[Federal Register Volume 87, Number 66 (Wednesday, April 6, 2022)]
[Rules and Regulations]
[Pages 19783-19786]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07209]



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 Rules and Regulations
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  Federal Register / Vol. 87, No. 66 / Wednesday, April 6, 2022 / Rules 
and Regulations  

[[Page 19783]]



DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1416

[Docket ID: CCC-2022-0001]
RIN 0560-AI63


Emergency Assistance for Livestock, Honey Bees, and Farm-Raised 
Fish Program (ELAP) Programs

AGENCY: Commodity Credit Corporation (CCC) and Farm Service Agency 
(FSA), USDA.

ACTION: Final rule.

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

SUMMARY: This rule makes changes to the Emergency Assistance for 
Livestock, Honey Bees, and Farm-raised Fish Program (ELAP) to assist 
producers with the cost of transporting feed to livestock intended for 
grazing and the cost of transporting livestock intended for grazing to 
feed. This rule amends the definition of ``eligible drought'' to cover 
situations in which any area of a county has been rated by the U.S. 
Drought Monitor as having a D2 (severe drought) intensity for at least 
8 consecutive weeks, which will expand the availability of drought 
assistance for water transportation and honey bee feed losses. It also 
removes the restriction on providing assistance for transportation of 
water to livestock located on land enrolled in the Conservation Reserve 
Program (CRP).

DATES: Effective April 6, 2022.

FOR FURTHER INFORMATION CONTACT: Tona Huggins; 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).

SUPPLEMENTARY INFORMATION: 

Background

    ELAP provides financial assistance to eligible producers of 
livestock, honey bees, and farm-raised fish for losses due to disease, 
certain adverse weather events, and loss conditions, including 
blizzards and wildfires, as determined by the Secretary. ELAP provides 
assistance for losses that are not covered by the Livestock Forage 
Disaster Program (LFP) and the Livestock Indemnity Program (LIP). This 
rule makes discretionary changes to ELAP to better assist producers who 
face severe drought conditions.
    FSA, which administers ELAP on behalf of CCC, is making 
discretionary changes to the ELAP regulations in 7 CFR part 1416, 
subpart B; specifically, in Sec. Sec.  1416.103, 1416.106, and 1416.110 
to assist producers with the cost of transporting feed to livestock 
intended for grazing and the cost of transporting livestock to feed, 
when the livestock are intended for grazing. Livestock producers in 
areas suffering from eligible adverse weather, an eligible loss 
condition, or eligible drought, who often produce feed on the farm, may 
find it hard to acquire forage locally. As a result, those producers 
may be forced to transport feed from unaffected areas or to transport 
livestock to feed in unaffected areas, which results in additional 
hauling costs.
    To be eligible for ELAP assistance for feed or livestock 
transportation costs, producers must have incurred costs for additional 
mileage above normal on or after January 1, 2021, for transporting feed 
to livestock or livestock to feed. ELAP assistance for the 
transportation of livestock is only available for the transportation of 
livestock to feed or feed to livestock, not the return of the animals 
to their originating location or unloaded truck miles following the 
delivery of feed. Payments will be calculated by multiplying a national 
payment rate, as determined in Sec.  1416.109 of the existing ELAP 
regulations, by the national average price per mile to transport a 
truckload of eligible livestock or livestock feed, multiplied by the 
actual number of additional miles the feed or livestock was transported 
by the producer in excess of 25 miles per truckload of livestock or 
livestock feed and for no more than 1,000 miles per truckload of 
livestock or feed during the program year. The payment calculation is 
based on a national average price per mile, determined by the Deputy 
Administrator of Farm Programs for FSA (Deputy Administrator) using a 
national cost formula developed by FSA. The national average price per 
mile for each program year will be based on an annual update to the 
national cost formula which considers the cost of hauling feed or 
animals above normal mileage, not to include the first 25 miles. The 
national average price per mile considers the average cost for hauling 
a truckload of forage or livestock from sources 200 miles away. This 
national average price per mile may differ from year to year due to 
changes in fuel costs, truck availability, and driver availability. The 
Deputy Administrator may determine a different price per mile for a 
particular state, if the Deputy Administrator determines that a 
different price is necessary due to differences in state hauling costs 
compared to national average costs. The original physical location of 
the livestock will determine the applicable state for payment purposes. 
Differences in state hauling costs necessitating a different price for 
a state are expected to be rare.
    Payments for losses resulting from costs associated with treating 
livestock feed transported above normal mileage to prevent the spread 
of invasive pests will be calculated by multiplying a national payment 
rate, as determined in Sec.  1416.109 of the existing ELAP regulations, 
by the producer's actual cost for controlling invasive pests in 
livestock feed transported above normal.
    This rule also amends the definition of ``eligible drought'' for 
ELAP in Sec.  1416.102 to specify how it applies to losses due to the 
cost to transport livestock and feed as described above, and to cover 
situations where any area of a county has been rated by the U.S. 
Drought Monitor as having either a:
     D2 (severe drought) intensity for at least 8 consecutive 
weeks for the specific type of eligible grazing land or pastureland for 
the county; or
     D3 (extreme drought) or D4 (exceptional drought) intensity 
for the specific type of eligible grazing land or pastureland for the 
county, as determined by the Secretary.
    Previously, a drought rating of D3 was required to qualify as 
``eligible drought'' for water transportation and honey bee feed loss 
eligibility. This change will expand the availability of drought 
assistance for water transportation and honey bee feed loss and is 
consistent with the drought rating that is

[[Page 19784]]

applicable to LFP as specified in Sec.  1416.205 and Secretarial 
disaster area designations as specified in Sec.  759.5(a). This rule 
also removes the restriction in Sec.  1416.103(d)(5) on providing 
assistance for transportation of water to livestock located on land 
enrolled in CRP.
    This rule also makes minor technical corrections to Sec. Sec.  
1416.106(c)(3), 1416.110(a)(4), 1416.110(b).

Notice and Comment, Paperwork Reduction Act, Congressional Review Act, 
and Effective Date

    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 
provisions do not apply when the rule involves specified actions, 
including matters relating to benefits or contracts. This rule governs 
ELAP, which provides benefit payments and therefore falls within that 
exemption.
    Further, as specified in 7 U.S.C. 9091, the regulations to 
implement ELAP are:
     Exempt from the notice and comment provisions of 5 U.S.C. 
553; and
     Exempt from the Paperwork Reduction Act (44 U.S.C. chapter 
35).
    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 addition, the definition of 
rule in 5 U.S.C. 601 is tied to the publication of a proposed rule.
    This is not a major rule under the Congressional Review Act (CRA), 
as defined by 5 U.S.C. 804(2). Therefore, FSA is not required to delay 
the effective date for 60 days from the date of publication to allow 
for Congressional review.
    Therefore, 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. The assessment should 
include 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 
not significant under Executive Order 12866 and therefore, OMB has not 
reviewed this rule and an analysis of costs and benefits to loans is 
not required under either Executive Order 12866 or 13563.

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 
regulation for compliance with NEPA (7 CFR part 1b).
    This rule implements discretionary amendments for ELAP. The 
discretionary aspects are to improve administration of the programs and 
clarify existing program requirements. FSA is providing the disaster 
assistance under ELAP to eligible producers. The discretionary 
provisions would not alter any environmental impacts resulting from 
implementing the mandatory changes to those programs. Accordingly, 
these discretionary aspects are coved by the following Categorical 
Exclusion in 7 CFR 799.31(b)(6)(vi) safety net programs administrated 
by FSA.
    Through this review, FSA determined that the proposed discretionary 
changes in this rule fit within the categorical exclusions listed 
above. Categorical exclusions apply when no extraordinary circumstances 
(Sec.  799.33) exist. This rule presents only discretionary amendments 
that will not have an impact on the human environments, individually or 
cumulatively. Therefore, FSA will not prepare an environmental 
assessment or environmental impact statement for this rule. 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. Payments for transportation of feed and 
livestock will be made retroactively starting on January 1, 2021, as 
discussed above. 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 pandemic assistance, agricultural 
disaster assistance, and other issues.

Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 
104-4) requires Federal agencies to assess the effects of their 
regulatory actions of State, local, and Tribal governments or the 
private sector. Agencies generally must prepare a written statement, 
including cost benefits 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.

[[Page 19785]]

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 are 10.091--Emergency Assistance for Livestock, Honey Bees, and 
Farm-raised Fish Program.

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 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 1416

    Administrative practice and procedure, Agriculture, Bees, Dairy 
products, Disaster assistance, Fruits, Livestock, Nursery stock, 
Reporting and recordkeeping requirements, Seafood.

    For the reasons discussed above, this final rule amends 7 CFR part 
1416 as follows:

PART 1416--EMERGENCY AGRICULTURAL DISASTER ASSISTANCE PROGRAMS

0
1. The authority citation for part 1416 continues to read as follows:

    Authority: Title I, Pub. L. 113-79, 128 Stat. 649; Title I, Pub. 
L. 115-123; Title VII, Pub. L. 115-141; and Title I, Pub. L. 116-20.

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

0
2. In Sec.  1416.102, revise the definition of ``eligible drought'' to 
read as follows.


Sec.  1416.102   Definitions.

* * * * *
    Eligible drought means that any area of the county has been rated 
by the U.S. Drought Monitor as having D2 (severe drought) intensity for 
at least 8 consecutive weeks for the specific type of eligible grazing 
land or pastureland for the county, or D3 (extreme drought) or D4 
(exceptional drought) intensity for the specific type of eligible 
grazing land or pastureland for the county, as determined by the 
Secretary:
    (1) At any time during the program year, for additional honey bee 
feed loss;
    (2) That directly impacts water availability at any time during the 
normal grazing period (for example, snow pack that feeds streams and 
springs), as determined by the Deputy Administrator or designee, for 
losses resulting from transporting water to livestock; or
    (3) At any time during the normal grazing period, for losses 
resulting from the additional cost incurred to transport livestock feed 
or eligible livestock to feed, for additional mileage above normal.
* * * * *

0
3. In Sec.  1416.103, revise paragraph (d)(5) introductory text and add 
paragraph (d)(6) to read as follows.


Sec.  1416.103   Eligible losses, adverse weather, and other loss 
conditions.

* * * * *
    (d) * * *
    (5) A loss resulting from the additional cost of transporting water 
to eligible livestock as specified in Sec.  1416.104(a) due to eligible 
adverse weather, eligible loss condition, or eligible drought, as 
determined by the Deputy Administrator, including, but not limited to, 
costs associated with water transport equipment rental fees, labor, and 
contracted water transportation fees. The cost of the water is not 
eligible for payment. To be eligible for additional cost of 
transporting water to eligible livestock, the livestock must be 
livestock that would normally have been grazing on eligible grazing 
lands that meet all of the following:
* * * * *
    (6) A loss resulting from the additional cost incurred on or after 
January 1, 2021, to transport, eligible livestock to feed or livestock 
feed to eligible livestock for additional mileage above normal, due to 
eligible adverse weather, an eligible loss condition, or eligible 
drought, as determined by the Deputy Administrator, including costs 
associated with treating livestock feed to prevent the spread of 
invasive pests. The cost of the feed is not eligible for payment. 
Negligence, mismanagement, or wrongdoing by the producer is not 
considered an eligible loss condition for livestock or feed 
transportation costs. To be eligible for a loss under this paragraph, 
the livestock must be livestock that would normally have been on 
eligible grazing lands physically located in the county where the 
eligible adverse weather, eligible loss condition, or eligible drought, 
as determined by the Deputy Administrator, occurred.
* * * * *

0
4. In Sec.  1416.104, revise paragraph (a) introductory text, paragraph 
(b) introductory text, and paragraph (c) introductory text to read as 
follows.


Sec.  1416.104   Eligible livestock, honeybees, and farm-raised fish.

    (a) To be considered eligible livestock for livestock grazing and 
feed; losses resulting from transporting water, feed, and livestock; 
and gathering livestock to treat for cattle tick fever; livestock must 
meet all the following conditions:
* * * * *
    (b) The eligible livestock types for grazing and feed losses; 
losses resulting from transporting water, feed, and livestock; and 
gathering livestock to treat for cattle tick fever are:
* * * * *
    (c) Ineligible livestock for grazing and feed losses and losses 
resulting from transporting water, feed, and livestock include, but are 
not limited to:
* * * * *

0
5. In Sec.  1416.105, revise paragraph (a) introductory text to read as 
follows.


Sec.  1416.105   Eligible producers, owners, and contract growers.

    (a) To be considered an eligible livestock producer and receive 
payments for feed losses; losses

[[Page 19786]]

resulting from transporting water, feed, or livestock; and gathering 
livestock to treat for cattle tick fever; the participant must have:
* * * * *

0
6. In Sec.  1416.106:
0
a. Revise paragraph (a)(2)(i);
0
b. In paragraph (c)(3), remove the words ``A loss resulting from the 
additional cost incurred for'' and add the words ``Additional cost of'' 
in their place; and
0
c. Add paragraph (c)(5).
    The revision and addition read as follows.


Sec.  1416.106   Notice of loss and application process.

    (a) * * *
    (2) * * *
    (i) For livestock feed and grazing losses; losses resulting from 
transporting water, feed, and livestock; and gathering livestock to 
treat for cattle tick fever; a completed Emergency Loss Assistance for 
Livestock Application;
* * * * *
    (c) * * *
    (5) Additional cost incurred to transport eligible livestock to 
feed or livestock feed to eligible livestock for additional mileage 
above normal, due to an eligible adverse weather, an eligible loss 
condition, or eligible drought, as determined by the Deputy 
Administrator, including costs associated with treating livestock feed 
to prevent the spread of invasive pests. Verifiable or reliable records 
include, but are not limited to, commercial receipts, contemporaneous 
records, and invoices. Records must clearly indicate the dates on which 
livestock or feed was transported and the total mileage transported.
* * * * *

0
7. In Sec.  1416.110:
0
a. In paragraph (a)(4), remove the semicolon at the end of the 
paragraph and add a period in its place;
0
b. In paragraph (b) introductory text, remove the word ``more'' and add 
``more than'' in its place, and remove the word ``calculated'' and add 
``will be calculated'' in its place;
0
c. Redesignate paragraph (n) as paragraph (q); and
0
d. Add new paragraph (n) and paragraphs (o) and (p).
    The additions read as follows.


Sec.  1416.110   Livestock payment calculations.

* * * * *
    (n) Payments for losses resulting from the additional cost of 
transporting eligible livestock to feed or livestock feed to eligible 
livestock, for additional mileage above normal, in excess of 25 miles 
per truckload and for no more than 1,000 miles per truckload of 
livestock or livestock feed during the program year, as specified in 
Sec.  1416.103(d)(6) will be calculated based on a national payment 
rate, as determined in Sec.  1416.109, multiplied by:
    (1) The national average price per mile to transport a truckload of 
livestock or livestock feed; and
    (2) The actual number of additional miles above normal to transport 
livestock or livestock feed by an eligible producer, in excess of 25 
miles per truckload of livestock or feed and for no more than 1,000 
miles per truckload of livestock or feed during the program year.
    (o) The national average price per mile to transport a truckload of 
livestock or feed to be used in the calculation for paragraph (n)(1) of 
this section is determined by the Deputy Administrator for each program 
year using a national cost formula developed by FSA based on the cost 
of hauling feed or livestock above normal mileage, not to include the 
first 25 miles. The national average price per mile considers the 
average cost for hauling a truckload of forage or livestock from 
sources 200 miles away. The Deputy Administrator may determine a 
different price per mile for a particular state, if the Deputy 
Administrator determines that a different price is necessary due to 
differences in state hauling costs compared to national average costs. 
The original physical location of the livestock will determine the 
applicable state for payment purposes.
    (p) Payments for losses resulting from costs associated with 
treating livestock feed transported above normal to prevent the spread 
of invasive pests, as specified in Sec.  1416.103(d)(6), will be 
calculated based on a national payment rate, as determined in Sec.  
1416.109, multiplied by the producer's actual cost for controlling 
invasive pests in livestock feed transported above normal.
* * * * *

Robert Ibarra,
Executive Vice President, Commodity Credit Corporation.
Marcus Graham,
Acting Administrator, Farm Service Agency.
[FR Doc. 2022-07209 Filed 4-5-22; 8:45 am]
BILLING CODE 3410-05-P