[Federal Register Volume 87, Number 159 (Thursday, August 18, 2022)]
[Notices]
[Pages 50828-50830]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17795]


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DEPARTMENT OF AGRICULTURE

Farm Service Agency

[Docket ID FSA-2022-0008]


Emergency Livestock Relief Program (ELRP) and Emergency Relief 
Program (ERP) Clarification

AGENCY: Farm Service Agency, USDA.

ACTION: Notice of funds availability; clarification and revision.

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SUMMARY: The Farm Service Agency (FSA) is amending the definition of 
``income derived from farming, ranching, and forestry operations'' for 
ELRP and ERP and clarifying policy around the filing of certifications 
of average adjusted gross farm income. FSA is clarifying the ERP Phase 
1 policy related to producers who received both a crop insurance 
indemnity and a Noninsured Crop Disaster Assistance Program (NAP) 
payment. FSA is also amending ERP Phase 1 to include eligibility for 
Federal Crop Insurance policies with an intended use for nursery.

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) or (844) 433-2774 (toll-free 
nationwide).

SUPPLEMENTARY INFORMATION:

Revision and Clarification

    FSA announced ELRP in a Notification of Funding Availability (NOFA) 
on April 4, 2022 (87 FR 19465-19470), and ERP in a NOFA on May 18, 2022 
(87 FR 30164-30172). Implementation of ELRP Phase 1 began on April 4, 
2022. Implementation of ERP Phase 1 began on May 18, 2022. In those 
documents, FSA provided the eligibility requirements, application 
process, and payment calculations for Phase 1 of each program. In this 
document, FSA is making clarifications and revising policy for those 
programs, as described below.

Clarification to Income Derived From Farming, Ranching, and Forestry 
Operations

    The payment limits under both ELRP and ERP are higher for producers 
whose average adjusted gross farm income is at least 75 percent of 
their average

[[Page 50829]]

adjusted gross income (AGI) based on the 3 taxable years preceding the 
most immediately preceding complete tax year. Under the ERP and ELRP 
NOFAs income derived from farming, ranching, and forestry operations 
includes any other activity related to farming, ranching, and forestry, 
as determined by the Deputy Administrator. The Deputy Administrator 
considered the definition of ``income derived from farming, ranching, 
and forestry operations'' used in prior disaster programs and 
determined the need to clarify that the sale of equipment to conduct 
farm, ranch, or forestry operations and the provision of production 
inputs and services to farmers, ranchers, foresters and farm operations 
are considered eligible sources of income derived from farming, 
ranching, and forestry operations under certain conditions. Production 
inputs are materials to conduct farming operations, such as seeds, 
chemicals, and fencing supplies. Production services are services 
provided to support a farming operation, such as custom farming, custom 
feeding, and custom fencing. In this document, FSA is providing 
clarification regarding how the sale of equipment to conduct farm, 
ranch or forestry operations and the provision of production inputs and 
services will be considered for the purpose of determining whether at 
least 75 percent of the producer's average AGI was from income derived 
from farming, ranching, and forestry operations. This is only to the 
extent a producer's income derived from these sources is not already 
included under items 1 through 12 of the definition of income derived 
from farming, ranching, and forestry operations.
    The sale of equipment used to conduct farm, ranch, or forestry 
operations and the provision of production inputs and services to 
farmers, ranchers, foresters, and farm operations will only be taken 
into account in an applicant's average adjusted gross farm income if 
the average adjusted gross farm income is at least 66.66 percent of the 
applicant's average AGI based on items 1 through 12 of the definition 
of income derived from farming, ranching, and forestry operations. For 
clarity, the full definition of ``average adjusted gross farm income'' 
is provided below. This definition is applicable to both ELRP and ERP. 
It replaces the definition provided in the ERP NOFA and will also apply 
to the ELRP NOFA.
    Average adjusted gross farm income means the average of the person 
or legal entity's adjusted gross income derived from farming, ranching, 
or forestry operations for the 3 taxable years preceding the most 
immediately preceding complete taxable year.
    (a) If the resulting average adjusted gross farm income derived 
from items 1 through 12 of the definition of income derived from 
farming, ranching and forestry operations is at least 66.66 percent of 
the average adjusted gross income of the person or legal entity, then 
the average adjusted gross farm income may also take into consideration 
income or benefits derived from the following:
    (1) The sale of equipment to conduct farm, ranch, or forestry 
operations; and
    (2) The provision of production inputs and services to farmers, 
ranchers, foresters, and farm operations.
    (b) The relevant tax years are:
    (1) For the 2020 program year, 2016, 2017, and 2018;
    (2) For the 2021 program year, 2017, 2018, and 2019; and
    (3) For the 2022 program year, 2018, 2019, and 2020.
    In response to inquiries made by CPAs and attorneys, FSA is 
providing additional clarity related to the certifications of average 
adjusted gross farm income. For legal entities not required to file a 
federal income tax return, or a person or legal entity that did not 
have taxable income in one or more tax years, the average will be the 
adjusted gross farm income, including losses, averaged for the 3 
taxable years preceding the most immediately preceding complete taxable 
year, as determined by FSA. A new legal entity will have its adjusted 
gross farm income averaged only for those years of the base period for 
which it was in business; however, a new legal entity will not be 
considered ``new'' to the extent it takes over an existing operation 
and has any elements of common ownership interest and land with the 
preceding person or legal entity. When there is such commonality, 
income of the previous person or legal entity will be averaged with 
that of the new legal entity for the base period. For a person filing a 
joint tax return, the certification of average adjusted farm income 
will be reported as if the person had filed a separate federal tax 
return and the calculation is consistent with the information 
supporting the filed joint return.
    ELRP and ERP applicants filing certifications of average adjusted 
gross farm income are subject to an FSA audit of information submitted 
for the purpose of increasing the program's payment limitation. As a 
part of this audit, FSA may request income tax returns, and if 
requested, must be supplied by all related persons and legal entities. 
In addition to any other requirement under any Federal statute, 
relevant Federal income tax returns and documentation must be retained 
a minimum of 2 years after the end of the calendar year corresponding 
to the year for which payments or benefits are requested. Failure to 
provide necessary and accurate information to verify compliance, or 
failure to comply with these requirements will result in ineligibility 
for ELRP and ERP benefits. This is consistent with the current 
requirements for participants in both ERP Phase 1 and ELRP to retain 
documentation in support of their application for 3 years after the 
date of approval.

ERP Phase 1 Payments--Crop Insurance Policies and NAP

    ERP Phase 1 covers certain losses for which a producer received a 
crop insurance indemnity or Noninsured Crop Disaster Assistance Program 
(NAP) payment. In some situations, a producer may have received both a 
NAP payment for a crop loss and an indemnity under a crop insurance 
policy that was included in ERP Phase 1 to address the same loss. 
Examples of these policies include Rainfall Index plans for Annual 
Forage; Pasture, Rangeland, and Forage; or Apiculture. In those 
situations, the producer's ERP Phase 1 payment will be calculated based 
only on the data associated with their indemnity under the crop 
insurance policy; for those producers no ERP Phase 1 payment will be 
calculated based on the data associated with their NAP payment. This 
policy is necessary to avoid compensating producers twice for the same 
loss under ERP Phase 1.

ERP Phase 1 Payments--Nursery

    The original NOFA for ERP Phase 1 excluded payments for nursery 
stock covered by a Federal Crop Insurance policy. After further 
consideration, FSA has determined that nursery stock covered by a 
Federal Crop Insurance policy suffered qualifying losses similar to 
other crops covered under ERP Phase 1 and to be consistent with prior 
disaster programs administered by FSA, we are revising the policy to 
include eligible nursery losses during the 2020, 2021, or 2022 crop 
years for which a producer had a Federal Crop Insurance policy that 
provided coverage for eligible losses related to the qualifying 
disaster events and received an indemnity for a crop and unit.

Paperwork Reduction Act

    In compliance with the Paperwork Reduction Act (44 U.S.C. 3501-
3520), this NOFA does not change the approved information collection 
under

[[Page 50830]]

OMB control numbers 0560-0307 and 0560-0309, respectively.

Federal Assistance Programs

    The titles and numbers of the Federal assistance programs, as found 
in the Assistance Listing,\1\ to which this document applies are 
10.148--Emergency Livestock Relief Program, and 10.964--Emergency 
Relief Program.
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    \1\ See https://sam.gov/content/assistance-listings.
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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.

Zach Ducheneaux,
Administrator, Farm Service Agency.
[FR Doc. 2022-17795 Filed 8-17-22; 8:45 am]
BILLING CODE 3410-05-P