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Federal Register / Vol. 86, No. 11 / Tuesday, January 19, 2021 / Rules and Regulations deadline is not extended for those livestock types. USDA is also amending the definition of Other livestock to clarify that reptiles and bees are ineligible.
This rule also amends the definition of Other livestock in 9.201 to clarify that by-products of live animals included as Other livestock are eligible for CFAP 2. As provided in 9.203i1, the payment calculation for sales-based commodities is based on sales of raw commodities; the portion of sales derived from adding value to the commodity, such as processing and packaging, is not included when calculating a payment. For example, sales of alpaca fleece would be included for payment calculation; however, if the alpaca fleece is further processed into alpaca yarn prior to sale, the portion of the sale price derived from that processing is not included. Eligible byproducts of other livestock do not include eggs that are sold to be hatched for breeding stock. This change was previously implemented by USDA;
therefore, the deadline is not extended for by-products of Other livestock.
USDA is amending the payment calculation for sales-based commodities to include the amount of crop insurance indemnities received and payments made under the Noninsured Crop Disaster Assistance Program NAP and the Wildfires and Hurricanes Indemnity Program Plus WHIP+ payments for crop year 2019 in addition to the amount of the producers 2019 sales, as required by the Consolidated Appropriations Act, 2021. CFAP 2 uses a producers 2019 sales as an approximation of the amount of what the producer would expect to market in 2020. This change is intended to more accurately represent what a producer would expect to have marketed in 2020
by taking into account commodities that would have been marketed in 2019 if not for losses covered by crop insurance, NAP or WHIP+. For producers who began farming in 2020
and had no sales in 2019, CFAP 2
payments will continue to be based on the farmers actual 2020 sales, without inclusion of crop insurance indemnities or NAP or WHIP+ payments, since payments are based on the actual crop that incurred marketing costs and was impacted by market disruptions and low farm-level prices. Producers of eligible sales-based commodities who applied for CFAP 2 before the December 11, 2020, application deadline and received crop insurance indemnities or NAP or WHIP+ payments for the 2019 crop year may amend their CFAP 2 applications from January 19, 2021, through February 26, 2021, to include those amounts. This
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rule is not extending the CFAP 2
deadline for producers of sales-based commodities who did not previously apply for CFAP 2, except for producers of pullets and turfgrass sod as described above.
USDA is also amending the calculation for price-trigger commodities. As published on September 22, 2020, payments are calculated using the 2019 Agriculture Risk Coverage-County Option ARCCO
benchmark yield multiplied by 85
percent when FSA is unable to obtain a 2020 actual production history APH
approved yield. This rule amends the calculation to use 100 percent of the ARCCO benchmark yield when the applicant:
Has coverage for the crop under an Area Risk Protection Insurance Plan, Margin Protection Plan, Stacked Income Protection Plan, Supplemental Coverage Option, or Whole-Farm Revenue Protection Plan under the Federal Crop Insurance Act 7 U.S.C. 15011524;
Is a landlord of the applicable acreage and their share of the crop is insured by the tenant under a policy or plan of insurance under the Federal Crop Insurance Act;
Is a tenant of the applicable acreage and their share of the crop is insured by the landlord under a policy or plan of insurance under the Federal Crop Insurance Act; or Is a joint venture and the crop is insured by one of the members under a policy or plan of insurance under the Federal Crop Insurance Act.
In these situations, FSA does not have 2020 APH approved yield for the CFAP
2 applicant because the insurance plan does not require calculation of an APH
approved yield or because the record of the APH approved yield would not be associated with the CFAP 2 applicant.
However, the crop was insured in these situations and using 100 percent of the ARCCO benchmark yield is intended to treat producers with crop insurance coverage but without an available 2020
APH approved yield in a more favorable way to other producers who had crop insurance. All applicants affected by this change were previously eligible under the original rule; therefore, this rule is not extending the CFAP 2
deadline for those producers who did not previously apply for CFAP 2.
Applicants affected by this change must contact FSA to have their payment recalculated using 100 percent of the ARCCO benchmark yield.
This document also makes minor corrections to the definitions of fruits and tree nuts in 9.201 and to the calculation in 9.202c. In 9.1, it adds the applicable date that livestock must
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have been physically located in the United States for CFAP 2, which was inadvertently omitted from the previous final rule. These corrections do not affect administration of CFAP 2.
The changes in this document are consistent with our original intent in creating and administering CFAP 2 and are not expected to increase expected costs beyond the original approved amount.
Notice and Comment and Effective Date The Administrative Procedure Act APA, 5 U.S.C. 553a2 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. This rule governs CFAP for payments to certain commodity producers and therefore falls within the benefits exemption.
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. 8042.
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 COVID19
outbreak, which has resulted in significant declines in demand and market disruptions. USDA finds that notice and public procedure are 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, 13563, and 13777
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 13573 for the analysis of costs and benefits apply to rules that are determined to be significant. Executive
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