[Federal Register Volume 76, Number 169 (Wednesday, August 31, 2011)]
[Rules and Regulations]
[Pages 54072-54075]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-22323]


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DEPARTMENT OF AGRICULTURE

Farm Service Agency

7 CFR Part 760

RIN 0560-AH95


Emergency Assistance for Livestock, Honeybees, and Farm-Raised 
Fish Program, Livestock Indemnity Program, and General Provisions for 
Supplemental Agricultural Disaster Assistance Programs

AGENCY: Farm Service Agency, USDA.

ACTION: Final rule, technical amendment.

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SUMMARY: The Farm Service Agency (FSA) is making several clarifying 
amendments and corrections to the regulations for the Emergency 
Assistance for Livestock, Honeybees, and Farm-Raised Fish Program 
(ELAP) and the Livestock Indemnity Program (LIP) to clarify when 
livestock death losses must have occurred to be eligible losses for LIP 
and ELAP benefits. This rule also clarifies when adverse weather events 
or loss conditions must have occurred to be eligible losses of 
livestock, honeybee, crops, and farm-raised fish for ELAP and 
Supplemental Revenue Assistance Payments Program (SURE) benefits. This 
rule clarifies an equitable relief provision for the risk management 
purchase requirement that applies to the Supplemental Agricultural 
Disaster Assistance Programs, authorized by the Food, Conservation, and 
Energy Act of 2008 (the 2008 Farm Bill), except LIP.

DATES: Effective Date: August 31, 2011.

FOR FURTHER INFORMATION CONTACT: Candace Thompson; phone (202) 720-
7641; e-mail: Candy.Thompson@wdc.usda.gov. Persons with disabilities or 
who require alternative means for communication (Braille, large print, 
audio tape, etc.) should contact the USDA Target Center at (202) 720-
2600 (voice and TDD).

[[Page 54073]]


SUPPLEMENTARY INFORMATION: This rule makes minor clarifying amendments 
and corrections to the regulations that were published to implement 
disaster assistance programs authorized by the 2008 Farm Bill (Pub. L. 
110-246). This rule amends the regulations to specify dates for 
eligible losses for SURE, ELAP and LIP, and to amend an equitable 
relief provision for the risk management purchase requirement for the 
Supplemental Agricultural Disaster Assistance Programs, except LIP. The 
Supplemental Agricultural Disaster Assistance Programs authorized by 
the 2008 Farm Bill include ELAP, LIP, the Livestock Forage Disaster 
Program (LFP), SURE, and the Tree Assistance Program (TAP).
    A final rule for ELAP was published in the Federal Register on 
September 11, 2009 (74 FR 46665-46683) and amendments were published in 
the Federal Register on April 14, 2010 (75 FR 19185-19193). The final 
rule that included both the specific provisions for LIP and the general 
provisions that apply to all the Supplemental Agricultural Disaster 
Assistance Programs was published in the Federal Register on July 2, 
2009 (74 FR 31567-31578). The final rule for SURE was published in the 
Federal Register on December 28, 2009 (74 FR 68480-68498) and 
amendments were published in the Federal Register on April 14, 2010 (75 
FR 19185-19193).
    The amendments in this rule are needed to clarify the dates for 
eligible losses, to clarify that it is the producer's responsibility to 
provide documentation to justify equitable relief for the risk 
management purchase requirement, and to correct typographical errors.

Amendments to General Provisions for Equitable Relief

    7 CFR part 760 ``Indemnity Payment Programs,'' Subpart B, ``General 
Provisions for Supplemental Agricultural Disaster Assistance Programs'' 
specifies the general provisions that apply to all the Supplemental 
Agricultural Disaster Assistance Programs authorized by the 2008 Farm 
Bill. This rule clarifies a provision in Subpart B that specifies the 
requirements for equitable relief of the risk management purchase 
requirement.
    As specified in the 2008 Farm Bill and in Subpart B, all of the 
Supplemental Agricultural Disaster Assistance Programs except LIP have 
a risk management purchase requirement. This means that producers must 
have purchased insurance or Noninsured Crop Disaster Assistance Program 
(NAP) coverage, as applicable, to be eligible for disaster assistance 
benefits. The current regulations specify that except for grazing land, 
producers must have obtained insurance or NAP coverage for all of their 
crops to be eligible for ELAP, SURE, and TAP, and for LFP, producers 
must have obtained insurance or NAP coverage for those grazing lands 
for which they seek benefits to be eligible. Producers who fail to meet 
the risk management purchase requirement are not eligible for benefits 
unless an exception applies. Exceptions include the Secretary's 
authority to grant equitable relief on a case-by-case basis to 
producers who fail to meet the risk management purchase requirement 
through no fault of their own and unintentionally.
    The risk management purchase requirement is not changing with this 
rule, and neither are the exceptions to it. This rule amends Sec.  
760.106 to clarify that if equitable relief is sought, it is a 
producer's responsibility to provide evidence, to the satisfaction of 
FSA, that the failure to meet the requirement was unintentional. It is 
not FSA's responsibility to provide documentation that a failure to 
meet the risk management purchase requirement was or was not 
intentional. It is the producer who has failed to meet the risk 
management purchase requirement and who is seeking relief for that 
failure who must provide evidence as to intent, to the satisfaction of 
FSA. This clarifying amendment will impact all producers who seek 
equitable relief for the reason of unintentional failure to meet the 
risk management purchase requirement, by requiring them to provide 
evidence of intent.
    This rule also makes a correction to section Sec.  760.107 to 
correct an internal paragraph reference.

Amendments to Eligible Loss Dates for ELAP and LIP

    This rule makes a technical correction to 7 CFR 760, subpart C, 
``Emergency Assistance for Livestock, Honeybees, and Farm-Raised Fish 
Program,'' to clarify dates for eligible ELAP livestock, honeybee, and 
farm-raised fish losses. This correction is being made to be consistent 
with the program eligibility dates specified in the 2008 Farm Bill. A 
parallel change is being made to Subpart E, ``Livestock Indemnity 
Program,'' to clarify the dates on which livestock deaths must have 
occurred to qualify as an eligible loss and to Subpart G, 
``Supplemental Revenue Assistance Payments Program,'' to clarify the 
time frame in which eligible losses must have occurred. Specifically, 
Sec.  760.404(c) is being amended to correct the eligibility dates for 
eligible livestock deaths. The change extends the eligibility period 
from no later than 60 days from the ending date of the adverse weather 
event, but before October 1, 2011, to no later than 60 days from the 
ending date of the adverse weather event, but before November 30, 2011. 
For crop losses, Sec.  760.601 and Sec.  760.610 are being amended to 
clarify that the disaster event that causes crop losses must occur on 
or before September 30, 2011 for the crop losses to be eligible.
    The intent of the amendment is to be consistent with the 2008 Farm 
Bill, and to provide benefits to producers who had eligible losses due 
to adverse weather events that occurred in 2008-2011. The 2008 Farm 
Bill specifies that the weather events that caused the losses, but not 
necessarily the losses, had to occur on or before September 30, 2011, 
for losses to be eligible. As specified in the current regulations, 
eligible livestock producers who suffered eligible livestock death 
losses in calendar years 2008 through 2010 were eligible to receive 
compensation for livestock that died no later than 60 calendar days 
from the ending date of the applicable adverse weather event. However, 
as specified in the current regulations, producers who suffer 2011 
livestock death losses would not have the same opportunity to claim 
losses that occurred 60 calendar days after the eligible adverse 
weather event if the adverse weather event occurs in the last two 
months of fiscal year 2011 (the 60 calendar days before October 1, 
2011), because the current regulation specifies that the eligible loss 
must have occurred before October 1, 2011. To provide fair and 
equitable treatment to all producers in a manner that is consistent 
with the 2008 Farm Bill, Sec.  760.404(c) is being amended to provide 
that the eligible livestock must have died no later than 60 calendar 
days from the ending date of the applicable adverse weather event, but 
before November 30, 2011.
    Similar changes are being made to the ELAP regulations in 7 CFR 
part 760, Subpart C, ``Emergency Assistance for Livestock, Honeybees, 
and Farm-Raised Fish Program,'' for the same reasons. The changes to 
the ELAP regulations also impact other losses, such as livestock feed 
and grazing losses, honeybee colony, hive, and feed losses, and farm-
raised fish feed and fish death losses. Specifically, Sec.  
760.204(f)(1) is being amended to clarify the ending date by which 
eligible losses must have occurred is November 30, 2011.
    These clarifications will provide eligibility to producers who had 
losses due to adverse events that occurred in the last two months of 
fiscal year 2011, for those cases where the actual losses occurred in 
October or November of

[[Page 54074]]

2011. For example, if a flood in September 2011 caused subsequent 
livestock deaths in mid-November of 2011, those losses would not be 
eligible under the current rule, but will be eligible with this 
correction.
    Additional minor clarifying changes are being made to the 
regulations for LIP and ELAP to make it clear which date requirements 
apply to the adverse weather event or loss condition and which apply to 
the livestock deaths or other losses.
    A clarification is being made to the SURE regulations in 7 CFR part 
760, Subpart G, ``Supplemental Revenue Assistance Payments Program,'' 
for similar reasons. To be eligible for SURE payments, a producer must 
certify that at least one crop of economic significance suffered at 
least a 10 percent crop loss due to a disaster event occurring on or 
before September 30, 2011.

Notice and Comment

    The Consolidated Security, Disaster Assistance, and Continuing 
Appropriations Act, 2009 made the exemption from notice and comments 
provisions contained in section 1601(c)(2) of the 2008 Farm Bill 
applicable in implementing section 12033 of the 2008 Farm Bill. 
Therefore, these regulations are exempt from the notice and comment 
requirements of the Administrative Procedure Act (5 U.S.C. 553), as 
specified in section 1601(c)(2) of the 2008 Farm Bill, which requires 
that the regulations be promulgated and administered without regard to 
the notice and comment provisions of 5 U.S.C. 553 or the Statement of 
Policy of the Secretary of Agriculture effective July 24, 1971, (36 FR 
13804) relating to notices of proposed rulemaking and public 
participation in rulemaking.

Executive Order 12866

    This technical amendment did not require Office of Management and 
Budget (OMB) designation under Executive Order 12866, ``Regulatory 
Planning and Review,'' and therefore OMB has not reviewed this rule.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA), generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to the notice and comment 
rulemaking requirements under the Administrative Procedure Act (5 
U.S.C. 553). This rule is not subject to the Regulatory Flexibility Act 
since FSA is not required to publish a notice of proposed rulemaking 
for this rule.

Environmental Review

    The environmental impacts of this rule have been considered in a 
manner consistent with the provisions of the National Environmental 
Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council 
on Environmental Quality (40 CFR parts 1500-1508), and FSA regulations 
for compliance with NEPA (7 CFR part 799). The rule change is a 
technical amendment and is solely administrative in nature. Therefore, 
FSA has determined that NEPA does not apply to this Final Rule and no 
environmental assessment or environmental impact statement will be 
prepared.

Executive Order 12372

    Executive Order 12372, ``Intergovernmental Review of Federal 
Programs,'' requires consultation with State and local officials. The 
objectives of the Executive Order are to foster an intergovernmental 
partnership and a strengthened Federalism, by relying on State and 
local processes for State and local government coordination and review 
of proposed Federal Financial assistance and direct Federal 
development. This rule neither provides Federal Financial assistance or 
direct Federal development; it does not provide either grants or 
cooperative agreements. Therefore this program is not subject to 
Executive Order 12372.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, ``Civil 
Justice Reform.'' This rule would not preempt State and or local laws, 
and regulations, or policies unless they present an irreconcilable 
conflict with this rule. Before any judicial action may be brought 
concerning the provisions of this rule, appeal provisions of 7 CFR 
parts 11 and 780 would need to be exhausted. This rule would not 
preempt a State or Tribal government law, including any State or Tribal 
government liability law.

Executive Order 13132

    This rule has been reviewed under Executive Order 13132, 
``Federalism.'' The policies contained in this rule do not have any 
substantial direct effect on States, on the relationship between the 
Federal government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Nor does this 
rule impose substantial direct compliance costs on State and local 
governments. Therefore, consultation with the States is not required.

Executive Order 13175

    This rule has been reviewed for compliance with Executive Order 
13175, ``Consultation and Coordination with Indian Tribal 
Governments.'' The policies contained in this rule do not have Tribal 
implications that preempt Tribal law. FSA continues to consult with 
Tribal officials to have a meaningful consultation and collaboration on 
the development and strengthening of FSA regulations.

Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 
104-4) requires Federal agencies to assess the effects of their 
regulatory actions on State, local, or Tribal governments or the 
private sector. Agencies generally must prepare a written statement, 
including a cost benefit analysis, for proposed and final rules with 
Federal mandates that may result in expenditures of $100 million or 
more in any 1 year for State, local, or Tribal governments, in the 
aggregate, or to the private sector. UMRA generally requires agencies 
to consider alternatives and adopt the more cost effective or least 
burdensome alternative that achieves the objectives of the rule. This 
rule contains no Federal mandates as defined by Title II of UMRA for 
State, local, or Tribal governments or for the private sector. 
Therefore, this rule is not subject to the requirements of sections 202 
and 205 of UMRA.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule under the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Pub. L. 104-121, SBREFA). Therefore, 
FSA is not required to delay the effective date for 60 days from the 
date of publication to allow for Congressional review and this rule is 
effective on the date of publication in the Federal Register.

Federal Assistance Programs

    The titles and numbers of the Federal assistance programs as found 
in the Catalog of Federal Domestic Assistance, to which this rule 
applies, are:
    Livestock Indemnity Program--10.088.
    Livestock Forage Disaster Program--10.089.
    Supplemental Revenue Assistance Program--10.090.
    Emergency Assistance for Livestock, Honeybees, and Farm-Raised Fish 
Program--10.091.
    Tree Assistance Program--10.092.

[[Page 54075]]

Paperwork Reduction Act

    These regulations are exempt from the requirements of the Paperwork 
Reduction Act (44 U.S.C. chapter 35), as specified in section 
1601(c)(2) of the 2008 Farm Bill, which provides that these regulations 
be promulgated and administered without regard to the Paperwork 
Reduction Act.

E-Government Act Compliance

    FSA is committed to complying with the E-Government Act, to promote 
the use of the Internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.

List of Subjects in 7 CFR Part 760

    Dairy products, Indemnity payments, Pesticide and pests, Reporting 
and recordkeeping requirements.

    For the reasons discussed in the preamble, the Farm Service Agency 
(USDA) amends 7 CFR part 760 as follows:

PART 760--INDEMNITY PAYMENT PROGRAMS

0
1. The authority citation for part 760 continues to read as follows:

    Authority: 7 U.S.C. 4501, 7 U.S.C. 1531, 16 U.S.C. 3801, note, 
and 19 U.S.C. 2497; Title III, Pub. L. 109-234, 120 Stat. 474; Title 
IX, Pub. L. 110-28, 121 Stat. 211; and Sec. 748, Pub. L. 111-80, 123 
Stat. 2131.

Subpart B--General Provisions for Supplemental Agricultural 
Disaster Assistance Programs

0
2. Revise Sec.  760.106 paragraph (a)(1), to read as follows:


Sec.  760.106  Equitable relief.

    (a) * * *
    (1) Are otherwise ineligible or provide evidence, satisfactory to 
FSA, that the failure to meet the requirements of Sec.  760.104 for one 
or more eligible crops on the farm was unintentional and not because of 
any fault of the participant, as determined by the Secretary, or
* * * * *


Sec.  760.107  [Amended]

0
3. Amend Sec.  760.107, in paragraph (b)(2)(ii), by removing the words 
``paragraph (a)'' and adding, in their place, the words ``paragraph 
(b)(2)(i)''.

Subpart C--Emergency Assistance for Livestock, Honeybees, and Farm-
Raised Fish Program

0
4. Revise Sec.  760.203, paragraph (c)(2) to read as follows:


Sec.  760.203  Eligible losses, adverse weather, and other loss 
conditions.

* * * * *
    (c) * * *
    (2) Due to an eligible adverse weather event or loss condition that 
occurred on or after January 1, 2008, and before October 1, 2011.
* * * * *

0
5. Revise Sec.  760.204, paragraph (f)(1) to read as follows:


Sec.  760.204  Eligible livestock, honeybees, and farm-raised fish.

* * * * *
    (f) * * *
    (1) They must have died:
    (i) On or after the beginning date of the eligible loss condition; 
and
    (ii) On or after January 1, 2008, and no later than 60 calendar 
days from the ending date of the eligible loss condition, but before 
November 30, 2011; and
    (iii) As a direct result of an eligible loss condition that occurs 
on or after January 1, 2008, and before October 1, 2011; and
    (iv) In the calendar year for which payment is being requested; and
* * * * *

Subpart E--Livestock Indemnity Program

0
4. Revise Sec.  760.404, paragraph (c) to read as follows:


Sec.  760.404  Eligible livestock.

* * * * *
    (c) To be considered eligible livestock for the purpose of 
generating payments under this subpart, livestock must meet all of the 
following conditions:
    (1) Died as a direct result of an eligible adverse weather event 
that occurred on or after January 1, 2008, and before October 1, 2011;
    (2) Died no later than 60 calendar days from the ending date of the 
applicable adverse weather event, but before November 30, 2011;
    (3) Died in the calendar year for which benefits are being 
requested;
    (4) Been maintained for commercial use as part of a farming 
operation on the day they died; and
    (5) Before dying, not have been produced or maintained for reasons 
other than commercial use as part of a farming operation, such non-
eligible uses being understood to include, but not be limited to, any 
uses of wild, free roaming animals or use of the animals for 
recreational purposes, such as pleasure, hunting, roping, pets, or for 
show.
* * * * *

Subpart G--Supplemental Revenue Assistance Payments Program

0
5. Amend Sec.  760.601 by adding a sentence at the end of paragraph (b) 
to read as follows:


Sec.  760.601  Applicability.

* * * * *
    (b) * * * Crop losses must have occurred in crop year 2008 or 
subsequent crop years due to an eligible disaster event that occurs on 
or before September 30, 2011.
* * * * *

0
6. Revise Sec.  760.610, paragraph (a)(2), to read as follows:


Sec.  760.610  Participant eligibility.

    (a) * * *
    (2) Crop losses must have occurred in crop year 2008 or subsequent 
crop years due to an eligible disaster event that occurred on or before 
September 30, 2011.
    (i) For insured crops, the coverage period, as defined in the 
insurance policy, must have begun on or before September 30, 2011;
    (ii) For NAP crops, the coverage period must have begun on or 
before September 30, 2011; and
    (iii) The final planting date for that crop according to the 
Federal crop insurance or NAP policy must have been on or before 
September 30, 2011.
* * * * *

Carolyn B. Cooksie,
Acting Administrator, Farm Service Agency.
[FR Doc. 2011-22323 Filed 8-30-11; 8:45 am]
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