[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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]
BILLING CODE 3410-05-P