[Federal Register Volume 89, Number 126 (Monday, July 1, 2024)]
[Rules and Regulations]
[Pages 54331-54336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14412]



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 Rules and Regulations
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  Federal Register / Vol. 89, No. 126 / Monday, July 1, 2024 / Rules 
and Regulations  

[[Page 54331]]



DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1416

[Docket ID: CCC-2024-0002]
RIN 0560-AI67


Emergency Assistance for Livestock, Honeybees, and Farm-Raised 
Fish Program (ELAP)

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

ACTION: Final rule.

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SUMMARY: This rule makes changes to ELAP to provide financial 
assistance to dairy producers who face milk losses due to H5N1 
infection of their dairy herds.

DATES: Effective July 1, 2024.

FOR FURTHER INFORMATION CONTACT: Seth Cross; telephone: (402) 309-3338; 
email: [email protected]. Individuals who require alternative means 
for communication should contact the USDA Target Center at (202) 720-
2600 (voice and text telephone (TTY)) or dial 711 for 
Telecommunications Relay service (both voice and text telephone users 
can initiate this call from any telephone).

SUPPLEMENTARY INFORMATION: 

Background

    As authorized by section 1501 of the Agricultural Act of 2014 (Pub. 
L. 113-79, 7 U.S.C. 9081(d)), ELAP provides emergency relief to 
eligible producers of livestock, honeybees, and farm-raised fish to aid 
in the reduction of losses due to disease (including cattle tick 
fever), adverse weather, or other conditions, such as blizzards and 
wildfires, as determined by the Secretary of Agriculture, that are not 
covered by the Livestock Forage Disaster Program (LFP) \1\ or the 
Livestock Indemnity Program (LIP).\2\ FSA, which administers ELAP on 
behalf of CCC, identified discretionary changes to the ELAP 
regulations; this rule is making those changes in 7 CFR part 1416, 
subpart B, as described below.
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    \1\ LFP provides benefits to livestock producers who suffer 
eligible grazing losses due to qualifying drought or are prohibited 
by a federal agency from grazing on managed rangeland due to a fire. 
See 7 CFR part 1416, subpart C, and https://www.fsa.usda.gov/programs-and-services/disaster-assistance-program/livestock-forage/index.
    \2\ LIP provides benefits to livestock producers for livestock 
deaths due to eligible adverse weather, eligible disease, or 
eligible attacks by animals reintroduced into the wild by the 
Federal Government. See 7 CFR part 1416, subpart D, and https://www.fsa.usda.gov/programs-and-services/disaster-assistance-program/livestock-indemnity/index.
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    Highly Pathogenic Avian Influenza (HPAI) H5N1 clade 2.3.4.4b 
(referred to as H5N1 hereafter) infection in dairy cattle results in 
milk losses for dairy producers due to removal of symptomatic dairy 
cattle from commercial milk production and reduced production after the 
dairy cattle recover from H5N1 infection.\3\ The Secretary has 
determined that ELAP is authorized to provide financial assistance to 
eligible dairy producers to cover a portion of the financial loss 
incurred because of milk production loss due to H5N1 infection in dairy 
cattle. Milk losses due to H5N1 that were incurred prior to the 
publication of this rule are eligible for payment if they meet all 
eligibility requirements described in this rule.
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    \3\ For more information regarding H5N1, see https://www.cdc.gov/flu/avianflu/ and https://www.aphis.usda.gov/livestock-poultry-disease/avian/avian-influenza. For biosecurity resources for 
detection of HPAI in livestock, see https://www.aphis.usda.gov/livestock-poultry-disease/avian/avian-influenza/hpai-detections/livestock.
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Producer Eligibility

    To be eligible for milk losses due to H5N1, a producer must prove 
that at least one adult dairy cow in their herd has an H5N1 infection 
by submitting a positive test, as defined in the Animal and Plant 
Health Inspection Service (APHIS) H5N1 case definition,\4\ on 
individual animal or bulk tank samples confirmed at National Veterinary 
Services Laboratories (NVSL). The date of the eligible loss condition 
is the positive H5N1 test collection date, meaning the date the sample 
was taken from the cow, because that is the date on which H5N1 
infection was confirmed to be present in the producer's herd. 
Throughout this rule, ``herd'' refers to one or more dairy cows that 
are under common ownership or supervision and are grouped on a single 
premises (lot, farm, or ranch) or multiple premises that are 
geographically separated, but physically located in the same county, as 
shared personnel and equipment in addition to the movement of livestock 
are recognized risks for disease transmission.
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    \4\ See https://www.aphis.usda.gov/sites/default/files/hpai-livestock-case-definition.pdf.
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    In addition, a producer must have owned, cash-leased, purchased, or 
been a contract grower of eligible adult dairy cows for not less than 
60 days before the positive H5N1 test collection date. Regardless of 
ownership type, the producer must have had financial risk in the 
production of milk from the eligible adult dairy cow at the time of the 
positive H5N1 test collection date. For example, if an owner of 
eligible adult dairy cows has cash leased those animals to another 
producer who is entitled to the milk production under the terms of the 
lease, the owner of the cows is not considered to have financial risk 
in the milk production and is not eligible, and only the producer 
entitled to the milk production may participate. In addition, all 
general ELAP eligibility rules apply to producers applying for payment 
for milk losses due to H5N1.\5\
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    \5\ See 7 CFR part 1416, subpart A, and 7 CFR part 1400, subpart 
F.
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Dairy Cow Eligibility

    To be considered an eligible adult dairy cow for milk losses due to 
H5N1 under ELAP, it must be all of the following:
     Currently in one of the lactation phases (early, mid, or 
late) of their lactation cycle and producing milk in which the producer 
had financial risk at the time of the positive H5N1 test collection 
date;
     Owned, cash-leased, purchased, or been raised by a 
contract grower or eligible livestock owner, for not less than 60 days 
before the positive H5N1 test collection date;
     Maintained for commercial milk production as part of the 
producer's farming operation on the positive H5N1 test collection date;

[[Page 54332]]

     Part of a herd that has a minimum of one confirmed 
positive H5N1 test from NVSL; and
     Initially removed from commercial milk production due to 
confirmed or suspected H5N1 infection at some point during the time 
period beginning 14 days before the positive H5N1 test collection date 
through 120 days after the positive H5N1 test collection date.
    The time period beginning 14 days before the positive H5N1 test 
collection date is used for dairy cow eligibility because of responses 
recorded by APHIS via epidemiologic surveys as of the publication of 
this rule: (a) 14 days before a positive H5N1 test collection date is a 
reasonable time for a producer to recognize symptom onset in cattle 
with H5N1 infections and collect samples, and (b) the maximum 120 days 
after a positive H5N1 collection date reflects the time after an 
initial positive test where H5N1 virus could be detected in the herd 
based on current APHIS understanding as of the time of publication of 
this rule, and is consistent with the time period for other APHIS 
support programs.
    An adult dairy cow that meets all of the above requirements is 
considered eligible to be reported only for the month in which it is 
initially removed from commercial milk production due to confirmed or 
suspected H5N1 infection. For example, an eligible adult dairy cow that 
was removed from commercial milk production on April 22, 2024, and 
continued to remain removed from milk production through May 12, 2024, 
should be reported on the application as an eligible adult dairy cow 
only for the month of April. In order to prevent duplicate benefits for 
the same loss, an adult dairy cow cannot be reported as an eligible 
animal for any subsequent month unless the animal has returned to milk 
production and is later removed from milk production due to a new H5N1 
infection in its herd. During the 120 day time period after the initial 
positive H5N1 test collection date, an animal in that herd is only 
eligible for payment one time, based on the positive H5N1 test for that 
herd.

How To Apply

    To be eligible for a payment for milk losses, a dairy producer must 
submit all of the following to FSA:
     Proof of herd infection through a confirmed positive H5N1 
test, based on the APHIS H5N1 case definition,\6\ on individual animal 
or bulk tank samples confirmed at NVSL (preferred individual animal 
sample types can be found in the APHIS H5N1 Testing Guidance document 
\7\);
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    \6\ See https://www.aphis.usda.gov/sites/default/files/hpai-livestock-case-definition.pdf.
    \7\ See https://www.aphis.usda.gov/sites/default/files/hpai-livestock-testing-recommendations.pdf.
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     A notice of loss (CCC-939) indicating the date of the 
eligible loss condition, which is the positive H5N1 test collection 
date; and
     An application for payment (CCC-939-H5N1) certifying the 
number of eligible adult dairy cows, the month the cows were removed 
from milk production, and the producer's share of the milk production.
    Producers must also submit the following forms, if not already on 
file with FSA: AD-1026, Highly Erodible Land Conservation (HELC) and 
Wetland Conservation (WC) Certification; AD-2047, Customer Data 
Worksheet; CCC-901, Member Information for Legal Entities (if 
applicable); CCC-902, Farm Operating Plan for Payment Eligibility; and 
CCC-941, Average Adjusted Gross Income (AGI) Certification and Consent 
to Disclosure of Tax Information.
    FSA may confirm the validity of the positive H5N1 test result with 
APHIS records. FSA may also request documentation to substantiate the 
information certified on an application, including current and prior 
year milk production and herd inventory records, which FSA will use to 
verify the number of animals in the herd that were removed from 
production. FSA may request other records, including but not limited to 
veterinary records and feed records or receipts, if required to support 
a producer's certifications.

Payment Calculation

    FSA will calculate payments for milk loss due to H5N1 by 
multiplying a per head payment rate by the number of eligible adult 
dairy cows, multiplied by the producer's share of such dairy cows' milk 
production, multiplied by an ELAP payment rate of 90 percent as 
required by 7 U.S.C. 9081(d)(4). The per head payment rate is 
calculated based on national milk production per head, per month, and a 
typical number of days that an infected dairy cow is expected to have 
reduced or no production, which has been established in consultation 
with APHIS based on available data on the reported effects of H5N1 
infection in dairy herds at the time of publication of this rule. In 
order to streamline delivery of assistance and minimize the reporting 
burden for dairy producers, FSA has determined that the estimated milk 
loss per cow due to H5N1 will be based on an expected 21-day period of 
no milk production when the cow is removed from the milking herd, 
followed by a period of 7 days when it has returned to milking but 
produces approximately 50 percent of the normal amount of production. 
This approach minimizes the information that a producer would need to 
track and report to FSA, and it aligns with the estimated loss of milk 
production based on data reported to APHIS as of the time of 
publication of this rule. To determine the expected milk production per 
day, FSA will use the monthly national average production in pounds per 
head, per month, reported by the National Agricultural Statistics 
Service (NASS).\8\ FSA determined that national production data will be 
used because monthly data, which would allow FSA to account for more 
seasonal variation in milk production, is unavailable at the regional 
level and for some states. Collecting monthly data at the state or 
regional level where it is not currently available is not feasible and 
would delay payments. FSA will divide the NASS monthly average 
production per cow by 28 days to calculate an estimated average loss of 
milk in pounds per cow, per day. FSA will then multiply that estimated 
average loss per day by 21 days to account for the time period when no 
production is expected. FSA will also multiply the estimated average 
loss per day by 7 days, multiplied by 50 percent to account for the 
time period when the dairy cow has returned to milk production but the 
amount of production is reduced. FSA will add those 2 amounts (for 21 
days and 7 days) to calculate the estimated average loss of milk 
production per cow, which will be multiplied by the all-milk price \9\ 
to determine the per head payment rate. FSA will use the national all-
milk price, which is also used in the Dairy Margin Coverage Program, 
because price data is not available for all states, and collecting data 
in states where it is currently unavailable is not feasible and would 
delay payments.
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    \8\ NASS milk production data is available at https://usda.library.cornell.edu/concern/publications/h989r321c?locale=en. 
To locate the national monthly production data for a specific month, 
open the report published for the relevant payment month and locate 
the milk per cow for the specific month in the table titled 
``Estimated Milk Cows and Production by Month--United States.''
    \9\ The all-milk price is published in a monthly report 
available at https://usda.library.cornell.edu/concern/publications/c821gj76b. To locate the all-milk price for a specific month, open 
the report published for the relevant payment month and locate the 
United States price in the table titled ``Prices Received for All 
Milk--States and United States.'' The report provides the all-milk 
price in dollars per cwt, and FSA has converted it to dollars per 
pound for the purpose of calculating the per head payment rate.
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    For example, a dairy producer with a 100 percent share in milk 
production certifies that 50 eligible adult dairy

[[Page 54333]]

cows were removed from production in April 2024 due to H5N1 and 
provides the required documentation of a positive test confirming H5N1 
herd infection. The per head payment rate for April is determined by 
multiplying the expected daily production per cow of 73.18 pounds 
(based on the NASS monthly national production data) by 100 percent of 
the milk production loss, multiplied by 21 days (for the first 21 days, 
which equals 1,536.78), then adding 73.18 pounds multiplied by 50 
percent of the milk production loss, multiplied by 7 days (for the last 
7 days, which equals 256.13), resulting in a total of 1,792.91 pounds 
as the estimated lost production. That amount is then multiplied by 
$0.205 per pound, which is the all-milk price for April, resulting in a 
per head payment rate of $367.55 for April. The producer's ELAP payment 
will be equal to $367.55 multiplied by 50 cows, multiplied by a 100 
percent share of the producer's milk production, multiplied by the ELAP 
payment rate of 90 percent, which is equal to $16,539.75. The producer 
will update their application to report any animals that are removed 
from production in a later month within the 120 days of the positive 
H5N1 test. Each subsequent update must include the beginning date for 
the month that the cows are removed from milk production.
    ELAP payments are not subject to payment limitation. General 
requirements for ELAP payment eligibility, including AGI limitation, 
apply to ELAP payments for milk loss.

Other Changes

    This rule also makes minor technical corrections to fix 
typographical errors in paragraph references in Sec.  1416.105(c) and 
(d).

Notice and Comment, Effective Date, and Exemptions

    The Administrative Procedure Act (5 U.S.C. 553) provides that the 
notice and comment and 30-day delay in the effective date provisions do 
not apply when the rule involves a matter relating to agency management 
or personnel or to public property, loans, grants, benefits, or 
contracts. This rule involves a program for payments to certain 
agricultural commodity producers and thus falls within the exemption 
for rules related to benefits. Further, as specified in 7 U.S.C. 
9091(c)(2), 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).
    In addition, 7 U.S.C. 9091(c)(3) directs the Secretary to use the 
authority provided in 5 U.S.C. 808 (part of the Congressional Review 
Act), which provides that when an agency finds there is good cause that 
notice and public procedure are impracticable, unnecessary, or contrary 
to the public interest, the rule may take effect at such time as the 
agency determines. The beneficiaries of this rule have been impacted by 
H5N1, which has resulted in economic losses, and the availability of 
these ELAP payments will encourage testing. FSA finds that a delay in 
the effective date of the rule is contrary to the public interest and 
therefore this rule is effective upon publication in the Federal 
Register.
    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.
    Subtitle E of the Small Business Regulatory Enforcement Fairness 
Act of 1996 (also known as the Congressional Review Act) requires a 
delay in the effective date for 60 days from the date of publication to 
allow for Congressional review of rules that meet the criteria 
specified in 5 U.S.C. 804(2). The Office of Information and Regulatory 
Affairs has determined that this rule meets the criteria in 5 U.S.C. 
804(2). As discussed above, FSA finds that a delay in the effective 
date of the rule is contrary to the public interest and therefore this 
rule is effective upon publication in the Federal Register.

Executive Orders 12866, 13563, and 14094

    Executive Order 12866, ``Regulatory Planning and Review,'' was 
amended by Executive Order 13563, ``Improving Regulation and Regulatory 
Review,'' and Executive Order 14094, ``Modernizing Regulatory Review.'' 
Executive Orders 12866 and 13563 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.
    Executive Order 14094 requires Federal agencies to increase and 
improve public participation in the regulatory process. The Executive 
Order's objective is to improve public trust in the regulatory process 
by reducing the risk or appearance of unequal or unfair influence in 
regulatory development.
    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 makes discretionary changes to ELAP. The discretionary 
aspects are to improve administration of ELAP 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 ELAP. Accordingly, these discretionary aspects are 
covered 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 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 milk losses due to H5N1 will be 
made retroactively for eligible

[[Page 54334]]

losses incurred prior to the publication of this rule, 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.
    FSA has assessed the impact of this rule on Indian Tribes and 
determined that this rule does not, to our knowledge, have significant 
Tribal implications that require ongoing adherence to Executive Order 
13175 at this time. If a Tribe requests consultation, the USDA Office 
of Tribal Relations will ensure meaningful consultation is provided 
where changes, additions, and modifications are not expressly mandated 
by law.

The Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 
104-4) requires Federal agencies to assess the effects of their 
regulatory actions on State, local, 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

    The title and number of the Federal Domestic Assistance Program 
found in the Catalog of Federal Domestic Assistance to which this rule 
applies is 10.091--Emergency Assistance for Livestock, Honeybees, 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.
    Individuals 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 (voice and text telephone (TTY)) 
dial 711 for Telecommunications Relay Service (both voice and text 
telephone users can initiate this call from any telephone). 
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: (1) mail to: U.S. Department of Agriculture, 
Office of the Assistant Secretary for Civil Rights, 1400 Independence 
Avenue SW, Washington, DC 20250-9410; (2) fax: (202) 690-7442; or (3) 
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, add the definitions of ``All-milk price'', 
``H5N1'', ``H5N1 test'', ``Herd'', ``NVSL'', and ``Positive H5N1 test 
collection date'' in alphabetical order to read as follows:


Sec.  1416.102  Definitions.

* * * * *
    All-milk price means the national average price received, per 
hundredweight of milk, by dairy operations for all milk sold to dairy 
plants and milk dealers in the United States, as determined by the 
Secretary.
* * * * *
    H5N1 means Highly Pathogenic Avian Influenza A (HPAI) H5N1 virus as 
either detected in milk and other bovine-origin samples associated with 
illness in dairy cattle, or, when pertaining to infection in cattle 
themselves, as confirmed by means of an H5N1 test.
    H5N1 test means a test, as defined in the APHIS H5N1 case 
definition, on individual animal or bulk tank samples confirmed at 
NVSL.
    Herd means, for milk losses due to H5N1, one or more dairy cows 
that are under common ownership or supervision and are grouped on a 
single premises (lot, farm, or ranch) or multiple premises which are 
geographically separated but physically located in the same county.
* * * * *
    NVSL means the APHIS National Veterinary Services Laboratories.
    Positive H5N1 test collection date means the date of sample 
collection for a positive H5N1 test that is reported to an NVSL and 
indicated on the H5N1 test result.
* * * * *

0
3. In Sec.  1416.103, add paragraph (j) to read as follows.

[[Page 54335]]

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

* * * * *
    (j) For milk losses due to H5N1 to be considered eligible, the 
producer must have had reduced milk production as a result of removal 
of adult dairy cows from daily milking due to H5N1 infection. Such 
infection must be confirmed for the herd by at least one positive H5N1 
test for a dairy cow within that herd. The date of the eligible loss 
condition for milk losses due to H5N1 is the positive H5N1 test 
collection date.

0
4. In Sec.  1416.104, add paragraphs (g) and (h) to read as follows.


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

* * * * *
    (g) To be considered eligible for milk losses due to H5N1, 
livestock must be adult dairy cows that are:
    (1) Currently in one of the lactation phases (early, mid, or late) 
of their lactation cycle and producing milk in which the producer had 
financial risk at the time of the positive H5N1 test collection date;
    (2) Owned, cash-leased, purchased, or been raised by a contract 
grower or eligible livestock owner, for not less than 60 days before 
the date of the eligible loss condition;
    (3) Maintained for commercial milk production as part of the 
producer's farming operation on the positive H5N1 test collection date;
    (4) Part of a herd that has a minimum of one positive H5N1 test; 
and
    (5) Initially removed from commercial milk production due to 
confirmed or suspected H5N1 infection at some point during the time 
period beginning 14 days before the positive H5N1 test collection date 
through 120 days after the positive H5N1 test collection date.
    (h) An adult dairy cow that meets the requirements of paragraph (g) 
of this section is considered eligible to be reported for payment only 
for the month in which it is initially removed from commercial milk 
production due to confirmed or suspected H5N1 infection. In order to 
prevent duplicate benefits for the same loss, an adult dairy cow cannot 
be reported as an eligible animal for any subsequent month after the 
initial month of eligibility unless the animal has returned to milk 
production and is later removed from milk production due to a new 
infection after the initial 120 day eligibility from an APHIS confirmed 
positive test within the herd. During the 120 day time period after a 
positive H5N1 test collection date, an animal is only eligible for 
payment one time, based on the positive H5N1 test for that herd.

0
5. Amend Sec.  1416.105 by:
0
a. In paragraph (c), removing ``Sec.  1416.104(g)'' and adding ``Sec.  
1416.104(e)'' in its place and removing ``Sec.  1416.103(h) or (i)'' 
and adding ``Sec.  1416.103(h)'' in its place;
0
b. In paragraph (d), removing ``Sec.  1416.104(h)'' and adding ``Sec.  
1416.104(f)'' in its place and removing ``Sec.  1416.103(h) or (j)'' 
and adding ``Sec.  1416.103(i)'' in its place; and
0
c. Adding paragraph (f).
    The addition reads as follows.


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

* * * * *
    (f) To be considered an eligible producer for the purpose of milk 
losses due to H5N1, the producer must have:
    (1) Owned, cash-leased, purchased, or been a contract grower of 
eligible adult dairy cows, as specified in Sec.  1416.104(g), for not 
less than 60 days before the positive H5N1 test collection date;
    (2) Had financial risk in the milk production of the eligible adult 
dairy cows, as specified in Sec.  1416.104(g), on the positive H5N1 
test collection date; and
    (3) Had an eligible loss as specified in Sec.  1416.103(j).

0
6. Amend Sec.  1416.106 by:
0
a. In paragraph (a)(2), introductory text, removing ``both'' and adding 
``more'' in its place;
0
b. Adding paragraph (a)(2)(iii);
0
c. In paragraph (e), adding a sentence at the end of the paragraph; and
0
d. Adding paragraph (f).
    The additions read as follows.


Sec.  1416.106  Notice of loss and application process.

    (a) * * *
    (2) * * *
    (iii) For milk losses due to H5N1, a completed Emergency Loss 
Assistance for H5N1 Application;
* * * * *
    (e) * * * This paragraph does not apply to documentation for milk 
losses due to H5N1.
    (f) For milk losses due to H5N1, the producer must provide to FSA a 
positive H5N1 test at the time the application for payment is filed. 
The producer must also provide current and prior year milk production 
records and herd inventory records if requested by FSA to substantiate 
the certified number of eligible adult dairy cows removed from 
production through a comparison of the per head production rates for 
the current and prior years. If requested by FSA, the producer must 
also provide any other records necessary to substantiate the 
information provided on the producer's application, including the 
producer's share of the milk production. An eligible adult dairy cow 
must be reported on the application for the month it was initially 
removed from milk production and cannot be included in subsequent 
months in the same application for payment. If the producer removes 
adult dairy cows from commercial milk production due to H5N1 infection 
more than 120 days after the positive H5N1 test reported to FSA, the 
producer must submit another notice of loss and application for payment 
for the subsequent positive H5N1 test after the initial 120 day 
eligibility from an APHIS confirmed positive test within the herd.

0
7. Amend Sec.  1416.107 by:
0
a. In paragraph (a)(1), removing ``honeybees'' and adding ``honeybees 
and milk'' in its place;
0
b. Redesignating paragraph (a)(3) as paragraph (a)(4); and
0
c. Adding a new paragraph (a)(3).
    The addition reads as follows.


Sec.  1416.107  Notice of loss and application period.

    (a) * * *
    (3) For milk losses due to H5N1, provide a notice of loss and 
positive H5N1 test result required by Sec.  1416.106(f) to FSA by the 
application for payment deadline in paragraph (b) of this section;
* * * * *

0
8. Amend Sec.  1416.109 by revising the section heading and adding 
paragraph (d) to read as follows:


Sec.  1416.109  National payment rate.

* * * * *
    (d) For an eligible livestock producer with milk losses due to 
H5N1, payments calculated in Sec.  1416.113 will be based on a national 
payment rate of 90 percent.

0
9. Add Sec.  1416.113 to read as follows.


Sec.  1416.113  Milk losses due to H5N1.

    (a) Payments for milk losses due to H5N1 are based on a standard 
number of days of lost production and the expected production for an 
eligible adult dairy cow. The payment for milk losses due to H5N1 is 
equal to the payment rate per head specified in paragraph (b) of this 
section, multiplied by the number of eligible adult dairy cows 
specified in Sec.  1416.109(g), multiplied by the producer's share of 
milk production from the eligible adult dairy cows, multiplied by the 
national payment rate specified in Sec.  1416.109(d).
    (b) The payment rate per head varies by month and is equal to the 
expected

[[Page 54336]]

milk production loss for an eligible adult dairy cow, as determined by 
FSA, multiplied by the all-milk price. The applicable payment rate will 
be determined by the month in which an eligible adult dairy cow was 
removed from milk production, as reported on the application. To 
determine the expected milk production loss for an eligible adult dairy 
cow, FSA will:
    (1) Determine the daily expected production by dividing the total 
expected production for 28 days of production, as determined by FSA 
based on a month-specific national production value obtained from NASS 
data, by 28 days; and
    (2) Calculate the sum of:
    (i) The result of paragraph (b)(1) of this section multiplied by 21 
days, and
    (ii) The result of paragraph (b)(1) of this section multiplied by 7 
days, multiplied by 50 percent.
    (c) Payments calculated in this section are subject to the 
adjustments and limits provided for in this part.

William Marlow,
Acting Executive Vice President, Commodity Credit Corporation, and 
Acting Administrator, Farm Service Agency.
[FR Doc. 2024-14412 Filed 6-28-24; 8:45 am]
BILLING CODE 3410-05-P