[Federal Register Volume 74, Number 126 (Thursday, July 2, 2009)]
[Rules and Regulations]
[Pages 31567-31578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15537]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 74, No. 126 / Thursday, July 2, 2009 / Rules
and Regulations
[[Page 31567]]
DEPARTMENT OF AGRICULTURE
Farm Service Agency
7 CFR Part 760
Commodity Credit Corporation
7 CFR Parts 1400 and 1439
RIN 0560-AH95
Livestock Indemnity Program and General Provisions for
Supplemental Agricultural Disaster Assistance Programs
AGENCY: Farm Service Agency and Commodity Credit Corporation, USDA.
ACTION: Final rule.
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SUMMARY: This rule implements the general eligibility provisions for
all the supplemental agricultural disaster assistance programs
authorized by the Food, Conservation, and Energy Act of 2008 (2008 Farm
Bill) and the specific requirements for the Livestock Indemnity Program
(LIP). LIP provides disaster assistance for livestock losses. LIP
applies only to livestock owners and contract growers that had losses
due to livestock deaths in excess of normal mortality due to adverse
weather during the calendar year, including losses due to hurricanes,
floods, blizzards, disease, wildfires, extreme heat, and extreme cold.
Eligible LIP losses must have occurred on or after January 1, 2008, and
before October 1, 2011. This rule specifies how the LIP payments are
calculated and when producers may apply for benefits. This rule also
removes some outdated rules from the Code of Federal Regulations (CFR).
DATES: Effective Date: July 13, 2009.
FOR FURTHER INFORMATION CONTACT: Scotty Abbott, Production,
Emergencies, and Compliance Division, Farm Service Agency (FSA), United
States Department of Agriculture, STOP 0517, 1400 Independence Avenue,
SW., Washington, DC 20250-0517; telephone (202) 720-7997; e-mail
[email protected]. Persons with disabilities 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).
SUPPLEMENTARY INFORMATION:
Background
This rule implements the general eligibility provisions for the
supplemental agricultural disaster assistance programs authorized by
the 2008 Farm Bill (Pub. L. 110-246). Sections 12033 and 15101 of the
2008 Farm Bill authorize the Secretary of Agriculture (Secretary) to
assist producers who have had crop and livestock losses due to adverse
weather. FSA will provide assistance through five different programs:
Livestock Indemnity Program (referred to as Livestock
Indemnity Payments in the Farm Bill),
Livestock Forage Disaster Program (LFP),
Emergency Assistance for Livestock, Honey Bees, and Farm-
Raised Fish (ELAP),
Supplemental Revenue Assistance Payments Program (SURE)
(which covers general crop production losses, but not those covered by
LFP), and
Tree Assistance Program (TAP).
This rule implements the first of these programs, LIP, in 7 CFR
part 760, subpart E. The 2008 Farm Bill sets, however, common
eligibility requirements for the programs. The general provisions for
supplemental agricultural disaster assistance programs will be
implemented in regulations in 7 CFR part 760, subpart B. Specific
provisions for the other programs, LFP, SURE, ELAP, and TAP, will be
implemented through separate rulemakings. Where practical, these
programs will be implemented to be similar to previous ad hoc disaster
assistance programs. For example, LIP will be similar to the previous
LIP regulations that were in 7 CFR part 760, subpart E.
Currently, for LIP, the 2008 Farm Bill authorizes the Secretary to
assist eligible livestock producers on farms that have had livestock
death losses in excess of the normal mortality due to adverse weather.
The supplemental agricultural disaster assistance programs will be
administered by FSA using funds from the Agricultural Disaster Relief
Trust Fund established under section 902 of the Trade Act of 1974 (19
U.S.C. 2497a). The disaster assistance programs authorized by the 2008
Farm Bill are permanent or ``standing'' programs that have similar
scope to the previous ad hoc programs. The programs are provided for in
two separate places in the 2008 Farm Bill. First, there is section
12033, which adds a new section 531 to the Federal Crop Insurance Act
(7 U.S.C. 1501-1524). Second, there is section 15101, which adds
section 902 of the Trade Act of 1974. The provisions of the two
sections as enacted were identical except that the Trade Act of 1974
provisions contained the trust fund provisions. Since then, there have
been some amendments, but the two sections of the 2008 Farm bill are
considered to be interchangeable for the purposes of this rule.
General Eligibility Requirements
Payment Limits
The 2008 Farm Bill limits how much a producer may receive from FSA
disaster assistance programs.
In applying payment limitation for 2008, no person, as defined and
determined by the regulations in 7 CFR part 1400 in effect for 2008,
may receive more than $100,000:
Total per crop year under ELAP, LFP, LIP and SURE
Per program years under TAP.
For 2009 through 2011, no person or legal entity (excluding a joint
venture or general partnership), as defined and determined by the
regulations in 7 CFR part 1400 may receive, directly or indirectly,
more than $100,000:
Total per crop year under ELAP, LFP, LIP and SURE
Per program years under TAP.
For this purpose, both indirect and direct benefits are counted by
attribution. In the case of a legal entity, the same payment is
attributed to the direct payee in the full amount and those that have
an indirect interest to the amount of the interest. For example, under
the attribution rules that applies to these programs, assume:
Corporation A is in line to receive a $100,000 SURE
payment,
Corporation A is owned 50 percent by Individual A and 50
percent by Corporation B, and
Corporation B is owned by Individual B with a 30 percent
interest
[[Page 31568]]
and by Individual C with a 70 percent interest.
If so, Corporation A, for payment limitation purposes would be
considered to have received $100,000 and Individual C (who owns 70
percent of Corporation B, which owns half of Corporation A) would be
considered to have indirectly benefitted by the amount of $35,000 (50
percent times 70 percent of the $100,000). Even though no part of the
$100,000 was actually paid to Individual C, the amount of $35,000 would
count against individual C's overall payment limitation from all
sources and farms. Assume Individual C was already at the maximum
payment limit, Individual C would not have been eligible to receive
$35,000; as a result, the payment to Corporation A would be reduced by
$35,000.
The amount of any payment for which a participant may be eligible
under any of these programs may be reduced by any amount received by
the participant for the same or any similar loss from any Federal
disaster assistance program.
In applying the limitation on average adjusted gross income (AGI)
for 2008, an individual or entity is ineligible for payment under ELAP,
LFP, LIP, SURE, and TAP if the individual's or entity's average AGI
exceeds $2.5 million for 2007, 2006, and 2005 under the provisions in 7
CFR part 1400 in effect for 2008. For 2009 through 2011, the average
AGI limitation provisions in 7 CFR part 1400 applicable to Commodity
Credit Corporation (CCC) commodity programs also apply to ELAP, LFP,
LIP, SURE, and TAP. Specifically, as specified in the 2008 Farm Bill,
for 2009 through 2011, a person or legal entity with an average
adjusted gross nonfarm income, as defined in 7 CFR 1400.3, that exceeds
$500,000 for the relevant period will not be eligible to receive
payments under these programs. Likewise, if a person with an indirect
interest in a legal entity has an average nonfarm AGI over $500,000,
then the payment to the legal entity will be reduced as calculated
based on the percent of interest in the legal entity receiving the
payment. For example, continuing with the assumptions in the example
above, if Individual B had an average AGI that was over the limit, then
the payment to Corporation A will be reduced by 15 percent (Individual
B's 30 percent interest in Corporation B times Corporation B's 50
percent interest in Corporation A).
Payment and average AGI limits will be determined under regulations
specified in 7 CFR part 1400 for Commodity Credit Corporation (CCC)
commodity programs. The programs covered in this final rule are not CCC
programs, but the CCC regulations in 7 CFR part 1400 are adopted for
these programs.
The relevant AGI period for these programs is the 3 calendar years
that precede the program year involved. For livestock losses, the
program year is the calendar year of the loss of the livestock. For
SURE, the program year is the year that corresponds to the relevant
crop year. The crop year concept in some limited cases can involve a
loss that occurs in a different calendar year than the calendar year
whose number corresponds to the crop year. For example, wheat for the
2009 crop year can be planted in the fall of 2008 and be lost during
2008. SURE payments related to such a loss would be made in calendar
year 2009.
The regulations in 7 CFR 1400.105 specify how payments will be
attributed and how far the attribution will go. Attribution will be
tracked through four levels of ownership in legal entities. The 2008
Farm Bill removed the previous ``3 entity rule,'' so a person can now
receive benefits attributed through an unlimited number of entities,
subject to the payment limits and the rules of attribution described in
this final rule and in 7 CFR part 1400. In addition to these limits,
the 2008 Farm Bill imposes limitations of payments to foreign persons.
Those limits are specified in the regulations in Sec. 760.103.
Risk Management Purchase Requirement
To be eligible for program payments under ELAP, SURE, and TAP,
eligible producers on a farm, as specified by the 2008 Farm Bill, must
have purchased insurance for each insurable commodity, excluding
grazing land; a few exceptions allowed by the 2008 Farm Bill are
discussed later in this section. ``Insurable commodities'' are those
for which a plan of insurance can be obtained from the USDA's Risk
Management Agency (RMA) that makes coverage for crops available under
the Federal Crop Insurance Act (FCIA). Benefits for ``noninsurable''
commodities are generally available through the Noninsured Crop
Disaster Assistance Program (NAP) run by FSA. Except for grazing land,
producers for ELAP, SURE, and TAP must have obtained an RMA policy or
plan of insurance or NAP coverage for all of their crops. For LFP,
producers must have obtained an RMA policy or plan of insurance or NAP
coverage for those grazing lands for which they seek benefits.
LIP does not have a risk management purchase requirement. The risk
management purchase requirement regulations are included in this rule
because they have multi-program application. As noted, this final rule
contains general provisions for multiple programs and specific
provisions for LIP. Additional provisions to cover the other programs
will be issued later.
Producers who did not purchase required coverage are not eligible
for benefits unless an exception applies. ``Socially disadvantaged
farmers and ranchers,'' as well as ``limited resource farmers and
ranchers,'' or ``beginning farmers or ranchers,'' are exempt. For the
2008 crop, persons who paid a certain buy-in fee were exempt from the
purchase requirement if the buy-in fee was paid by September 16, 2008.
By an amendment to the 2008 Farm Bill, Congress allowed a second buy-in
enabling producers to buy in from February 17, 2009 up to May 18, 2009;
however, if the buy-in occurred after the first deadline, or was not
granted administratively through some form of equitable relief the
producer had to agree to buy crop insurance or NAP for the next year
for the crops to which the buy-in applied. Also, there were special
benefit calculation provisions for producers who made use of the second
deadline. The buy-in fee was equal to the cost of the insurance or NAP
coverage, but did not entitle the producer to insurance or NAP
coverage. Also, an amendment allowed a 2009 crop buy-in for crops if
the 2009 Federal Crop Insurance Corporation (FCIC) sales closing date
was prior to August 14, 2008. The deadline for the 2009 crop buy-in was
January 12, 2009. In addition to these provisions, section 531(g)(5) of
the FCIA (and the corresponding provisions of the Trade Act of 1974)
have some more general provisions allowing the Secretary discretion to
grant equitable relief to persons with a lack of coverage. The buy-in
concept has no application to LIP since LIP has no purchase
requirement. The buy-in fees were different for 2008 and 2009.
Miscellaneous
Under this rule, participants receiving disaster assistance
payments under any of the these programs must keep records and
supporting documentation for 3 years following the end of the year in
which the application for payment was filed. This discretionary
recordkeeping requirement is consistent with other FSA rules and
programs, as well as with previous similar disaster assistance
programs.
Restrictions apply to these programs including, but not limited to,
those pertaining to highly erodible land and wetland conservation
provisions in 7 CFR part 12.
[[Page 31569]]
This rule amends subpart B by adding Sec. 760.110 to clarify that
appeal regulations specified in 7 CFR parts 11 and 780 apply. It also
specifies that for all the new standing disaster programs, matters
requiring FSA determinations that are not in response to, or result
from, an individual disputable set of facts in a specific individual
participant's application, are not matters that can be appealed under 7
CFR parts 11 or 780. These include, but are not limited to, general
statutory or regulatory provisions that apply to similarly situated
participants, national average payment prices, regions, crop
definition, average yields, or similar items.
Specific Provisions for LIP
Overview
The 2008 Farm Bill provisions require LIP payments to be made at a
rate of 75 percent of the market value of the livestock on the day
before the date of the death of the livestock. Payments are to be made
to eligible producers on farms that have incurred livestock death
losses for the calendar year in excess of the normal mortality. The
eligible livestock death losses must have occurred on or after January
1, 2008, but before October 1, 2011, due to adverse weather, as
determined by the Secretary, during the calendar year for which
benefits are requested, including losses due to hurricanes, floods,
blizzards, disease, wildfires, extreme heat, and extreme cold. All the
provisions described in this paragraph, which are implemented in this
rule, are statutory provisions over which FSA has little or no
discretion.
The details in this rule on what kinds of livestock are eligible,
acceptable documentation of loss, and the application process for
payment, are discretionary provisions. Generally, FSA has based the
discretionary provisions of the program as specified in this rule on
the rules and policies used for the 2005-2007 LIP because they are
known to the public and to Congress and because they have worked well
to apportion benefits for the type of loss involved in this program.
Unlike some previous livestock-related programs, LIP does not cover
crawfish, catfish, or other aquaculture because losses of that kind are
covered by SURE and the general direction of the 2008 Farm bill is that
there will not be duplicative payments.
Eligibility Requirements; Livestock Covered by LIP
LIP payments and eligibilities will be calculated on the type of
eligible livestock and the actual losses and the calculations will be
made by FSA-approved categories. Eligible livestock for payment to
livestock owners include beef cattle, dairy cattle, buffalo, beefalo,
equine, sheep, goats, deer, swine, poultry, reindeer, elk, emus,
alpacas, and llamas that died as a direct result of an eligible adverse
weather event. The list of eligible livestock includes all the types
from the previous ad hoc disaster program for livestock, except for
catfish and crawfish as described above. Regulations for that program
are in 7 CFR part 760, subpart J. This final rule adds alpacas, emus,
and llamas to the list of eligible livestock. FSA added these types of
livestock based on concerns expressed with respect to previous
programs.
Benefits are only available for the owners of livestock or for
``contract growers''--persons who produce livestock owned by someone
else, but have a risk in the livestock (such as a farmer who raises
chickens owned by a company that produces chicken products, but does
not receive payment for livestock that die before the livestock is
mature and returned to the owner). The contract grower provisions only
cover swine and poultry because those are the only known examples of
that kind of production arrangement. To be eligible livestock for LIP,
as of the day they died the livestock must have been both of the
following:
Owned by an eligible owner or in the possession of an
eligible contract grower and
Maintained for commercial use as part of a farming
operation of the participant on the day they died.
In addition, to be eligible, the livestock must have died as a
direct result of an eligible adverse weather event in the calendar year
for which benefits are requested. Participants must provide verifiable
documentation of livestock deaths claimed.
Animals kept for recreational purposes, such as hunting animals,
animals used for roping practice, pets, and show animals, are not
eligible. Wild, free roaming animals are not eligible to generate
payments.
Eligibility for payments to poultry and swine contract growers will
be limited based on the amount of their contractual risk and other
payments received. Payments will not exceed their contractual risk, as
determined by FSA. Any compensation received by the contract grower
from the contractor for loss of income for the dead livestock will be
deducted from the contract grower's payment.
Determination of LIP payment eligibility will be based on actual
losses in excess of normal mortality for the calendar year for the
relevant animal type and approved category by an individual producer or
contract grower due to adverse weather. There is not a State or
National ``trigger'' such as an emergency declaration that provides
automatic eligibility for all producers in a particular State, county,
or region. Adverse weather includes, but is not limited to, events such
as hurricanes, floods, blizzards, wildfires, extreme heat, and extreme
cold. FSA has the authority to determine eligibility of livestock
losses caused by other adverse weather types, including disease caused
by such weather.
Applying for LIP Payment; LIP Payment Calculations
There are two basic steps for a producer to obtain LIP payments.
One step is to file a notice of loss when there is an event that does
or could generate a claim because of the death of an animal due to
adverse weather. Because the eligible losses are only those above
normal mortality that are calculated on a yearly basis, a loss
occurring in, for example, July, will not necessarily generate a claim
depending on how great the losses are, natural or otherwise, for the
rest of the year. It could be, however, that a loss in July is so great
that the producer is already beyond normal mortality for the year, in
which case there could already be a claim for benefits. The second step
is to file the application for payment.
For the first step, after this final rule is published, producers
must provide a notice of loss to the FSA county office within 30 days
of when the loss of livestock was apparent, or within 30 days after the
end of the calendar year in which the loss occurred, whichever comes
first. Producers who suffered a potentially eligible loss of livestock
prior to July 13, 2009 (prior to this rule being effective), must
provide a notice of loss to the FSA county office by September 13, 2009
(within 60 calendar days after this rule is effective). As indicated,
however, a notice of loss is one part of the application process; other
documentation is required for a complete application for payment, as
described in this rule. The completed application must be submitted to
the FSA county office no later than 30 calendar days after the end of
the calendar year in which the loss of livestock occurred or, for 2008
losses, by September 13, 2009 (60 calendar days after this rule is
effective). Producers that suffer multiple livestock losses during the
calendar year may file multiple notices of loss and multiple
applications for payment. This rule
[[Page 31570]]
specifies the documents that are required to show loss, such as
inventory records and grower contracts. The 30-day deadline is a change
from the previous programs that had an application period determined by
the Deputy Administrator for Farm Programs for FSA. Putting a specific
deadline in the rules should make it clear when applications are due.
As specified in the 2008 Farm Bill, the payment for livestock
owners will be calculated based on 75 percent of the average fair
market value of the applicable livestock on the day before the date of
death of the livestock, as determined by the Agency. This program is
not a program funded by CCC. Rather, it is funded by the trust fund as
provided for in section 902 of the Trade Act of 1974, as added by the
2008 Farm Bill. For contract growers, the payment will be based on 75
percent of the average income loss sustained by the grower with respect
to the dead livestock. Where there is a contract grower holding the
livestock at the time of death, only the contract grower will be
eligible for the payment; the owner is not eligible. When determining
the market value of applicable livestock in order to determine payment
rates for LIP, FSA will establish market values for each type and
category of livestock using data from credible livestock markets.
Credible livestock markets will include sale barns and local sales as
well as sales at terminal market centers or slaughtering facilities.
FSA, through the State FSA offices, will obtain recommendations
from applicable State livestock organizations, State Cooperative
Extension Service, and other knowledgeable and credible sources, to
establish the normal mortality rate for each type of livestock on a
State-by-State basis. Payments are only available for losses over
normal mortality over the course of the year and those rates will be
established on a State-by-State basis.
Miscellaneous LIP Provisions
All owners, contract growers, livestock, and losses must meet the
eligibility requirements provided in this rule. False certifications
carry serious consequences. FSA will validate applications with random
spot-checks.
Livestock losses that are not weather-related are not eligible for
LIP.
Structure of the Regulations
The regulations in 7 CFR part 760, ``Indemnity Payment Programs,''
currently contain subparts A through M, which generally cover previous
ad hoc disaster assistance programs. This rule revises subparts B and E
and removes and reserves subparts C, D, and F through H. The current
subpart B specifies general provisions for the 2005 Hurricane Disaster
Programs; this rule revises subpart B to specify general provisions for
the new standing disaster programs from the 2008 Farm Bill. The current
subpart E provides the regulations for the 2005 Livestock Indemnity
Program; this rule revises Subpart E to establish the regulations for
the new LIP established by the 2008 Farm Bill. This rule removes the
existing provisions for previous ad hoc disaster programs in subparts
C, D, F, G, and H because the authority for the programs has expired.
For housekeeping purposes, this rule also removes 7 CFR part 1439,
which contains some related CCC programs. For questions on the former
regulations, interested parties can refer to the appropriate regulation
in the January 1, 2009 edition of the Code of Federal Regulations.
Subpart A of part 760 covers the Dairy Indemnity Program and is not
impacted by this rule. Subparts I through M, which provide the rules
for the 2005-2007 ad hoc disaster programs, are left intact and not
removed because of the status of potential claims under those subparts.
In all cases, however, to the extent of lingering or new disputes, the
rules governing these older programs apply as they existed at the time
the programs were administered.
When all of the supplemental agricultural disaster assistance
programs are implemented, 7 CFR part 760 will have been revised as
described in the table below:
------------------------------------------------------------------------
Current subpart New subpart
------------------------------------------------------------------------
Subpart A--Dairy Indemnity Payment Subpart A--Dairy Indemnity Payment
Program. Program [unchanged].
Subpart B--General Provisions for 760 Subpart B--General Provisions
the 2005 Section 32 Hurricane for Supplemental Agricultural
Disaster Programs. Disaster Assistance Programs.
Subpart C--Hurricane Indemnity 760 Subpart C--Emergency Assistance
Program. for Livestock, Honey Bees, and
Farm-Raised Fish.
Subpart D--Feed Indemnity Program.. 760 Subpart D--Livestock Forage
Disaster Program.
Subpart E--Livestock Indemnity 760 Subpart E--Livestock Indemnity
Program. Program [revised].
Subpart F--Tree Indemnity Program.. 760 Subpart F--Tree Assistance
Program.
Subpart G--Aquaculture Program..... 760 Subpart G--Supplemental Revenue
Assistance Payments Program.
Subpart H--2006 Livestock None--removed.
Assistance Grant Program.
Subparts I through M............... Subparts I through M [unchanged].
------------------------------------------------------------------------
Miscellaneous Conforming Amendments
We are updating the references in 7 CFR 1400.1 to refer to 7 CFR
part 760 for the LIP, ELAP, LFP, SURE, and TAP programs.
In addition, as indicated we are removing in its entirety 7 CFR
part 1439, ``Emergency Livestock Assistance,'' as the programs there
are outdated even though there may be some lingering claims. The times
for filing claims under all of those programs has long since passed and
in any event all involve rules that were published in the Federal
Register and can be found in the 2009 edition of the Code of Federal
Regulations.
Notice and Comment
The 2008 Consolidated Security, Disaster Assistance, and Continuing
Appropriations Act (Pub. L. 110-329) made section 1601(c)(2) of the
2008 Farm Bill applicable in implementing section 12033 of the 2008
Farm Bill. To the extent relevant, the exemption applies, we believe to
the corresponding provision enacted in section 15101 since they are
identical except for the provisions for funding in section 15101, which
do not appear at all in section 12033. Otherwise, the provisions of
Public Law 110-329 would have no meaning. Therefore, these regulations
are exempt from the notice and comment requirements of the
Administrative Procedures 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 section 553 of title 5 of the United States Code
or the Statement of Policy of the Secretary of Agriculture effective
July
[[Page 31571]]
24, 1971, (36 FR 13804) relating to notices of proposed rulemaking and
public participation in rulemaking.
Effective Date
In making this final rule exempt from notice and comment through
section 1601(c)(2) of the 2008 Farm Bill, using the administrative
procedure provisions in 5 U.S.C. 553, FSA finds that there is good
cause for making this rule effective less than 30 days after
publication in the Federal Register. This rule allows FSA to provide
benefits to producers who suffered losses due to livestock deaths
caused by adverse weather. Therefore, to begin providing benefits to
producers as soon as possible, this final rule is effective 13 days
after publication in the Federal Register.
Executive Order 12866
The Office of Management and Budget (OMB) designated this rule as
not significant under Executive Order 12866 and, therefore, OMB was not
required to review this rule.
Regulatory Flexibility Act
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 LIP provisions required
by the 2008 Farm Bill that are identified in this rule are non-
discretionary in nature, solely providing financial assistance.
Therefore, FSA has determined that provisions for further NEPA review
do not apply to this rule. Therefore, no environmental assessment or
environmental impact statement will be prepared.
Executive Order 12372
This program is not subject to Executive Order 12372, which
requires consultation with State and local officials. See the notice
related to 7 CFR part 3015, subpart V, published in the Federal
Register on June 24, 1983 (48 FR 29115).
Executive Order 12988
This rule has been reviewed under Executive Order 12988. This rule
is not retroactive and it does not preempt State or local laws,
regulations, or policies unless they present an irreconcilable conflict
with this rule. Before any judicial action may be brought regarding the
provisions of this rule the administrative appeal provisions of 7 CFR
parts 11 and 780 must be exhausted.
Executive Order 13132
The policies contained in this rule do not have any substantial
direct effect on States, on the relationship between the national
government and States, or on the distribution of power and
responsibilities among various levels of government. Nor does this rule
impose substantial direct compliance costs on State and local
governments. Therefore, consultation with States was not required.
Executive Order 13175
The policies contained in this rule do not impose substantial
unreimbursed direct compliance costs on Indian tribal governments or
have tribal implications that preempt tribal law.
Unfunded Mandates
This rule contains no Federal mandates under the regulatory
provisions of Title II of the Unfunded Mandates Reform Act of 1995
(UMRA) for State, local, and tribal government or the private sector.
In addition, FSA was not required to publish a notice of proposed rule
making for this rule. Therefore, this rule is not subject to the
requirements of sections 202 and 205 of the UMRA.
Federal Assistance Programs
This rule applies to the following Federal assistance program that
is not in the Catalog of Federal Domestic Assistance: LIP.
Paperwork Reduction Act
The regulations in this rule 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
7 CFR Part 760
Dairy products, Indemnity payments, Pesticide and pests, Reporting
and recordkeeping requirements.
7 CFR Part 1400
Agriculture, Grant programs--agriculture, Loan programs--
agriculture, Price support programs, Reporting and recordkeeping
requirements.
7 CFR Part 1439
Animal feeds, Disaster assistance, Grant programs--agriculture,
Indians, Livestock, Reporting and recordkeeping requirements.
0
For the reasons discussed above, under the authority of 15 U. S.C.
714b, this rule amends 7 CFR parts 760, 1400, and 1439 as follows:
PART 760--INDEMNITY PAYMENT PROGRAMS
0
1. Revise the authority citation for part 760 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, Public Law 109-234, 120 Stat. 474;
and Title IX, Public Law 110-28, 121 Stat. 211.
0
2. Revise Subpart B to read as follows:
Subpart B--General Provisions for Supplemental Agricultural Disaster
Assistance Programs
Sec.
760.101 Applicability.
760.102 Administration of ELAP, LFP, LIP, SURE, and TAP.
760.103 Eligible producer.
760.104 Risk management purchase requirements.
760.105 Waiver for certain crop years; buy-in.
760.106 Equitable relief.
760.107 Socially disadvantaged, limited resource, or beginning
farmer or rancher.
760.108 Payment limitation.
760.109 Misrepresentation and scheme or device.
760.110 Appeals.
760.111 Offsets, assignments, and debt settlement.
760.112 Records and inspections.
760.113 Refunds; joint and several liability.
760.114 Minors.
760.115 Deceased individuals or dissolved entities.
760.116 Miscellaneous.
Subpart B--General Provisions for Supplemental Agricultural
Disaster Assistance Programs
Sec. 760.101 Applicability.
(a) This subpart establishes general conditions for this subpart
and subparts C through H of this part and applies
[[Page 31572]]
only to those subparts. Subparts C through H cover the following
programs provided for in the ``2008 Farm Bill'' (Pub. L. 110-246):
(1) Emergency Assistance for Livestock, Honey Bees, and Farm-Raised
Fish Program (ELAP);
(2) Livestock Forage Disaster Program (LFP);
(3) Livestock Indemnity Payments Program (LIP);
(4) Supplemental Revenue Assistance Payments Program (SURE); and
(5) Tree Assistance Program (TAP).
(b) To be eligible for payments under these programs, participants
must comply with all provisions under this subpart and the relevant
particular subpart for that program. All other provisions of law also
apply.
Sec. 760.102 Administration of ELAP, LFP, LIP, SURE, and TAP.
(a) The programs in subparts C through H of this part will be
administered under the general supervision and direction of the
Administrator, Farm Service Agency (FSA), and the Deputy Administrator
for Farm Programs, FSA (who is referred to as the ``Deputy
Administrator'' in this part).
(b) FSA representatives do not have authority to modify or waive
any of the provisions of the regulations of this part as amended or
supplemented, except as specified in paragraph (e) of this section.
(c) The State FSA committee will take any action required by the
regulations of this part that the county FSA committee has not taken.
The State FSA committee will also:
(1) Correct, or require a county FSA committee to correct, any
action taken by such county FSA committee that is not in accordance
with the regulations of this part or
(2) Require a county FSA committee to withhold taking any action
that is not in accordance with this part.
(d) No provision or delegation to a State or county FSA committee
will preclude the Administrator, the Deputy Administrator for Farm
Programs, or a designee or other such person, from determining any
question arising under the programs of this part, or from reversing or
modifying any determination made by a State or county FSA committee.
(e) The Deputy Administrator for Farm Programs may authorize State
and county FSA committees to waive or modify non-statutory deadlines,
or other program requirements of this part in cases where lateness or
failure to meet such requirements does not adversely affect operation
of the programs in this part. Participants have no right to seek an
exception under this provision. The Deputy Administrator's refusal to
consider cases or circumstances or decision not to exercise this
discretionary authority under this provision will not be considered an
adverse decision and is not appealable.
Sec. 760.103 Eligible producer.
(a) In general, the term ``eligible producer'' means, in addition
to other requirements as may apply, an individual or entity described
in paragraph (b) of this section that, as determined by the Secretary,
assumes the production and market risks associated with the
agricultural production of crops or livestock on a farm either as the
owner of the farm, when there is no contract grower, or a contract
grower of the livestock when there is a contract grower.
(b) To be eligible for benefits, an individual or entity must be a:
(1) Citizen of the United States;
(2) Resident alien; for purposes of this part, resident alien means
``lawful alien'' as defined in 7 CFR part 1400;
(3) Partnership of citizens of the United States; or
(4) Corporation, limited liability corporation, or other farm
organizational structure organized under State law.
Sec. 760.104 Risk management purchase requirements.
(a) To be eligible for program payments under:
(1) ELAP, SURE, and TAP, eligible producers for any commodity at
any location for which the producer seeks benefits must have for every
commodity on every farm in which the producer has an interest for the
relevant program year:
(i) In the case of an ``insurable commodity,'' (which for this part
means a commodity for which the Deputy Administrator determines
catastrophic coverage is available from the USDA Risk Management Agency
(RMA)) obtained catastrophic coverage or better under a policy or plan
of insurance administered by RMA under the Federal Crop Insurance Act
(FCIA) (7 U.S.C. 1501-1524), except that this obligation will not
include crop insurance pilot programs so designated by RMA or to forage
crops, and
(ii) In the case of a ``noninsurable commodity,'' (which is any
commodity for which, as to the particular production in question, is
not an ``insurable commodity,'' but for which coverage is available
under the Noninsured Crop Disaster Assistance Program (NAP) operated
under 7 CFR part 1437), have obtained NAP coverage by filing the proper
paperwork and fee within the relevant deadlines, except that this
requirement will not include forage on grazing land.
(2) LFP, with respect to those grazing lands incurring losses for
which assistance is being requested, eligible livestock producers must
have:
(i) Obtained a policy or plan of insurance for the forage crop
under FCIA, or
(ii) Filed the required paperwork and paid the administrative fee
by the applicable State filing deadline for NAP coverage for that
grazing land.
(b) Producers who did not purchase a policy or plan of insurance
administered by RMA in accordance with FCIA (7 U.S.C. 1501-1524), or
NAP coverage for their applicable crops, will not be eligible for
assistance under ELAP, LFP, SURE, and TAP, as provided in paragraph (a)
of this section unless the producer is one of the classes of farmers
for which an exemption under Sec. 760.107 apply, is exempt under the
``buy-in'' provisions of this subpart, or is granted relief from that
requirement by the Deputy Administrator under some other provision of
this part.
(c) Producers who have obtained insurance by a written agreement as
specified in Sec. 400.652(d) of this title even though that production
would not normally be considered an ``insurable commodity'' under the
rules of this subpart, will be considered to have met the risk
management purchase requirement of this subpart with respect to such
production. The commodity to which the agreement applies will be
considered for purposes of this subpart to be an ``insurable
commodity.''
(d) Producers by an administrative process who were granted NAP
coverage for the relevant period as a form of relief in an
administrative proceeding, or who were awarded NAP coverage for the
relevant period through an appeal through the National Appeals Division
(NAD), will be considered as having met the NAP eligibility criteria of
this section for that crop as long as the applicable NAP service fee
has been paid.
(e) The risk management purchase requirement for programs specified
under this part will be determined based on the initial intended use of
a crop at the time a policy or plan of insurance or NAP coverage was
purchased and as reported on the acreage report.
[[Page 31573]]
Sec. 760.105 Waiver for certain crop years; buy-in.
(a) For the 2008 crop year, the insurance or NAP purchase
requirements of Sec. 760.104 (this is referred to as the ``purchase''
requirement) will be waived for eligible producers for losses during
the 2008 crop year if the eligible producer paid a fee (buy-in fee)
equal to the applicable NAP service fee or catastrophic risk protection
plan fee to the Secretary by September 16, 2008. Payment of a buy-in
fee under this section is for the sole purpose of becoming eligible for
participation in ELAP, LFP, SURE, and TAP. Payment of a buy-in fee does
not provide any actual insurance or NAP coverage or assistance.
(b) For the 2009 crop year, the purchase requirement will be waived
for purchases where the closing date for coverage occurred prior to
August 14, 2008, so long as the buy-in fee set by the Secretary of
Agriculture was paid by January 12, 2009.
(c) Any producer of 2008 commodities who is otherwise ineligible
because of the purchase requirement and who did not meet the conditions
of paragraph (a) of this section may still be covered for ELAP, SURE,
or TAP assistance if the producer paid the applicable fee described in
paragraph (d) of this section no later than May 18, 2009, provided that
in the case of each:
(1) Insurable commodity, excluding grazing land, the eligible
producers on the farm agree to obtain a policy or plan of insurance
under FCIA (7 U.S.C. 1501-1524), excluding a crop insurance pilot
program under that subtitle, for the next insurance year for which crop
insurance is available to the eligible producers on the farm at a level
of coverage equal to 70 percent or more of the recorded or appraised
average yield indemnified at 100 percent of the expected market price,
or an equivalent coverage, and
(2) Noninsurable commodity, the eligible producers on the farm must
agree to file the required paperwork, and pay the administrative fee by
the applicable State filing deadline, for NAP for the next year for
which a policy is available.
(d) For producers seeking eligibility under paragraph (c) of this
section, the applicable buy-in fee for the 2008 crop year was the
catastrophic risk protection plan fee or the applicable NAP service fee
in effect prior to NAP service fee adjustments specified in the 2008
Farm Bill.
Sec. 760.106 Equitable relief.
(a) The Secretary may provide equitable relief on a case-by-case
basis for the purchase requirement to eligible participants that:
(1) Are otherwise ineligible or unintentionally fail to meet the
requirements of Sec. 760.104 for one or more eligible crops on the
farm, as determined by the Secretary, or
(2) Failed to meet the requirements of Sec. 760.104 due to the
enactment of the 2008 Farm Bill after the:
(i) Applicable sales closing date for a policy or plan of insurance
in accordance with the FCIA (7 U.S.C. 1501-1524) or
(ii) Application closing date for NAP.
(b) Equitable relief will not be granted to participants in
instances of:
(1) A scheme or device that had the effect or intent of defeating
the purposes of a program of insurance, NAP, or any other program
administered under this part or elsewhere in this title,
(2) An intentional decision to not meet the purchase or buy-in
requirements,
(3) Producers against whom sanctions have been imposed by RMA or
FSA prohibiting the purchase of coverage or prohibiting the receipt of
payments otherwise payable under this part,
(4) Violations of highly erodible land and wetland conservation
provisions of 7 CFR part 12,
(5) Producers who are ineligible under any provisions of law,
including regulations, relating to controlled substances (see for
example 7 CFR 718.6), or
(6) A producer's debarment by a federal agency from receiving any
federal government payment if such debarment included payments of the
type involved in this matter.
(c) In general, no relief that is discretionary will be allowed
except upon a finding by the Deputy Administrator or the Deputy
Administrator's designee that the person seeking the relief acted in
good faith as determined in accordance with such rules and procedures
as may be set by the Deputy Administrator.
Sec. 760.107 Socially disadvantaged, limited resource, or beginning
farmer or rancher.
(a) Risk management purchase requirements, as provided in Sec.
760.104, will be waived for a participant who, as specified in
paragraphs (b)(1) through (3) of this section, is eligible to be
considered a ``socially disadvantaged farmer or rancher,'' a ``limited
resource farmer or rancher,'' or a ``beginning farmer or rancher.''
(b) To qualify for this section as a ``socially disadvantaged
farmer or rancher,'' ``limited resource farmer or rancher,'' or
``beginning farmer or rancher,'' participants must meet eligibility
criteria as follows:
(1) A ``socially disadvantaged farmer or rancher'' is, for this
section, a farmer or rancher who is a member of a socially
disadvantaged group whose members have been subjected to racial or
ethnic prejudice because of their identity as members of a group
without regard to their individual qualities. Gender is not included as
a covered group. Socially disadvantaged groups include the following
and no others unless approved in writing by the Deputy Administrator:
(i) American Indians or Alaskan Natives,
(ii) Asians or Asian-Americans,
(iii) Blacks or African Americans,
(iv) Native Hawaiians or other Pacific Islanders, and
(v) Hispanics.
(2) A ``limited resource farmer or rancher'' means for this section
a producer who is both:
(i) A producer whose direct or indirect gross farm sales do not
exceed $100,000 in both of the two calendar years that precede the
calendar year that corresponds to the relevant program year, adjusted
upwards for any general inflation since fiscal year 2004, inflation as
measured using the Prices Paid by Farmer Index compiled by the National
Agricultural Statistics Service (NASS), and
(ii) A producer whose total household income is at or below the
national poverty level for a family of four, or less than 50 percent of
the county median household income for the same two calendar years
referenced in paragraph (a) of this section, as determined annually
using Commerce Department data. (Limited resource farmer or rancher
status can be determined using a Web site available through the Limited
Resource Farmer and Rancher Online Self Determination Tool through the
National Resource and Conservation Service at http://www.lrftool.sc.egov.usda.gov/tool.asp.)
(3) A ``beginning farmer or rancher'' means for this section a
person or legal entity who for a program year both:
(i) Has never previously operated a farm or ranch, or who has not
operated a farm or ranch in the previous 10 years, applicable to all
members (shareholders, partners, beneficiaries, etc., as fits the
circumstances) of an entity, and
(ii) Will have or has had for the relevant period materially and
substantially participated in the operation of a farm or ranch.
(c) If a legal entity requests to be considered a ``socially
disadvantaged,'' ``limited resource,'' or ``beginning'' farmer or
rancher, at least 50 percent of the persons in the entity must in their
individual capacities meet the
[[Page 31574]]
definition as provided in paragraphs (b)(1) through (3) of this section
and it must be clearly demonstrated that the entity was not formed for
the purposes of avoiding the purchase requirements or formed after the
deadline for the purchase requirement.
Sec. 760.108 Payment limitation.
(a) For 2008, no person, as defined and determined under the
provisions in part 1400 of this title in effect for 2008 may receive
more than:
(1) $100,000 total for the 2008 program year under ELAP, LFP, LIP,
and SURE combined or
(2) $100,000 for the 2008 program year under TAP.
(b) For 2009 and subsequent program years, no person or legal
entity, excluding a joint venture or general partnership, as determined
by the rules in part 1400 of this title may receive, directly or
indirectly, more than:
(1) $100,000 per program year total under ELAP, LFP, LIP, and SURE
combined; or
(2) $100,000 per program year under TAP.
(c) The Deputy Administrator may take such actions as needed,
whether or not specifically provided for, to avoid a duplication of
benefits under the multiple programs provided for in this part, or
duplication of benefits received in other programs, and may impose such
cross-program payment limitations as may be consistent with the intent
of this part.
(d) In applying the limitation on average adjusted gross income
(AGI) for 2008, an individual or entity is ineligible for payment under
ELAP, LFP, LIP, SURE, and TAP if the individual's or entity's average
adjusted gross income (AGI) exceeds $2.5 million for 2007, 2006, and
2005 under the provisions in part 1400 of this title in effect for
2008.
(e) For 2009 through 2011, the average AGI limitation provisions in
part 1400 of this title relating to limits on payments for persons or
legal entities, excluding joint ventures and general partnerships, with
certain levels of average adjusted gross income (AGI) will apply under
this subpart and will apply to each applicant for ELAP, LFP, LIP, SURE,
and TAP. Specifically, for 2009 through 2011, a person or legal entity
with an average adjusted gross nonfarm income, as defined in Sec.
1404.3 of this title, that exceeds $500,000 will not be eligible to
receive benefits under this part.
(f) The direct attribution provisions in part 1400 of this title
apply to ELAP, LFP, LIP, SURE, and TAP for 2009 and subsequent years.
Under those rules, any payment to any legal entity will also be
considered for payment limitation purposes to be a payment to persons
or legal entities with an interest in the legal entity or in a sub-
entity. If any such interested person or legal entity is over the
payment limitation because of direct payment or their indirect
interests or a combination thereof, then the payment to the actual
payee will be reduced commensurate with the amount of the interest of
the interested person in the payee. Likewise, by the same method, if
anyone with a direct or indirect interest in a legal entity or sub-
entity of a payee entity exceeds the AGI levels that would allow a
participant to directly receive a payment under this part, then the
payment to the actual payee will be reduced commensurately with that
interest. For all purposes under this section, unless otherwise
specified in part 1400 of this title, the AGI figure that will be
relevant for a person or legal entity will be an average AGI for the
three taxable years that precede the most immediately preceding
complete taxable year, as determined by CCC.
Sec. 760.109 Misrepresentation and scheme or device.
(a) A participant who is determined to have deliberately
misrepresented any fact affecting a program determination made in
accordance with this part, or otherwise used a scheme or device with
the intent to receive benefits for which the participant would not
otherwise be entitled, will not be entitled to program payments and
must refund all such payments received, plus interest as determined in
accordance with part 792 of this chapter. The participant will also be
denied program benefits for the immediately subsequent period of at
least 2 crop years, and up to 5 crop years. Interest will run from the
date of the original disbursement by FSA.
(b) A participant will refund to FSA all program payments, plus
interest, as determined in accordance with part 792 of this chapter,
provided however, that in any case it will run from the date of the
original disbursement, received by such participant with respect to all
contracts or applications, as may be applicable, if the participant is
determined to have knowingly done any of the following:
(1) Adopted any scheme or device that tends to defeat the purpose
of the program,
(2) Made any fraudulent representation, or
(3) Misrepresented any fact affecting a program determination.
Sec. 760.110 Appeals.
(a) Appeals. Appeal regulations set forth at parts 11 and 780 of
this title apply to this part.
(b) Determinations not eligible for administrative review or
appeal. FSA determinations that are not in response to a specific
individual participant's application are not to be construed to be
individual program eligibility determinations or adverse decisions and
are, therefore, not subject to administrative review or appeal under
parts 11 or 780 of this title. Such determinations include, but are not
limited to, application periods, deadlines, coverage periods, crop
years, fees, prices, general statutory or regulatory provisions that
apply to similarly situated participants, national average payment
prices, regions, crop definition, average yields, and payment factors
established by FSA for any of the programs for which this subpart
applies or similar matters requiring FSA determinations.
Sec. 760.111 Offsets, assignments, and debt settlement.
(a) Any payment to any participant under this part will be made
without regard to questions of title under State law, and without
regard to any claim or lien against the commodity, or proceeds, in
favor of the owner or any other creditor except agencies of the U.S.
Government. The regulations governing offsets and withholdings in part
792 of this title apply to payments made under this part.
(b) Any participant entitled to any payment may assign any
payment(s) in accordance with regulations governing the assignment of
payments in part 1404 of this title.
Sec. 760.112 Records and inspections.
(a) Any participant receiving payments under any program in ELAP,
LFP, LIP, SURE, or TAP, or any other legal entity or person who
provides information for the purposes of enabling a participant to
receive a payment under ELAP, LFP, LIP, SURE, or TAP, must:
(1) Maintain any books, records, and accounts supporting the
information for 3 years following the end of the year during which the
request for payment was submitted, and
(2) Allow authorized representatives of USDA and the Government
Accountability Office, during regular business hours, to inspect,
examine, and make copies of such books or records, and to enter the
farm and to inspect and verify all applicable livestock and acreage in
which the participant has an interest for the purpose of confirming
[[Page 31575]]
the accuracy of information provided by or for the participant.
(b) [Reserved]
Sec. 760.113 Refunds; joint and several liability.
(a) In the event that the participant fails to comply with any
term, requirement, or condition for payment or assistance arising under
ELAP, LFP, LIP, SURE, or TAP and if any refund of a payment to FSA will
otherwise become due in connection with this part, the participant must
refund to FSA all payments made in regard to such matter, together with
interest and late-payment charges as provided for in part 792 of this
chapter provided that interest will in all cases run from the date of
the original disbursement.
(b) All persons with a financial interest in an operation or in an
application for payment will be jointly and severally liable for any
refund, including related charges, that is determined to be due FSA for
any reason under this part.
Sec. 760.114 Minors.
A minor child is eligible to apply for program benefits under ELAP,
LFP, LIP, SURE, or TAP if all the eligibility requirements are met and
the provision for minor children in part 1400 of this title are met.
Sec. 760.115 Deceased individuals or dissolved entities.
(a) Payments may be made for eligible losses suffered by an
eligible participant who is now a deceased individual or is a dissolved
entity if a representative, who currently has authority to enter into a
contract, on behalf of the participant, signs the application for
payment.
(b) Legal documents showing proof of authority to sign for the
deceased individual or dissolved entity must be provided.
(c) If a participant is now a dissolved general partnership or
joint venture, all members of the general partnership or joint venture
at the time of dissolution or their duly authorized representatives
must sign the application for payment.
Sec. 760.116 Miscellaneous.
(a) As a condition to receive benefits under ELAP, LFP, LIP, SURE,
or TAP, a participant must have been in compliance with the provisions
of parts 12 and 718 of this title, and must not otherwise be precluded
from receiving benefits under those provisions or under any law.
(b) Rules of the Commodity Credit Corporation that are cited in
this part will be applied to this subpart in the same manner as if the
programs covered in this subpart were programs funded by the Commodity
Credit Corporation.
Subpart C [Removed and Reserved]
0
3. Remove and reserve subpart C.
Subpart D [Removed and Reserved]
0
4. Remove and reserve subpart D.
0
5. Revise subpart E to read as follows:
Subpart E--Livestock Indemnity Program
Sec.
760.401 Applicability.
760.402 Definitions.
760.403 Eligible owners and contract growers.
760.404 Eligible livestock.
760.405 Application process.
760.406 Payment calculation.
Subpart E--Livestock Indemnity Program
Sec. 760.401 Applicability.
(a) This subpart establishes the terms and conditions under which
the Livestock Indemnity Program (LIP) will be administered under Titles
XII and XV of the 2008 Farm Bill (Pub. L. 110-246).
(b) Eligible livestock owners and contract growers will be
compensated in accordance with Sec. 760.406 for eligible livestock
deaths in excess of normal mortality that occurred in the calendar year
for which benefits are being requested as a direct result of an
eligible adverse weather event. An ``eligible adverse weather event''
is one, as determined by the Secretary, occurring in the program year
that could and did, even when normal preventative or corrective
measures were taken and good farming practices were followed, directly
result in the death of livestock. Because feed can be purchased or
otherwise obtained in the event of a drought, drought is not an
eligible adverse weather event except when anthrax, resulting from
drought, causes the death of eligible livestock.
Sec. 760.402 Definitions.
The following definitions apply to this subpart. The definitions in
parts 718 and 1400 of this title also apply, except where they conflict
with the definitions in this section.
Adult beef bull means a male beef breed bovine animal that was at
least 2 years old and used for breeding purposes before it died.
Adult beef cow means a female beef breed bovine animal that had
delivered one or more offspring before dying. A first-time bred beef
heifer is also considered an adult beef cow if it was pregnant at the
time it died.
Adult buffalo and beefalo bull means a male animal of those breeds
that was at least 2 years old and used for breeding purposes before it
died.
Adult buffalo and beefalo cow means a female animal of those breeds
that had delivered one or more offspring before dying. A first-time
bred buffalo or beefalo heifer is also considered an adult buffalo or
beefalo cow if it was pregnant at the time it died.
Adult dairy bull means a male dairy breed bovine animal at least 2
years old used primarily for breeding dairy cows before it died.
Adult dairy cow means a female bovine dairy breed animal used for
the purpose of providing milk for human consumption that had delivered
one or more offspring before dying. A first-time bred dairy heifer is
also considered an adult dairy cow if it was pregnant at the time it
died.
Adverse weather means damaging weather events, including, but not
limited to, hurricanes, floods, blizzards, disease, wildfires, extreme
heat, and extreme cold.
Agricultural operation means a farming operation.
Application means the ``Livestock Indemnity Program'' form.
Buck means a male goat.
Commercial use means used in the operation of a business activity
engaged in as a means of livelihood for profit by the eligible
producer.
Contract means, with respect to contracts for the handling of
livestock, a written agreement between a livestock owner and another
individual or entity setting the specific terms, conditions, and
obligations of the parties involved regarding the production of
livestock or livestock products.
Deputy Administrator or DAFP means the Deputy Administrator for
Farm Programs, Farm Service Agency, U.S. Department of Agriculture or
the designee.
Equine animal means a domesticated horse, mule, or donkey.
Ewe means a female sheep.
Farming operation means a business enterprise engaged in producing
agricultural products.
FSA means the Farm Service Agency.
Goat means a domesticated, ruminant mammal of the genus Capra,
including Angora goats. Goats are further defined by sex (bucks and
nannies) and age (kids).
Kid means a goat less than 1 year old.
Lamb means a sheep less than 1 year old.
Livestock owner means one having legal ownership of the livestock
for which benefits are being requested on the day such livestock died.
Nanny means a female goat.
Non-adult beef cattle means a beef breed bovine animal that does
not meet
[[Page 31576]]
the definition of adult beef cow or bull. Non-adult beef cattle are
further delineated by weight categories of either less than 400 pounds
or 400 pounds or more at the time they died.
Non-adult buffalo or beefalo means an animal of those breeds that
does not meet the definition of adult buffalo or beefalo cow or bull.
Non-adult buffalo or beefalo are further delineated by weight
categories of either less than 400 pounds or 400 pounds or more at the
time of death.
Non-adult dairy cattle means a dairy breed bovine animal, of a
breed used for the purpose of providing milk for human consumption,
that does not meet the definition of adult dairy cow or bull. Non-adult
dairy cattle are further delineated by weight categories of either less
than 400 pounds or 400 pounds or more at the time they died.
Normal mortality means the numerical amount, computed by a
percentage, as established for the area by the FSA State Committee, of
expected livestock deaths, by category, that normally occur during a
calendar year for a producer.
Poultry means domesticated chickens, turkeys, ducks, and geese.
Poultry are further delineated by sex, age, and purpose of production
as determined by FSA.
Ram means a male sheep.
Secretary means the Secretary of Agriculture or a designee of the
Secretary.
Sheep means a domesticated, ruminant mammal of the genus Ovis.
Sheep are further defined by sex (rams and ewes) and age (lambs) for
purposes of dividing into categories for loss calculations.
State committee, State office, county committee, or county office
means the respective FSA committee or office.
Swine means a domesticated omnivorous pig, hog, or boar. Swine for
purposes of dividing into categories for loss calculations are further
delineated by sex and weight as determined by FSA.
United States means all fifty States of the United States, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and the District
of Columbia.
Sec. 760.403 Eligible owners and contract growers.
(a) In addition to other eligibility rules that may apply, to be
eligible as a:
(1) Livestock owner for benefits with respect to the death of an
animal under this subpart, the applicant must have had legal ownership
of the eligible livestock on the day the livestock died and under
conditions in which no contract grower could have been eligible for
benefits with respect to the animal. Eligible types of animal
categories for which losses can be calculated for an owner are
specified in Sec. 760.404(a).
(2) Contract grower for benefits with respect to the death of an
animal, the animal must be in one of the categories specified on Sec.
760.404(b), and the contract grower must have had
(i) A written agreement with the owner of eligible livestock
setting the specific terms, conditions, and obligations of the parties
involved regarding the production of livestock;
(ii) Control of the eligible livestock on the day the livestock
died; and
(iii) A risk of loss in the animal.
(b) A producer seeking payment must not be ineligible under the
restrictions applicable to foreign persons contained in Sec.
760.103(b) and must meet all other requirements of subpart B and other
applicable USDA regulations.
Sec. 760.404 Eligible livestock.
(a) To be considered eligible livestock for livestock owners, the
kind of livestock must be alpacas, adult or non-adult dairy cattle,
beef cattle, buffalo, beefalo, elk, emus, equine, llamas, sheep, goats,
swine, poultry, deer, or reindeer and meet all the conditions in
paragraph (c) of this section.
(b) To be considered eligible livestock for contract growers, the
kind of livestock must be poultry or swine as defined in Sec. 760.402
and meet all the conditions in paragraph (c) of this section.
(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:
(i) On or after January 1, 2008, but before October 1, 2011,
(ii) No later than 60 calendar days from the ending date of the
applicable adverse weather event, but before October 1, 2011, and
(iii) In the calendar year for which benefits are being requested;
(2) Been maintained for commercial use as part of a farming
operation on the day they died; and
(3) 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.
(d) The following categories of animals owned by a livestock owner
are eligible livestock and calculations of eligibility for payments
will be calculated separately for each producer with respect to each
category:
(1) Adult beef bulls;
(2) Adult beef cows;
(3) Adult buffalo or beefalo bulls;
(4) Adult buffalo or beefalo cows;
(5) Adult dairy bulls;
(6) Adult dairy cows;
(7) Alpacas;
(8) Chickens, broilers, pullets;
(9) Chickens, chicks;
(10) Chickens, layers, roasters;
(11) Deer;
(12) Ducks;
(13) Ducks, ducklings;
(14) Elk;
(15) Emus;
(16) Equine;
(17) Geese, goose;
(18) Geese, gosling;
(19) Goats, bucks;
(20) Goats, nannies;
(21) Goats, kids;
(22) Llamas;
(23) Non-adult beef cattle;
(24) Non-adult buffalo or beefalo;
(25) Non-adult dairy cattle;
(26) Reindeer;
(27) Sheep, ewes;
(28) Sheep, lambs;
(29) Sheep, rams;
(30) Swine, feeder pigs under 50 pounds;
(31) Swine, sows, boars, barrows, gilts 50 to 150 pounds;
(32) Swine, sows, boars, barrows, gilts over 150 pounds;
(33) Turkeys, poults; and
(34) Turkeys, toms, fryers, and roasters.
(e) The following categories of animals are eligible livestock for
contract growers and calculations of eligibility for payments will be
calculated separately for each producer with respect to each category:
(1) Chickens, broilers, pullets;
(2) Chickens, layers, roasters;
(3) Geese, goose;
(4) Swine, boars, sows;
(5) Swine, feeder pigs;
(6) Swine, lightweight barrows, gilts;
(7) Swine, sows, boars, barrows, gilts; and
(8) Turkeys, toms, fryers, and roasters.
Sec. 760.405 Application process.
(a) In addition to submitting an application for payment at the
appropriate time, a producer or contract grower that suffered livestock
losses that create or could create a claim for benefits must:
(1) For losses during 2008 and losses in 2009, prior to July 13,
2009, provide a notice of loss to FSA no later than September 13, 2009.
(2) For losses on or after July 13, 2009, provide a notice of loss
to FSA within the earlier of:
[[Page 31577]]
(i) 30 calendar days of when the loss of livestock is apparent to
the participant or
(ii) 30 calendar days after the end of the calendar year in which
the loss of livestock occurred.
(3) The participant must submit the notice of loss required in
paragraphs (a)(1) and (a)(2) to the FSA administrative county office
that maintains the participant's farm records for the agricultural
operation.
(b) In addition to the notices of loss required in paragraph (a) of
this section, a participant must also submit a completed application
for payment no later than
(1) 30 calendar days after the end of the calendar year in which
the loss of livestock occurred or
(2) September 13, 2009 for losses during 2008.
(c) Applicants must submit supporting documentation with their
application. For contract growers, the information must include a copy
of the grower contract and other documents establishing their status.
In addition, for all applicants, including contract growers, supporting
documents must show:
(1) Evidence of loss,
(2) Current physical location of livestock in inventory,
(3) Physical location of claimed livestock at the time of death,
and
(4) Inventory numbers and other inventory information necessary to
establish actual mortality as required by FSA.
(d) The participant must provide adequate proof that the death of
the eligible livestock occurred as a direct result of an eligible
adverse weather event in the calendar year for which benefits are
requested. The quantity and kind of livestock that died as a direct
result of the eligible adverse weather event during the calendar year
for which benefits are being requested may be documented by: purchase
records; veterinarian records; bank or other loan papers; rendering-
plant truck receipts; Federal Emergency Management Agency records;
National Guard records; written contracts; production records; Internal
Revenue Service records; property tax records; private insurance
documents; and other similar verifiable documents as determined by FSA.
(e) If adequate verifiable proof of death documentation is not
available, the participant may provide reliable records, in conjunction
with verifiable beginning and ending inventory records, as proof of
death. Reliable records may include contemporaneous producer records,
dairy herd improvement records, brand inspection records, vaccination
records, pictures, and other similar reliable documents as determined
by FSA.
(f) Certification of livestock deaths by third parties may be
accepted only if verifiable proof of death records or reliable proof of
death records in conjunction with verifiable beginning and ending
inventory records are not available and both of the following
conditions are met:
(1) The livestock owner or livestock contract grower, as
applicable, certifies in writing:
(i) That there is no other verifiable or reliable documentation of
death available;
(ii) The number of livestock, by category identified in this
subpart and by FSA were in inventory at the time the applicable adverse
weather event occurred;
(iii) The physical location of the livestock, by category, in
inventory when the deaths occurred; and
(iv) Other details required for FSA to determine the certification
acceptable; and
(2) The third party is an independent source who is not affiliated
with the farming operation such as a hired hand and is not a ``family
member,'' defined as a person whom a member in the farming operation or
their spouse is related as lineal ancestor, lineal descendant, sibling,
spouse, and provides their telephone number, address, and a written
statement containing specific details about:
(i) Their knowledge of the livestock deaths;
(ii) Their affiliation with the livestock owner;
(iii) The accuracy of the deaths claimed by the livestock owner or
contract grower including, but not limited to, the number and kind or
type of the participant's livestock that died because of the eligible
adverse weather event; and
(iv) Other information required by FSA to determine the
certification acceptable.
(g) Data furnished by the participant and the third party will be
used to determine eligibility for program benefits. Furnishing the data
is voluntary; however, without all required data program benefits will
not be approved or provided.
Sec. 760.406 Payment calculation.
(a) Under this subpart, separate payment rates for eligible
livestock owners and eligible livestock contract growers are specified
in paragraphs (b) and (c) of this section, respectively. Payments for
LIP are calculated by multiplying the national payment rate for each
livestock category by the number of eligible livestock in excess of
normal mortality in each category that died as a result of an eligible
adverse weather event. Normal mortality for each livestock category
will be determined by FSA on a State-by-State basis using local data
sources including, but not limited to, State livestock organizations
and the Cooperative Extension Service for the State. Adjustments will
be applied as specified in paragraph (d) of this section.
(b) The LIP national payment rate for eligible livestock owners is
based on 75 percent of the average fair market value of the applicable
livestock as computed using nationwide prices for the previous calendar
year unless some other price is approved by the Deputy Administrator.
(c) The LIP national payment rate for eligible livestock contract
growers is based on 75 percent of the average income loss sustained by
the contract grower with respect to the dead livestock.
(d) The LIP payment calculated for eligible livestock contract
growers will be reduced by the amount the participant received from the
party who contracted with the producer to raise the livestock for the
loss of income from the dead livestock.
Subpart F [Removed and Reserved]
0
6. Remove and reserve subpart F.
Subpart G [Removed and Reserved]
0
7. Remove and reserve subpart G.
Subpart H [Removed and Reserved]
0
8. Remove and reserve subpart H.
PART 1400--PAYMENT LIMITATION AND PAYMENT ELIGIBILITY FOR 2009 AND
SUBSEQUENT CROP, PROGRAM, OR FISCAL YEARS
0
9. The authority citation for part 1400 continues to read as follows:
Authority: 7 U.S.C. 1308, 1308-1, 1308-2, 1308-3, 1308-3a, 1308-
4, and 1308-5.
Sec. 1400.1 [Amended]
0
10. Amend Sec. 1400.1 as follows:
0
a. In paragraph (a)(4), remove the reference ``part 1480 of this
chapter'' and add, in its place, the reference ``part 760 of this
title'';
0
b. In paragraph (a)(5), remove the reference ``part 1439 of this
chapter'' and add, in its place, the reference ``part 760 of this
title''; and
0
c. In paragraph (a)(6), remove the reference ``part 783'' and add, in
its place, the reference ``part 760''.
[[Page 31578]]
PART 1439--EMERGENCY LIVESTOCK ASSISTANCE
0
11. Remove part 1439.
Signed in Washington, DC, June 25, 2009.
Carolyn B. Cooksie,
Acting Administrator, Farm Service Agency, and Acting Executive Vice
President, Commodity Credit Corporation.
[FR Doc. E9-15537 Filed 7-1-09; 8:45 am]
BILLING CODE 3410-05-P