[Federal Register Volume 86, Number 164 (Friday, August 27, 2021)]
[Rules and Regulations]
[Pages 48013-48018]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-18423]



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 Rules and Regulations
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains regulatory documents 
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 under 50 titles pursuant to 44 U.S.C. 1510.
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  Federal Register / Vol. 86, No. 164 / Friday, August 27, 2021 / Rules 
and Regulations  

[[Page 48013]]



DEPARTMENT OF AGRICULTURE

Office of the Secretary

7 CFR Part 9

[Docket ID: FSA-2020-0006]
RIN 0503-AA71


Coronavirus Food Assistance Program 2; Producers of Sale-Based 
Commodities and Contract Producers

AGENCY: Office of the Secretary, Department of Agriculture (USDA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule amends the Coronavirus Food Assistance Program 2 
(CFAP 2) provisions related to assistance for producers of sales-based 
commodities and contract producers. This rule also announces the 
deadline for submitting CFAP 2 applications and clarifies general 
provisions related to equitable relief and refunds.

DATES: 
    Effective date: August 27, 2021.
    Comment due date: With grass seed being added as an eligible crop 
under CFAP, we will consider comments on the information collection 
requirements under the Paperwork Reduction Act that we receive by: 
October 26, 2021.

ADDRESSES: We invite you to submit comments on the information 
collection requirements. You may submit comments by any of the 
following methods:
     Federal eRulemaking Portal: Go to: www.regulations.gov and 
search for Docket ID FSA-2020-0006. Follow the online instructions for 
submitting comments.
     Mail, Hand-Delivery, or Courier: Director, Safety Net 
Division, Farm Service Agency, U.S. Department of Agriculture, 1400 
Independence Avenue SW, Stop 0510, Washington, DC 20250- 0522. In your 
comment, specify the docket ID FS-2020-0006.
    You may also send comments to the Desk Officer for Agriculture, 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, Washington, DC 20503.
    Comments will be available for inspection online at http://www.regulations.gov. Copies of the information collection may be 
requested by contacting Brittany Ramsburg at the above address.

FOR FURTHER INFORMATION CONTACT: Kimberly Graham; telephone: (202) 720-
6825; email: [email protected]. Persons with disabilities who 
require alternative means for communication should contact the USDA 
Target Center at (202) 720-2600 (voice) or (844) 433-2774 (toll-free 
nationwide).

SUPPLEMENTARY INFORMATION: USDA established CFAP to assist producers of 
agricultural commodities marketed in 2020 who faced continuing market 
disruptions, reduced farm-level prices, and increased production and 
marketing costs due to COVID-19. CFAP went through two rounds of 
payments (CFAP 1 and CFAP 2), and the Farm Service Agency (FSA) is 
administering CFAP 2, as directed by the Secretary of Agriculture. USDA 
announced CFAP 2 through a final rule published in the Federal Register 
on September 22, 2020. 85 FR 59380-59388. A second final rule was 
published on January 19, 2021. 86 FR 4877-4883. That rule amended CFAP 
2 provisions and included assistance for contract producers of swine 
and poultry (including broilers, pullets, layers, chicken eggs, and 
turkeys), who were not originally eligible for CFAP 2. After 
publication of that rule, USDA suspended approval of applications from 
contract producers while that final rule was under review.
    As a result of that review and for consistency with the provisions 
of the Consolidated Appropriations Act, 2021 (CAA), Public Law 116-260, 
USDA is making changes to the provisions for CFAP 2 as described below. 
These changes include adjusting the CFAP 2 application deadline, 
changing the calculation of payments for sales-based commodities, 
adding grass seed as an eligible sales-based commodity, changing 
aspects of the provisions for assistance for contract producers, and 
clarifying the applicability of equitable relief provisions and 
provisions requiring refunds.

Application Deadline

    On March 24, 2021, USDA announced in a news release that the 
application period for CFAP 2 was reopened for all eligible producers 
for at least 60 days beginning on April 5, 2021. This reopening allowed 
USDA to improve outreach efforts and ensure that producers in socially 
disadvantaged communities were informed and aware of the application 
process. This rule announces that the CFAP 2 application deadline will 
be October 12, 2021, and amends 7 CFR 9.4 to specify the deadline. This 
deadline applies to all producers applying for CFAP 2, including 
producers of sales-based commodities and contract producers who submit 
new applications or revise previously filed applications due to the 
changes included in this rule.

Sales-Based Commodities

    Consistent with section 751 of Subtitle B of Title VII of Division 
N of CAA, USDA is amending the CFAP 2 payment calculation for sales-
based commodities in 7 CFR 9.203(i) and (j) to allow eligible producers 
to substitute 2018 sales for 2019 sales. Previously, payments for 
producers of sales-based commodities were based only on 2019 sales; 
however, various conditions occurring in 2019 could have adversely 
affected a producer's amount of sales and therefore their CFAP 2 
payment. CFAP 2 uses a producer's 2019 sales as an approximation of 
what the producer would have expected to market in 2020, which could 
not be determined for most producers at the time of application. Under 
the final rule published on January 19, 2021, crop insurance 
indemnities under the Federal Crop Insurance Act, 7 U.S.C 1501-1524, 
and 2019 crop year payments under the Noninsured Crop Disaster 
Assistance Program (NAP) and Wildfires and Hurricanes Indemnity Program 
Plus (WHIP+), are included as eligible sales under 7 CFR 9.202(i) in 
addition to the amount of the producer's 2019 sales, as required by 
Subtitle B, section 751, of the CAA. That change is intended to more 
accurately represent what a producer would have expected to have 
marketed in 2020 by taking into account commodities that would have 
been available for marketing in 2019 but were lost due to natural 
events. However, crop insurance indemnities and NAP and WHIP+ program 
payments for a

[[Page 48014]]

crop are less than the full amount that a producer would have expected 
to receive for marketing the commodity if there was no loss. Giving 
producers the option to substitute 2018 sales (including 2018 crop 
insurance indemnities and 2018 crop year NAP and WHIP+ payments) for 
2019 sales provides additional flexibility to producers who had reduced 
sales in 2019.
    In addition, USDA has determined that producers of grass seed faced 
continuing market disruptions, low farm-level prices, and significant 
marketing costs associated with the COVID-19 outbreak, similar to 
producers of commodities that were previously determined to be eligible 
for CFAP 2 assistance. As a result, USDA is amending the definitions of 
``Ineligible commodities'' and ``Sales-based commodities'' in Sec.  
9.201 to make grass seed an eligible commodity.

Contract Producers

    The final rule published on January 19, 2021, added provisions to 
provide assistance for contract producers and specified that those 
payments would be issued with remaining funding authorized by the 
Coronavirus Aid, Relief, and Economic Security Act (CARES Act; Pub. L. 
116-136). Contract producer payments were suspended before any CARES 
Act funding was used to fund those payments. Subtitle B, section 751, 
of the CAA specifically directs the Secretary to use not more than $1 
billion of the additional funding provided under the CAA to make 
payments to contract producers of livestock and poultry to cover not 
more than 80 percent of their revenue losses, as determined by the 
Secretary of Agriculture, from January 1, 2020, through December 27, 
2020. While CAA uses the term ``contract grower'' and the CFAP 2 
regulation uses the term ``contract producer'' both terms refer to and 
mean the same people or entities; this rule uses the term ``contract 
producer,'' for consistency. Payments to contract producers will be 
funded as authorized by the CAA rather than the CARES Act.
    This rule also amends the provisions for contract producers based 
on additional evaluation of CFAP 2 and stakeholder concerns related to 
the payment calculation. The previous final rule provided assistance 
for contract producers of broilers, pullets, layers, chicken eggs, 
turkeys, hogs, and pigs. After further review, USDA has determined that 
contract producers of ducks, geese, pheasants, and quail will also be 
eligible, including contract producers of eggs of all eligible poultry 
types. In addition to the listed livestock and poultry types, USDA may 
determine that additional livestock and poultry types are eligible at a 
later time. These changes are reflected in a new definition of 
``eligible contract livestock or poultry'' in 7 CFR 9.201, in which 
USDA is also clarifying that contract producers of breeding stock of 
those defined eligible livestock and poultry are eligible for CFAP 2. 
Contract producers of breeding stock are included because those 
producers may have suffered a revenue loss for the livestock and 
poultry, regardless of the livestock owner's intended end use of the 
animals. This rule also amends the definition of ``producer'' in 7 CFR 
9.201 to specify that the requirement that a producer must be in the 
business of farming at the time of application does not apply to 
contract producers because contract producers may have had contracts 
terminated for reasons outside of their control due to COVID-19.
    The final rule published on January 19, 2021, specified that 
payments for contract producers would be based on a comparison of 
eligible revenue for the periods of January 1, 2019, through December 
27, 2019, and January 1, 2020, through December 27, 2020. This rule 
amends the regulation in 7 CFR 9.202(b) and 9.203(l) to allow a 
contract producer to elect to use eligible revenue from the period of 
January 1, 2018, through December 27, 2018, in lieu of during that date 
range in 2019. This change is intended to provide flexibility and make 
the program more equitable for contract producers who had reduced 
revenue in 2019 compared to a normal year for their operation.
    The payment calculation in the final rule published on January 19, 
2021, specified that payments for contract producers would be equal to 
the eligible revenue received from January 1, 2019, through December 
27, 2019, minus the eligible revenue received from January 1, 2020, 
through December 27, 2020, multiplied by 80 percent. In response to 
additional review and stakeholder concerns about certain situations 
when the original calculation would not accurately capture a contract 
producer's loss of eligible revenue due to COVID-19, this rule amends 
the regulation at 7 CFR 9.203(l)(4) to allow FSA to adjust a contract 
producer's eligible revenue based on information certified by the 
contract producer on supplemental form AD-3117B if a contract producer 
did not have a full period of revenue from January 1 to December 27 for 
either 2018 or 2019, or if the contract producer increased their 
operation size in 2020. Information required to calculate these 
adjustments includes a contract producer's square footage increase to 
the operation in 2020, or a contract producer's production or number of 
turns for 2018, 2019, or 2020, as applicable.
    This rule also provides assistance in 7 CFR 9.202(d) and 9.203(m) 
to producers who were not in operation in 2018 or 2019, who would have 
been ineligible under the previous final rule. Assistance for these 
producers is based on their 2020 eligible revenue and the average 
revenue loss level, which will be determined by USDA for a geographic 
area based on the best available data including, but not limited to, 
losses reported by other contract producers for the same area and type 
of livestock or poultry as reported in their CFAP 2 applications.
    This rule also specifies that payments to contract producers will 
be calculated separately for the categories of livestock listed in 
Sec.  9.203(n). As provided in the previous final rule, payments to 
contract producers may be factored if total calculated payments exceed 
the available funding under 7 CFR 9.203(o).

Other Changes

    This rule amends Sec.  9.7(a) to address situations where FSA 
determines that the applicant intentionally misrepresented either the 
total amount or producer's share of the commodities, acres, sales, or 
revenue on their application. In those cases, the producer's 
application will be disapproved and the participant must refund the 
full payment to FSA with interest from the date of disbursement. This 
rule also amends Sec.  9.7(b) to specify that the equitable relief 
provisions of 7 CFR part 718, subpart D, apply to CFAP determinations.

Notice and Comment, Effective Date, and Exemptions

    The Administrative Procedure Act (APA), 5 U.S.C. 553(a)(2), 
provides that the notice-and-comment and 30-day delay in the effective 
date requirements do not apply when the rule involves specified 
actions, including matters relating to benefits. This rule governs CFAP 
for payments to certain commodity producers and therefore falls within 
the benefits exemption.
    This rule is exempt from the regulatory analysis requirements of 
the Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). 
The requirements for the regulatory flexibility analysis in 5 U.S.C. 
603 and 604 are specifically tied to the requirement for a proposed 
rule by section 553 or any other law; in

[[Page 48015]]

addition, the definition of rule in 5 U.S.C. 601 is tied to the 
publication of a proposed rule.
    The Office of Management and Budget (OMB) designated this rule as 
major under the Congressional Review Act (CRA), as defined by 5 U.S.C. 
804(2). Section 808 of the CRA allows an agency to make a major 
regulation effective immediately if the agency finds there is good 
cause to do so. The beneficiaries of this rule have been significantly 
impacted by the COVID-19 outbreak, which has resulted in significant 
declines in demand and market disruptions. USDA finds that notice and 
public procedure would be contrary to the public interest. Therefore, 
even though this rule is a major rule for purposes of the Congressional 
Review Act, USDA is not required to delay the effective date for 60 
days from the date of publication to allow for Congressional review. 
Accordingly, this rule is effective upon publication in the Federal 
Register.

Executive Orders 12866 and 13563

    Executive Order 12866, ``Regulatory Planning and Review,'' and 
Executive Order 13563, ``Improving Regulation and Regulatory Review,'' 
direct agencies to assess all costs and benefits of available 
regulatory alternatives and, if regulation is necessary, to select 
regulatory approaches that maximize net benefits (including potential 
economic, environmental, public health, and safety effects; 
distributive impacts; and equity). Executive Order 13563 emphasized the 
importance of quantifying both costs and benefits, of reducing costs, 
of harmonizing rules, and of promoting flexibility. The requirements in 
Executive Orders 12866 and 13563 for the analysis of costs and benefits 
apply to rules that are determined to be significant.
    The Office of Management and Budget (OMB) designated this rule as 
economically significant under Executive Order 12866. Therefore, OMB 
has reviewed this rule.
    The costs and benefits of this rule are summarized below. The full 
cost benefit analysis is available on regulations.gov.

Cost Benefit Analysis Summary

    CFAP 1 and CFAP 2 assisted producers of agricultural commodities 
marketed in 2020 who faced continuing market disruptions, reduced farm-
level prices, and increased production and marketing costs due to 
COVID-19. These additional costs are associated with declines in 
demand, surplus productions, or disruptions to shipping patterns and 
marketing channels.
    In implementing these programs, additional assistance was deemed 
necessary. Subdivision B, section 751, of the CAA authorizes payments 
of up to 80 percent of contract producers' revenue loss and up to $1 
billion in funding. To qualify for payment, a producer must demonstrate 
a drop in revenue (``revenue loss'') between 2019 and 2020. The 
producer can then choose their 2018 revenue in lieu of their 2019 
revenue in the revenue loss calculation if their 2018 revenue is more 
representative of anticipated revenue in 2020. In addition, note that 
the CFAP Additional Assistance regulation, published on January 19, 
2021, provided assistance to contract producers. CFAP Additional 
Assistance activity was paused in late January 2021. No payments were 
issued to contract producers under that regulation.
    This rule and cost-benefit analysis use an 80 percent payment 
factor, the maximum allowed by the CAA, and apply it to the individual 
producer's actual 2019 to 2020 revenue change. Contract producer 
payments are highly uncertain and can depend on the number of animals 
received by the contractor and the price paid by the integrator to the 
contractor. The projections contained in this assessment provide an 
upper bound at over $1 billion. However, available evidence suggests 
that year-to-year differences in animal volume may moderate that 
estimate. Broiler and hog contract producers will receive the bulk of 
payments.
    In contrast to assistance for contract producers, CAA provides 
authority for, but does not mandate, use of 2018 or 2019 revenue data 
in the calculation of payments for sales-based \1\ commodities. This 
provision, included in this rule, ensures that farmers who had lower 
sales in 2019 than in 2018--for example, those unable to plant a 2019 
crop--would not be penalized in the payment calculation. Fifty-two 
percent of sales-based applicants are projected to prefer the use of 
2018 revenue data (relative to 2019 data) based on analysis of USDA 
cash receipts data. The expected cost associated with this change is 
estimated at $207 million.
---------------------------------------------------------------------------

    \1\ This category includes fruits, vegetables, and nuts; dry 
edible beans, lentils, dry edible peas, and chickpeas; and 
commodities including aquaculture, turkeys, mink, mohair, rabbits, 
and others. For more information, see the CFAP 2 cost-benefit 
assessment at: https://www.farmers.gov/sites/default/files/documents/CFAP2-CBA-09252020.pdf.
---------------------------------------------------------------------------

    Upon implementation of the CFAP 2 rule, FSA became aware that 
certain commodities had experienced COVID-19 market disruptions but had 
not been explicitly included in the initial CFAP 2 rule. For example, 
grass seed was not included in the initial CFAP 2 rule, but evidence 
indicates that production and revenue were significantly affected. This 
rule clarifies that grass seed is now an eligible sales-based 
commodity, the expected cost is $41 million.
    FSA, which implemented CFAP 1 and 2, is implementing these three 
provisions. Producers must fill out paperwork to participate in these 
programs, and the associated administrative costs are estimated at $1.5 
million for contract producers, $2.2 million for the use of 2018 versus 
2019 revenue in the calculations for sales-based commodities, and $0.1 
million for grass seed.

Environmental Review

    The environmental impacts of this final 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 
because USDA will be making the payments to producers the USDA 
regulations for compliance with NEPA (7 CFR part 1b).
    Although OMB has designated this rule as ``economically 
significant'' under Executive Order 12866, ``economic or social effects 
are not intended by themselves to require preparation of an 
environmental impact statement'' when not interrelated to natural or 
physical environmental effects (see 40 CFR 1502.16(b)). CFAP was 
designed to avoid skewing planting decisions. Producers continue to 
make their planting and production decisions with the market signals in 
mind, rather than any expectation of what a new USDA program might look 
like. The discretionary aspects of CFAP (for example, determining 
adjusted gross income (AGI) and payment limitations) were designed to 
be consistent with established USDA and the FSA administered programs 
and are not expected to have any impact on the human environment, as 
CFAP payments will only be made after the commodity has been produced. 
Accordingly, the following Categorical Exclusion in 7 CFR part 1b 
applies: Sec.  1b.3(a)(2), which applies to activities that deal solely 
with the funding of programs, such as program budget proposals, 
disbursements, and the transfer or reprogramming of funds. As such, the 
implementation of and participation in CFAP do not constitute major 
Federal actions that would significantly affect the quality of the 
human environment. Therefore, an environmental assessment

[[Page 48016]]

or environmental impact statement for this regulatory action will not 
be prepared; this rule serves as documentation of the programmatic 
environmental compliance decision for this Federal action.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, ``Civil 
Justice Reform.'' This rule will not preempt State or local laws, 
regulations, or policies unless they represent an irreconcilable 
conflict with this rule. Before any judicial actions may be brought 
regarding the provisions of this rule, the administrative appeal 
provisions of 7 CFR parts 11 and 780 are to be exhausted.

Executive Order 13175

    This rule has been reviewed in accordance with the requirements of 
Executive Order 13175, ``Consultation and Coordination with Indian 
Tribal Governments.'' Executive Order 13175 requires Federal agencies 
to consult and coordinate with Tribes on a government-to-government 
basis on policies that have Tribal implications, including regulations, 
legislative comments, or proposed legislation, and other policy 
statements or actions that have substantial direct effects on one or 
more Indian Tribes, on the relationship between the Federal Government 
and Indian Tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian Tribes.
    USDA has assessed the impact of this rule on Indian Tribes and 
determined that this rule does not, to our knowledge, have Tribal 
implications that required Tribal consultation under Executive Order 
13175 at this time. If a Tribe requests consultation, the USDA Office 
of Tribal Relations (OTR) will ensure meaningful consultation is 
provided where changes, additions, and modifications are not expressly 
mandated by law. Outside of Tribal consultation, USDA is working with 
Tribes to provide information about CFAP additional assistance and 
other issues.

Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, requires Federal agencies to assess the effects of their 
regulatory actions on State, local, and 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 in Title II of UMRA, for 
State, local, and Tribal governments or the private sector. Therefore, 
this rule is not subject to the requirements of sections 202 and 205 of 
UMRA.

Federal Assistance Programs

    The title and number of the Federal Domestic Assistance Program 
found in the Catalog of Federal Domestic Assistance to which this rule 
applies is 10.132--Coronavirus Food Assistance Program 2.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995, FSA is 
administering the information collection activities under a currently 
approved information collection request of OMB control number of 0560-
0297. Thus, there are no required changes to the information collection 
request for FSA in providing assistance for contract producers of 
eligible contract livestock and poultry and to provide additional 
assistance for other commodities as described in this rule.
    Additionally, the new information collection request for the 
eligible grass seed that will be included in the CFAP was submitted to 
OMB for emergency approval. FSA will collect and evaluate the 
application from the producers and other required paperwork. Following 
the 60-day public comment period provided by this rule, FSA intends to 
merge the burden hours associated with the new grass seed information 
collection request (ICR) into the main CFAP 2 ICR that is currently 
approved under OMB control number 0560-0297.
    Title: CFAP 2.
    OMB Control Number: 0560-New.
    Type of Request: New Collection.
    Abstract: This information collection is required to support CFAP 2 
information collection activities to provide payments to eligible 
producers who, with respect to their agricultural commodities, have 
been impacted by the effects of the COVID-19 pandemic. The information 
collection is necessary to evaluate the application and other required 
paperwork for determining the producer's eligibility and assist in the 
producer's payment calculations.
    For the following estimated total annual burden on respondents, the 
formula used to calculate the total burden hour is the estimated 
average time per response multiplied by the estimated total annual 
responses.
    Estimate of Respondent Burden: Public reporting burden for this 
information collection is estimated to average 0.43 hours per response, 
including the time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed and completing and 
reviewing the collections of information.
    Type of Respondents: Producers or farmers.
    Estimated Annual Number of Respondents: 2,204.
    Estimated Number of Responses per Respondent: 2.005.
    Estimated Total Annual Responses: 4,419.
    Estimated Average Time per Response: 0.43 hours.
    Estimated Annual Burden on Respondents: 1,892 hours.
    FSA is requesting comments on all aspects of this information 
collection to help us to:
    (1) Evaluate whether the collection of information is necessary for 
the proper performance of the functions of FSA, including whether the 
information will have practical utility;
    (2) Evaluate the accuracy of the FSA's estimate of burden including 
the validity of the methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology.
    All comments received in response to this document, including names 
and addresses when provided, will be a matter of public record. 
Comments will be summarized and included in the submission for Office 
of Management and Budget approval.

USDA Non-Discrimination Policy

    In accordance with Federal civil rights law and U.S. Department of 
Agriculture (USDA) civil rights regulations and policies, USDA, its 
Agencies, offices, and employees, and institutions participating in or 
administering USDA programs are prohibited from discriminating based on 
race, color, national origin, religion, sex, gender identity (including 
gender expression), sexual orientation, disability, age, marital 
status, family or parental status, income derived from a public 
assistance program, political

[[Page 48017]]

beliefs, or reprisal or retaliation for prior civil rights activity, in 
any program or activity conducted or funded by USDA (not all bases 
apply to all programs). Remedies and complaint filing deadlines vary by 
program or incident.
    Persons with disabilities who require alternative means of 
communication for program information (for example, Braille, large 
print, audiotape, American Sign Language, etc.) should contact the 
responsible Agency or USDA TARGET Center at (202) 720-2600 or (844) 
433-2774 (toll-free nationwide). Additionally, program information may 
be made available in languages other than English.
    To file a program discrimination complaint, complete the USDA 
Program Discrimination Complaint Form, AD-3027, found online at https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint and 
at any USDA office or write a letter addressed to USDA and provide in 
the letter all the information requested in the form. To request a copy 
of the complaint form, call (866) 632-9992. Submit your completed form 
or letter to USDA by mail to: U.S. Department of Agriculture, Office of 
the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW, 
Washington, DC 20250-9410 or email: [email protected].
    USDA is an equal opportunity provider, employer, and lender.

List of Subjects in 7 CFR Part 9

    Agricultural commodities, Agriculture, Disaster assistance, 
Indemnity payments.

    For the reasons discussed above, this final rule amends 7 CFR part 
9 as follows:

PART 9--CORONAVIRUS FOOD ASSISTANCE PROGRAM

0
1. The authority citation for part 9 continues to read as follows:

    Authority:  15 U.S.C. 714b and 714c; Division B, Title I, Pub. 
L. 116-136, 134 Stat. 505; and Division N, Title VII, Subtitle B, 
Chapter 1, Pub. L. 116-260.

Subpart A--General Provisions

0
2. Amend Sec.  9.4 as follows:
0
a. Revise paragraphs (a)(1) and (2); and
0
b. Remove paragraph (a)(3).
    The revisions read as follows:


Sec.  9.4   Time and method of application.

    (a) * * *
    (1) September 11, 2020, for payments issued under Sec.  9.102; and
    (2) October 12, 2021, for payments issued under Sec.  9.203.
* * * * *

0
3. Amend Sec.  9.7 as follows:
0
a. Revise paragraph (a); and
0
b. In paragraph (b), remove the words ``in parts'' and add ``in part 
718, subpart D, and parts'' in their place.
    The revision reads as follows:


Sec.  9.7   Miscellaneous provisions.

    (a) If a CFAP payment resulted from erroneous information provided 
by a participant, or any person acting on their behalf, the payment 
will be recalculated and the participant must refund any excess payment 
with interest calculated from the date of the disbursement of the 
payment.
    (1) If FSA determines that the applicant intentionally 
misrepresented either the total amount or applicant's share of the 
commodities, acres, sales, or revenue on their application, the 
application will be disapproved and the applicant must refund the full 
payment to FSA with interest from the date of disbursement.
    (2) Any required refunds must be resolved in accordance with part 3 
of this title.
* * * * *

Subpart C--CFAP 2

0
4. Amend Sec.  9.201 as follows:
0
a. Add the definitions of ``Average revenue loss level'' and ``Eligible 
contract livestock or poultry'' in alphabetical order;
0
b. In the definition of ``Eligible revenue'', remove the words 
``broilers, pullets, layers, chicken eggs, turkeys, hogs, or pigs'' and 
add the words ``eligible contract livestock or poultry'' in their 
place;
0
c. In the definition of ``Ineligible commodities'', remove the words 
``ineligible crops'' and add the words ``ineligible crops other than 
grass seed'' in their place;
0
d. In the definition of ``Producer'', in the second sentence, remove 
the word ``Producers'' and add the words ``Except for contract 
producers, producers'' in its place;
0
e. In the definition of ``Sales-based commodities'', remove the words 
``milk, mink (including pelts);'' and add the words ``milk, grass seed, 
mink (including pelts),'' in its place; and
0
f. Add the definition of ``Turn'' in alphabetical order.
    The additions read as follows:


Sec.  9.201   Definitions.

* * * * *
    Average revenue loss level means the average percentage of revenue 
loss for contract producers determined by USDA for a geographic area 
based on the best available data including, but not limited to, losses 
reported by contract producers for the same area and type of livestock 
or poultry.
* * * * *
    Eligible contract livestock or poultry means broilers, pullets, 
layers, poultry eggs, turkeys, ducks, geese, pheasants, quail, hogs, 
pigs, and other livestock or poultry types determined eligible and 
announced by USDA, including breeding stock of those eligible livestock 
and poultry types.
* * * * *
    Turn means a group of eligible contract livestock or poultry that 
is delivered to a contract producer who provides labor and equipment to 
produce the livestock or poultry for the integrator or owner.
* * * * *

0
5. Amend Sec.  9.202 by revising paragraphs (b)(1) through (3) and 
adding paragraphs (b)(4) and (d) to read as follows:


Sec.  9.202   Eligibility.

* * * * *
    (b) * * *
    (1) Produced eligible contract livestock or poultry under a 
contract in either the 2018 or 2019 calendar year and in the 2020 
calendar year;
    (2) Received revenue under such a contract during the period from 
January 1, 2020, through December 27, 2020;
    (3) Had a loss in eligible revenue for the period from January 1, 
2020, through December 27, 2020, as compared to the period from:
    (i) January 1, 2018, through December 27, 2018; or
    (ii) January 1, 2019, through December 27, 2019; and
    (4) Meet all other requirements for eligibility under this part.
* * * * *
    (d) Contract producers are eligible for payment under Sec.  
9.203(m) if they:
    (1) Did not receive eligible revenue from January 1 through 
December 27 in 2018 or 2019, but received eligible revenue for the 
period from January 1, 2020, through December 27, 2020; and
    (2) Meet all other requirements for eligibility under this part.

0
6. Amend Sec.  9.203 as follows:
0
a. Revise paragraph (i);
0
b. In Table 2 to paragraph (j), revise the first column heading;
0
c. Revise paragraph (l); and
0
d. Add paragraphs (m) through (o).
    The revisions and additions read as follows:


Sec.  9.203   Calculation of payments.

* * * * *

[[Page 48018]]

    (i) Payments for sales-based commodities will be:
    (1) Based on one of the following as elected by the producer:
    (i) The producer's sales for calendar year 2018 and crop insurance 
indemnities and NAP and WHIP+ payments for the 2018 crop year for all 
sales-based commodities; or
    (ii) The producer's sales for calendar year 2019 and crop insurance 
indemnities and NAP and WHIP+ payments for the 2019 crop year for all 
sales-based commodities.
    (2) Equal to the sum of the results for the following calculation 
for each sales range in Table 2 of paragraph (j) of this section:
    (i) The sum of the amount of the producer's eligible sales for the 
sales-based commodities in the applicable calendar year and the 
producer's crop insurance indemnities and NAP and WHIP+ payments for 
the sales commodities for the applicable crop year within the specified 
range, multiplied by the payment rate for that range in Table 2 of 
paragraph (j) of this section.
    (ii) Eligible sales only includes sales of raw commodities grown by 
the producer; the portion of sales derived from adding value to the 
commodity, such as processing and packaging, and from sales of products 
purchased for resale is not included in the payment calculation unless 
determined eligible by the Secretary.
    (3) Payments for producers of sales commodities who began farming 
in 2020 and had no sales in 2019, calculated as provided in paragraph 
(i)(2) of this section, except that the payments will be based on the 
producer's actual 2020 sales, without crop insurance indemnities, NAP 
or WHIP+ payments, as of the date the producer submits an application 
for payment under this section.
    (j) * * *

      Table 2 to Paragraph (j)--Payment Rates for Sales Commodities
------------------------------------------------------------------------
    2018 or 2019 Sales range (including crop
     insurance indemnities and NAP and WHIP+      Percent payment factor
                    payments)
------------------------------------------------------------------------
 
                              * * * * * * *
------------------------------------------------------------------------

* * * * *
    (l) For eligible contract producers, if eligible revenue for the 
period from January 1, 2020, through December 27, 2020, decreased 
compared to eligible revenue for the period from January 1, 2018, 
through December 27, 2018, or the period from January 1, 2019, through 
December 27, 2019, then payments will be equal to:
    (1) Eligible revenue received from January 1, 2018, through 
December 27, 2018, or from January 1, 2019, through December 27, 2019; 
minus
    (2) Eligible revenue received from January 1, 2020, through 
December 27, 2020; multiplied by
    (3) 80 percent.
    (4) USDA will adjust the eligible revenue based on information 
certified by the contract producer on form AD-3117B for contract 
producers who did not have a full period of revenue from January 1 to 
December 27 for either 2018 or 2019, or who increased their operation 
size in 2020. Information required to calculate these adjustments may 
include a contract producer's square footage increase to the operation 
in 2020, or a contract producer's production or number of turns for 
2018, 2019, or 2020, as applicable.
    (m) For eligible contract producers who did not receive eligible 
revenue from January 1 through December 27 in 2018 or 2019, but 
received eligible revenue for the period from January 1, 2020, through 
December 27, 2020:
    (1) FSA will divide the eligible revenue received from January 1, 
2020, through December 27, 2020, by the result of 1 minus the average 
revenue loss level, determined by USDA for a geographic area based on 
the best available data including, but not limited to, losses reported 
by other contract producers for the same area and type of livestock or 
poultry; and
    (2) The payment will be equal to:
    (i) The result of the calculation in paragraph (m)(1) of this 
section minus the contract producer's eligible revenue received from 
January 1, 2020, through December 27, 2020; multiplied by
    (ii) 80 percent.
    (n) Payments under paragraphs (l) and (m) of this section and the 
average revenue loss levels under paragraph (m)(1) of this section will 
be calculated separately for the following categories:
    (1) Chickens--broilers, pullets, and layers;
    (2) Chicken eggs;
    (3) Turkeys;
    (4) Hogs and pigs;
    (5) Ducks, geese, pheasants, quail; and
    (6) All other eligible poultry eggs.
    (o) The calculations in paragraphs (l) and (m) of this section are 
subject to the availability of funds and will be factored, if needed.

Gloria Monta[ntilde]o Greene,
Deputy Under Secretary, Farm Production and Conservation, U.S. 
Department of Agriculture.
[FR Doc. 2021-18423 Filed 8-26-21; 8:45 am]
BILLING CODE 3410-05-P