ERP Phase 2 Allowable Gross Revenue
the value of a crop. While ERP Phase 2 producer’s share of an eligible crop,
uses a different calculation than In general, ERP Phase 2 payments are
regardless of the tax year in which the
previous disaster assistance programs to based on the difference in allowable
payment would be reported to IRS; 5 and
capture that value loss, it accounts for gross revenue between a benchmark
• For the benchmark year only, 2018,
crop losses in a streamlined way that year (2018 or 2019), reflective of a
2019 and 2020 WHIP+ and QLA
minimizes the burden on producers and typical year, as elected by the producer,
payments.
improves efficiency of application intended to represent a typical year of
revenue for the producer’s operation, The allowable gross revenue will be
processing by FSA county offices. based on the year for which the revenue
and the applicable disaster year (2020 or
ERP Phase 2 Eligibility 2021). For the purposes of ERP Phase 2, would be reported for the purpose of
To be eligible for ERP Phase 2, a ‘‘allowable gross revenue’’ includes filing a tax return. Producers who file or
producer must have suffered a loss of an revenue from: would be eligible to file a joint tax
eligible crop due in whole or in part to • Sales of eligible crops produced by return will certify their allowable gross
a qualifying disaster event that occurred the producer, which includes sales revenue based on what it would have
in the 2020 or 2021 calendar year resulting from value added through been had they filed taxes separately for
(referred to as the ‘‘disaster year’’). post-production activities (for example, the applicable year.
Qualifying disaster events include sales of jam from the processing of If a producer decreased their
wildfires, hurricanes, floods, derechos, strawberries) that were reportable on operation capacity in a disaster year, as
excessive heat, winter storms, freeze IRS Schedule F; compared to the benchmark year, the
(including a polar vortex), smoke • Sales of eligible crops a producer producer must certify to an adjusted
exposure, excessive moisture, qualifying purchased for resale that had a change benchmark revenue on form FSA–521
drought, and related conditions in characteristic due to the time held that represents the producer’s
occurring in calendar years 2020 and (for example, a plant purchased at a size reasonably expected allowable gross
2021. ‘‘Qualifying drought’’ means an of 2 inches and sold as an 18-inch plant revenue for the disaster year prior to the
area within the county was rated by the after 4 months), less the cost or other impact of the qualifying disaster event.
U.S. Drought Monitor as having a basis of such eligible crops; A producer may also certify to an
drought intensity of D2 (severe drought) • The taxable amount of cooperative adjusted benchmark revenue on form
for 8 consecutive weeks or D3 (extreme distributions directly related to the sale FSA–521 if the producer did not have
drought) or higher level for any period of the eligible crops produced by the a full year of benchmark allowable gross
of time during the applicable calendar producer; revenue or expanded their operation
year. • Benefits under the following capacity in a disaster year, compared to
To receive a payment for ERP Phase agricultural programs: 2017 Wildfires their benchmark year. If requested by
2, the eligible crop loss must have and Hurricanes Indemnity Program FSA, producers are required to submit
resulted in a decrease of allowable gross (WHIP), Agriculture Risk Coverage documentation to support these
revenue, as described in the next section (ARC) and Price Loss Coverage (PLC), adjustments within 30 calendar days of
of this document. ‘‘Eligible crop’’ for Biomass Crop Assistance Program the request. The documentation to
ERP Phase 2 means a crop, including (BCAP), Loan Deficiency Payment (LDP) support an adjustment due to a change
eligible aquaculture, that is produced in program, marketing loan gains (MLG) in operation capacity must show that
the United States as part of a farming under the Marketing Assistance Loan
operation and is intended to be (MAL) program, 2018 and 2019 Market 5 ERP Phase 1 allowed producers who received
commercially marketed. It excludes Facilitation Programs (MFP), Seafood pre-filled application forms to indicate shares in the
crop. In some cases, payment for a producer’s share
crops for grazing, aquatic species that do Trade Relief Program (STRP), and the
lotter on DSK11XQN23PROD with RULES2
of a crop may have been issued to a different person
not meet the definition of aquaculture, On-Farm Storage Loss Program; or entity than the producer applying for a related
Cannabis sativa L. and any part of that • CCC loans, if treated as income and revenue loss under ERP Phase 2. Applications for
plant that does not meet the definition reported to IRS; ERP Phase 2 must include any ERP Phase 1
payments issued to another person or entity for the
of hemp, and timber. • Crop insurance proceeds, minus the producer’s share of an eligible crop in order to
For ERP, ‘‘producer’’ refers to a amount of administrative fees and prevent duplicate benefits being issued for the same
person or legal entity who was entitled premiums; loss.
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
1864 Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations
the adjustment to the producer’s qualifying disaster event had not (4) Form CCC–901, Member
benchmark revenue is due to an: occurred. For ERP Phase 2 purposes, Information for Legal Entities, if
• Addition or decrease in production ‘‘specialty crop’’ has the same meaning applicable;
capacity of the farming operation; as in ERP Phase 1.6 A crop may be (5) Form CCC–902, Farm Operating
• Increase or decrease in the use of considered a high value crop based on Plan for an individual or legal entity as
existing production capacity; or either the crop itself, or how the crop is provided in 7 CFR part 1400;
• Physical alterations that were made marketed. High value crop includes any (6) Form FSA–510, Request for an
to existing production capacity. eligible crop not specifically identified Exception to the $125,000 Payment
Change in production capacity does as a specialty crop or listed in the Limitation for Certain Programs,
not include crop rotation from year to definition of ‘‘other crop’’ (that is, accompanied by a certification from a
year, changes in farming practices such cotton, peanuts, rice, feedstock, and any certified public accountant or attorney
as converting from conventional tillage crop grown with an intended use of as to that person or legal entity’s
to no-till, or increasing the rate of grain, silage, or forage), and it also certification, for a legal entity and all
fertilizers or chemicals. includes any eligible crop, regardless of members of that entity, for each
If a producer began farming in 2020 whether the crop is identified as a applicable program year, including the
or 2021 and did not have allowable specialty crop or listed in the definition legal entity’s members, partners, or
gross revenue in a benchmark year, the of ‘‘other crop,’’ if the crop is a direct shareholders, as provided in 7 CFR part
producer may certify to an adjusted market crop, organic crop, or a crop 1400; and
benchmark allowable gross revenue on grown for a specific market in which (7) Form AD–1026, Highly Erodible
form FSA–521 that represents what had specialized products can be sold Land Conservation (HELC) and Wetland
been the producer’s reasonably expected resulting in an increased value Conservation (WC) Certification, for the
disaster year revenue prior to the impact compared to the typical market for the ERP Phase 2 applicant and applicable
of the qualifying disaster event. If crops (for example, soybeans intended affiliates as provided in 7 CFR part 12.
requested by FSA, documentation for tofu production), as determined by If requested by FSA, the producer
required to support a producer’s the Deputy Administrator for Farm must provide additional documentation
certification must be provided within 30 Programs (Deputy Administrator). that establishes the producer’s eligibility
calendar days of FSA’s request, or the for ERP Phase 2. If supporting
producer will be considered ineligible Applying for ERP Phase 2
documentation is requested, the
for ERP Phase 2. Acceptable A completed FSA–521, Emergency documentation must be submitted to
documentation must be generated in the Relief Program (ERP) Phase 2 FSA within 30 calendar days from the
ordinary course of business and dated Application, must be submitted to any request or the application will be
prior to the impact of the disaster event FSA county office by the close of disapproved by FSA. FSA may request
and includes, but is not limited to: business on the date announced by the supporting documentation to verify
• Financial documents such as a Deputy Administrator. Applications information provided by the producer
business plan or cash flow statement may be submitted in person or by mail, and the producer’s eligibility including,
that demonstrate an expected level of email, facsimile, or other methods but not limited to, the producer’s:
revenue; announced by FSA. (1) Allowable gross revenue as
• Sales contracts or purchase Producers must also submit the reported on the ERP Phase 2
agreements; and following forms if not already on file application;
• Documentation supporting with FSA within 60 days of the ERP (2) Percentages of the expected
production capacity, use of existing Phase 2 application deadline: allowable gross revenue from specialty
production capacity, or physical (1) Form AD–2047, Customer Data and high value crops and other crops;
alterations that demonstrate production Worksheet, for new customers or and
capacity. existing customers who need to update (3) Ownership share in the
FSA is providing an optional form, their customer profile; agricultural commodities.
FSA–521A, Continuation Sheet for (2) Form FSA–521A, Continuation
Emergency Relief Program (ERP) Sheet for Emergency Relief Program ERP Phase 2 Payment Calculation
Adjusted Revenue, to help producers (ERP) Adjusted Revenue, if applicable; Although producers will be able to
calculate their adjusted benchmark (3) Form CCC–860, Socially apply for both the 2020 and 2021
revenue if they are certifying to an Disadvantaged, Limited Resource, disaster years, as applicable, on one
adjustment on FSA–521. Beginning and Veteran Farmer or form, ERP Phase 2 payments will be
In addition to providing their Rancher Certification, applicable for the calculated separately for each disaster
allowable gross revenue for the program year or years for which the year. If a producer indicates that they
benchmark and disaster years, producer is applying for ERP; 7 have expected revenue for both
producers will certify to the percentage
specialty and high value crops and other
of their expected allowable gross 6 As defined for ERP Phase 1, ‘‘specialty crops’’
crops for a disaster year, a payment will
revenue from specialty and high value means fruits, tree nuts, vegetables, culinary herbs
and spices, medicinal plants, and nursery, be calculated separately for specialty
crops and the percentage from other
floriculture, and horticulture crops. This includes
crops for the applicable disaster year on common specialty crops identified by USDA’s farmer or rancher includes the relevant date needed
their application form. This information Agricultural Marketing Service at https:// to determine for what program years the status
is used in the payment calculation to www.ams.usda.gov/services/grants/scbgp/specialty- would apply. An entity that has filed CCC–860
determine the amount applied to the crop and other crops as designated by the Deputy certifying its status as a socially disadvantaged,
Administrator for Farm Programs. beginning, or veteran farmer or rancher for a prior
separate payment limitations for
lotter on DSK11XQN23PROD with RULES2
7 An individual who has filed CCC–860 certifying program year is not required to submit a subsequent
specialty and high value crops and for their status as a socially disadvantaged, beginning, certification of its status for a later program year
all other crops, as described later in this or veteran farmer or rancher for a prior program unless the entity’s status has changed due to
document. The percentages certified year is not required to submit a subsequent CCC– changes in membership. Because a producer’s
860 certifying their status for a later program year status as a limited resource farmer or rancher may
must be equal to the percentages that because an individual’s status as socially change annually depending on the producer’s direct
the producer would have reasonably disadvantaged would not change in different years, and indirect gross farm sales, those producers must
expected for the disaster year if the and their certification as a beginning or veteran submit CCC–860 for each applicable program year.
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations 1865
and high value crops and other crops for example, if the ERP Factor is set at 50 If at least 75 percent of the producer’s
a disaster year. percent, the factor used for underserved average AGI is derived from farming,
To determine a producer’s ERP Phase producers will be 65 percent, but if the ranching, or forestry related activities
2 payment amount, FSA will calculate: factor is set at 55 percent or higher, the and the producer provides the required
(1) The ERP factor of 70 percent 8 factor for underserved producers will be certification and documentation, as
multiplied by the producer’s benchmark capped at 70 percent. An initial discussed below, the producer, other
year allowable gross revenue, adjusted payment to a producer will not be than a joint venture or general
according to 7 CFR 760.1903, if recalculated or reduced if the total partnership, is eligible to receive,
applicable, minus calculated ERP Phase 2 factored directly or indirectly, up to:
(2) The producer’s disaster year payment for that producer is less than (1) $900,000 for specialty crops and
allowable gross revenue; minus the initial payment amount. high value crops combined for:
(3) The sum of the producer’s net ERP If a producer receives additional (i) ERP Phase 1 for program year 2020
Phase 1 payments for the 2020 program assistance through CFAP or ERP Phase and ERP Phase 2 for program year 2020,
year, if the calculation is for the 2020 1 after a producer’s ERP Phase 2 combined; and
disaster year, or for the 2021 and 2022 9 payment is calculated, the producer’s (ii) ERP Phase 1 for program years
program years, if the calculation is for ERP Phase 2 payment will be 2021 and 2022 and ERP Phase 2 for
the 2021 disaster year; minus recalculated and the producer must program year 2021, combined; and
(4) The sum of the producer’s net refund any resulting overpayment. (2) $250,000 for all other crops for:
CFAP payments (excluding payments (i) ERP Phase 1 for program year 2020
for contract producer revenue), net 2020 ERP Phase 2 Payment Limitation and
Attribution and ERP Phase 2 for program year 2020,
WHIP+ payments, and net 2020 Quality combined; and
Loss Adjustment (QLA) Program As required by the Extending (ii) ERP Phase 1 for program years
payments, if the calculation is for the Government Funding and Delivering 2021 and 2022 and ERP Phase 2 for
2020 disaster year; and Emergency Assistance Act and program year 2021, combined.
(5) Multiplied by the percentage of the consistent with 7 CFR 760.1507, the The relevant tax years for establishing
expected disaster year revenue for payment limitation for ERP is a producer’s AGI and percentage
specialty and high value crops or other determined by the producer’s average derived from farming, ranching, or
crops, as applicable. adjusted gross farm income (income forestry related activities are:
ERP Phase 2 payments are subject to from activities related to farming, (1) 2016, 2017, and 2018 for program
the availability of funds. FSA will issue ranching, or forestry). Specifically, if the year 2020; and
an initial payment equal to the lesser of: producer’s average adjusted gross farm (2) 2017, 2018, and 2019 for program
• The amount calculated as described income is less than 75 percent of the year 2021.
above; or producer’s average adjusted gross To receive more than $125,000 in ERP
• A maximum initial payment of income (AGI) for the 3 taxable years payments, producers must submit form
$2,000. preceding the most immediately FSA–510, accompanied by a
If a producer has also received a preceding complete tax year, a certification from a certified public
payment under ERP Phase 1, FSA will producer, other than a joint venture or accountant or attorney as to that person
reduce the producer’s initial ERP Phase general partnership, cannot receive, or legal entity’s certified AGI. If a
2 payment amount by subtracting their directly or indirectly, more than producer requesting the increased
ERP Phase 1 gross payment amount.10 If $125,000 in payments for specialty payment limitation is a legal entity, all
total calculated payments exceed the crops and high value crops 12 and members of that entity must also
total funding available for ERP Phase 2, $125,000 in payment for all other crops complete form FSA–510 and provide
the ERP Factor may be adjusted and the under: the required certification according to
final payment amounts will be prorated (1) ERP Phase 1 for program year 2020 the direct attribution provisions in 7
to stay within the amount of available and ERP Phase 2 for program year 2020, CFR 1400.105, ‘‘Attribution of
funding. If there are insufficient funds, combined; and Payments.’’ If a legal entity would be
a differential of 15 percent will be used (2) ERP Phase 1 for program years
eligible for the increased payment
for underserved producers similar to 2021 and 2022 13 and ERP Phase 2 for
limitation based on the legal entity’s
ERP Phase 1, but with a cap at the program year 2021, combined.
average AGI derived from farming,
statutory maximum of 70 percent.11 For
ranchers (or specific groups included in that term)
ranching, or forestry related activities
8 The Extending Government Funding and in several programs, such as ECP, ELAP, and the but a member of that legal entity either
Delivering Emergency Assistance Act provides that Tree Assistance Program. FSA has also used higher does not complete a form FSA–510 and
the total amount of payments cannot exceed 70 payment factors for these producers in several provide the required certification or is
percent of the loss for producers who did not obtain recently announced programs: the Food Safety
Certification for Specialty Crops Program, the not eligible for the increased payment
federal crop insurance or NAP coverage for the crop
incurring the losses.
Organic and Transitional Education and limitation, the payment to the legal
9 For ERP Phase 1, the program year was based
Certification Program, ELRP Phase 1, and ERP entity will be reduced for the limitation
Phase 1. In addition, NAP provides a reduced
on the crop year, as defined in the applicable crop service fee and premium for underserved farmers
applicable to the share of the ERP Phase
insurance policy or NAP provisions, and 2022 was and ranchers. This approach supports the equitable 2 payment attributed to that member.
included because a qualifying disaster event administration of FSA programs, as underserved If a producer files form FSA–510 and
occurring in the 2021 calendar year may have farmers and ranchers are more likely to lack
caused a loss of a crop during the 2022 crop year. the accompanying certification after
financial reserves and access to capital that would
The program year for ERP Phase 2 is based on the allow them to cope with losses due to unexpected their ERP Phase 2 payment is issued but
disaster year (2020 or 2021) because the payment events outside of their control.
is based on a producer’s allowable gross revenue,
lotter on DSK11XQN23PROD with RULES2
12 High value crops were not defined in ERP insurance policy or NAP provisions, and 2022 was
which may include revenue from multiple crops. Phase 1; therefore, only ERP Phase 1 payments to included because a qualifying disaster event
10 If the producer’s ERP Phase 1 payment is equal
specialty crops, as defined in the ERP Phase 1 occurring in the 2021 calendar year may have
to or exceeds the producer’s initial ERP Phase 2 notice, will be counted toward the increased caused a loss of a crop during the 2022 crop year.
payment amount, the producer will not receive an payment limitation for specialty and high value The program year for ERP Phase 2 is based on the
initial ERP Phase 2 payment. crops. disaster year (2020 or 2021) because the payment
11 FSA calculates payments based on a higher 13 For ERP Phase 1, the program year was based is based on a producer’s allowable gross revenue,
payment factor for underserved farmers and on the crop year, as defined in the applicable crop which may include revenue from multiple crops.
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
1866 Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations
before the deadline announced by FSA, for the next 2 available crop years will programs, with a specific focus on
FSA will process the form FSA–510 and be determined from the date a producer strengthening outreach to underserved
issue the additional payment amount if receives an ERP payment and may vary producers and communities and small
a maximum initial payment amount has depending on the timing and and medium agricultural operations.
not been reached. availability of crop insurance or NAP for PARP, a new program administered by
A payment made to a legal entity will a producer’s particular crops. The final FSA, is part of that initiative.
be attributed to those members who crop year to purchase crop insurance or PARP will use funding authorized by
have a direct or indirect ownership NAP coverage to meet the second year the Consolidated Appropriations Act,
interest in the legal entity, unless the of coverage for this requirement is the 2021 (CAA; Pub. L. 116–260), which
payment of the legal entity has been 2026 crop year. provides funding to prevent, prepare
reduced by the proportionate ownership In situations where federal crop for, and respond to the COVID–19
interest of the member due to that insurance is unavailable for a crop, a pandemic by providing support for
member’s ineligibility. Attribution of producer must obtain NAP coverage. agricultural producers, growers, and
payments made to legal entities will be Section 1001D of the Food Security Act processors impacted by coronavirus.
tracked through four levels of of 1985 (1985 Farm Bill) provides that This rule establishes PARP to respond
ownership in legal entities as described a person or entity with an AGI greater to the COVID–19 pandemic by
in § 760.1906. than $900,000 is not eligible to providing support for eligible producers
Like other programs administered by participate in NAP; however, producers of agricultural commodities who
FSA, payments made to an Indian Tribe with an AGI greater than $900,000 are suffered an eligible revenue loss in
or Tribal organization, as defined in eligible for ERP. To reconcile this calendar year 2020 due to the COVID–
section 4(b) of the Indian Self- restriction in the 1985 Farm Bill and the 19 pandemic. PARP is intended to
Determination and Education requirement to obtain NAP or crop provide assistance to a wide variety of
Assistance Act (25 U.S.C. 5304), will not insurance coverage, a producer may agricultural producers, including those
be subject to payment limitation. meet the purchase requirement by who produced agricultural commodities
purchasing Whole-Farm Revenue that were not eligible for CFAP 1 and 2
ERP Phase 2 Miscellaneous Provisions Protection (WFRP) crop insurance (7 CFR part 9).
If an ERP Phase 2 payment resulted coverage, if eligible, or they may pay the For PARP, ‘‘producer’’ refers to a
from erroneous information provided by applicable NAP service fee despite their person or legal entity (including a
a producer, or any person acting on ineligibility for a NAP payment. In other general partnership or joint venture)
their behalf, the payment will be words, the service fee must be paid even who was in the business of farming to
recalculated and the producer must though no NAP payment may be made produce an agricultural commodity in
refund any excess payment with interest because the AGI of the person or entity calendar year 2020, and who was
calculated from the date of the exceeds the 1985 Farm Bill limitation. entitled to a share in the agricultural
disbursement of the payment. If FSA If both federal crop insurance and commodity available for marketing or
determines that the producer NAP coverage are unavailable for a crop, would have shared had the agricultural
intentionally misrepresented the producer must obtain WFRP crop commodity been produced and
information provided on the producer’s insurance coverage, if eligible. marketed. ‘‘Producer’’ also includes
application, the application will be For all crops listed on form FSA–522,
cattle feeder operations, which were not
disapproved and the producer must any producer who has the crop or crop
eligible for CFAP 1 and CFAP 2. To be
refund the full amount of any payments acreage in subsequent years and who
eligible for PARP, a producer must:
to FSA with interest from the date of fails to obtain the 2 years of crop
• Have been in the business of
disbursement. insurance or NAP coverage required as
farming during at least part of the 2020
specified in this document, must refund
ERP Phase 2 Requirement To Purchase calendar year; and
the full amount of any ERP Phase 2
Crop Insurance or NAP Coverage • Have had at least a 15 percent
payments with interest from the date of
decrease in ‘‘allowable gross revenue’’ 14
All producers who receive ERP Phase disbursement. Any producer who does
2 payments are statutorily required to for the 2020 calendar year, as compared
not plant a crop listed on form FSA–522
purchase federal crop insurance, or NAP to:
in a year for which this requirement
coverage where crop insurance is not Æ The 2018 or 2019 calendar year
applies is not subject to the crop
available, for the next 2 available crop (similar to the benchmark year for ERP
insurance or NAP purchase requirement
years (Pub. L. 117–43, 135 STAT. 357) Phase 2), reflective of a typical year, as
for the crop for that year.
as described in this section and as Producers who received an ERP Phase elected by the producer, if they received
determined by the Secretary. To identify 1 payment for a crop are not required to allowable gross revenue during the 2018
which crops suffered losses that obtain additional years of crop or 2019 calendar years; or
resulted in a revenue loss due to a insurance or NAP coverage for that crop, Æ The producer’s expected 2020
qualifying disaster event, producers to the extent the producer is already allowable gross revenue, if the producer
must complete form FSA–522, Crop complying with the requirement in had no allowable gross revenue in 2018
Insurance and/or NAP Coverage connection with an ERP Phase 1 and 2019.15
Agreement. For each of those crops, a payment, if they also receive an ERP In addition, to be eligible for PARP, a
producer must file an acreage report and Phase 2 payment for a loss associated producer must be one of the following:
obtain federal crop insurance or NAP, as with that crop. 14 ‘‘Allowable gross revenue’’ is explained later in
may be applicable: PARP this section of this document.
(1) At a coverage level equal to or
lotter on DSK11XQN23PROD with RULES2
15 PARP provides assistance to participants
greater than 60 percent for insurable Secretary Tom Vilsack announced the whose allowable gross revenue for the 2020
crops; or USDA Pandemic Assistance for calendar year was at or below 85 percent of the
(2) At the catastrophic level or higher Producers initiative on March 24, 2021. ‘‘benchmark’’ allowable gross revenue. This uses
the same maximum level of coverage available
for NAP crops. Through that initiative, USDA is under RMA’s Whole Farm Revenue Program
The timing for the requirement to reaching a broader set of producers than (WFRP), coverage that requires 15 percent or more
purchase federal crop insurance or NAP in previous COVID–19 assistance decrease in revenue to trigger a payment.
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations 1867
• A citizen of the United States; • Grants from the Department of impact of the COVID–19 pandemic and
• A resident alien, which for Commerce, National Oceanic and includes, but is not limited to, financial
purposes of this subpart means ‘‘lawful Atmospheric Administration and State documents such as a business plan or
alien’’ as defined in 7 CFR part 1400; program funds providing direct cash flow statement that demonstrates
• A partnership organized under payments for the loss of agricultural an expected level of revenue; sales
State Law; commodities or the loss of revenue from contracts or purchase agreements; and
• A corporation, limited liability agricultural commodities; documentation supporting production
company, or other organizational • Revenue from raised breeding capacity, use of existing production
structure organized under State law; livestock; capacity, or physical alterations that
• An Indian Tribe or Tribal • Revenue earned as a cattle feeder demonstrate production capacity.
organization, as defined in section 4(b) operation;
of the Indian Self-Determination and • Other revenue directly related to PARP Application Process
Education Assistance Act (25 U.S.C. the production of agricultural FSA will accept PARP applications
5304); or commodities that IRS requires the until the date announced by the Deputy
• A foreign person or foreign entity producer to report as income; and Administrator. To apply for PARP,
who meets all requirements as described • For 2020 allowable gross revenue, producers must submit a complete
in 7 CFR part 1400. payments under the Pandemic Market FSA–1122, Pandemic Assistance
For PARP, ‘‘agricultural commodity’’ Volatility Assistance Program regardless Revenue Program Application, in
means a crop, aquaculture, livestock, of the calendar year in which the person, by mail, email, facsimile, or
livestock byproduct, or other animal or payment was received. other method announced by FSA to any
animal byproduct that is produced as An optional worksheet is available to FSA county office.16 Applicants must
part of a farming operation and is assist producer’s in computing their also submit all of the following items, if
intended to be commercially marketed. revenue from the sources listed above. not previously filed with FSA:
It includes only commodities produced Producers who file or would be eligible • Form AD–2047, Customer Data
in the United States, and commodities to file a joint tax return will certify their Worksheet, for new customers or
produced outside the United States by revenue based on what their revenue
existing customers who need to update
a producer located in the United States would have been had they filed taxes
their customer profile;
separately for the applicable year.
and marketed inside the United States. • Form CCC–860, Socially
It excludes: Revenue earned as a contract producer
Disadvantaged, Limited Resource,
• Wild free-roaming animals; of an agricultural commodity is not
Beginning and Veteran Farmer or
• Horses and other animals used or included in allowable revenue for
Rancher Certification, applicable for the
intended to be used for racing or PARP.
If a producer did not have a full year 2020 program year, if the applicant is an
wagering; underserved farmer or rancher; 17
• Aquatic species that do not meet of revenue for 2018 or 2019 or
• Form CCC–901, Member
the definition of aquaculture; physically expanded their operation in
Information for Legal Entities, if
• Cannabis sativa L. and any part of 2020, the producer may certify to an
applicable;
that plant that does not meet the adjusted 2018 or 2019 allowable gross
• Form CCC–902, Farm Operating
definition of hemp; and revenue on form FSA–1122A. Producers
Plan for an individual or legal entity as
• Timber. must provide documentation to support
provided in 7 CFR part 1400;
As provided in § 9.304, allowable the adjusted amount within 30 calendar
• Form CCC–941, Average Adjusted
gross revenue for PARP includes days of submitting their PARP
Gross Income (AGI) Certification and
revenue from: application. The documentation must
Consent to Disclosure of Tax
• Sales of agricultural commodities show that the producer added
Information, for the 2020 program year
produced by the producer, including the production capacity to the farming
for the producer, including the legal
sales resulting from value added operation, increased the use of existing
entity’s members, partners,
through post-production activities (for production capacity, or made physical
shareholders, heirs, or beneficiaries as
example, sales of jam from the alterations to existing production
provided in 7 CFR part 1400;
processing of strawberries); capacity that would have resulted in
• Form FSA–1123, Certification of
• Sales of agricultural commodities a increased revenue in 2020. Increases in
2020 Adjusted Gross Income, if
producer purchased for resale, less the production capacity do not include crop
applicable;
cost or other basis of such commodities; rotation from year to year, changes in
• Form FSA–1122A, Pandemic
• The taxable amount of cooperative farming practices such as converting
Assistance Revenue Program (PARP)
distributions directly related to the sale from conventional tillage to no-till, or
Application, if applicable;
of the agricultural commodities increasing the rate of fertilizers or
• Form AD–1026, Highly Erodible
produced by the producer; chemicals.
Land Conservation (HELC) and Wetland
• Benefits under certain federal If a producer did not have allowable
Conservation (WC) Certification, for the
agricultural programs and disaster gross revenue in 2018 and 2019 but was
programs (excluding conservation in the business of farming in 2020, the 16 The FSA county office locator can be found
programs, CFAP 1 and 2, 2020 program producer must certify on form FSA– through the ‘‘Find Your Local Service Center’’
year ERP, the Pandemic Livestock 1122A as to what had been their section on: https://www.farmers.gov/.
Indemnity Program (PLIP), and the Spot reasonably expected 2020 allowable 17 For PARP, socially disadvantaged groups
Market Hog Pandemic Program gross revenue prior to the impact of the include the following: American Indians or Alaskan
Natives, Asians or Asian-Americans, Blacks or
(SMHPP)); COVID–19 pandemic. Producers must
lotter on DSK11XQN23PROD with RULES2
African Americans, Hispanics or Hispanic
• CCC loans, if treated as income and provide documentation to support their Americans, Native Hawaiians or other Pacific
reported to IRS; expected 2020 allowable gross revenue Islanders, and women. Form CCC–860 is not
• Crop insurance proceeds; within 30 days of submitting their PARP required for underserved farmers and ranchers to
receive a payment; however, failure to submit form
• Payments issued through grant application. Acceptable documentation CCC–860 will result in an producer’s payment
agreements with FSA for losses of must be generated in the ordinary being calculated using a lower payment factor.
agricultural commodities; course of business and dated prior to the Also, see footnote 7.
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
1868 Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations
PARP applicant and applicable affiliates SMHPP. If a producer receives using the average of the adjusted gross
as provided in 7 CFR part 12. assistance through any of those incomes for the 2016, 2017, and 2018
The required eligibility forms programs after their PARP payment is tax years, is more than $900,000, unless
specified above must be submitted no calculated, their PARP payment will be the producer’s AGI for 2020 is $900,000
later than 60 days from the PARP recalculated and the producer must or less. To be eligible for payment, a
application deadline. When the refund any resulting overpayment to producer whose average AGI for 2016,
producer does not timely submit the FSA. 2017, and 2018 exceeds $900,000 but
required eligibility forms, or when a If a producer was in the business of whose 2020 AGI is $900,000 or less
member of a legal entity who is required farming in 2020 but did not have must submit form FSA–1123 and
to submit AD–1026 has not done so, allowable gross revenue in 2018 and provide a certification from a licensed
FSA will not issue a payment to the 2019, then the payment calculation will CPA or attorney affirming the
producer. When any other required be equal to the producer’s expected producer’s 2020 AGI is not more than
eligibility forms are not timely 2020 allowable gross revenue minus the $900,000. With respect to joint ventures
submitted for a member of a legal entity, producer’s actual 2020 allowable gross and general partnerships, this AGI
FSA will reduce the payment based on revenue, multiplied by a payment factor provision will be applied to each
that member’s ownership share of the of 90 percent for underserved farmers member of the joint venture and general
legal entity. and ranchers who have filed the form partnership.
In addition, producers must provide CCC–860, or 80 percent for all other To be eligible for payment and
documentation within 30 calendar days producers. As described above, the facilitate administration of payment
of submitting the FSA–1122, if PARP payment will be equal to the limitation, payment attribution, AGI,
applicable, to verify: result of that calculation minus any and rules applicable to foreign persons,
• The producer’s certified expected assistance received by the producer producers that are a legal entity must
2020 allowable gross revenue; and under CFAP 1 and 2 (not including any provide the names, addresses, valid
• The physical expansion of a CFAP 2 payments for contract producer taxpayer identification numbers, and
producer’s operation in 2020. revenue), 2020 program year ERP, PLIP, ownership share of each person or each
If requested by FSA, the producer and SMHPP, and the PARP payment legal entity that holds or acquires a
must provide additional documentation will be recalculated if the producer direct or indirect ownership interest in
that establishes the producer’s eligibility receives additional payments under the legal entity. Payments to a legal
for PARP. If any supporting those programs. Those producers must entity will be reduced in proportion to
documentation is requested, the provide documentation to support their a member’s ownership share in cases
documentation must be submitted to certification of their expected 2020 where a person or legal entity holds less
FSA within 30 days from the request or allowable gross revenue within 30 days than a 10 percent direct or indirect
the application will be disapproved by of submitting their PARP application or ownership interest and fails to provide
FSA. they will be ineligible for payment. a taxpayer identification number to
PARP Payment Calculation PARP payments will be issued after USDA.
the application period ends. PARP
The PARP payment calculation is payments are subject to the availability PARP General Requirements
based on the difference in a producer’s of funds and may be factored if total General requirements that apply to
revenue compared to a prior calculated payments exceed the other FSA-administered commodity
‘‘benchmark’’ year. Producers who had available funding. PARP payments are programs also apply to PARP, including
allowable gross revenue in 2018 or 2019 not subject to offset. compliance with the provisions of 7
will elect which of those years is most CFR part 12, ‘‘Highly Erodible Land and
reflective of a typical year to use as a PARP Payment Limitation, Average
Wetland Conservation.’’
benchmark for the purposes of AGI Limitation, and Attribution The regulations in 7 CFR part 1400,
calculating a PARP payment. FSA will PARP payments are subject to a per subpart E, are applicable to foreign
determine the result of the producer’s person or legal entity payment persons and legal entities containing
2018 or 2019 allowable gross revenue, limitation of $125,000. USDA may members, stockholders, or partners who
minus the producer’s 2020 allowable establish a lower maximum payment are not U.S. citizens or resident aliens
gross revenue, multiplied by a payment amount per person, legal entity, or that own more than 10 percent of the
factor. The adjusted 2018 or 2019 member of a joint venture or general legal entity. In order for a foreign person
allowable gross revenue, as described partnership after the application period to receive a PARP payment, the person
above, will be used for producers who has ended if calculated payment must provide land, capital, and a
did not have a full year of revenue for amounts exceed available funding. substantial amount of active personal
2019 or increased their operation size in Similar to the manner in which labor to the farming operation, as
2020. The payment factor will be 90 payment limitations are applied in the required by § 1400.401(a), and comply
percent for underserved farmers and major commodity and disaster with the other requirements of subpart
ranchers who have filed CCC–860 assistance programs administered by E.
certifying their status for the 2020 FSA, payments will be attributed to an Additionally, United States Federal,
program year.18 The payment rate for all individual through the direct attribution State, and local governments (including
other producers will be 80 percent. The process used in those programs. The public schools) are not eligible for PARP
PARP payment will be equal to the total payment amount of PARP payments.
result of that calculation minus any payments attributed to an individual Appeal regulations specified in 7 CFR
2020 program year ERP payments and will be determined by taking into parts 11 and 780 and equitable relief
lotter on DSK11XQN23PROD with RULES2
pandemic assistance received by the account the direct and indirect and finality provisions in 7 CFR part
producer under CFAP 1 and 2 (not ownership interests of the individual in 718, subpart D, apply to determinations
including any CFAP 2 payments for all legal entities participating in PARP. under PARP. The determination of
contract producer revenue), PLIP, and A producer, other than a joint venture matters of general applicability that are
or general partnership, is ineligible for not in response to, or result from, an
18 See footnotes 7 and 11. payments if the producer’s average AGI, individual set of facts in an individual
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations 1869
producer’s application for payment are provisions for contract producers, and hog producers, FSA implemented the
not matters that can be appealed. Such allowed producers of sales-based Spot Market Hog Pandemic Program
matters of general applicability include, commodities to use 2018 sales for their (SMHPP), which provided targeted
but are not limited to, eligibility criteria, payment calculation. assistance to producers who sold hogs
the payment calculation, and payment FSA is issuing an additional CFAP 2 through a spot market sale from April
rates. payment to underserved farmers and 16, 2020, through September 1, 2020,
In the event that any application for ranchers.19 These payments will be the period in which those producers
a PARP payment resulted from issued under the same authority as the faced the greatest reduction in market
erroneous information reported by the producers’ previous CFAP 2 payments, prices due to the COVID–19 pandemic.
producer, the payment will be using CCC funds as authorized by Producers of hogs and pigs may also be
recalculated, and the producer must sections 5(b), (d), and (e) of the CCC eligible for PARP as previously
refund any excess payment to USDA, Charter Act (15 U.S.C. 714c(b), (d), and discussed in this rule if they suffered an
including interest to be calculated from (e)), except for payments for tobacco eligible revenue loss in 2020.
the date of the disbursement to the which will use remaining funds FSA previously implemented
producer. If FSA determines that the authorized by the CARES Act. As mandatory provisions of CAA that
producer intentionally misrepresented provided in § 9.203(p), the additional provide additional assistance for
information provided on their payment will be equal to 15 percent of producers of cattle, price trigger crops,
application, the application will be a producer’s previous CFAP 2 payment, and flat-rate crops. Cattle payments are
disapproved and the producer must subject to CFAP 2 payment limitation based on inventory owned between
refund the full payment to FSA with provisions in § 9.7.20 Contract producers April 16, 2020, to May 14, 2020, based
interest from the date of disbursement. are not eligible for this additional on a producer’s previously filed CFAP
Any required refunds must be resolved payment because CFAP 2 payments to 1 application, multiplied by the
in accordance with debt settlement contract producers were authorized and following payment rates per head:
regulations in 7 CFR part 3. funded through the CAA, which $14.75 for slaughter cattle—mature
specified that those payments could cattle, $63 for slaughter cattle—fed
CFAP
‘‘cover not more than 80 percent of cattle, $7 for feeder cattle less than 600
USDA established CFAP to assist revenue losses.’’ Previous CFAP 2 pounds, $25.50 for feeder cattle 600
producers of agricultural commodities payments to contract producers were pounds or more, and $17.25 for all other
marketed in 2020 who faced continuing already calculated to have covered 80 cattle. Payments for flat-rate and price-
market disruptions, reduced farm-level percent of contract producers’ revenue trigger crops, as defined in § 9.201, are
prices, and increased production and losses. equal to the eligible acres of the crop
marketing costs due to COVID–19 under As specified in § 9.4(e), CCC–860, included on a producer’s CFAP 2
authority provided by the Coronavirus Socially Disadvantaged, Limited application, multiplied by a payment
Aid, Relief, and Economic Security Act Resource, Beginning and Veteran rate of $20 per eligible acre. This rule
(CARES Act; Pub. L. 116–136) and Farmer or Rancher Certification, must amends the payment calculations for
sections 5(b), (d), and (e) of the CCC be on file with FSA with a certification cattle in § 9.102(c), price trigger crops in
Charter Act (15 U.S.C. 714c(b), (d), and applicable for the 2020 program year to § 9.203(a), and flat-rate crops in
(e)). USDA implemented CFAP through receive the additional payment.21 § 9.203(b) for consistency with CAA to
two rounds of payments (CFAP 1 and Producers who have not previously reflect these additional payments. FSA
CFAP 2), administered by FSA. CFAP 1 certified to their status for the 2020 already issued these payments and
was implemented through a final rule program year may submit CCC–860 producers were not required to take any
published in the Federal Register on until the date announced by the Deputy additional action to qualify. These
May 21, 2020 (85 FR 30825–30835), Administrator to be eligible for the payments were subject to existing CFAP
with corrections published in the additional payment. payment limitations and eligibility
Federal Register on June 12, 2020 (85 The final rule published on January requirements.
FR 35799–35800), July 10, 2020 (85 FR 19, 2021, included a provision for an This rule amends the general CFAP
41328–41330), August 14, 2020 (85 FR additional CFAP 1 payment for hog and provisions to clarify how FSA will
49593–49594), and September 21, 2020 pig inventory owned between April 16, handle applications when the taxpayer
(85 FR 59174–59175), and documents 2020, and May 14, 2020, based on a rate identification number for a person or
published in the Federal Register on of $17 per head. USDA suspended legal entity that holds a direct or
May 22, 2020 (85 FR 31062–31065), implementation of that provision and, indirect ownership interest in a
June 12, 2020 (85 FR 35812), July 10, after further review, USDA has business structure is not provided to
2020 (85 FR 41321–41323), and August determined that it will not issue the USDA. To receive a CFAP payment, a
14, 2020 (85 FR 49589–49593). USDA additional CFAP 1 payment for hog and person or legal entity must provide their
implemented CFAP 2 through a final pig inventory. To provide assistance to name, address, and taxpayer
rule published in the Federal Register identification number to USDA. In
on September 22, 2020 (85 FR 59380– 19 See footnote 11.
addition, consistent with most other
59388). USDA also published a final 20 This additional CFAP payment is similar to
FSA programs, a legal entity must
rule in the Federal Register on January FSA’s administration of ELRP Phase 1 and ERP
Phase 1, which provided a 15 percent increase for
provide the name, taxpayer
19, 2021 (86 FR 4877–4883), to provide payments to underserved producers and Congress identification number, address and
additional assistance for certain has directed for underserved producers in some ownership share of each person or legal
commodities under CFAP 1 and CFAP permanent disaster programs a 15 percent higher entity that holds or acquires a direct or
payment rate (Emergency Livestock Assistance
2, but suspended implementation of that indirect ownership interest in the legal
lotter on DSK11XQN23PROD with RULES2
Program or Emergency Conservation Program).
rule on January 20, 2021, to allow Consistent with those programs, 15 percent has entity; however, the previous CFAP
further evaluation of the assistance been determined as the increased rate for rules did not specify how the failure to
offered through CFAP. A final rule underserved producers. provide such information would affect
21 See footnote 7 for an explanation of how long
published on August 27, 2021 (86 FR an underserved producer’s certification remains
the producer’s payment eligibility.
48013–48018), revised the CFAP 2 valid and the requirement to file CCC–860 in Previously, FSA had implemented this
application deadline, amended subsequent years. requirement by determining that the
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
1870 Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations
producer was ineligible for payment. which allowed payments as specified in 7 CFR 701.126, 701.127, and 701.226 to
Rather than determining the producer the FSA Handbook 1–ECP.22 authorize the Secretary to waive the
ineligible for payment, in cases where a This rule also corrects a typographical maximum limitations to the maximum
person or legal entity holding less than error in a section number to redesignate extent otherwise allowed by law.
10 percent direct or indirect ownership § 718.128 to be § 701.128. Prior to this
Supplemental Agricultural Disaster
interest does not submit a taxpayer rule, the ECP regulation authorized
Assistance Programs
identification number, FSA will reduce advance payment only for fence repair
the producer’s payment in proportion to or replacement. This rule further This rule makes discretionary changes
a member’s ownership share when the amends § 701.128 to allow advance to ELAP, LFP, and LIP to amend what
taxpayer identification number for a payments for all ECP practices. is considered eligible livestock.
person or legal entity that holds a direct Consistent with the authorization for Previously, livestock that were
or indirect ownership interest of less fence repair or replacement, ECP will maintained for pleasure, roping, pets, or
than 10 percent at, or above, the fourth provide advance payments of up to 25 show were ineligible under ELAP, LFP,
level of ownership in the business percent of the cost for all ECP practices and LIP. This rule removes those
structure is not provided to USDA as before the restoration is carried out. In restrictions in §§ 1416.104, 1416.204,
provided in § 9.7(i). Additionally, a the event this cost share assistance is and 1416.304 because FSA recognizes
legal entity will not be eligible to not spent within 60 calendar days of that animals maintained in a
receive payment when a valid taxpayer being issued, the participant will be commercial operation for those
identification number for a person or required to refund the advance cost- purposes have value and could be
legal entity that holds a direct or share payment. To reflect these changes, available for marketing from the farm. In
indirect ownership interest of 10 we are revising the section heading of addition, FSA is clarifying that horses
percent or greater at, or above the fourth § 701.128 to ‘‘Advance Payment.’’ and other animals used or intended to
level of ownership in the business Additionally, this rule clarifies the be used for racing or wagering are
structure is not provided to USDA as duplicate benefits provisions in considered ineligible livestock for
provided in § 9.7(i). USDA is making § 701.111. The language was modified to ELAP, LFP, and LIP.
further define parameters surrounding This rule also amends §§ 1416.104
this change because many farm
restoration activities being performed on and 1416.204 to remove the restriction
operations suffered sales losses and had
the same piece of land. This will ensure on ostrich eligibility for LFP and ELAP.
increased marketing costs in 2020 due
that other Federal program-related FSA is making this change because
to the COVID–19 pandemic, and the
benefits do not cover the same or similar ostriches satisfy more than 50 percent of
ability to receive a partial CFAP
expenses so as to create duplicative their net energy requirement through
payment will assist those operations in
payments on the same piece of land and the consumption of growing forage
managing those losses and costs. USDA
that any other Federal cost-share grasses and legumes; therefore, they are
is not reopening the CFAP application
payments would not result in paying considered ‘‘grazing animals,’’ as
period; this change only affects how
more than is authorized for ECP. defined in §§ 1416.102 and 1416.202,
FSA will process CFAP applications
This rule also makes minor technical for the purpose of LFP and ELAP. This
currently on file.
amendments to the existing ECP and change is effective for the 2022 program
This rule also updates references year for both LFP and ELAP. ELAP
throughout 7 CFR part 9, subparts A EFRP regulations. Specifically, this rule:
through C, to refer specifically to those • Adds the definition of ‘‘Socially requires a notice of loss to be filed
disadvantaged farmer or rancher’’ and, within 30 days of when the loss is first
subparts rather than part 9 due to the apparent. Because that deadline may
addition of subpart D for PARP. within that definition, defines ‘‘Socially
disadvantaged group’’ in § 701.2 to be have passed for producers’ 2022 losses
ECP, EFRP, and BCAP consistent with the definition (7 U.S.C. related to ostriches that occurred prior
2279(a)) used in its authorizing to publication of this rule, FSA is
The Agricultural Credit Act of 1978
legislation instead of defaulting to using extending the deadline for those notices
(16 U.S.C. 2201), amended by section
the definition in § 718.2 and makes the of loss through February 10, 2023.
2403 of the Agriculture Improvement This rule removes and reserves
Act of 2018 (Pub. L. 115–334), same technical correction in § 1450.2 for
the BCAP regulation; § 1416.5, which provides policy related
authorizes ECP, and generally
authorizes payments to farmers and • Removes outdated provisions, to equitable relief determinations under
specifically removing: 7 CFR 701.44, ELAP, LFP, LIP, and the Tree Assistance
ranchers to rehabilitate farmland Program (TAP). These programs are
damaged by certain natural disasters 701.45, and 701.150 through 701.157;
• Adds the definition for already subject to the general equitable
and to implement emergency water relief provisions in 7 CFR part 718,
‘‘Forestland,’’ removes the definition of
conservation measures in periods of subpart C; therefore, the provisions in
‘‘Commercial forestland,’’ and corrects
severe drought. The ECP regulations are § 1416.5 are unnecessary. Equitable
the definition of ‘‘Non-industrial private
in 7 CFR part 701, subpart B. relief for these programs will be
forestland’’ to remove the words
Prior to this rule, land owned or administered in a manner that is
‘‘commercial forest’’ in § 701.102.
controlled by the United States or • Recognizes Public Law 117–180, consistent with other FSA programs to
States, including State agencies or other the Continuing Appropriations and which part 718 applies. This rule also
political subdivisions, was specified in Ukraine Supplemental Appropriations makes minor clarifications and
the regulation as ineligible for cost Act, 2023, Division G, section technical corrections to the definition of
share. This rule amends the general ECP 104(k)(3)(A) authorizing 100 percent ‘‘eligible loss condition’’ in § 1416.102
provision at § 701.105 to allow Federal assistance for the cost of and to §§ 1416.103(a), 1416.103(d)(6),
lotter on DSK11XQN23PROD with RULES2
eligibility of that land under certain damages to producers associated with 1416.304(c)(3), 1416.305(g), and
conditions. The intent of this change is the ‘‘Hermit’s Peak/Calf Canyon’’ Fire. 1416.305(i).
to allow producers who lease Federal This rule is amending the regulations in
and State land the opportunity to NAP
participate in ECP. This is consistent 22 See https://www.fsa.usda.gov/internet/FSA_ FSA is amending the NAP regulations
with the previous operational policy, File/1-ecp_r06_a01.pdf. to update provisions related to
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations 1871
applications for coverage. This rule information is provided for some, but share of each person; or (2) the name,
updates the definition of ‘‘application not all members, may adversely impact address, valid taxpayer identification
for coverage’’ and 7 CFR 1437.7(a) to a farm operation’s sustainability during number, and ownership share of each
reflect that the application for coverage times when farm program payments legal entity, that holds or acquires an
may be filed in any FSA county office, may be a large portion of the farm’s ownership interest in the legal entity.
rather than only in the producer’s income. FSA recognizes that names, For programs administered by FSA
administrative county. The definition of addresses, valid taxpayer identification that are subject to the provisions of
‘‘application for coverage’’ is also numbers, and ownership shares are § 1400.107, this change will be effective
amended to provide flexibility as FSA important elements necessary to for the current and subsequent program
reviews ways to streamline the facilitate administration of FSA’s rules years. FSA is also making this change
application process for underserved for payment eligibility and establishing retroactive to the 2020 program year,
farmers and ranchers who are eligible maximum payment limitations for each subject to funding availability, because
for catastrophic coverage without program. However, if a valid taxpayer many farm operations suffered income
paying a service fee. identification number is not provided losses in 2020 due to the COVID–19
Following the change to the for a member of a legal entity, FSA is pandemic, and the ability to receive a
regulation, FSA intends to designate the still able to make applicable partial payment under the applicable
CCC–860 to be an application for determinations of eligibility and programs will assist those operations in
catastrophic coverage for NAP if filed establish a maximum payment managing those losses. FSA is not
before the deadline for application for limitation for the legal entity and its reopening sign up periods for programs
the coverage period. The catastrophic other members. with payments that could be affected by
coverage for underserved producers, With this rule change, for programs this change; it will only affect the way
once in effect, will be treated as administered by FSA, FSA will reduce payments are processed for legal entities
continuous coverage for all eligible the payment to a legal entity in that previously filed applications.
crops as long as the producer’s proportion to a member’s ownership Because the notification of interest
certification is valid.23 Once the share in cases where a person or legal provisions are general provisions that
applicable status expires, a producer entity holding less than a 10 percent are applicable to part 1400, subparts B,
will need to apply for NAP coverage by direct or indirect ownership interest C, E, and F, FSA is also moving the
the deadline and pay the applicable fails to provide a valid taxpayer notification of interest requirement from
service fee. Many underserved identification number, instead of § 1400.107 in subpart B, Payment
producers have previously filed a prohibiting any payment to the legal Limitation, to § 1400.10 in subpart A,
certification of their underserved status entity. Additionally, a legal entity will General Provisions.
with FSA, and those producers will be not be eligible to receive payment when
a valid taxpayer identification number Notice and Comment and Effective Date
considered as having timely applied for
catastrophic coverage for the 2022 crop for a person or legal entity that holds a The Administrative Procedure Act
year if the certification was filed before direct or indirect ownership interest of (APA, 5 U.S.C. 553(a)(2)) provides that
the deadline for application for the NAP 10 percent or greater, at or above the the notice and comment and 30-day
coverage period. fourth level of ownership in the delay in the effective date provisions do
As provided in 7 CFR 1437.2(e), the business structure, is not provided to not apply when the rule involves
USDA. This change will allow the legal specified actions, including matters
Deputy Administrator may authorize
entity to earn a partial payment based relating to benefits or contracts. This
State and county committees to waive or
on the ownership shares of the members rule governs pandemic assistance and
modify deadlines in cases where
whose valid taxpayer identification disaster assistance payments to certain
lateness or failure to meet such other
numbers are submitted in cases where a commodity producers and therefore
requirements does not adversely affect
member or members holding less than a falls within the benefits exemption for
the operation of NAP; therefore, FSA is
10 percent interest do not submit a valid ERP, PARP, ECP, BCAP, and the disaster
amending 7 CFR 1437.6(a) to remove an
taxpayer identification number. assistance programs.
unnecessary provision related to NRCS has determined that such As specified in 7 U.S.C. 9091, the
applications filed after the deadline. change in the notification requirements regulations to implement the ELAP, LIP,
This rule also makes minor is not appropriate for the programs it LFP, and NAP are:
clarifications in 7 CFR 1437.7. administers. Unlike the intended • Exempt from the notice and
Payment Eligibility purposes of FSA program payments, comment provisions of 5 U.S.C. 553,
NRCS conservation program payments and
Notification of interest requirements are not intended to provide economic • Exempt from the Paperwork
in § 1400.107 provide that an entity is support, including in times of disaster, Reduction Act (44 U.S.C. chapter 35).
ineligible for any payment under any to keep operations economically viable. As specified in 16 U.S.C. 3648, the
program listed in § 1400.1, including Rather, they are payments made to regulations to implement EFRP are
certain programs administered by the reimburse a participant for costs exempt from the Paperwork Reduction
Natural Resources Conservation Service incurred by a participant to voluntarily Act (44 U.S.C. chapter 35).
(NRCS), when the names and taxpayer implement conservation practices and This rule is exempt from the
identification numbers for members activities or payments made for the regulatory analysis requirements of the
holding an ownership interest in the conveyance of a conservation easement. Regulatory Flexibility Act (5 U.S.C.
legal entity are not provided to FSA. Therefore, for the programs NRCS 601–612), as amended by the Small
FSA has determined for the programs administers, the participant is ineligible Business Regulatory Enforcement
lotter on DSK11XQN23PROD with RULES2
that it administers that prohibiting to receive any payment specified in Fairness Act of 1996 (SBREFA). The
payments to a legal entity when member § 1400.1(a)(7) or as NRCS provides in requirements for the regulatory
23 See footnote 7 for an explanation of how long
individual program regulations if the flexibility analysis in 5 U.S.C. 603 and
an underserved producer’s certification remains
participant fails to provide: (1) the 604 are specifically tied to the
valid and the requirement to file CCC–860 in name, address, valid taxpayer requirement for a proposed rule by
subsequent years. identification number, and ownership section 553 or any other law; in
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
1872 Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations
addition, the definition of rule in 5 Emergency Assistance Act (Pub. L. 117– an owner, lessee, or contract grower,
U.S.C. 601 is tied to the publication of 43), which provided $10 billion for were ineligible for ELAP, LFP, and LIP.
a proposed rule. expenses related to losses of crops This rule removes those restrictions.
The Office of Management and Budget (including milk, on-farm stored Estimated net outlays (accounting for
(OMB) designated this rule as major commodities, crops prevented from AGI considerations, payment limits, and
under the Congressional Review Act planting in 2020 and 2021, and other reductions) are $17.7 million
(CRA), as defined by 5 U.S.C. 804(2). harvested adulterated wine grapes), annually.
Section 808 of the CRA allows an trees, bushes, and vines, as a • Flexibility in Non-Insured Crop
agency to make a major regulation consequence of droughts, wildfires, Disaster Assistance Program (NAP)
effective immediately if the agency finds hurricanes, and other events occurring Enrollment for Underserved
there is good cause to do so. The in calendar years 2020 and 2021. Producers—FSA is updating NAP
beneficiaries of this rule have been Targeted outlays for ERP Phase 2 are provisions regarding program
significantly impacted by the COVID–19 $1.2 billion; a pro-rate in payments is flexibilities for underserved producers.
outbreak and disaster events, which has likely as gross outlays are projected at For example, the ‘‘application of
resulted in significant declines in $1.5 billion (see Table 1). coverage’’ is amended to provide
demand and market disruptions. USDA Two programs—including a new flexibility as FSA reviews ways to
finds that notice and public procedure pandemic assistance program and streamline the application process for
are contrary to the public interest. additional assistance for underserved underserved farmers and ranchers. Net
Therefore, even though this rule is a producers—address COVID–19 losses. outlays are estimated at $4.3 million
major rule for purposes of the Prior rules associated with the COVID– annually (identical to the gross outlay
Congressional Review Act, USDA is not 19 pandemic, CFAP 1, CFAP 2, and estimate).
required to delay the effective date for CFAP 2: Producers of Sales-Based • Notification of Interest Changes—
60 days from the date of publication to Commodities and Contract Producers, Prior to this rule, a legal entity was
allow for Congressional review. assisted producers of agricultural ineligible for farm programs when the
Accordingly, this rule is effective upon commodities marketed in 2020 who names and valid taxpayer identification
publication in the Federal Register. faced continuing market disruptions, numbers for all members holding an
reduced farm-level prices, and increased ownership interest in the entity were
Executive Orders 12866 and 13563 production and marketing costs due to not provided to USDA. Now, a legal
Executive Order 12866, ‘‘Regulatory COVID–19. The additional costs are entity can receive a partial payment in
Planning and Review,’’ and Executive associated with declines in demand, cases where a person or legal entity
Order 13563, ‘‘Improving Regulation surplus production, or disruptions to holding less than a 10 percent direct or
and Regulatory Review,’’ direct agencies shipping patterns and marketing indirect ownership interest fails to
to assess all costs and benefits of channels. provide a taxpayer identification
available regulatory alternatives and, if In implementing the pandemic related number. Net outlays are estimated at
regulation is necessary, to select programs, USDA determined that $3.7 million annually.
regulatory approaches that maximize additional assistance was necessary: • ECP Expansion to Public Lands
net benefits (including potential • PARP will assist producers with (that is, Federally- and State-owned
economic, environmental, public health revenue loss resulting from the COVID– Land)—ECP provides payments to
and safety effects, distributive impacts, 19 pandemic for eligible agricultural farmers and ranchers to rehabilitate
and equity). Executive Order 13563 commodities. Payments will be made on farmland damaged by certain natural
emphasized the importance of a whole farm basis and not on a disasters and to implement emergency
quantifying both costs and benefits, of commodity-by-commodity basis. The water conservation measures in periods
reducing costs, of harmonizing rules, aggregate allocation for PARP is targeted of severe drought. ECP eligibility on
and of promoting flexibility. The at $250 million; a pro-rate in payments public lands has not been included in
requirements in Executive Orders 12866 is likely as gross outlays are projected at the regulation until now. ECP coverage
and 13563 for the analysis of costs and $2.7 billion (Table 1). of public lands has been FSA policy, as
benefits apply to rules that are • CFAP 2 recipients who are specified in the FSA handbook, for
determined to be significant. underserved (beginning, limited many years, however, and FSA staff in
The Office of Management and Budget resource, socially disadvantaged, and the field have provided ECP assistance
(OMB) designated this rule as veteran farmers and ranchers), to both public and private lands since
economically significant under excluding contract producers, will at least the 1990s. As a result, no
Executive Order 12866 and therefore, receive a 15-percent top-up payment. increase in net outlays is expected.
OMB has reviewed this rule. The costs Net outlays are estimated at $325 • ECP and EFRP and the Hermit’s
and benefits of this rule are summarized million (Table 1). As few underserved Peak/Calf Canyon Fire—Section
below. The full cost benefit analysis is producers are likely to have AGI issues 104(3)(A) of the Continuing
available on regulations.gov. or reach the payment limit, gross and Appropriations and Ukraine
net outlays are assumed to be identical. Supplemental Appropriations Act, 2023
Cost Benefit Analysis Summary The other changes relate to existing authorizes the Federal government to
The cost-benefit analysis covers the FSA programs or requirements: pay 100 percent of the ECP and
unrelated programs or program changes, • Expanded Eligibility of Animals in Emergency Forest Restoration Program
which are included in this rule, that Livestock Disaster Programs—This rule (EFRP) cost for damage associated with
largely address pandemic assistance or makes discretionary changes to ELAP, the Hermit’s Peak/Calf Canyon Fire.
natural disaster assistance. LFP, and LIP to amend the definition of This fire burned over 340,000 acres from
lotter on DSK11XQN23PROD with RULES2
The accompanying rule announces eligible livestock. Previously, animals April 2022 to June 2022 and was the
Phase 2 of the Emergency Relief that contributed to the commercial largest wildfire in recorded history in
Program (ERP), which addresses eligible viability of an operation and were New Mexico. The cost-share rate for
crop losses not included in ERP Phase maintained for the purposes of pleasure, both ECP and EFRP, prior to this
1. ERP is authorized in the Extending roping, hunting, pets, or show, as well legislation, was generally 75 percent
Government Funding and Delivering as animals intended for consumption by regardless of location. The legislation
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations 1873
applies only to the locale of the Hermit’s as well as the targeted caps on ERP paperwork to participate in these
Peak/Calf Canyon Fire. The expected Phase 2 and PARP spending, net outlays programs, and the associated
net cost is $22.5 million for FY 2023. are estimated at $1.8 billion. ERP Phase administrative costs are estimated at
Gross outlays for these items are 2 accounts for about two-thirds of $18.4 million. Note that ERP Phase 2,
estimated at $4.5 billion (see Table 1). expected total net outlays. PARP, and the Hermit’s Peak/Calf’s
After taking into account AGI FSA will administer all programs in Canyon ECP/EFRP fire item use
considerations and payment limitations, Table 1. Producers must fill out exclusively appropriated funds.
TABLE 1—ESTIMATED GROSS AND NET OUTLAYS FOR THE PANDEMIC ASSISTANCE AND AGRICULTURAL DISASTER
ASSISTANCE PROGRAMS RULE FOR FY 2023
Gross estimated Net estimated Implementing
Item Funding source
outlays in 2023 outlays agency
Item 1—Emergency Relief Program $1.504 billion a ...... $1.2 billion ............ FSA ....................... Extending Government Funding and
(ERP) Phase 2. Delivering Emergency Assistance
Act.
Item 2—PARP ...................................... $2.662 billion b ...... 250 million ............ FSA ....................... CAA.
Item 3—15 Percent Top-Up for Under- 325 million ............ 325 million ............ FSA ....................... CCC net transfer except for the to-
served Recipients of CFAP 2 Pay- bacco portion, which is from the
ments. CARES Act.
Item 4—Recreational Animals and 19.5 million ........... 17.7 million ........... FSA ....................... CCC.
Livestock Disaster Programs.
Item 5—Flexibility in NAP Enrollment 4.3 million ............. 4.3 million ............. FSA ....................... CCC.
for Underserved Producers d.
Item 6—Notification of Interest 3.7 million ............. 3.7 million ............. FSA ....................... CCC.
Changes.
Item 7—ECP and Public Lands ............ No change in cost No change in cost FSA ....................... CCC.
Item 8—ECP and EFRP and the Her- 24.2 million ........... 22.5 million ........... FSA ....................... Continuing Appropriations and
mit’s Peak/Calf’s Canyon Fire c. Ukraine Supplemental Appropria-
tions Act, 2023.
Total ............................................... 4.54 billion ............ 1.82 billion ............
a This estimate uses the 50-percent loss scenario. Note that both 2020 and 2021 losses are expected to be paid in FY 2023. The significant
difference between gross and net outlays is because the targeted amount for ERP Phase 2 spending is $1.2 billion.
b This estimate represents the most plausible scenario but, as discussed below, gross estimated outlays could be considerably higher. Note
that the significant difference between gross and net outlays is because the targeted amount for PARP spending is $250 million.
c The difference between the gross and net amount is due to adjusted gross income (AGI) considerations, payment limitations, and other re-
ductions.
d This estimate uses the 20 percent increase-in-participation scenario.
Note: Benefits associated with items 4 through 7 continue in FY 2023 and in perpetuity in each FY beyond. Payments associated with Items 1,
2, 3, and 8 are assumed to be paid in FY 2023 and to not continue beyond.
Environmental Review any expectation of what a new USDA environmental impacts resulting from
program might look like. implementing the mandatory changes to
The environmental impacts of this This rule includes discretionary those programs. Accordingly, these
final rule have been considered in a amendments for ECP and EFRP. discretionary aspects are coved by the
manner consistent with the provisions Accordingly, the discretionary following Categorical Exclusion: in 7
of the National Environmental Policy provisions of this action are covered by CFR 799.31(b)(6)(vi) safety net programs
Act (NEPA, 42 U.S.C. 4321–4347), the the Categorical Exclusion, in 7 CFR administrated by FSA. ERP Phase 2 is a
regulations of the Council on 799.31(b)(2)(iii) for minor amendments new regulation, which is a benefit
Environmental Quality (40 CFR parts or revisions to previously approved program providing assistance after
1500–1508), and because USDA will be actions and § 799.31(b)(3)(i), for the specific natural disasters; therefore,
making the payments to producers, the issuance of minor technical corrections similar to the other programs discussed
USDA regulation for compliance with to regulations. in this paragraph, ERP Phase 2 has
NEPA (7 CFR part 1b). The rule implements discretionary similar discretionary aspects that are
Although OMB has designated this amendments for BCAP, CFAP, ELAP, coved by the following Categorical
rule as ‘‘economically significant’’ LIP, LFP, NAP, and PARP. The Exclusion: in 7 CFR 799.31(b)(6)(vi)
under Executive Order 12866, ‘‘. . . discretionary aspects are to improve safety net programs administrated by
economic or social effects are not administration of the programs and FSA.
intended by themselves to require clarify existing program requirements. Through this review, FSA determined
preparation of an environmental impact The change to BCAP is a technical that the proposed discretionary changes
statement’’ when not interrelated to clarification and does not alter the in this rule fit within the categorical
natural or physical environmental impacts or alternatives previously exclusions listed above. Categorical
effects (see 40 CFR 1502.16(b)). The considered in the BCAP Programmatic exclusions apply when no extraordinary
lotter on DSK11XQN23PROD with RULES2
pandemic assistance and disaster Environmental Impact Statement and circumstances (§ 799.33) exist.
assistance programs were designed to Record of Decision dated June 2010. Therefore, as this rule presents only
avoid skewing planting decisions. FSA is providing the disaster assistance discretionary amendments that will not
Producers continue to make their under ELAP, LIP, LFP, and NAP to have an impact to the human
planting and production decisions with eligible producers. The discretionary environments, individually or
the market signals in mind, rather than provisions would not alter any cumulatively, FSA will not prepare an
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
1874 Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations
environmental assessment or assess the effects of their regulatory information collection activity was
environmental impact statement for this actions of State, local, and Tribal submitted to OMB for emergency
rule; this rule serves as documentation governments or the private sector. approval. FSA will collect and evaluate
of the programmatic environmental Agencies generally must prepare a the application and other required
compliance decision for this federal written statement, including cost paperwork from the producers for
action. benefits analysis, for proposed and final PARP. The forms are described above in
Executive Order 12988 rules with Federal mandates that may the PARP Application Process section.
result in expenditures of $100 million or Following the 60-day public comment
This rule has been reviewed under more in any 1 year for State, local or period provided by this rule, FSA
Executive Order 12988, ‘‘Civil Justice Tribal governments, in the aggregate, or intends to request 3-year OMB approval
Reform.’’ This rule will not preempt to the private sector. UMRA generally to cover the PARP information
State or local laws, regulations, or requires agencies to consider collection request.
policies unless they represent an alternatives and adopt the more cost Title: PARP.
irreconcilable conflict with this rule. effective or least burdensome alternative OMB Control Number: 0560–New.
For the payment eligibility regulation that achieves the objectives of the rule. Type of Request: New Collection.
changes, payments will be adjusted This rule contains no Federal mandates, Abstract: This information collection
retroactively, starting in January 2020, as defined in Title II of UMRA, for State, is required to support PARP information
as discussed above in the Payment local and Tribal governments or the collection activities to provide
Eligibility section, above. For the ELAP private sector. Therefore, this rule is not payments to eligible producers who,
regulation changes, payments will be subject to the requirements of sections with respect to their agricultural
made retroactively starting at January 1, 202 and 205 of UMRA. commodities, have been impacted by
2021, as discussed in the Cost Benefit the effects of the COVID–19 pandemic.
Analysis Summary section, above. Federal Assistance Programs The information collection is necessary
Before any judicial actions may be The titles and numbers of the Federal to evaluate the application and other
brought regarding the provisions of this Domestic Assistance Programs found in required paperwork for determining the
rule, the administrative appeal the Catalog of Federal Domestic producer’s eligibility and assist in the
provisions of 7 CFR parts 11 and 780 are Assistance to which this rule applies producer’s payment calculations. The
to be exhausted. are: forms are included in the request.
10.051—Commodity Loans and Loan For the following estimated total
Executive Order 13175
Deficiency Payments annual burden on respondents, the
This rule has been reviewed in formula used to calculate the total
10.054—Emergency Conservation
accordance with the requirements of burden hour is the estimated average
Program
Executive Order 13175, ‘‘Consultation time per response multiplied by the
10.069—Conservation Reserve Program
and Coordination with Indian Tribal 10.087—Biomass Crop Assistance estimated total annual responses.
Governments.’’ Executive Order 13175 Program Estimate of Respondent Burden:
requires Federal agencies to consult and 10.088—Livestock Indemnity Program Public reporting burden for this
coordinate with Tribes on a 10.089—Livestock Forage Disaster information collection is estimated to
government-to-government basis on Program average 0.51385 hours per response,
policies that have Tribal implications, 10.091—Emergency Assistance for including the time for reviewing
including regulations, legislative Livestock, Honeybees, and Farm- instructions, searching existing data
comments or proposed legislation, and Raised Fish Program sources, gathering and maintaining the
other policy statements or actions that 10.092—Tree Assistance Program data needed, and completing and
have substantial direct effects on one or 10.112—Price Loss Coverage reviewing the collections of
more Indian Tribes, on the relationship 10.113—Agriculture Risk Coverage information.
between the Federal Government and 10.130—Coronavirus Food Assistance Type of Respondents: Producers or
Indian Tribes, or on the distribution of Program 1 farmers.
power and responsibilities between the 10.132—Coronavirus Food Assistance Estimated Annual Number of
Federal Government and Indian Tribes. Program 2 Respondents: 313,901.
USDA has assessed the impact of this 10.143—Pandemic Assistance Revenue Estimated Number of Responses per
rule on Indian Tribes and determined Program Respondent: 1.6550.
that this rule does not, to our 10.451—Noninsured Assistance Estimated Total Annual Responses:
knowledge, have Tribal implications 10.912—Environmental Quality 519,506.
that required Tribal consultation under Incentives Program Estimated Average Time per
Executive Order 13175 at this time. If a 10.917—Agricultural Management Response: 0.51385 hours.
Tribe requests consultation, the USDA Assistance Estimated Annual Burden on
Office of Tribal Relations (OTR) will 10.964—Emergency Relief Program Respondents: 266,947 hours.
ensure meaningful consultation is Also, FSA is requesting comments
Paperwork Reduction Act from all interested individuals and
provided where changes, additions, and
modifications are not expressly As noted above, the regulations to organizations on a new information
mandated by law. Outside of Tribal implement the EFRP, ELAP, LIP, LFP, collection associated with ERP Phase 1
consultation, USDA is working with and NAP changes are exempt from PRA and 2. The emergency request was
Tribes to provide information about as specified in 7 U.S.C. 9091(c)(2)(B) approved for the ERP Phase 1 using
pandemic assistance, agricultural and 16 U.S.C. 3846(b)(1). OMB control number 0560–0309. The
lotter on DSK11XQN23PROD with RULES2
disaster assistance, and other issues. For ECP and BCAP, there are no emergency request was approved for the
changes to the information collection ERP Phase 2 using temporary OMB
Unfunded Mandates activities approved by OMB under control number. The ERP Phase 2 will
Title II of the Unfunded Mandates control number 0560–0082. be merged with the approved 0560–
Reform Act of 1995 (UMRA, Pub. L. In accordance with the Paperwork 0309 information collection request.
104–4) requires Federal agencies to Reduction Act of 1995, the PARP ERP is for the producers who suffered
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations 1875
losses of crops, trees, bushes, and vines Type of Request: New. submission for Office of Management
due to wildfires, hurricanes, floods, Abstract: This information collection and Budget approval.
derechos, excessive heat, winter storms, is required to support CFAP 2
USDA Non-Discrimination Policy
freeze (including a polar vortex), smoke information collection activities to
exposure, excessive moisture, qualifying provide payments to eligible producers In accordance with Federal civil
drought, and related conditions who, with respect to their agricultural rights law and U.S. Department of
occurring in calendar years 2020 and commodities, have been impacted by Agriculture (USDA) civil rights
2021. FSA needs to disburse the the effects of the COVID–19 pandemic. regulations and policies, USDA, its
payments to the eligible producers to The information collection is necessary Agencies, offices, and employees, and
cover the losses of crops, trees, bushes to evaluate the application and other institutions participating in or
and vines, and the payments will required paperwork for determining the administering USDA programs are
seriously assist the producers not to producer’s eligibility and assist in the prohibited from discriminating based on
consider making business decisions to producer’s payment calculations. race, color, national origin, religion, sex,
lose the farm business. For the following estimated total gender identity (including gender
Title: ERP Phase 2. annual burden on respondents, the expression), sexual orientation,
Type of Request: New. formula used to calculate the total disability, age, marital status, family or
Abstract: ERP is for the producers burden hour is the estimated average parental status, income derived from a
who suffered losses of crops, trees, time per response multiplied by the public assistance program, political
bushes, and vines due to wildfires, estimated total annual responses. beliefs, or reprisal or retaliation for prior
hurricanes, floods, derechos, excessive Estimate of Respondent Burden: civil rights activity, in any program or
heat, winter storms, freeze (including a Public reporting burden for this activity conducted or funded by USDA
polar vortex), smoke exposure, information collection is estimated to (not all bases apply to all programs).
excessive moisture, qualifying drought, average 0.0999 hours per response, Remedies and complaint filing
and related conditions occurring in including the time for reviewing deadlines vary by program or incident.
calendar years 2020 and 2021. FSA instructions, searching existing data Persons with disabilities who require
needs to disburse the payments to the sources, gathering and maintaining the alternative means of communication for
eligible producers to cover the losses of data needed, and completing and program information (for example,
crops, trees, bushes and vines, and the reviewing the collections of braille, large print, audiotape, American
payments will seriously assist the information. Sign Language, etc.) should contact the
producers not to consider making Type of Respondents: Producers or responsible Agency or USDA TARGET
business decisions to lose the farm farmers. Center at (202) 720–2600 or (844) 433–
business. Estimated Annual Number of 2774 (toll-free nationwide).
For the following estimated total Respondents: 96,973. Additionally, program information may
annual burden on respondents, the Estimated Number of Responses per be made available in languages other
formula used to calculate the total Respondent: 1. than English.
burden hour is the estimated average Estimated Total Annual Responses: To file a program discrimination
time per response multiplied by the 96,973. complaint, complete the USDA Program
estimated total annual responses. Estimated Average Time per Discrimination Complaint Form, AD–
Estimate of Respondent Burden: Response: 0.0999 hours. 3027, found online at https://
Public reporting burden for this Estimated Annual Burden on www.usda.gov/oascr/how-to-file-a-
information collection is estimated to Respondents: 9,697 hours. program-discrimination-complaint and
average 0.54492 hours per response, at any USDA office or write a letter
FSA is requesting comments on all
including the time for reviewing addressed to USDA and provide in the
aspects of this information collection to
instructions, searching existing data letter all the information requested in
help FSA to:
sources, gathering and maintaining the the form. To request a copy of the
(1) Evaluate whether the collection of
data needed, and completing and complaint form, call (866) 632–9992.
information is necessary for the proper
reviewing the collections of Submit your completed form or letter to
performance of the functions of FSA,
information. USDA by mail to: U.S. Department of
including whether the information will
Type of Respondents: Producers or Agriculture, Office of the Assistant
have practical utility;
farmers. Secretary for Civil Rights, 1400
Estimated Annual Number of (2) Evaluate the accuracy of the FSA’s
estimate of burden including the Independence Avenue SW, Washington,
Respondents: 48,402. DC 20250–9410 or email: OAC@
Estimated Number of Responses per validity of the methodology and
assumptions used; usda.gov.
Respondent: 2.085. USDA is an equal opportunity
Estimated Total Annual Responses: (3) Enhance the quality, utility, and
clarity of the information to be provider, employer, and lender.
100,918.
Estimated Average Time per collected; and List of Subjects
Response: 0.54492 hours. (4) Minimize the burden of the
Estimated Annual Burden on collection of information on those who 7 CFR Part 9
Respondents: 54,992 hours. are to respond, including through the Agricultural commodities,
Also, FSA is requesting comments use of appropriate automated, Agriculture, Disaster assistance,
from all interested individuals and electronic, mechanical, or other Indemnity payments.
organizations on a new information technological collection techniques or
lotter on DSK11XQN23PROD with RULES2
other forms of information technology. 7 CFR Part 701
collection associated with CFAP 2. The
emergency request was approved under All comments received in response to Disaster assistance, Environmental
a temporary OMB control number and this document, including names and protection, Forests and forest products,
will merge with CFAP 2 under the OMB addresses when provided, will be a Grant programs—agriculture, Grant
control number 0560–0297. matter of public record. Comments will programs—natural resources, Reporting
Title: CFAP 2. be summarized and included in the and recordkeeping requirements, Rural
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
1876 Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations
areas, Soil conservation, Water ■ c. In paragraph (d), remove words ‘‘the ■ c. Add paragraph (i).
resources, Wildlife. programs of this part’’ and add ‘‘CFAP’’ The addition reads as follows.
in their place.
7 CFR Part 760 § 9.7 Miscellaneous provisions.
■ 5. Amend § 9.2 as follows:
Dairy products, Indemnity payments, * * * * *
■ a. In the introductory text, remove the
Reporting and recordkeeping (i) To be eligible to receive a CFAP
words ‘‘this part’’ and add ‘‘subparts A payment and facilitate administration of
requirements. through C of this part’’ in its place; paragraphs (d) and (e) of this section, a
■ b. In the definition of ‘‘NOFA’’,
7 CFR Part 1400 person or legal entity must provide their
remove the words ‘‘under this part’’;
Agriculture, Grant programs— name, address, and taxpayer
and
agriculture, Loan programs—agriculture, identification number to USDA. In
■ c. Add a definition for ‘‘Ownership
Natural resources, Price support addition, a legal entity must provide the
interest’’ in alphabetical order.
programs. name taxpayer identification number,
The addition reads as follows:
address and ownership share of each
7 CFR Part 1416 § 9.2 Definitions. person or legal entity that holds or
Administrative practice and * * * * * acquires a direct or indirect ownership
procedure, Agriculture, Disaster Ownership interest means to have interest in the legal entity. CFAP
assistance, Fruits, Livestock, Nursery either legal ownership interest or payments to a legal entity will be
stock, Seafood. beneficial ownership interest in a legal reduced in proportion to a member’s
entity. For the purposes of ownership share when the taxpayer
7 CFR Part 1437 administering CFAP, a person or legal identification number for a person or
Acreage allotments, Agricultural entity that owns a share or stock in a legal entity that holds less than a 10
commodities, Crop insurance, Disaster legal entity that is a corporation, limited percent direct or indirect ownership
assistance, Fraud, Penalties, Reporting liability company, limited partnership, interest at, or above, the fourth level of
and recordkeeping requirements. or similar type entity, and shares in the ownership in the business structure is
profits or losses of such entity is not provided to USDA. Additionally, a
7 CFR Part 1450 considered to have an ownership legal entity will not be eligible to
Administrative practice and interest in such legal entity. A person or receive CFAP payments when a valid
procedure, Agriculture, Energy, legal entity that is a beneficiary of a taxpayer identification number for a
Environmental protection, Grant trust or heir of an estate who benefits person or legal entity that holds a direct
programs-agriculture, Natural resources, from the profits or losses of such entity or indirect ownership interest of 10
Reporting and recordkeeping is also considered to have an ownership percent or greater, at or above the fourth
requirements, Technical assistance. interest in such legal entity. level of ownership in the business
structure, is not provided to USDA.
For the reasons discussed above, this * * * * *
final rule amends 7 CFR parts 9, 701, Subpart B—CFAP 1
760, 1400, 1416, 1437, and 1450 as § 9.3 [Amended]
follows: ■ 6. Amend § 9.3 as follows: § 9.101 [Amended]
■ a. In paragraph (a), remove the words ■ 9. Amend § 9.101, in the definition of
PART 9—PANDEMIC ASSISTANCE ‘‘this part’’ and add ‘‘subparts A through ‘‘All other cattle’’, by removing the word
PROGRAMS C of this part’’ in their place; and ‘‘part’’ and adding ‘‘subpart’’ in its
■ b. In paragraph (b)(2), remove the place.
■ 1. The authority citation for part 9 words ‘‘this part means’’ and add
continues to read as follows: ■ 10. Amend § 9.102 as follows:
‘‘subparts A through C of this part ■ a. In paragraph (c) introductory text,
Authority: 15 U.S.C. 714b and 714c; means’’ in its place. remove the word ‘‘two’’ and add ‘‘three’’
Division B, Title I, Pub. L. 116–136, 134 Stat. ■ 7. Amend § 9.4 by adding paragraph in its place;
505; and Division N, Title VII, Subtitle B, (e) to read as follows: ■ b. In paragraph (c)(1), remove the
Chapter 1, Pub. L. 116–260.
word ‘‘and’’;
§ 9.4 Time and method of application. ■ c. In paragraph (c)(2), remove the
■ 2. Revise the heading for part 9 to read
as set forth above. * * * * * period and add ‘‘; and’’ at the end of the
(e) To receive an additional payment paragraph;
Subpart A—CFAP General Provisions under § 9.203(p), a producer must ■ d. Add paragraph (c)(3);
submit form CCC–860, Socially ■ e. In paragraph (d) introductory text,
■ 3. Revise the heading for subpart A to Disadvantaged, Limited Resource, remove the word ‘‘three’’ and add ‘‘two’’
read as set forth above. Beginning and Veteran Farmer or in its place;
Rancher Certification, with a ■ f. In paragraph (d)(1), add the word
§ 9.1 [Amended] ‘‘and’’ at the end of the paragraph;
certification applicable to the 2020
■ 4. Amend § 9.1 as follows: program year by the date announced by ■ g. In paragraph (d)(2), remove ‘‘; and’’
■ a. In paragraph (a) introductory text, the Deputy Administrator. and add a period in its place; and
remove the words ‘‘This part specifies’’ ■ h. Remove paragraph (d)(3).
■ 8. Amend § 9.7 as follows:
and add ‘‘Subparts A through C of this The addition reads as follows.
■ a. In paragraphs (b), (c), (d), and
part specify’’ in their place, and remove (e)(2)(ii) and (iii), add the words § 9.102 Calculation of payments.
the words ‘‘payment made under this ‘‘subparts A through C of’’ before the * * * * *
lotter on DSK11XQN23PROD with RULES2
part’’ and add ‘‘CFAP payment’’ in their words ‘‘this part’’ each time they (c) * * *
place; appear; (3) Cattle inventory owned between
■ b. In paragraph (c), remove the words ■ b. In paragraph (h), remove the words April 16, 2020, to May 14, 2020,
‘‘this part’’ each time they appear and ‘‘This part applies’’ and add ‘‘Subparts multiplied by:
add ‘‘subparts A through C of this part’’ A through C of this part apply’’ in their (i) $14.75 for slaughter cattle—mature
in their place; and place; and cattle;
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations 1877
(ii) $63 for slaughter cattle—fed cattle; (1) American Indians or Alaskan (p) An additional payment equal to 15
(iii) $7 for feeder cattle less than 600 Natives; percent of a producer’s CFAP 2 payment
pounds; (2) Asians or Asian-Americans; calculated according to paragraphs (a)
(iv) $25.50 for feeder cattle 600 (3) Blacks or African Americans; through (k) of this section will be issued
pounds or more; and (4) Hispanics or Hispanic Americans; to producers who have certified their
(v) $17.25 for all other cattle. (5) Native Hawaiians or other Pacific status as an underserved farmer or
* * * * * Islanders; and rancher, applicable to the 2020 program
(6) Women. year, on CCC–860, Socially
Subpart C—CFAP 2 * * * * * Disadvantaged, Limited Resource,
Underserved farmer or rancher means Beginning and Veteran Farmer or
■ 11. In § 9.201, add definitions for a beginning farmer or rancher, limited Rancher Certification.
‘‘Beginning farmer or rancher’’, resource farmer or rancher, socially
‘‘Limited resource farmer or rancher’’, ■ 14. Add subpart D, consisting of
disadvantaged farmer or rancher, or
‘‘Socially disadvantaged farmer or veteran farmer or rancher. §§ 9.301 through 9.310, to read as
rancher’’, ‘‘Underserved farmer or follows:
* * * * *
rancher’’, and ‘‘Veteran farmer or Veteran farmer or rancher means a Subpart D—Pandemic Assistance Revenue
rancher’’ in alphabetical order to read as farmer or rancher: Program
follows: (1) Who has served in the Armed Sec.
Forces (as defined in 38 U.S.C. 9.301 Applicability and administration.
§ 9.201 Definitions. 9.302 Definitions.
101(10) 25) and:
* * * * * (i) Has not operated a farm or ranch 9.303 Producer eligibility requirements.
Beginning farmer or rancher means a for more than 10 years; or 9.304 Allowable gross revenue.
farmer or rancher who has not operated (ii) Has obtained status as a veteran 9.305 Time and method of application.
a farm or ranch for more than 10 years (as defined in 38 U.S.C. 101(2) 26) during 9.306 Payment calculation.
and who materially and substantially 9.307 Adjusted gross income limitation,
the most recent 10-year period; or
participates in the operation. For a legal payment limitation, and attribution.
(2) That is an entity and at least 50 9.308 Eligibility subject to verification.
entity to be considered a beginning percent of the ownership interest is held 9.309 Miscellaneous provisions.
farmer or rancher, at least 50 percent of by members who meet the criteria in 9.310 Perjury.
the interest must be beginning farmers paragraph (1) of this definition.
or ranchers. * * * * * Subpart D—Pandemic Assistance
* * * * * Revenue Program
Limited resource farmer or rancher § 9.202 [Amended]
means a farmer or rancher: § 9.301 Applicability and administration.
■ 12. Amend § 9.202 as follows:
(1) Who is a person whose: ■ a. In paragraph (a), remove the words (a) This subpart specifies the
(i) Direct or indirect gross farm sales ‘‘this part’’ and add the words ‘‘subpart eligibility requirements and payment
did not exceed $180,300 in each A of this part and this subpart’’ in their calculations for the Pandemic
calendar year for 2017 and 2018 (the place; and Assistance Revenue Program (PARP).
relevant years for the 2020 program ■ b. In paragraphs (b)(4) and (d)(2), FSA is administering PARP to respond
year); and remove the words ‘‘this part’’ and add to the COVID–19 pandemic by
(ii) Total household income was at or the words ‘‘subpart A of this part and providing support for eligible producers
below the national poverty level for a this subpart’’ in their place. of agricultural commodities who
family of four in each of the same two ■ 13. Amend § 9.203 as follows: suffered an eligible revenue loss in
previous years referenced in paragraph ■ a. Add paragraph (a)(5); calendar year 2020 due to the COVID–
(1)(i) of this definition; 24 or ■ b. In paragraph (b), add a sentence at 19 pandemic. To be eligible for PARP
(2) That is an entity and all members the end of the paragraph; payments, participants must comply
who hold an ownership interest in the ■ c. In paragraphs (f)(2) and (h)(2), with all provisions under this subpart.
entity meet the criteria in paragraph (1) remove the word ‘‘part’’ and add the (b) PARP is administered under the
of this definition. word ‘‘subpart’’ in its place; and general supervision and direction of the
* * * * * ■ d. Add paragraph (p). Administrator, Farm Service Agency
Socially disadvantaged farmer or The additions read as follows. (FSA).
rancher means a farmer or rancher who § 9.203 Calculation of payments. (c) The FSA State committee will take
is a member of a group whose members (a) * * * any action required by this subpart that
have been subjected to racial, ethnic, or (5) An additional payment will be an FSA county committee has not taken.
gender prejudice because of their issued for price trigger crops equal to The FSA State committee will also:
identity as members of a group without the eligible acres of the crop multiplied (1) Correct, or require an FSA county
regard to their individual qualities. For by a payment rate of $20 per acre. committee to correct, any action taken
entities, at least 50 percent of the (b) * * * An additional payment will by such county FSA committee that is
ownership interest must be held by be issued for flat-rate crops equal to the not in accordance with the regulations
individuals who are members of such a eligible acres of the crop multiplied by of this subpart; or
group. Socially disadvantaged groups a payment rate of $20 per acre. (2) Require an FSA county committee
include the following and no others * * * * * to withhold taking any action that is not
unless approved in writing by the in accordance with this subpart.
Deputy Administrator: 25 The term ‘‘Armed Forces’’ means the United (d) No provision or delegation to an
lotter on DSK11XQN23PROD with RULES2
States Army, Navy, Marine Corps, Air Force, Space FSA State or county committee will
24 Limited resource farmer or rancher status can Force, and Coast Guard, including the reserve preclude the FSA Administrator, the
be determined using a website available through the components. Deputy Administrator, or a designee or
Limited Resource Farmer and Rancher Online Self 26 The term ‘‘veteran’’ means a person who served
Determination Tool through Natural Resources in the active military, naval, air, or space service,
other such person, from determining
Conservation Service at https://lrftool.sc.egov. and who was discharged or released under any question arising under the programs
usda.gov. conditions other than dishonorable. of this subpart, or from reversing or
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
1878 Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations
modifying any determination made by BCAP means the Biomass Crop ERP means the Emergency Relief
an FSA State or county committee. Assistance Program under 7 CFR part Program, which was administered in 2
(e) The Deputy Administrator has the 1450. phases:
authority to permit State and county Beginning farmer or rancher means a (1) ERP Phase 1, administered
committees to waive or modify farmer or rancher who has not operated according to the notice of funds
deadlines (except deadlines specified in a farm or ranch for more than 10 years availability published in the Federal
a law) and other requirements or and who materially and substantially Register on May 18, 2022 (87 FR 30164–
program provisions not specified in law, participates in the operation. For a legal 30172) and the clarification to the notice
in cases where lateness or failure to entity to be considered a beginning of funds availability that was published
meet such other requirements or farmer or rancher, at least 50 percent of on August 18, 2022 (87 FR 50828–
program provisions do not adversely the interest must be beginning farmers 50830); and
affect operation of PARP. or ranchers. (2) ERP Phase 2, administered
Cattle feeder operation means an according to 7 CFR part 760, subpart S.
§ 9.302 Definitions. Farming operation means a business
operation that intensely feeds cattle on
The following definitions apply to behalf of another person or entity for enterprise engaged in the production of
this subpart. The definitions in part finishing purposes and is compensated agricultural products, commodities, or
1400 of this title apply, except where based on feed, yardage, or weight gain livestock, operated by a person, legal
they conflict with the definitions in this of the cattle. entity, or joint operation, and that is
section. CCC means the Commodity Credit eligible to receive payments, directly or
2017 WHIP means the 2017 Wildfires Corporation. indirectly, under this subpart. A person
and Hurricanes Indemnity Program CFAP means the Coronavirus Food or legal entity may have more than one
under 7 CFR part 760, subpart O. Assistance Program 1 and 2 under 7 farming operation if the person or legal
Agricultural commodity means a crop, CFR part 9, subparts A through C, entity is a member of one or more legal
aquaculture, livestock, livestock excluding assistance for contract entity or joint operation.
byproduct, or other animal or animal producers specified in § 9.203(l) through Foreign entity means a corporation,
byproduct that is produced as part of a (o). trust, estate, or other similar
farming operation and is intended to be Contract producer means a producer organization that has more than 10
commercially marketed. It includes only who grows or produces an agricultural percent of its beneficial interest held by
commodities produced in the United commodity under contract for or on individuals who are not:
States, or produced outside the United behalf of another person or entity. The (1) Citizens of the United States; or
States by a producer located in the contract producer does not have (2) Lawful aliens possessing a valid
United States and marketed inside the ownership in the commodity and is not Alien Registration Receipt Card.
United States. It excludes: entitled to a share from sales proceeds Foreign person means any person who
(1) Wild free-roaming animals; is not a citizen or national of the United
(2) Horses and other animals used or of the commodity. The term ‘‘contract
producer’’ does not include cattle feeder States or who is admitted into the
intended to be used for racing or United States for permanent residence
wagering; operations.
Controlled environment means an under the Immigration and Nationality
(3) Aquatic species that do not meet
environment in which everything that Act and possesses a valid Alien
the definition of aquaculture;
(4) Cannabis sativa L. and any part of can practicably be controlled by the Registration Receipt Card issued by the
that plant that does not meet the producer with structures, facilities, and United States Citizenship and
definition of hemp; and growing media (including but not Immigration Services, Department of
(5) Timber. limited to water, soil, or nutrients), is in Homeland Security.
Applicable pandemic assistance fact controlled by the producer, as Hemp means the plant species
includes payments received directly by determined by industry standards. Cannabis sativa L. and any part of that
an applicant under the following County means the county or parish of plant, including the seeds thereof and
programs: a state. For Alaska, Puerto Rico, and the all derivatives, extracts, cannabinoids,
(1) The Coronavirus Food Assistance Virgin Islands, a county is an area isomers, acids, salts, and salts of
Program (CFAP); designated by the State committee with isomers, whether growing or not, with a
(2) The Pandemic Livestock the concurrence of the Deputy delta-9 tetrahydrocannabinol
Indemnity Program (PLIP); and Administrator. concentration of not more than 0.3
(3) The Spot Market Hog Pandemic County committee means the FSA percent on a dry weight basis, that is
Program (SMHPP). county committee. grown under a license or other required
Application means the PARP Crop insurance means an insurance authorization issued by the applicable
application form. policy reinsured by Federal Crop governing authority that permits the
Aquaculture means any species of Insurance Corporation under the production of the hemp.
aquatic organisms grown as food for provisions of the Federal Crop IRS means the Department of
human or livestock consumption or for Insurance Act, as amended, or a private Treasury, Internal Revenue Service.
industrial or biomass uses, fish raised as plan of insurance. LDP means the Loan Deficiency
feed for fish that are consumed by Deputy Administrator means Deputy Payment programs in 7 CFR parts 1421,
humans, and ornamental fish Administrator for Farm Programs, Farm 1425, 1427, 1434, and 1435.
propagated and reared in an aquatic Service Agency, U.S. Department of Legal entity means a corporation, joint
medium. Eligible aquacultural species Agriculture, or their designee. stock company, association, limited
must be raised by a commercial operator DMC means the Dairy Margin partnership, irrevocable trust, estate,
lotter on DSK11XQN23PROD with RULES2
and in water in a controlled Coverage Program under 7 CFR part charitable organization, or other similar
environment. 1430, subpart D. organization including any such
ARC and PLC means the Agriculture ELAP means the Emergency organization participating in a business
Risk Coverage (ARC) and Price Loss Assistance for Livestock, Honeybees, structure as a partner in a general
Coverage (PLC) programs under 7 CFR and Farm-Raised Fish Program under 7 partnership, a participant in a joint
part 1412. CFR part 1416, subpart B. venture, a grantor of a revocable trust,
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations 1879
or as a participant in a similar entity is considered to have an United States means all 50 States of
organization. A business operating as a ownership interest in such legal entity. the United States, the District of
sole proprietorship is considered a legal A person or legal entity that is a Columbia, the Commonwealth of Puerto
entity. beneficiary of a trust or heir of an estate Rico, and any other territory or
Limited resource farmer or rancher who benefits from the profits or losses possession of the United States.
means a farmer or rancher: of such entity is also considered to have Veteran farmer or rancher means a
(1) Who is a person whose: a beneficial ownership interest in such farmer or rancher:
(i) Direct or indirect gross farm sales legal entity. (1) Who has served in the Armed
did not exceed $180,300 in each Person means an individual, natural Forces (as defined in 38 U.S.C.
calendar year for 2017 and 2018 (the person and does not include a legal 101(10) 2) and:
relevant years for the 2020 program entity. (i) Has not operated a farm or ranch
year); and PLIP means the Pandemic Livestock for more than 10 years; or
(ii) Total household income was at or Indemnity Program announced in the (ii) Has obtained status as a veteran
below the national poverty level for a notice of funds availability published on (as defined in 38 U.S.C. 101(2) 3) during
family of four in each of the same two July 19, 2021 (86 FR 37990–37994). the most recent 10-year period; or
previous years referenced in paragraph PMVAP means the Pandemic Market (2) That is an entity and at least 50
(1)(i) of this definition; 1 or Volatility Assistance Program percent of the ownership interest is held
(2) That is an entity and all members administered by USDA’s Agricultural by members who meet the criteria in
who hold an ownership interest in the Marketing Service. paragraph (1) of this definition.
entity meet the criteria in paragraph (1) Producer means a person or legal WHIP+ means the Wildfires and
of this definition. entity who was in the business of Hurricanes Indemnity Program Plus
LFP means the Livestock Forage farming to produce an agricultural under 7 CFR part 760, subpart O.
Disaster Program under CFR part 1416, commodity in calendar year 2020, and
subpart C. who was entitled to a share in the § 9.303 Producer eligibility requirements.
LIP means the Livestock Indemnity agricultural commodity available for (a) To be eligible for PARP, a producer
Program under 7 CFR part 1416, subpart marketing or would have shared had the must:
D. agricultural commodity been produced (1) Have been in the business of
Minor child means a person who is and marketed. For PARP, ‘‘producer’’ farming in the 2020 calendar year;
under 18 years of age as of June 1, 2020. also includes cattle feeder operations. (2) Have had at least a 15 percent
MFP means the 2018 Market Socially disadvantaged farmer or decrease in allowable gross revenue for
Facilitation Program under 7 CFR part rancher means a farmer or rancher who the 2020 calendar year, as compared to
1409, subpart A, and the 2019 Market is a member of a group whose members the:
Facilitation Program under 7 CFR part have been subjected to racial, ethnic, or (i) Actual allowable gross revenue for
1409, subpart B. gender prejudice because of their the 2018 or 2019 calendar year,
Milk Loss Program means the Milk identity as members of a group without whichever is reflective of a typical year,
Loss Program under 7 CFR part 760, regard to their individual qualities. For as elected by the producer, if the
subpart Q. entities, at least 50 percent of the producer had allowable gross revenue in
MLG means a marketing loan gain ownership interest must be held by the 2018 or 2019 calendar year; or
under the Marketing Assistance Loan individuals who are members of such a (ii) Producer’s expected allowable
programs in 7 CFR parts 1421, 1425, group. Socially disadvantaged groups gross revenue for the 2020 calendar
1427, 1434, and 1435. include the following and no others year, if the producer had no allowable
MPP-Dairy means the Margin unless approved in writing by the gross revenue for the 2018 and 2019
Protection Program for Dairy under 7 Deputy Administrator: calendar years; and
CFR part 1430, subpart A. (1) American Indians or Alaskan (3) Meet all other requirements for
NAP means the Noninsured Crop Natives; eligibility under this subpart.
Disaster Assistance Program under (2) Asians or Asian-Americans; (b) To be eligible for a PARP payment,
section 196 of the Federal Agriculture (3) Blacks or African Americans; a producer must be a:
Improvement and Reform Act of 1996 (7 (4) Hispanics or Hispanic Americans; (1) Citizen of the United States;
U.S.C. 7333) and 7 CFR part 1437. (5) Native Hawaiians or other Pacific (2) Resident alien, which for purposes
On-Farm Storage Loss Program means Islanders; and of this subpart means ‘‘lawful alien’’ as
the On-Farm Storage Loss Program (6) Women. defined in part 1400 of this title;
under 7 CFR part 760, subpart P. TAP means the Tree Assistance (3) Partnership organized under State
Ownership interest means to have Program under 7 CFR part 1416, subpart Law;
either legal ownership interest or E. (4) Corporation, limited liability
beneficial ownership interest in a legal SMHPP means the Spot Market Hog company, or other organizational
entity. For the purposes of Pandemic Program announced in the structure organized under State law;
administering PARP, a person or legal notice of funds availability published on (5) Indian Tribe or Tribal
entity that owns a share or stock in a December 14, 2021 (86 FR 71003– organization, as defined in section 4(b)
legal entity that is a corporation, limited 71007). of the Indian Self-Determination and
liability company, limited partnership, STRP means the Seafood Trade Relief Education Assistance Act (25 U.S.C.
or similar type entity where members Program announced in the notice of 5304); or
hold a legal ownership interest and funds availability published on
shares in the profits or losses of such September 14, 2020 (85 FR 56572– 2 The term ‘‘Armed Forces’’ means the United
lotter on DSK11XQN23PROD with RULES2
56575). States Army, Navy, Marine Corps, Air Force, Space
1 Limited resource farmer or rancher status can be Underserved farmer or rancher means Force, and Coast Guard, including the reserve
determined using a website available through the a beginning farmer or rancher, limited components.
Limited Resource Farmer and Rancher Online Self 3 The term ‘‘veteran’’ means a person who served
Determination Tool through Natural Resources
resource farmer or rancher, socially in the active military, naval, air, or space service,
Conservation Service at https://lrftool.sc.egov. disadvantaged farmer or rancher, or and who was discharged or released under
usda.gov. veteran farmer or rancher. conditions other than dishonorable.
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
1880 Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations
(6) Foreign person or foreign entity (4) Income from a pass-through entity that demonstrate an expected level of
who meets all requirements as described such as an S Corp or limited liability revenue;
in 7 CFR part 1400. company; (2) Sales contracts or purchase
(5) Conservation program payments; agreements; and
§ 9.304 Allowable gross revenue. (6) Any pandemic assistance (3) Documentation supporting
(a) For the purposes of this subpart, payments that were not intended to production capacity, use of existing
‘‘allowable gross revenue’’ includes compensate for the loss of agricultural production capacity, or physical
revenue from: commodities or the loss of revenue from alterations that demonstrate production
(1) Sales of agricultural commodities agricultural commodities due to the capacity.
produced by the producer, including pandemic (for example, payments to (e) A producer who does not provide
sales resulting from value added provide assistance with the cost of acceptable documentation described in
through post-production activities; purchasing personal protective paragraph (c) or (d) of this section
(2) Sales of agricultural commodities equipment, retrofitting facilities for within 30 calendar days of submitting
a producer purchased for resale that had worker and consumer safety, shifting to their application is not eligible for an
a change in characteristic due to the online sales platforms, transportation, adjustment to their 2019 allowable gross
time held (for example, a plant worker housing, or medical costs); revenue or to have their payment
purchased at a size of 2 inches and sold (7) Custom hire income; calculated using an expected 2020
as an 18-inch plant after 4 months), less (8) Net gain from hedging or allowable gross revenue, as applicable.
the cost or other basis of such speculation; (f) Except as provided in paragraph
commodities; (9) Wages, salaries, tips, and cash (a)(13) of this section, the allowable
(3) The taxable amount of cooperative rent; gross revenue for a specific calendar
distributions directly related to the sale (10) Rental of equipment or supplies; year will be based on the calendar year
of the agricultural commodities and in which that revenue was received by
produced by the producer; (11) Acting as a contract producer of the producer.
(4) Benefits under the following an agricultural commodity. (g) Producers who file or would file a
agricultural programs: ARC and PLC, (c) If a producer did not have a full joint tax return will certify their
BCAP, DMC, LDP, MFP, MLG, and year of revenue for 2018 or 2019, or allowable gross revenue based on what
MPP-Dairy; increased their production capacity in it would have been had they filed taxes
(5) CCC loans, if treated as income 2020 compared to 2018 or 2019, the separately for the applicable year.
and reported to IRS; producer may certify to an adjusted § 9.305 Time and method of application.
(6) Crop insurance proceeds; 2018 or 2019 allowable gross revenue on
(7) Federal disaster program payments form FSA–1122A. Increases in (a) A completed PARP application
under the following programs: 2017 under this subpart must be submitted to
production capacity do not include
WHIP, ELAP, LFP, LIP, NAP, Milk Loss any FSA county office by the close of
changes due to crop rotation from year
business on the date announced by the
Program, On-Farm Storage Loss to year, changes in farming practices
Deputy Administrator. Applications
Program, STRP, TAP, and WHIP+; such as converting from conventional
(8) Payments issued through grant may be submitted in person or by mail,
tillage to no-till, or increasing the rate of
email, facsimile, or other methods
agreements with FSA for losses of fertilizers or chemicals. Documentation
announced by FSA.
agricultural commodities; required to support such an adjustment (b) Failure of an individual, entity, or
(9) Grants from the Department of must be provided within 30 calendar a member of an entity to submit the
Commerce, National Oceanic and days of submitting their PARP following payment limitation and
Atmospheric Administration and State application and demonstrate that the payment eligibility forms within 60
program funds providing direct producer: days from the PARP application
payments for the loss of agricultural (1) Had the production capacity to deadline, may result in no payment or
commodities or the loss of revenue from support the expected full year revenue; a reduced payment:
agricultural commodities; (2) Added production capacity to the (1) Form AD–2047, Customer Data
(10) Revenue from raised breeding farming operation; Worksheet, for new customers or
livestock; (3) Increased the use of existing existing customers who need to update
(11) Revenue earned as a cattle feeder production capacity; or their customer profile;
operation; (4) Made physical alterations to (2) Form FSA–1122A, PARP
(12) Other revenue directly related to existing production capacity. Application, if applicable;
the production of agricultural (d) If a producer did not have (3) Form CCC–860, Socially
commodities that IRS requires the allowable gross revenue in 2018 and Disadvantaged, Limited Resource,
producer to report as income and 2019, the producer must certify on form Beginning and Veteran Farmer or
(13) For 2020 allowable gross revenue, FSA–1122A as to what had been their Rancher Certification, if applicable;
payments PMVAP regardless of the reasonably expected 2020 allowable (4) Form CCC–901, Member
calendar year in which the payment was gross revenue prior to the impact of the Information for Legal Entities, if
received. COVID–19 pandemic. Documentation applicable;
(b) Allowable gross revenue does not required to support the producer’s (5) Form CCC–902 Farm Operating
include revenue from sources other than certification must be provided within 30 Plan for an individual or legal entity as
those listed in paragraph (a) of this calendar days of submitting the provided in 7 CFR part 1400;
section, including but not limited to, producer’s PARP application. (6) Form CCC–941, Average Adjusted
revenue from: Acceptable documentation must be Gross Income (AGI) Certification and
lotter on DSK11XQN23PROD with RULES2
(1) Applicable pandemic assistance; generated in the ordinary course of Consent to Disclosure of Tax
(2) Sales of commodities that are business and dated prior to the impact Information, for the 2020 program year
excluded from ‘‘agricultural of the COVID–19 pandemic and for the person or legal entity, including
commodities,’’ includes, but is not limited to: the legal entity’s members, partners, or
(3) Resale items not held for (1) Financial documents such as a shareholders, as provided in 7 CFR part
characteristic change; business plan or cash flow statement 1400;
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations 1881
(7) Form FSA–1123, Certification of definition for at least one of the provided in paragraph (c) of this
2020 Adjusted Gross Income (AGI), if applicable groups; or section.
applicable; and (B) 80 percent for all other producers; (c) A person or legal entity that does
(8) Form AD–1026, Highly Erodible and not meet the average adjusted gross
Land Conservation (HELC) and Wetland (2) The producer’s PARP payment income requirements described in
Conservation (WC) Certification, for the will be equal to the result of the paragraph (b) of this section, may
PARP applicant and applicable affiliates calculation in paragraph (b)(1) of this otherwise meet the adjusted gross
as provided in 7 CFR part 12. section minus the producer’s applicable income requirements, provided the
(c) If requested by USDA, the pandemic assistance, and 2020 program person’s or legal entity’s 2020 adjusted
producer must provide additional year ERP payments. gross income, as defined under 26
documentation that establishes the (c) If a producer receives assistance U.S.C. 62 or comparable measure, is not
producer’s eligibility for PARP. If through 2020 program year ERP or any more than $900,000. Except for general
supporting documentation is requested, program included under applicable partnerships and joint ventures, a PARP
the documentation must be submitted to pandemic assistance after their PARP applicant that is a person or legal entity,
USDA within 30 calendar days from the payment is calculated, their PARP including members holding an
request or the application will be payment will be recalculated and the ownership interest in the legal entity, is
disapproved by USDA. FSA may request producer must refund any resulting required to:
supporting documentation to verify overpayment. (1) Certify, on a form that is approved
information provided by the producer (d) Payments calculated according to for that purpose by the Deputy
and their eligibility including, but not this section are subject to the Administrator, that their 2020 adjusted
limited to, the producer’s: availability of funds and may be gross income or comparable measure is
(1) Allowable gross revenue reported factored if total calculated payments not more than $900,000; and
on the PARP application; and exceed the available funding. (2) Submit a certification from a
(2) Ownership share in the licensed CPA or attorney affirming the
§ 9.307 Adjusted gross income limitation, person’s or legal entity’s 2020 adjusted
agricultural commodities. payment limitation, and attribution. gross income is not more than $900,000.
§ 9.306 Payment calculation. (a) To be eligible to receive a PARP (d) Members of general partnerships
(a) If the producer’s allowable gross payment and facilitate administration of and joint ventures not meeting the
revenue for 2020 decreased by at least paragraphs (b) through (f) of this income requirements described in
15 percent compared to the producer’s section, a person or legal entity must paragraph (b) of this section may
allowable gross revenue for 2018 or provide their name, address, valid otherwise meet the income
2019, as elected by the producer: taxpayer identification number, and requirements, provided the member’s
(1) FSA will calculate: ownership share to USDA. In addition, 2020 adjusted gross income, as defined
(i) The producer’s 2018 or 2019 a legal entity must provide the name, under 26 U.S.C. 62 or comparable
allowable gross revenue, as elected by address, valid taxpayer identification measure, is not more than $900,000. The
the producer and as adjusted according number, and ownership share of each member is required to provide the
to § 9.304(c), if applicable; minus person or legal entity, that holds or information described in paragraphs
(ii) The producer’s 2020 allowable acquires a direct or indirect ownership (c)(1) and (2) of this section.
gross revenue; multiplied by interest in the legal entity. PARP (e) A person or legal entity other than
(iii) A payment factor of: payments to a legal entity will be a joint venture or general partnership
(A) Ninety (90) percent for reduced in proportion to a member’s cannot receive, directly or indirectly,
underserved farmers or ranchers, who ownership share when a valid taxpayer more than $125,000 under PARP. USDA
have submitted form CCC–860 certifying identification number for a person or may establish a lower maximum
they meet the definition for at least one legal entity that holds less than a 10 payment amount per person, legal
of the applicable groups; or percent direct or indirect ownership entity, or member of a joint venture or
(B) Eighty (80) percent for all other interest, at or above the fourth level of general partnership after the application
producers; and ownership in the business structure, is period has ended if calculated payment
(2) The producer’s PARP payment not provided to USDA. Additionally, a amounts exceed available funding.
will be equal to the result of the legal entity will not be eligible to Payments made to a PARP applicant
calculation in paragraph (a)(1) of this receive PARP payments when a valid who is a joint operation, including a
section minus the producer’s applicable taxpayer identification number for a joint venture or a general partnership,
pandemic assistance, and 2020 program person or legal entity that holds a direct may not exceed the amount determined
year ERP payments. or indirect ownership interest of 10 by multiplying $125,000 (or the reduced
(b) If a producer did not have percent or greater, at or above the fourth maximum payment limitation, if
allowable gross revenue in 2018 and level of ownership in the business applicable) by the number of persons or
2019 and the producer’s allowable gross structure, is not provided to USDA. legal entities that comprise the first-
revenue for 2020 decreased by at least (b) The $900,000 average adjusted level membership of the joint operation.
15 percent compared to the producer’s gross income limitation provisions in 7 (f) A PARP payment made to a legal
expected 2020 allowable gross revenue: CFR part 1400 relating to limits on entity will be considered in
(1) FSA will calculate: income for persons or legal entities, combination with other PARP payments
(i) The producer’s expected 2020 including members of legal entities, attributed to every person or legal entity
allowable gross revenue, as specified in joint ventures, and general partnerships with a direct or indirect ownership
§ 9.304(d), minus applies to PARP. The average adjusted interest in the legal entity. The
lotter on DSK11XQN23PROD with RULES2
(ii) The producer’s actual 2020 gross income will be calculated for a maximum limitation described in
allowable gross revenue; person or legal entity based on the 2016, paragraph (e) of this section for a legal
(iii) Multiplied by a payment factor of: 2017, and 2018 tax years. If the person’s entity is determined based on payments
(A) 90 percent for underserved or legal entity’s average adjusted gross to the legal entity and members who are
farmers or ranchers who have submitted income exceeds $900,000, the applicant an individual person or a legal entity. If
form CCC–860 certifying they meet the is ineligible for PARP except as a member’s combined PARP payments
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
1882 Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations
reach the maximum payment limitation (2) Payment limitation described in against the commodity or proceeds from
when summed from all businesses in paragraph (e) of this section; and the sale of the commodity. The
which the person or legal entity has an (3) Attribution of payments described regulations governing offsets in part 3 of
ownership interest, then subsequent in paragraph (f) of this section. this title do not apply to payments made
payments to the legal entity will be (h) Payments made directly or under this subpart.
reduced by the proportionate ownership indirectly to a person who is a minor (g) For the purposes of the effect of a
interest of the member. A payment to a child will not be combined with the lien on eligibility for Federal programs
legal entity will be attributed to those earnings of the minor child’s parent or (28 U.S.C. 3201(e)), USDA waives the
members who have a direct or indirect legal guardian. restriction on receipt of funds under
ownership interest in the legal entity, PARP but only as to beneficiaries who,
unless the payment of the legal entity § 9.308 Eligibility subject to verification.
as a condition of the waiver, agree to
has been reduced by the proportionate (a) Producers who are approved for apply the PARP payments to reduce the
ownership interest of the member due to participation in PARP are required to amount of the judgment lien.
that member’s ineligibility. Attribution retain documentation in support of their
application for 3 years after the date of (h) The provisions in 7 CFR 718.3,
of payments made to legal entities will 718.4, 718.5, 718.6, 718.8, 718.9, 718.10,
be tracked through four levels of approval.
(b) Participants receiving PARP and 718.11 are applicable to multiple
ownership in legal entities as follows: programs and apply to PARP.
(1) First level of ownership: Any payments must permit authorized
payment made to a legal entity that is representatives of USDA or the (i) In addition to any other Federal
owned in whole or in part by a person Government Accountability Office, laws that apply to PARP, the following
will be attributed to the person in an during regular business hours, to enter laws apply: 15 U.S.C. 714; 18 U.S.C.
amount that represents the direct the agricultural operation and to 286, 287, 371, and 1001.
ownership interest in the first-level or inspect, examine, and to allow § 9.310 Perjury.
payment legal entity; representatives to make copies of books,
(2) Second level of ownership: Any records, or other items for the purpose In either applying for or participating
payment made to a first-level legal of confirming the accuracy of the in PARP, or both, the producer is
entity that is owned in whole or in part information provided by the participant. subject to laws against perjury and any
by another legal entity (referred to as a resulting penalties and prosecution,
second-level legal entity) will be § 9.309 Miscellaneous provisions. including, but not limited to, 18 U.S.C.
attributed to the second-level legal (a) If a PARP payment resulted from 1621. If the producer willfully makes
entity in proportion to the ownership of erroneous information provided by a and represents as true any verbal or
the second-level legal entity in the first- producer, or any person acting on their written declaration, certification,
level legal entity; if the second-level behalf, the payment will be recalculated statement, or verification that the
legal entity is owned in whole or in part and the producer must refund any producer knows or believes not to be
by a person, the amount of the payment excess payment with interest calculated true, in the course of either applying for
made to the first-level legal entity will from the date of the disbursement of the or participating in PARP, or both, then
be attributed to the person in the payment. the producer may be guilty of perjury
amount that represents the indirect (b) If FSA determines that the and, except as otherwise provided by
ownership in the first-level legal entity producer intentionally misrepresented law, may be fined, imprisoned for not
by the person; information provided on their more than 5 years, or both, regardless of
(3) Third and fourth levels of application, the application will be whether the producer makes such verbal
ownership: Except as provided in the disapproved and the producer must or written declaration, certification,
second-level ownership in paragraph refund the full payment to FSA with statement, or verification within or
(f)(2) of this section and in the fourth interest from the date of disbursement. without the United States.
level of ownership in paragraph (f)(4) of (c) Any required refunds must be
this section, any payments made to a resolved in accordance with part 3 of PART 701—EMERGENCY
legal entity at the third and fourth levels this title. CONSERVATION PROGRAM,
of ownership will be attributed in the (d) The regulations in 7 CFR part 718, EMERGENCY FOREST RESTORATION
same manner as specified in paragraph subpart D, and 7 CFR parts 11 and 780 PROGRAM, AND CERTAIN RELATED
(f)(2) of this section; and apply to determinations made under PROGRAMS PREVIOUSLY
(4) Fourth-level of ownership: If the this subpart. ADMINISTERED UNDER THIS PART
fourth level of ownership is that of a (e) A producer, whether a person or
legal entity and not that of a person, a legal entity that either fails to timely ■ 15. The authority citation for part 701
reduction in payment will be applied to provide all required documentation or continues to read as follows:
the first-level or payment legal entity in fails to satisfy any eligibility Authority: 16 U.S.C. 2201–2206; Sec. 101,
the amount that represents the indirect requirement for PARP, is not eligible to Pub. L. 109–148, 119 Stat. 2747; and Pub. L.
ownership in the first level or payment receive PARP payments, directly or 111–212, 124 Stat. 2302.
legal entity by the fourth-level legal indirectly. A PARP payment to an
entity. eligible legal entity applicant whose Subpart A—General
(g) Payments made to a PARP member(s) either fails to timely provide
■ 16. Amend § 701.2 in paragraph (b) as
applicant that is an Indian Tribe or all required documentation or fails to
Tribal organization, as defined in the satisfy any eligibility requirement for follows:
section 4(b) of the Indian Self- PARP will be reduced proportionate to ■ a. Remove the definition of
lotter on DSK11XQN23PROD with RULES2
Determination and Education that member’s ownership interest in the ‘‘Commercial forest land’’;
Assistance Act (25 U.S.C. 5304), are not legal entity. ■ b. Add the definition of ‘‘Forestland’’
subject to: (f) Any payment under this subpart in alphabetical order;
(1) AGI requirements described in will be made without regard to ■ c. In a definition for ‘‘Nonindustrial
paragraphs (b) through (d) of this questions of title under State law and private forest land’’, remove the words
section; without regard to any claim or lien ‘‘commercial forest’’; and
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations 1883
■ d. Add a definition for ‘‘Socially (ii) Eligible person or legal entity is paragraphs (a) through (c) of this section
disadvantaged farmer or rancher’’ in prohibited by the lease from accepting to the maximum extent allowed by law.
alphabetical order. cost-share. ■ 22. Amend § 701.127 by designating
The additions read as follows: (b) Federally-owned farmland. When the undesignated paragraph as
land is federally owned, whether it is paragraph (a) and adding paragraph (b)
§ 701.2 Abbreviations and definitions.
eligible for cost-share is as specified in to read as follows.
* * * * * this paragraph (a), in addition to the
(b) * * * requirements in § 701.105. § 701.127 Maximum ECP payments per
Forestland means land that is at least (1) If an eligible person or legal entity person or legal entity.
120 feet wide and 1 acre in size and at files a cost-share request on federally * * * * *
least 10 percent covered by live trees of owned farmland, the land is eligible if (b) The Secretary may waive the
any size. all of the following apply: maximum limitations described in
* * * * * (i) An eligible private person or legal paragraph (a) of this section to the
Socially disadvantaged farmer or entity is farming or ranching the maximum extent allowed by law.
rancher means a farmer or rancher who farmland; ■ 23. Amend § 701.128 by revising the
is a member of a socially disadvantaged (ii) An eligible person or legal entity section heading and paragraph (a) to
group. A socially disadvantaged group has a lease that does not prohibit cost- read as follows.
is a group whose members have been share;
subjected to racial or ethnic prejudice § 701.128 Advance payment.
(iii) The practice will primarily
because of their identity as members of benefit nearby or adjacent privately (a) With respect to a payment to an
a group without regard to their owned farmland of the eligible person agricultural producer for any eligible
individual qualities. or legal entity performing the practice; ECP practice, the agricultural producer
(iv) A person or legal entity has the option of receiving up to 25
§§ 701.44 and 701.45 [Removed and percent of the projected payment,
Reserved] performing the practice has
authorization from a Federal agency to determined based on the applicable
■ 17. Remove and reserve §§ 701.44 and install and maintain the practice; percentage of the fair market value of
701.45. (v) The Federal land is the most the cost of the practice, as determined
practical location for the eligible by FSA, before the agricultural producer
Subpart B—Emergency Conservation carries out the restoration.
practice; and
Program * * * * *
(vi) During a drought, the practice
■ 18. Amend § 701.105 as follows: will primarily benefit the livestock
§§ 701.150 through 701.157 [Removed]
■ a. Remove paragraphs (b)(1) and (2); owned or managed by the eligible
person or legal entity performing the ■ 25. Remove §§ 701.150 through
■ b. Redesignate paragraphs (b)(3)
through (13) as paragraphs (b)(1) practice. 701.157.
through (11), respectively; (2) If an eligible person or legal entity
files a cost share request on federally- Subpart C—Emergency Forest
■ c. Add paragraph (d).
owned land, the land is ineligible if the Restoration Program
The addition reads as set forth below.
practices performed on these lands are ■ 26. Amend § 701.226 by adding
§ 701.105 Land eligibility. for the benefit of land owned by a paragraph (c) to read as follows.
* * * * * Federal agency.
(d) Additional provisions making (c) Federal or State agency. For the § 701.226 Maximum cost-share
Government-owned land eligible is purposes of this subpart, private persons percentages.
specified in § 701.106. or legal entities exclude Federal and * * * * *
■ 19. Add § 701.106 to read as follows: State agencies. (c) The Secretary may waive the
■ 20. Amend § 701.111 by revising maximum limitations described in
§ 701.106 Government-owned land. paragraph (a) to read as follows: paragraphs (a) and (b) of this section to
(a) State-owned land. When land is the maximum extent allowed by law.
owned by a State, whether it is eligible § 701.111 Prohibition on duplicate
payments. Farm Service Administration
for cost share is as specified in this
paragraph (a) in addition to the (a) Duplicate payments. Participants Chapter VII
requirements in § 701.105. are not eligible to receive funding under
(1) If an eligible person or legal entity ECP on the same piece of land for which PART 760—INDEMNITY PAYMENT
has a lease for the State-owned land that the participant has or will receive PROGRAMS
allows cost share, and files a cost share funding under any other Federal or
■ 27. The authority citation for part 760
request for the State-owned land, the State program that covers the same or
similar expenses so as to create is revised to read as follows:
land is eligible for cost share if, as
determined by FSA, the: duplicate payments, or, in effect, a Authority: 7 U.S.C. 4501 and 1531; 16
(i) Eligible person or legal entity will higher rate of cost share than is allowed U.S.C. 3801, note; 19 U.S.C. 2497; Title III,
directly benefit from the practice; or under this part. Pub. L. 109–234, 120 Stat. 474; Title IX, Pub.
L. 110–28, 121 Stat. 211; Sec. 748, Pub. L.
(ii) The land will remain in * * * * * 111–80, 123 Stat. 2131; Title I, Pub. L. 115–
agricultural production throughout the ■ 21. Amend § 701.126 by adding 123, 132 Stat. 65; Title I, Pub. L. 116–20, 133
established practice life span. paragraph (d) to read as follows. Stat. 871; Division B, Title VII, Pub. L. 116–
lotter on DSK11XQN23PROD with RULES2
(2) If an eligible person or legal entity 94, 133 Stat. 2658; and Division B, Title I,
files a cost-share request for State- § 701.126 Maximum cost-share Pub. L. 117– 43, 135 Stat. 344.
owned land, the land is ineligible for percentages.
■ 28. Add subpart S to read as follows.
cost share if, as determined by FSA, the: * * * * *
(i) Practice is for the primary benefit (d) The Secretary may waive the Subpart S—Emergency Relief Program
of the State or State agencies; or maximum limitations described in Sec.
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
1884 Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations
760.1900 Applicability and administration. in cases where lateness or failure to (2) For the 2021 program year, 2017,
760.1901 Definitions. meet such other requirements or 2018, and 2019.
760.1902 Producer eligibility requirements. program provisions do not adversely BCAP means the Biomass Crop
760.1903 Allowable gross revenue. Assistance Program under 7 CFR part
760.1904 Time and method of application.
affect operation of ERP.
760.1905 Payment calculation. 1450.
§ 760.1901 Definitions. Beginning farmer or rancher means a
760.1906 Payment limitation and
attribution. The following definitions apply to farmer or rancher who has not operated
760.1907 Eligibility subject to verification. this subpart. The definitions in parts a farm or ranch for more than 10 years
760.1908 Miscellaneous provisions. 718 and 1400 of this title apply, except and who materially and substantially
760.1909 Perjury. where they conflict with the definitions participates in the operation. For a legal
760.1910 Requirement to purchase crop in this section. entity to be considered a beginning
insurance or NAP coverage. 2017 WHIP means the 2017 Wildfires farmer or rancher, at least 50 percent of
and Hurricanes Indemnity Program the interest must be beginning farmers
Subpart S—Emergency Relief Program
under 7 CFR part 760, subpart O. or ranchers.
§ 760.1900 Applicability and Administrative fee means the amount Benchmark revenue means allowable
administration. an insured producer paid for gross revenue for the benchmark year. If
(a) This subpart specifies the catastrophic risk protection, and a producer began farming in 2020 or
eligibility requirements and payment additional coverage for each crop year 2021 and did not have allowable gross
calculations for Phase 2 of the as specified in the applicable crop revenue in either 2018 or 2019, the
Emergency Relief Program (ERP). ERP insurance policy. benchmark revenue is the producer’s
provides payments to producers who Application means the ERP Phase 2 reasonably expected allowable gross
suffered eligible crop losses due to application form. revenue for the disaster year prior to the
qualifying disaster events, which Aquaculture means any species of impact of the qualifying disaster event.
include wildfires, hurricanes, floods, aquatic organisms grown as food for Benchmark year means the 2018 or
derechos, excessive heat, winter storms, human or livestock consumption or for 2019 tax year, as elected by the
freeze (including a polar vortex), smoke industrial or biomass uses, fish raised as producer.
exposure, excessive moisture, qualifying feed for fish that are consumed by Buy-up NAP coverage means NAP
drought, and related conditions humans, and ornamental fish coverage at a payment amount that is
occurring in calendar years 2020 and propagated and reared in an aquatic equal to an indemnity amount
2021.1 To be eligible for ERP Phase 2 medium. Eligible aquacultural species calculated for buy-up coverage
payments, participants must comply must be raised by a commercial operator computed under section 508(c) or (h) of
with all provisions under this subpart. and in water in a controlled the Federal Crop Insurance Act and
(b) ERP is administered under the environment. equal to the amount that the buy-up
general supervision and direction of the ARC and PLC means the Agriculture coverage yield for the crop exceeds the
Administrator, Farm Service Agency Risk Coverage (ARC) and Price Loss actual yield for the crop.
(FSA). Coverage (PLC) programs under 7 CFR Catastrophic coverage has the same
(c) The FSA State committee will take part 1412. meaning as in 7 CFR 1437.3.
any action required by this subpart that Average adjusted gross farm income CCC means the Commodity Credit
an FSA county committee has not taken. means the average of the person or legal Corporation.
The FSA State committee will also: entity’s adjusted gross income derived Certifying agent means a private or
(1) Correct, or require an FSA county from farming, ranching, or forestry governmental entity accredited by the
committee to correct, any action taken operations for the 3 taxable years USDA Secretary for the purpose of
by such county FSA committee that is preceding the most immediately certifying a production, processing, or
not in accordance with the regulations preceding complete taxable year. handling operation as organic.
of this subpart; or (1) If the resulting average adjusted CFAP means the Coronavirus Food
(2) Require an FSA county committee gross farm income is at least 66.66 Assistance Program 1 and 2 under 7
to withhold taking any action that is not percent of the average adjusted gross CFR part 9, subparts A through C,
in accordance with this subpart. income of the person or legal entity, excluding assistance for contract
(d) No provision or delegation to an then the average adjusted gross farm producers specified in § 9.203(l) through
FSA State or county committee will income may also take into consideration (o).
preclude the FSA Administrator, the income or benefits derived from the Controlled environment means an
Deputy Administrator, or a designee or following: environment in which everything that
other such person, from determining (i) The sale of equipment to conduct can practicably be controlled by the
any question arising under the programs farm, ranch, or forestry operations; and producer with structures, facilities, and
of this subpart, or from reversing or (ii) The provision of production growing media (including but not
modifying any determination made by inputs and services to farmers, ranchers, limited to water, soil, or nutrients), is in
an FSA State or county committee. foresters, and farm operations. fact controlled by the producer, as
(e) The Deputy Administrator has the (2) The relevant tax years are: determined by industry standards.
authority to permit State and county (i) For the 2020 program year, 2016, County means the county or parish of
committees to waive or modify 2017, and 2018; and a state. For Alaska, Puerto Rico, and the
deadlines (except deadlines specified in (ii) For the 2021 program year, 2017, Virgin Islands, a county is an area
a law) and other requirements or 2018, and 2019. designated by the State committee with
program provisions not specified in law, Average adjusted gross income means the concurrence of the Deputy
lotter on DSK11XQN23PROD with RULES2
the average of the adjusted gross income Administrator.
1 ERP Phase 1 was administered according to the
as defined under 26 U.S.C. 62 or County committee means the FSA
notice of funds availability published in the Federal comparable measure of the person or county committee.
Register on May 18, 2022 (87 FR 30164–30172). A
clarification to the notice of funds availability for
legal entity. The relevant tax years are: Coverage level means the percentage
ERP Phase 1 was published on August 18, 2022 (87 (1) For the 2020 program year, 2016, determined by multiplying the elected
FR 50828–50830). 2017, and 2018; and yield percentage under a crop insurance
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations 1885
policy or NAP coverage by the elected indirectly, under this subpart. A person practices, crop insurance indemnities,
price percentage. or legal entity may have more than one and catastrophic risk protection plans;
Crop insurance means an insurance farming operation if the person or legal (9) Sale of land that has been used for
policy reinsured by the Federal Crop entity is a member of one or more legal agricultural purposes;
Insurance Corporation under the entity or joint operation. (10) Payments and benefits authorized
provisions of the Federal Crop FCIC means the Federal Crop under any program made available and
Insurance Act, as amended. Insurance Corporation, a wholly owned applicable to payment eligibility and
Crop insurance indemnity means the Government Corporation of USDA, payment limitation rules;
payment to a participant for crop losses administered by RMA. (11) Income reported on Internal
covered under crop insurance Hemp means the plant species Revenue Service (IRS) Schedule F or
administered by RMA in accordance Cannabis sativa L. and any part of that other schedule used by the person or
with the Federal Crop Insurance Act (7 plant, including the seeds thereof and legal entity to report income from such
U.S.C. 1501–1524). all derivatives, extracts, cannabinoids, operations to the IRS;
Deputy Administrator means Deputy isomers, acids, salts, and salts of (12) Wages or dividends received
Administrator for Farm Programs, Farm isomers, whether growing or not, with a from a closely held corporation, Interest
Service Agency, U.S. Department of delta-9 tetrahydrocannabinol Charge Domestic International Sales
Agriculture, or their designee. concentration of not more than 0.3 Corporation (IC–DISC), or legal entity
Direct market crop means a crop sold percent on a dry weight basis, that is comprised entirely of family members
directly to consumers without the grown under a license or other required when more than 50 percent of the legal
intervention of an intermediary such as authorization issued by the applicable entity’s gross receipts for each tax year
a registered handler, wholesaler, governing authority that permits the are derived from farming, ranching, or
retailer, packer, processor, shipper, or production of the hemp. forestry activities as defined in this
buyer (for example, a crop sold at a High value crop means: document; and
farmer’s market or roadside stand), (1) Any eligible crop not specifically (13) Any other activity related to
excluding crops sold for livestock identified as a specialty crop or listed in farming, ranching, and forestry, as
consumption. the definition of ‘‘other crop’’; and determined by the Deputy
Disaster year means the calendar year (2) Any eligible crop, regardless of Administrator.
in which the qualifying disaster event whether it is identified as a specialty IRS means the Department of
occurred (that is, 2020 or 2021). crop or listed in the definition of ‘‘other Treasury, Internal Revenue Service.
Disaster year revenue means the crop,’’ if the crop is a direct market LDP means the Loan Deficiency
allowable gross revenue for: crop, organic crop, or a crop grown for Payment programs in 7 CFR parts 1421,
(1) The 2020 or 2021 tax year, as a specific market in which specialized 1425, 1427, 1434, and 1435.
elected by the producer, for the 2020 products can be sold resulting in an Legal entity means a corporation, joint
disaster year; and increased value compared to the typical stock company, association, limited
(2) The 2021 or 2022 tax year, as
market for the crops (for example, partnership, irrevocable trust, estate,
elected by the producer, for the 2021
soybeans intended for tofu production), charitable organization, or other similar
disaster year.
as determined by the Deputy organization including any such
(3) Producers must choose
Administrator. organization participating in a business
consecutive tax years if they are
Income derived from farming, structure as a partner in a general
applying for both the 2020 and 2021
ranching, and forestry operations means partnership, a participant in a joint
disaster years (that is, they may choose
income of an individual or entity venture, a grantor of a revocable trust,
2020 tax year revenue for the 2020
derived from: or as a participant in a similar
disaster year, and 2021 tax year revenue
(1) Production of crops, specialty organization. A business operating as a
for the 2021 disaster year; or they may
crops, and unfinished raw forestry sole proprietorship is considered a legal
choose 2021 tax year revenue for the
products; entity.
2020 disaster year, and 2022 tax year
(2) Production of livestock, Limited resource farmer or rancher
revenue for the 2021 disaster year).
ELAP means the Emergency aquaculture products used for food, means a farmer or rancher:
Assistance for Livestock, Honeybees, honeybees, and products derived from (1) Who is a person whose:
and Farm-Raised Fish Program under livestock; (i) Direct or indirect gross farm sales
part 1416, subpart B, of this title. (3) Production of farm-based did not exceed:
Eligible crop means a crop, including renewable energy; (A) $180,300 in each calendar year for
eligible aquaculture, that is produced in (4) Selling (including the sale of 2017 and 2018 (the relevant years for
the United States as part of a farming easements and development rights) of the 2020 program year); or
operation and is intended to be farm, ranch, and forestry land, water or (B) $179,000 in each of the 2018 and
commercially marketed. It excludes: hunting rights, or environmental 2019 calendar years for the 2021
(1) Crops for grazing; benefits; program year;
(2) Aquatic species that do not meet (5) Rental or lease of land or and
the definition of aquaculture; equipment used for farming, ranching, (ii) Total household income was at or
(3) Cannabis sativa L. and any part of or forestry operations, including water below the national poverty level for a
that plant that does not meet the or hunting rights; family of four in each of the same two
definition of hemp; and (6) Processing, packing, storing, and previous years referenced in paragraph
(4) Timber. transportation of farm, ranch, forestry (1)(i) of this definition; 1 or
lotter on DSK11XQN23PROD with RULES2
Farming operation means a business commodities including renewable
enterprise engaged in the production of energy; 1 Limited resource farmer or rancher status can be
agricultural products, commodities, or (7) Feeding, rearing, or finishing of determined using a website available through the
Limited Resource Farmer and Rancher Online Self
livestock, operated by a person, legal livestock; Determination Tool through Natural Resources
entity, or joint operation, and that is (8) Payments of benefits, including Conservation Service at https://lrftool.sc.egov.
eligible to receive payments, directly or benefits from risk management usda.gov.
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
1886 Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations
(2) That is an entity and all members would have shared had the eligible crop www.ams.usda.gov/services/grants/
who hold an ownership interest in the been produced and marketed. scbgp/specialty-crop and other crops as
entity meet the criteria in paragraph (1) Program year means: designated by the Deputy
of this definition. (1) For ERP Phase 2, the disaster year; Administrator.
LFP means the Livestock Forage and Substantial beneficial interest (SBI)
Disaster Program under CFR part 1416, (2) For all other programs, the has the same meaning as specified in
subpart C. program year as defined in the the applicable crop insurance policy.
MLG means marketing loan gains applicable program provisions. For the purposes of ERP Phase 1,
under the Marketing Assistance Loan Qualifying disaster event means Federal crop insurance records for
program provisions in 7 CFR parts 1421, wildfires, hurricanes, floods, derechos, ‘‘transfer of coverage, right to
1425, 1427, 1434, and 1435. excessive heat, winter storms, freeze indemnity’’ are considered the same as
Minor child means a person who is (including a polar vortex), smoke SBIs.
under 18 years of age as of June 1, 2020. exposure, excessive moisture, qualifying STRP means the Seafood Trade Relief
MFP means the 2018 Market drought, and related conditions. Program announced in the notice of
Facilitation Program under 7 CFR part Qualifying drought means an area funds availability published on
1409, subpart A, and the 2019 Market within the county was rated by the U.S. September 14, 2020 (85 FR 56572–
Facilitation Program under 7 CFR part Drought Monitor as having a drought 56575).
1409, subpart B. intensity of D2 (severe drought) for eight Underserved farmer or rancher means
NAP means the Noninsured Crop consecutive weeks or D3 (extreme a beginning farmer or rancher, limited
Disaster Assistance Program under drought) or higher level for any period resource farmer or rancher, socially
section 196 of the Federal Agriculture of time during the applicable calendar disadvantaged farmer or rancher, or
Improvement and Reform Act of 1996 (7 year. veteran farmer or rancher.
U.S.C. 7333) and 7 CFR part 1437. Related condition means damaging United States means all 50 States of
On-Farm Storage Loss Program means weather and adverse natural the United States, the District of
the On-Farm Storage Loss Program occurrences that occurred concurrently Columbia, the Commonwealth of Puerto
under 7 CFR part 760, subpart P. with and as a direct result of a specified Rico, and any other territory or
Organic crop means a crop that is qualifying disaster event. Related possession of the United States.
organically produced consistent with conditions include, but are not limited U.S. Drought Monitor means the
section 2103 of the Organic Foods to: system for classifying drought severity
Production Act of 1990 (7 U.S.C. 6502) (1) Excessive wind that occurred as a according to a range of abnormally dry
and grown on acreage certified by a direct result of a derecho; to exceptional drought. It is a
certifying agent as conforming to (2) Silt and debris that occurred as a collaborative effort between Federal and
organic standards specified in 7 CFR direct and proximate result of flooding; academic partners, produced on a
part 205. (3) Excessive wind, storm surges, weekly basis, to synthesize multiple
Other crop means cotton, peanuts, tornados, tropical storms, and tropical indices, outlooks, and drought impacts
rice, feedstock, and any crop grown depressions that occurred as a direct on a map and in narrative form. This
with an intended use of grain, silage, or result of a hurricane; and synthesis of indices is reported by the
forage, unless the crop meets the (4) Excessive wind and blizzards that National Drought Mitigation Center at
requirements in paragraph (2) of the occurred as a direct result of a winter http://droughtmonitor.unl.edu.
definition of ‘‘high value crop.’’ storm. Veteran farmer or rancher means a
Ownership interest means to have Socially disadvantaged farmer or farmer or rancher:
either legal ownership interest or rancher means a farmer or rancher who (1) Who has served in the Armed
beneficial ownership interest in a legal is a member of a group whose members Forces (as defined in 38 U.S.C.
entity. For the purposes of have been subjected to racial, ethnic, or 101(10) 2) and:
administering ERP Phase 2, a person or gender prejudice because of their (i) Has not operated a farm or ranch
legal entity that owns a share or stock identity as members of a group without for more than 10 years; or
in a legal entity that is a corporation, regard to their individual qualities. For (ii) Has obtained status as a veteran
limited liability company, limited entities, at least 50 percent of the (as defined in 38 U.S.C. 101(2) 3) during
partnership, or similar type entity where ownership interest must be held by the most recent 10-year period; or
members hold a legal ownership interest individuals who are members of such a (2) That is an entity and at least 50
and shares in the profits or losses of group. Socially disadvantaged groups percent of the ownership interest is held
such entity is considered to have an include the following and no others by members who meet the criteria in
ownership interest in such legal entity. unless approved in writing by the paragraph (1) of this definition.
A person or legal entity that is a Deputy Administrator: WHIP+ means the Wildfires and
beneficiary of a trust or heir of an estate (1) American Indians or Alaskan Hurricanes Indemnity Program Plus
who benefits from the profits or losses Natives; under 7 CFR part 760, subpart O.
of such entity is also considered to have (2) Asians or Asian-Americans;
a beneficial ownership interest in such (3) Blacks or African Americans; § 760.1902 Producer eligibility
legal entity. (4) Hispanics or Hispanic Americans; requirements.
Person means an individual, natural (5) Native Hawaiians or other Pacific (a) To be eligible for ERP Phase 2, a
person and does not include a legal Islanders; and producer must have suffered a loss in
entity. (6) Women.
Premium means the premium paid by Specialty crops means fruits, tree 2 The term ‘‘Armed Forces’’ means the United
lotter on DSK11XQN23PROD with RULES2
the producer for crop insurance nuts, vegetables, culinary herbs and States Army, Navy, Marine Corps, Air Force, Space
coverage or NAP buy-up coverage spices, medicinal plants, and nursery, Force, and Coast Guard, including the reserve
floriculture, and horticulture crops. This components.
levels. 3 The term ‘‘veteran’’ means a person who served
Producer means a person or legal includes common specialty crops in the active military, naval, air, or space service,
entity who was entitled to a share in the identified by USDA’s Agricultural and who was discharged or released under
eligible crop available for marketing or Marketing Service at https:// conditions other than dishonorable.
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations 1887
disaster year allowable gross revenue, as (11) Other revenue directly related to calendar days of the request. The
compared to the benchmark allowable the production of eligible crops that IRS documentation to support an
gross revenue, due to necessary requires the producer to report as adjustment due to a change in operation
expenses associated with losses of income; capacity must show that the adjustment
eligible crops due in whole or in part to (12) For the disaster year only, ERP to the producer’s benchmark revenue is
a qualifying disaster event that occurred Phase 1 payments issued to another due to an:
in the 2020 or 2021 calendar year. person or entity for the producer’s share (1) Addition or decrease in
(b) To be eligible for an ERP Phase 2 of an eligible crop, regardless of the tax production capacity of the farming
payment, a producer must be a: year in which the payment would be operation;
(1) Citizen of the United States; reported to IRS; and
(2) Resident alien, which for purposes (2) Increase or decrease in the use of
(13) For the benchmark year only,
of this subpart means ‘‘lawful alien’’ as existing production capacity; or
2018, 2019 and 2020 WHIP+ and QLA
defined in part 1400 of this title; payments. (3) Physical alterations that were
(3) Partnership organized under State (b) Allowable gross revenue does not made to existing production capacity.
Law; include revenue from sources other than (f) If a producer began farming in 2020
(4) Corporation, limited liability those listed in paragraph (a) of this or 2021 and did not have allowable
company, or other organizational section, including but not limited to, gross revenue in a benchmark year, the
structure organized under State law; or revenue from: producer may certify to an adjusted
(5) Indian Tribe or Tribal (1) Federal assistance programs not benchmark allowable gross revenue on
organization, as defined in section 4(b) included in paragraph (a) of this section; form FSA–521 that represents what had
of the Indian Self-Determination and (2) Sales of livestock, animal by- been the producer’s reasonably expected
Education Assistance Act (25 U.S.C. products, and any commodities that are disaster year revenue prior to the impact
5304). excluded from ‘‘eligible crops’’; of the qualifying disaster event. If
(3) Resale items not held for requested by FSA, documentation
§ 760.1903 Allowable gross revenue. characteristic change; required to support a producer’s
(a) For the purposes of this subpart, (4) Income from a pass-through entity certification must be provided within 30
‘‘allowable gross revenue’’ includes such as an S Corp or limited liability calendar days of FSA’s request, or the
revenue from: company; producer will be considered ineligible
(1) Sales of eligible crops produced by (5) Conservation program payments; for ERP Phase 2. Acceptable
the producer, which includes sales (6) Any pandemic assistance documentation must be generated in the
resulting from value added through payments that were not for the loss of ordinary course of business and dated
post-production activities that were eligible crops or the loss of revenue prior to the impact of the disaster event
reportable on IRS Schedule F; from eligible crops; and includes, but is not limited to:
(2) Sales of eligible crops a producer (7) Custom hire income;
purchased for resale that had a change (8) Net gain from hedging or (1) Financial documents such as a
in characteristic due to the time held speculation; business plan or cash flow statement
(for example, a plant purchased at a size (9) Wages, salaries, tips, and cash that demonstrate an expected level of
of 2 inches and sold as an 18-inch plant rent; revenue;
after 4 months), less the cost or other (10) Rental of equipment or supplies; (2) Sales contracts or purchase
basis of such eligible crops; and agreements; and
(3) The taxable amount of cooperative (11) Acting as a contract producer of (3) Documentation supporting
distributions directly related to the sale an agricultural commodity. production capacity, use of existing
of the eligible crops produced by the (c) A producer is required to certify to production capacity, or physical
producer; an adjusted allowable gross revenue for alterations that demonstrate production
(4) Benefits under the following the benchmark year on FSA–521 if the capacity.
agricultural programs: 2017 WHIP, ARC producer had a decreased operation (g) The allowable gross revenue will
and PLC, BCAP, LDP, MLG, MFP, the capacity in a disaster year for which be based on the year for which the
On-Farm Storage Loss Program, and they are applying for ERP Phase 2, revenue would be reported for the
STRP; compared to the benchmark year. purpose of filing a tax return, except for
(5) CCC loans, if treated as income (d) A producer may certify to an the ERP Phase 1 payments specified in
and reported to IRS; adjusted allowable gross revenue for the paragraph (a)(12) of this section.
(6) Crop insurance proceeds for benchmark year on FSA–521 if either of
eligible crops, minus the amount of the following apply: (h) Producers who file or would be
administrative fees and premiums; (1) The producer did not have a full eligible to file a joint tax return will
(7) NAP payments for eligible crops, year of revenue for 2018 or 2019; or certify their allowable gross revenue
minus the amount of service fees and (2) The producer had expanded their based on what it would have been had
premiums; operation capacity in a disaster year for they filed taxes separately for the
(8) ELAP payments for an aquaculture which they are applying for ERP Phase applicable year.
crop; 2, compared to the benchmark year. (i) On form FSA–521, for each
(9) Payments issued through grant (e) Change in operation capacity does applicable disaster year, producers must
agreements with FSA for losses of not include crop rotation from year to indicate the percentage of their
eligible crops; year, changes in farming practices such allowable gross revenue from specialty
(10) Grants from the Department of as converting from conventional tillage and high value crops and the percentage
lotter on DSK11XQN23PROD with RULES2
Commerce, National Oceanic and to no-till, or increasing the rate of from other crops. The percentages
Atmospheric Administration and State fertilizers or chemicals. If requested by certified must be equal to the
program funds providing direct FSA, producers are required to submit percentages that the producer would
payments for the loss of eligible crops documentation to FSA to support have reasonably expected to receive for
or the loss of revenue from eligible adjustments described in paragraphs (c) the disaster year if not for the qualifying
crops; and (d) of this section within 30 disaster event.
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
1888 Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations
§ 760.1904 Time and method of (i) Specialty and high value crops; producers similar to ERP Phase 1, but
application. and with a cap at the statutory maximum of
(a) A completed FSA–521, Emergency (ii) Other crops; and 70 percent. For example, if the ERP
Relief Program (ERP) Phase 2 (3) Ownership share in the Factor is set at 50 percent, the factor
Application, must be submitted to the agricultural commodities. used for underserved producers will be
producer’s recording county office by 65 percent, but if the factor is set at 55
§ 760.1905 Payment calculation.
the close of business on the date percent or higher, the factor for
announced by the Deputy (a) ERP Phase 2 payments will be underserved producers will be capped
Administrator. Applications may be calculated separately for each disaster at 70 percent.
submitted in person or by mail, email, year. If a producer indicates that they (e) If a producer receives assistance
facsimile, or other methods announced have expected revenue for both through CFAP or ERP Phase 1 after their
by FSA. specialty and high value crops and other ERP Phase 2 payment is calculated, the
(b) Failure of an individual, entity, or crops for a disaster year, a payment will producer’s ERP Phase 2 payment will be
a member of an entity to submit the be calculated separately for: recalculated and the producer must
following payment limitation and (1) Specialty and high value crops; refund any resulting overpayment.
payment eligibility forms within 60 and
(2) Other crops. § 760.1906 Payment limitation and
days from the date of the ERP Phase 2 attribution.
application deadline, may result in no (b) To determine a producer’s ERP
Phase 2 payment amount, FSA will (a) The payment limitation for ERP is
payment or a reduced payment:
(1) Form AD–2047, Customer Data calculate: determined by the person’s or legal
Worksheet, for new customers or (1) The producer’s benchmark year entity’s average adjusted gross farm
existing customers who need to update allowable gross revenue, adjusted income (income from activities related
their customer profile; according to 7 CFR 760.1903, if to farming, ranching, or forestry).
(2) Form CCC–860, Socially applicable, multiplied by the ERP factor Specifically, if their average adjusted
Disadvantaged, Limited Resource, of 70 percent; minus gross farm income is less than 75
Beginning and Veteran Farmer or (2) The producer’s disaster year percent of their average adjusted gross
Rancher Certification, applicable for the allowable gross revenue; minus income (AGI) for the three taxable years
program year or years for which the (3) The sum of the producer’s net ERP preceding the most immediately
producer is applying for ERP; Phase 1 payments for the 2020 program preceding complete tax year, a person or
(3) Form CCC–901, Member year, if the calculation is for the 2020 legal entity, other than a joint venture or
Information for Legal Entities, if disaster year, or for the 2021 and 2022 general partnership, cannot receive,
applicable; program years, if the calculation is for directly or indirectly, more than
(4) Form CCC–902, Farm Operating the 2021 disaster year; minus $125,000 in payments for specialty
Plan for an individual or legal entity as (4) The sum of the producer’s net crops and high value crops 1 and
provided in 7 CFR part 1400; CFAP payments (excluding payments $125,000 in payment for all other crops
(5) Form FSA–510, Request for an for contract producer revenue), net 2020 under:
Exception to the $125,000 Payment WHIP+ payments, and net 2020 Quality (1) ERP Phase 1 for program year 2020
Limitation for Certain Programs, Loss Adjustment (QLA) Program and ERP Phase 2 for program year 2020,
accompanied by a certification from a payments, if the calculation is for the combined; and
certified public accountant or attorney 2020 disaster year; and (2) ERP Phase 1 for program years
(5) Multiplied by the percentage of the 2021 and 2022 and ERP Phase 2 for
as to that person or legal entity’s
expected disaster year revenue for program year 2021, combined.
certification, for a legal entity and all
specialty and high value crops or other (b) If at least 75 percent of the person
members of that entity, for each or legal entity’s average AGI is derived
applicable program year, including the crops, as applicable, to determine the
separate payments for specialty and from farming, ranching, or forestry
legal entity’s members, partners, or related activities and the producer
shareholders, as provided in 7 CFR part high value crops or other crops.
(c) FSA will issue an initial payment provides the required certification and
1400; and documentation, as discussed below, the
(6) Form AD–1026, Highly Erodible equal to the lesser of the amount
calculated according to this section or person or legal entity, other than a joint
Land Conservation (HELC) and Wetland
the maximum initial payment amount of venture or general partnership, is
Conservation (WC) Certification, for the eligible to receive, directly or indirectly,
ERP Phase 2 applicant and applicable $2,000. If a producer has also received
a payment under ERP Phase 1, FSA will up to:
affiliates as provided in 7 CFR part 12. (1) $900,000 for specialty crops and
(c) If requested by FSA, the producer reduce the producer’s initial ERP Phase
high value crops combined for:
must provide additional documentation 2 payment amount by subtracting the (i) ERP Phase 1 for program year 2020
that establishes the producer’s eligibility producer’s ERP Phase 1 gross payment and ERP Phase 2 for program year 2020,
for ERP Phase 2. If supporting amount. combined; and
documentation is requested, the (d) After the close of the ERP Phase (ii) ERP Phase 1 for program years
documentation must be submitted to 2 application period, FSA will issue a 2021 and 2022 and ERP Phase 2 for
FSA within 30 calendar days from the final payment equal to the amount program year 2021, combined.; and
request or the application will be calculated according to this section (2) $250,000 for all other crops for:
disapproved by FSA. FSA may request minus the amount of the producer’s (i) ERP Phase 1 for program year 2020
supporting documentation to verify initial payment. If total calculated and ERP Phase 2 for program year 2020,
information provided by the producer payments exceed the total funding combined; and
lotter on DSK11XQN23PROD with RULES2
and the produce’s eligibility including, available for ERP Phase 2, the ERP factor
but not limited to, the producer’s: may be adjusted and the final payment 1 High value crops were not defined in ERP Phase
(1) Allowable gross revenue reported amounts will be prorated to stay within 1; therefore, only ERP Phase 1 payments for
the amount of available funding. If there specialty crops, as defined in the ERP Phase 1
on the ERP Phase 2 application; notice of funds availability, will be counted toward
(2) Percentages of the expected are insufficient funds, a differential of the increased payment limitation for specialty and
allowable gross revenue from: 15 percent will be used for underserved high value crops.
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations 1889
(ii) ERP Phase 1 for program years attributed to the second-level legal § 760.1907 Eligibility subject to
2021 and 2022 and ERP Phase 2 for entity in proportion to the ownership of verification.
program year 2021, combined. the second-level legal entity in the first- (a) Producers who are approved for
(c) The relevant tax years for level legal entity; if the second-level participation in ERP Phase 2 are
establishing a producer’s AGI and legal entity is owned in whole or in part required to retain documentation in
percentage derived from farming, by a person, the amount of the payment support of their application for 3 years
ranching, or forestry related activities made to the first-level legal entity will after the date of approval.
are: be attributed to the person in the (b) Participants receiving ERP Phase 2
(1) Years 2016, 2017, and 2018 for amount that represents the indirect payments must permit authorized
program year 2020; and ownership in the first-level legal entity representatives of USDA or the
(2) Years 2017, 2018, and 2019 for by the person; Government Accountability Office,
program year 2021. (3) Third and fourth levels of during regular business hours, to enter
(d) To receive more than $125,000 in ownership: Except as provided in the the agricultural operation and to
ERP payments, producers must submit second-level ownership in paragraph inspect, examine, and to allow
form FSA–510, accompanied by a (f)(2) of this section and in the fourth representatives to make copies of books,
certification from a certified public level of ownership in paragraph (f)(4) of records, or other items for the purpose
accountant or attorney as to that person this section, any payments made to a of confirming the accuracy of the
or legal entity’s certification. If a legal entity at the third and fourth levels
producer requesting the increased information provided by the participant.
of ownership will be attributed in the
payment limitation is a legal entity, all same manner as specified in paragraph § 760.1908 Miscellaneous provisions.
members of that entity must also (f)(2) of this section; and (a) If an ERP Phase 2 payment
complete form FSA–510 and provide (4) Fourth-level of ownership: If the resulted from erroneous information
the required certification according to fourth level of ownership is that of a provided by a producer, or any person
the direct attribution provisions in 7 legal entity and not that of a person, a acting on their behalf, the payment will
CFR 1400.105, ‘‘Attribution of reduction in payment will be applied to be recalculated and the producer must
Payments.’’ If a legal entity would be the first-level or payment legal entity in refund any excess payment with interest
eligible for the increased payment the amount that represents the indirect calculated from the date of the
limitation based on the legal entity’s ownership in the first-level or payment disbursement of the payment.
average AGI from farming, ranching, or legal entity by the fourth-level legal (b) If FSA determines that the
forestry related activities but a member entity. producer intentionally misrepresented
of that legal entity either does not (g) Payments made directly or
information provided on their
complete a form FSA–510 and provide indirectly to a person who is a minor
application, the application will be
the required certification or is not child will not be combined with the
disapproved and the producer must
eligible for the increased payment earnings of the minor’s parent or legal
guardian. refund the full payment to FSA with
limitation, the payment to the legal
(h) A producer that is a legal entity interest from the date of disbursement.
entity will be reduced for the limitation
must provide the names, addresses, (c) Any required refunds must be
applicable to the share of the ERP Phase
ownership share, and valid taxpayer resolved in accordance with part 3 of
2 payment attributed to that member.
(e) If a producer files form FSA–510 identification numbers of the members this title.
and the accompanying certification after holding an ownership interest in the (d) A producer, whether a person or
their ERP Phase 2 payment is issued but legal entity. Payments to a legal entity legal entity, that either fails to timely
before the deadline announced by FSA, will be reduced in proportion to a provide all required documentation or
FSA will process the form FSA–510 and member’s ownership share when a valid fails to satisfy any eligibility
issue the additional payment amount if taxpayer identification number for a requirement for ERP Phase 2, is not
a maximum initial payment amount has person or legal entity that holds a direct eligible to receive ERP Phase 2
not been reached. or indirect ownership interest, at the payments, directly or indirectly. An ERP
(f) A payment made to a legal entity first through fourth levels of ownership Phase 2 payment to an eligible legal
will be attributed to those members who in the business structure, is not entity applicant whose member(s) either
have a direct or indirect ownership provided to FSA. fails to timely provide all required
interest in the legal entity, unless the (i) If an individual or legal entity is documentation or fails to satisfy any
payment of the legal entity has been not eligible to receive ERP Phase 2 eligibility requirement for ERP Phase 2
reduced by the proportionate ownership payments due to the individual or legal will be reduced proportionate to that
interest of the member due to that entity failing to satisfy payment member’s ownership interest in the
member’s ineligibility. Attribution of eligibility provisions, the payment made legal entity.
payments made to legal entities will be either directly or indirectly to the (e) Any payment under this subpart
tracked through four levels of individual or legal entity will be will be made without regard to
ownership in legal entities as follows: reduced to zero. The amount of the questions of title under State law and
(1) First level of ownership: Any reduction for the direct payment to the without regard to any claim or lien
payment made to a legal entity that is producer will be commensurate with against the commodity or proceeds from
owned in whole or in part by a person the direct or indirect ownership interest the sale of the commodity. The
will be attributed to the person in an of the ineligible individual or ineligible regulations governing offsets in part 3 of
amount that represents the direct legal entity. this title apply to payments made under
ownership interest in the first-level or (j) Like other programs administered this subpart.
lotter on DSK11XQN23PROD with RULES2
payment legal entity; by FSA, payments made to an Indian (f) For the purposes of the effect of a
(2) Second level of ownership: Any Tribe or Tribal organization, as defined lien on eligibility for Federal programs
payment made to a first-level legal in section 4(b) of the Indian Self- (28 U.S.C. 3201(e)), USDA waives the
entity that is owned in whole or in part Determination and Education restriction on receipt of funds under
by another legal entity (referred to as a Assistance Act (25 U.S.C. 5304), will not ERP Phase 2 but only as to beneficiaries
second-level legal entity) will be be subject to payment limitation. who, as a condition of the waiver, agree
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
1890 Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations
to apply the ERP Phase 2 payments to participate in NAP; however, producers number, and ownership share of each
reduce the amount of the judgment lien. with an AGI greater than $900,000 are legal entity, that holds or acquires an
(g) In addition to any other Federal eligible for ERP. To reconcile this ownership interest in the legal entity;
laws that apply to ERP Phase 2, the restriction in the 1985 Farm Bill and the and
following laws apply: 15 U.S.C. 714; 18 requirement to obtain NAP or crop (2) The name, address, valid taxpayer
U.S.C. 286, 287, 371, and 1001. insurance coverage, ERP participants identification number, and ownership
may meet the purchase requirement by share of each legal entity in which the
§ 760.1909 Perjury. purchasing Whole-Farm Revenue
In either applying for or participating person or legal entity holds an
Protection (WFRP) crop insurance ownership interest.
in ERP Phase 2, or both, the producer coverage, if eligible, or they may pay the
is subject to laws against perjury and applicable NAP service fee despite their (c) Except as provided in paragraph
any resulting penalties and prosecution, ineligibility for a NAP payment. In other (d) of this section, payments to a legal
including, but not limited to, 18 U.S.C. words, the service fee must be paid even entity will be reduced in proportion to
1621. If the producer willfully makes though no NAP payment may be made a member’s ownership share when a
and represents as true any verbal or because the AGI of the person or entity valid taxpayer identification number for
written declaration, certification, exceeds the 1985 Farm Bill limitation. a person or legal entity that holds a
statement, or verification that the (e) If both Federal crop insurance and direct or indirect ownership interest of
producer knows or believes not to be NAP coverage are unavailable for a crop, less than 10 percent at, or above the
true, in the course of either applying for the producer must obtain WFRP crop fourth level of ownership in the
or participating in ERP Phase 2, or both, insurance coverage, if eligible. business structure is not provided to
then the producer may be guilty of (f) For all crops listed on form FSA– USDA. Additionally, A legal entity will
perjury and, except as otherwise 522, producers who have the crop or not be eligible to receive payment when
provided by law, may be fined, crop acreage in subsequent years and a valid taxpayer identification number
imprisoned for not more than 5 years, or who fail to obtain the 2 years of crop for a person or legal entity that holds a
both, regardless of whether the producer insurance or NAP coverage required as direct or indirect ownership interest of
makes such verbal or written required by this section, must refund 10 percent or greater at, or above the
declaration, certification, statement, or the ERP Phase 2 payment with interest fourth level of ownership in the
verification within or without the from the date of disbursement. business structure is not provided to
United States. Producers who do not plant a crop USDA.
listed on form FSA–522 in a year for (d) In order to be eligible to receive
§ 760.1910 Requirement to purchase crop which this requirement applies are not
insurance or NAP coverage. any payment specified in § 1400.1(a)(7)
subject to the crop insurance or NAP or as provided by the Natural Resources
(a) Producers must report all crops purchase requirement for that year.
that suffered a revenue loss in whole or Conservation Service in individual
(g) Producers who received an ERP program regulations in this chapter, a
in part due to a qualifying disaster event Phase 1 payment for a crop are not
on form FSA–522, Crop Insurance and/ person or legal entity must provide
required to obtain additional years of information in the manner as prescribed
or NAP Coverage Agreement. crop insurance or NAP coverage for that
(b) All producers who receive ERP by the Deputy Administrator as
crop if they also receive an ERP Phase identified in paragraph (b) of this
Phase 2 payments must file an accurate 2 payment for a loss associated with that
acreage report and purchase crop section. Paragraph (c) of this section
crop. does not apply to the identified Natural
insurance or NAP coverage where crop
insurance is not available, for the next PART 1400—PAYMENT LIMITATION Resources Conservation Service
2 available crop years. For each crop AND PAYMENT ELIGIBILITY programs (programs specified in
reported according to paragraph (a) of § 1400.1(a)(7) or any other Natural
this section, participants must obtain ■ 29. The authority citation for part Resources Conservation Service
crop insurance or NAP, as may be 1400 continues to read as follows: program as specified in the individual
applicable: Authority: 7 U.S.C. 1308, 1308–1, 1308–
program regulations in this chapter).
(1) At a coverage level equal to or 2, 1308–3, 1308–3a, 1308–4, and 1308–5; and
Title I, Pub. L. 115–123.
Subpart B—Payment Limitation
greater than 60 percent for insurable
crops; or § 1400.107 [Removed]
(2) At the catastrophic level or higher Subpart A—General Provisions
for NAP crops. ■ 31. Remove § 1400.107.
■ 30. Add § 1400.10 to read as follows:
(c) Availability will be determined
from the date a producer receives an § 1400.10 Notification of interests. PART 1416—EMERGENCY
ERP payment and may vary depending AGRICULTURAL DISASTER
(a) To facilitate administration of
on the timing and availability of crop ASSISTANCE PROGRAMS
subparts B, C, E, and F of this part for
insurance or NAP for a producer’s programs specified in § 1400.1, or any
particular crops. The final crop year to ■ 32. The authority citation for part
other program as provided in individual
purchase crop insurance or NAP program regulations in this chapter, a 1416 continues to read as follows:
coverage to meet the second year of person or legal entity must provide Authority: Title I, Pub. L. 113–79, 128
coverage for this requirement is the information in the manner as prescribed Stat. 649; Title I, Pub. L. 115–123; Title VII,
2026 crop year. by the Deputy Administrator. Pub. L. 115–141; and Title I, Pub. L. 116–20.
(d) In situations where crop insurance (b) The information required to be
lotter on DSK11XQN23PROD with RULES2
is unavailable for a crop, an ERP submitted under paragraph (a) of this Subpart A—General Provisions for
participant must obtain NAP coverage. section must include: Supplemental Agricultural Disaster
Section 1001D of the Food Security Act (1) The name, address, valid taxpayer Assistance Programs
of 1985 (1985 Farm Bill) provides that identification number, and ownership § 1416.5 [Removed and Reserved]
a person or entity with an AGI greater share of each person, or the name,
than $900,000 is not eligible to address, valid taxpayer identification ■ 33. Remove and reserve § 1416.5.
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations 1891
Subpart B—Emergency Assistance for (iv) Animals produced or maintained (iii) Animals produced or maintained
Livestock, Honeybees, and Farm- for consumption by owner. for hunting; and
Raised Fish Program * * * * * (iv) Animals produced or maintained
for consumption by owner.
■ 34. In § 1416.102, in the definition of Subpart C—Livestock Forage Disaster * * * * *
‘‘eligible loss condition’’, add a sentence Program ■ 39. Amend § 1416.305 as follows:
at the end of the definition to read as ■ a. In paragraph (g) introductory text,
follows: ■ 37. Amend § 1416.204 as follows:
■ a. In paragraph (a)(1), add ‘‘ostriches,’’ remove the words ‘‘if reliable’’ and add
§ 1416.102 Definitions. after ‘‘llamas,’’; the words ‘‘if the livestock are not
* * * * * ■ b. Revise paragraph (a)(5); owned by the licensed veterinarian and
Eligible loss condition * * * All other ■ c. Redesignate paragraphs (b)(15) and reliable’’ in their place;
(16) as (b)(16) and (17), respectively; ■ b. Revise paragraph (i) introductory
causes of losses are not covered,
■ d. Add new paragraph (b)(15); text; and
including, but not limited to,
■ e. Remove paragraph (c)(4); ■ c. In paragraph (i)(1) introductory text,
negligence, mismanagement, or
■ f. Redesignate paragraphs (c)(5) remove the words ‘‘For 2017 and
wrongdoing by the producer.
through (9) as (c)(4) through (8), subsequent calendar years, livestock
* * * * * respectively; and inventory reports by livestock unit must
■ 35. Amend § 1416.103 as follows: ■ g. Revise newly redesignated be provided to the local county FSA
■ a. Add a sentence to the end of paragraph (c)(8). office by the later of December 3, 2018,
paragraph (a); and The revisions and addition read as or’’ and add ‘‘Livestock inventory
■ b. In paragraph (d)(6), in the first follows. reports by livestock unit must be
sentence, remove ‘‘transport,’’ and add provided to the FSA local county office
§ 1416.204 Covered livestock.
‘‘transport’’ in its place. by’’ in their place.
The addition reads as follows: * * * * * The revision reads as follows.
(a) * * *
§ 1416.103 Eligible losses, adverse (5) Not have been produced and § 1416.305 Application process.
weather, and other loss conditions. maintained for reasons other than * * * * *
(a) * * * All other causes of loss are commercial use as part of a farming (i) Unweaned livestock operations
not considered an eligible loss operation. Such excluded uses include, may provide proof of death by using the
condition, including, but not limited to, but are not limited to: LBIH.
negligence, mismanagement or (i) Any uses of wild free roaming
* * * * *
wrongdoing by the producer. livestock;
(ii) Racing or wagering; PART 1437—NONINSURED CROP
* * * * * (iii) Hunting; and
■ 36. Amend § 1416.104 as follows: (iv) Consumption by owner; and DISASTER ASSISTANCE PROGRAM
■ a. Redesignate paragraphs (b)(16) and * * * * * ■ 40. The authority citation for part
(17) as (b)(17) and (18), respectively; (b) * * * 1437 continues to read as follows:
■ b. Add new paragraph (b)(16); (15) Ostriches,
■ c. Remove paragraph (c)(4); Authority: 7 U.S.C. 1501–1508 and 7333;
* * * * * 15 U.S.C. 714–714m; 19 U.S.C. 2497, and 48
■ d. Redesignate paragraphs (c)(5) (c) * * * U.S.C. 1469a.
through (8) as paragraphs (c)(4) through (8) Livestock produced or maintained
(7), respectively; for reasons other than commercial use, Subpart A—General Provisions
■ e. In newly redesignated paragraph including, but not limited to, livestock
(c)(6), add the word ‘‘and’’ at the end; produced or maintained for racing or ■ 41. In § 1437.3, revise the definition of
■ f. Revise newly redesignated wagering purposes, hunting, or ‘‘Application for coverage’’ to read as
paragraph (c)(7); and consumption by owner. follows:
■ g. Remove paragraph (c)(9).
The addition and revision read as Subpart D—Livestock Indemnity § 1437.3 Definitions.
follows. Program * * * * *
Application for coverage means:
§ 1416.104 Eligible livestock, honeybees, ■ 38. Amend § 1416.304 as follows: (1) The form specified by FSA to be
and farm-raised fish. ■ a. In paragraph (c)(3), remove the completed by a producer applying for
* * * * * words ‘‘for livestock’’ and add ‘‘for NAP coverage for an eligible crop that
(b) * * * livestock sale or’’ in their place; and is accompanied by the service fee or the
(16) Ostriches, ■ b. Revise paragraph (c)(4). service fee waiver form, or
The revision reads as follows. (2) Another applicable form,
* * * * *
(c) * * * § 1416.304 Eligible livestock. designated by the Deputy Administrator
(7) Livestock that are not produced for * * * * * to qualify as an application for NAP,
commercial use or those that are not (c) * * * that the producer has on file with FSA
produced or maintained in a (4) Not be produced or maintained for before the deadline for application for
commercial operation for livestock reasons other than commercial use for the coverage period which certifies they
products, such as milk from dairy, livestock sale or for the production of are eligible for a service fee waiver.
including, but not limited to: livestock products such as milk or eggs. * * * * *
lotter on DSK11XQN23PROD with RULES2
(i) Any wild free roaming livestock; Livestock excluded from being eligible
(ii) Horses and other animals used or § 1437.6 [Amended]
include, but are not limited to:
intended to be used for racing or (i) Wild free roaming animals; ■ 42. Amend § 1437.6 as follows:
wagering; (ii) Horses and other animals used or ■ a. Remove paragraph (a)(1); and
(iii) Animals produced or maintained intended to be used for racing or ■ b. Redesignate paragraphs (a)(2) and
for hunting; and wagering; (3) as (a)(1) and (2), respectively.
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\11JAR2.SGM 11JAR2
1892 Federal Register / Vol. 88, No. 7 / Wednesday, January 11, 2023 / Rules and Regulations
§ 1437.7 [Amended] PART 1450—BIOMASS CROP is a member of a socially disadvantaged
ASSISTANCE PROGRAM (BCAP) group. A socially disadvantaged group
■ 43. Amend § 1437.7 as follows:
is a group whose members have been
■ a. In paragraph (a), remove the words ■ 44. The authority citation for part subjected to racial or ethnic prejudice
‘‘in the administrative county office’’; 1450 continues to read as follows: because of their identity as members of
■ b. In paragraph (b) introductory text, Authority: 7 U.S.C. 8111. a group without regard to their
remove the words ‘‘request for’’ and add ■ 45. In § 1450.2, add a definition for
individual qualities.
the words ‘‘certification of eligibility for ‘‘Socially disadvantaged farmer or * * * * *
a’’ in their place; and rancher’’ in alphabetical order to read as Gloria Montaño Greene,
■ c. In paragraph (g) add the words ‘‘for follows.
Deputy Under Secretary, Farm Production
any buy-up coverage elected’’ at the end § 1450.2 Definitions. and Conservation, U.S. Department of
of the first sentence. * * * * * Agriculture.
Socially disadvantaged farmer or [FR Doc. 2023–00005 Filed 1–9–23; 8:45 am]
rancher means a farmer or rancher who BILLING CODE 3411–E2–P
lotter on DSK11XQN23PROD with RULES2
VerDate Sep<11>2014 19:59 Jan 10, 2023 Jkt 259001 PO 00000 Frm 00032 Fmt 4701 Sfmt 9990 E:\FR\FM\11JAR2.SGM 11JAR2
File and source
- File
- FR-2023-01-11_2023-00005.pdf
- Size
- 541,852 bytes
- SHA-256
- 728bb7763ab4e0632302700b8f537772241a55161ce7c63f664b052433641669
- Our copy
- FR-2023-01-11_2023-00005.pdf
- Original
- www.govinfo.gov