Notice of Funds Availability; Spot Market Hog Pandemic Program (SMHPP), 15358-15363 [2022-05672]
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15358
Notices
Federal Register
Vol. 87, No. 53
Friday, March 18, 2022
This section of the FEDERAL REGISTER
contains documents other than rules or
proposed rules that are applicable to the
public. Notices of hearings and investigations,
committee meetings, agency decisions and
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examples of documents appearing in this
section.
DEPARTMENT OF AGRICULTURE
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Submission for OMB Review;
Comment Request
The Department of Agriculture has
submitted the following information
collection requirement(s) to OMB for
review and clearance under the
Paperwork Reduction Act of 1995,
Public Law 104–13. Comments are
required regarding; whether the
collection of information is necessary
for the proper performance of the
functions of the agency, including
whether the information will have
practical utility; the accuracy of the
agency’s estimate of burden including
the validity of the methodology and
assumptions used; ways to enhance the
quality, utility and clarity of the
information to be collected; and ways to
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.
Comments regarding this information
collection received by April 18, 2022
will be considered. Written comments
and recommendations for the proposed
information collection should be
submitted within 30 days of the
publication of this notice on the
following website www.reginfo.gov/
public/do/PRAMain. Find this
particular information collection by
selecting ‘‘Currently under 30-day
Review—Open for Public Comments’’ or
by using the search function.
An agency may not conduct or
sponsor a collection of information
unless the collection of information
displays a currently valid OMB control
number and the agency informs
potential persons who are to respond to
the collection of information that such
persons are not required to respond to
the collection of information unless it
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displays a currently valid OMB control
number.
Farm Service Agency
Title: 2017 Wildfires and Hurricanes
Indemnity Program (2017 WHIP) and
(Florida Citrus Block Grant) and Quality
Loss Adjustment (QLA) Program.
OMB Control Number: 0560–0291.
Summary of Collection: The
Bipartisan Budget Act of 2018 (BBA,
Pub. L. 115–123) authorized $2.36
billion in assistance for losses to crops,
trees, bushes, and vine losses due to
2017 wildfires and hurricanes. The
Farm Service Agency (FSA) is
implementing the provisions of the BBA
by providing up to $2 billion in
assistance to eligible producers through
the 2017 WHIP, and approximately $340
million through a block grant with the
State of Florida to address losses to
citrus trees, and production.
FSA is also providing the QLA
assistance to the producers as specified
in the Disaster Relief Act. The
Additional Supplemental
Appropriations for Disaster Relief Act,
2019 (Disaster Relief Act; Pub. L. 116–
20) also provides disaster assistance for
necessary expenses related to losses of
crops (including milk, on-farm stored
commodities, crops prevented from
planting in 2019, and harvested
adulterated wine grapes), trees, bushes,
and vines, as a consequence of
hurricanes, floods, tornadoes, typhoons,
volcanic activity, snowstorms, and
wildfires occurring in calendar years
2018 and 2019.
Need and Use of the Information: In
order for FSA to determine whether a
producer is eligible for 2017 WHIP and
to calculate a payment, a producer is
required to submit FSA–890 2017,
WHIP application; FSA–891, Crop
Insurance and/or NAP Coverage
Agreement; FSA–892, Request for an
Exception to the WHIP Payment
Limitation (if applicable); FSA–893,
2018 Citrus Actual Production History
and Approved Yield Record (Florida
Only); CCC–902, Farm Operating Plan
for Payment Eligibility; FSA–578,
Report of Acreage; and AD–1026, Highly
Erodible Land Conservation (HELC) and
Wetland Conservation Certification. The
information collected from the forms
will be used by FSA and the State of
Florida to determine eligibility and
distribute payments to eligible
producers under WHIP.
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In order to determine whether a
producer is eligible for the QLA
Program and to calculate a payment, a
producer is required to submit form
FSA–898, QLA Program application;
form FSA–899, Historical Nutritional
Value Weighted Average Worksheet
(Continuation); form FSA–895, Crop
Insurance and/or NAP Coverage
Agreement; form FSA–578, Report of
Acreage; required documentation of the
producer’s loss, form CCC–902I, Farm
Operating Plan for Individuals; form
CCC–901, Member’s Information; form
CCC–941, Average Adjusted Gross
Income (AGI) Certification and Consent
to Disclosure Tax Information; form
CCC–942, Certification of Income from
Farming, Ranching and Forestry
Operations, if applicable, and form AD–
1026, Highly Erodible Land
Conservation (HELC) and Wetland
Conservation Certification. Failure to
submit the application and the
additional forms would result in
payments not being provided to eligible
producers.
Description of Respondents:
Individuals and households.
Number of Respondents: 236,100.
Frequency of Responses:
Recordkeeping; Annually.
Total Burden Hours: 184,551.
Dated: March 15, 2022.
Ruth Brown,
Departmental Information Collection
Clearance Officer.
[FR Doc. 2022–05722 Filed 3–17–22; 8:45 am]
BILLING CODE 3410–05–P
DEPARTMENT OF AGRICULTURE
Farm Service Agency
[Docket ID FSA–2021–0012]
Notice of Funds Availability; Spot
Market Hog Pandemic Program
(SMHPP)
Farm Service Agency, USDA.
Notification of funding
availability.
AGENCY:
ACTION:
The Farm Service Agency
(FSA) published a notice on December
14, 2021, announcing the availability of
$50 million for the Spot Market Hog
Pandemic Program (SMHPP). This
document clarifies hog eligibility,
documentation requirements, and
payment factoring. SMHPP assists
SUMMARY:
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producers who sold hogs through a spot
market sale from April 16, 2020,
through September 1, 2020, the period
during which these producers faced the
greatest reduction in market prices due
to the COVID–19 pandemic. SMHPP
excludes non-adult pigs or other swine
that were not intended for slaughter.
SMHPP also excludes hogs sold under
contracts that had a premium or other
formula outside a spot market sale. The
eligibility requirements, payment
calculation, and application procedure
for SMHPP are included in this notice.
DATES:
Funding availability: Implementation
will begin March 18, 2022.
FOR FURTHER INFORMATION CONTACT:
Kimberly Graham; telephone: (202) 720–
6825; email: Kimberly.Graham@
usda.gov. 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 published the initial notice on
December 14, 2021 (86 FR 71003–
71007), which announced the
availability of $50 million for SMHPP.
In response to stakeholder concerns and
additional USDA analysis, USDA is
issuing this document to clarify hog
eligibility, documentation requirements,
and payment factoring. Other provisions
of the initial notice remain unchanged.
This document provides these
clarifications by incorporating the
changes into the text from the prior
notice, starting with the Background
section below. This section explains the
clarifications and revisions.
Based upon review and stakeholder
feedback, USDA is revising SMHPP
eligibility to better target the
effectiveness of SMHPP. As a result, this
document revises eligible spot market
sales to include additional negotiated
sales, and third-party intermediary sales
as defined in this NOFA. When the
COVID–19 pandemic disrupted normal
marketing channels, producers sold
their hogs either directly or through
third-party intermediaries to local
processors, butchers, individuals,
brokers, sale barns, or livestock
aggregators. The use of third-party
intermediaries was the only available
marketing alternative for many
producers when access to packers was
not feasible due to the pandemic and
they used these sales avenues rather
than depopulation; therefore, these sales
alternatives are included in SMHPP.
The only sales directly to packers that
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are eligible remain those through a
negotiated sale. Hogs sold through a
contract that includes a premium of the
spot-market price or other formula such
as the wholesale cut-out price remain
ineligible. This document also clarifies
that eligible hogs:
• Do not include immature swine
(that is, pigs), and
• Must be suitable and intended for
slaughter as determined by USDA.
FSA became aware that some
producers were confused about the
eligibility of sales and what information
they needed to submit when compared
to what they had submitted for previous
pandemic assistance. Therefore, FSA is
requiring that all producers provide
verifiable or reliable documentation of
their eligibility of sales to ensure
SMHPP payment eligibility and to
prevent erroneous payments.
To ensure SMHPP funding
availability is disbursed equitably to all
eligible producers, FSA will issue
payments after the application period
ends. If calculated payments exceed the
amount of available funding, payments
will be factored.
As a result of these revisions, the
SMHPP application period has been
extended to April 29, 2022.
Background
The Coronavirus Aid, Relief,
Economic Security (CARES) Act (Pub. L.
116–136) provides funding to prevent,
prepare for, and respond to the COVID–
19 pandemic by providing support for
agricultural producers who were
impacted. The Secretary announced the
USDA Pandemic Assistance for
Producers initiative on March 24, 2021.
As a part of that initiative, FSA
implemented SMHPP, as directed by the
Secretary, to make payments to
producers that sold hogs through a spot
market sale from April 16, 2020,
through September 1, 2020, the period
in which these producers faced the
greatest reduction in market prices due
to the COVID–19 pandemic.
FSA and USDA’s Agricultural
Marketing Service (AMS) identified
negotiated hogs as a sector of the
agricultural industry significantly
impacted by the pandemic that had not
been adequately addressed by previous
pandemic relief programs and
experienced the greatest market price
impacts out of all hog purchase types.
Using a price analysis of the average
daily national negotiated sales during
the pandemic compared to the daily 5year average for years 2015 through
2019. FSA and AMS determined April
16, 2020, through September 1, 2020, to
be the period with the greatest market
impacts on hogs sold through a
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negotiated sale due to the pandemic.
The reduced market prices were a result
of fewer negotiated hogs being procured,
packer production decreases due to
employee illness, and supply chain
issues. This period also generally aligns
with the Coronavirus Food Assistance
Program (CFAP) 2 eligibility period for
swine, which ran from April 16, 2020,
through August 31, 2020.
When the COVID–19 pandemic
disrupted normal marketing channels,
including access to packers, producers
sold their hogs through cash sales to
local processors or butchers, direct sales
to individuals, and third-party
intermediaries which, may include, but
are not limited to, sale barns or brokers.
The use of third-party intermediaries
was the only available marketing
alternative for many producers and they
used these sales avenues rather than
depopulation; therefore, these sales
alternatives are included in SMHPP.
Direct payments are limited to hog
producers located in the United States.
This assistance will be available to hog
producers through SMHPP as provided
in this notice.
FSA is administering SMHPP under
the general supervision and direction of
the FSA Administrator and AMS. AMS
is providing technical assistance to FSA,
which includes, but is not limited to,
sharing expertise on the hog industry
regarding the impact of the COVID–19
pandemic on the industry.
Definitions
The definitions in 7 CFR parts 718
and 1400 apply to SMHPP, except as
otherwise provided in this document.
The following definitions also apply.
Contract grower means a person or
legal entity who grows or produces
eligible livestock under contract for or
on behalf of another person or entity.
The contract grower’s income is
dependent upon the successful
production of livestock or offspring
from livestock. The contract grower
does not have ownership in the
livestock and is not entitled to a share
from sales proceeds of the livestock.
Hogs means adult swine of an
appropriate size and condition for
slaughter as evidenced by sale and
acceptance for slaughter, if determined
to be reasonable for the size for
slaughter for the area from April 16,
2020, through September 1, 2020, by the
applicable FSA county committee.
Negotiated sale means a sale by a
producer of hogs to a packer under
which the base price for the hogs is
determined by seller-buyer interaction
and agreement on a delivery day. The
hogs are scheduled for delivery to the
packer not more than 14 days after the
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date on which the hogs are committed
to the packer. A negotiated formula sale
is also considered a negotiated sale.
Negotiated formula sale means a hog
or pork market formula sale under
which:
(1) The formula is determined by
negotiation on a lot-by-lot basis; and
(2) The hogs are scheduled for
delivery to the packer not later than 14
days after the date on which the formula
is negotiated and the hogs are
committed to the packer.
Ownership interest means to have
either a legal ownership interest or a
beneficial ownership interest in a legal
entity. For the purposes of
administering SMHPP, a person or legal
entity that owns a share or stock in a
legal entity that is a corporation, limited
liability company, limited partnership,
or similar type entity where members
hold a legal ownership interest and
shares in the profits or losses of such
entity is considered to have an
ownership interest in such legal entity.
A person or legal entity that is a
beneficiary of a trust or heir of an estate
who benefits from the profits or losses
of such entity is considered to have a
beneficial ownership interest in such
legal entity.
Packer means a packer as defined in
section 201 of the Packers and
Stockyards Act, 1921 (7 U.S.C. 191).
Therefore, packer means any person
engaged in the business:
(a) Of buying livestock in commerce
for purposes of slaughter;
(b) Of manufacturing or preparing
meats or meat food products for sale or
shipment in commerce; or
(c) Of marketing meats, meat food
products, or livestock products in an
unmanufactured form acting as a
wholesale broker, dealer, or distributor
in commerce.
Pig an immature, non-adult swine
weighing less than 120 pounds.
Producer means a person or legal
entity who has ownership of the hogs
and whose production and facilities are
located in the United States.
Reliable record means any nonverifiable record available that can
reasonably be used to substantiate the
eligible hog sales and how prices were
determined for the sale, as determined
acceptable by the FSA county
committee.
Sold means the producer and the
buyer agreed on the negotiated price
through a spot market sale, and the
producer delivered the hogs within the
time of that agreement. For SMHPP, a
hog is considered sold on the date of the
agreement, rather than when the hog or
payment is delivered.
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Spot market sale means hogs
marketed for slaughter to an individual
or through a negotiated sale or through
an intermediary who interacts with the
buyer on behalf of the seller, which may
include, but is not limited to, sale barns,
brokers, or other intermediaries as
determined by DAFP.
Swine means domesticated
omnivorous pig, hog, or boar.
United States means all 50 states of
the United States, the District of
Columbia, the Commonwealth of Puerto
Rico and any other territory or
possession of the United States.
Verifiable record means a document
provided by the producer that can be
verified by the FSA county committee
through an independent source and can
be used to substantiate the eligible hog
sales and how prices were determined
for the sale.
(4) Corporation, limited liability
company, or other organizational
structure organized under State law
solely owned by U.S. citizens or
resident aliens; or
(5) Indian Tribe or Tribal
organization, as defined in section 4(b)
of the Indian Self-Determination and
Education Assistance Act (25 U.S.C.
5304).
Eligible producers must have sold the
hogs through a spot market sale during
the time frame of April 16, 2020,
through September 1, 2020.
Eligible Hog Sales
Application Process
Eligible hogs are hogs sold through a
spot market sale by producers from
April 16, 2020, through September 1,
2020. FSA is providing assistance for
these sales because USDA has
determined producers that sold hogs
through a spot market sale were affected
by the greatest reduction in market
prices for swine producers due to the
COVID–19 pandemic during this period.
The hogs must have been physically
located in the United States at the time
of sale and advertised or offered as
ready for slaughter.
FSA will accept applications from
December 15, 2021, through April 29,
2022. To apply for SMHPP, eligible
producers must submit a complete form
FSA–940, Spot Market Hog Pandemic
Program (SMHPP) Application.
Applications may be submitted to any
FSA county office in person or by mail,
email, facsimile, or other methods
announced by FSA.
Producers must also submit all the
following items, if not previously filed
with FSA:
• Form AD–2047, Customer Data
Worksheet for new customers or
existing customers needing to update
their customer profile;
• Form CCC–902, Farm Operating
Plan for an individual or legal entity as
provided in 7 CFR part 1400;
• Form CCC–901, Member
Information for Legal Entities (if
applicable);
• Form CCC–941, Average Adjusted
Gross Income (AGI) Certification and
Consent to Disclosure of Tax
Information, for the 2020 program year
for the person or legal entity, including
the legal entity’s members, partners,
shareholders, heirs, or beneficiaries as
provided in 7 CFR part 1400;
• Form FSA–1123, Certification of
2020 Adjusted Gross Income, if
applicable; and
• A highly erodible land conservation
(sometimes referred to as HELC) and
wetland conservation certification as
provided in 7 CFR part 12 (form AD–
1026 Highly Erodible Land
Conservation (HELC) and Wetland
Conservation (WC) Certification for the
SMHPP producer and applicable
affiliates.
Producers must submit all required
eligibility documentation specified
Ineligible Hog Sales
Ineligible hog sales include:
(1) Any other types of sales identified
by the AMS Livestock Mandatory
Reporting (LMR), including: Formulas
linked to futures or formulas based on
the cutout based on the wholesale meat
prices, such as other market formula
and swine or pork market formula,
• Packer-owned swine.
(2) Contracts that include a premium
above the spot market price; and
(3) Sales of either pigs or hogs that are
marketed for purposes other than
slaughter, such as for breeding stock or
to grow out.
Eligible Producers
An eligible producer is a person or
legal entity who has ownership of the
eligible hogs and whose production and
facilities are in the United States.
To be eligible for SMHPP, a producer
must be any of the following:
(1) Citizen of the United States;
(2) Resident alien, which for purposes
of this subpart means ‘‘lawful alien’’ as
defined in 7 CFR part 1400;
(3) Partnership of citizens or resident
aliens of the United States;
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Ineligible Producers
Ineligible producers include:
(1) Contract growers;
(2) Federal, State, and local
governments, including public schools;
and
(3) Packers.
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above, as applicable, no later than 60
days from the date a producer signs and
submits the form FSA–940. If the
producer does not timely submit the
required eligibility forms, or a member
who is required to submit the form AD–
1026 does not do so, FSA will not issue
a payment. When the other required
eligibility forms are not timely
submitted for a member of a legal entity,
FSA will reduce the payment based on
the member’s ownership interest in the
legal entity.
All producers must provide
documentation to support the accuracy
of information provided on the
application, including to substantiate
the number of hogs reported on the
application that were sold through a
spot market sale and how the price was
determined for the sale. The supporting
documentation must be verifiable or
reliable records that substantiate the
reported number of hogs sold through a
spot market sale and how the price was
determined for the sale. Producers who
apply for SMHPP after the publication
of this document are required to submit
supporting documentation to FSA
within 15 days from submitting the
FSA–940 to FSA or the application will
be disapproved. For producers who
applied for SMHPP prior to the
publication of this document, FSA will
notify producers and request supporting
documentation to verify the sales of
hogs sold through a spot market sale.
The documentation must be submitted
to FSA within 30 days from the request
or the application will be disapproved
by FSA.
Payment
SMHPP payments compensate eligible
hog producers for hogs sold through a
spot market sale from April 16, 2020,
through September 1, 2020. To simplify
administration of SMHPP, FSA and
AMS have determined a single payment
rate of $54 per head.
USDA calculated the average daily
difference in the negotiated sales price
during the applicable time frame,
compared to the daily 5-year average for
negotiated sales prices during April 16
through September 1 for years 2015
through 2019. The average daily
difference was equal to $77 per hog
based on the average carcass weight that
was submitted to AMS through
livestock mandatory reporting.
The SMHPP payment rate of $54 per
head is equal to the $77 per head minus
the CFAP 2 rate of $23 per head. CFAP
2 paid for the highest hog inventory
from April 16, 2020, through August 31,
2020. CFAP 2 was available to all swine
producers who qualified under the
terms and conditions of such program
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and the application period for CFAP 2
was extended, ending October 12, 2021,
to allow additional time for all eligible
producers to apply. SMHPP is therefore
not intended to cover pandemic impacts
that were or could have been
compensated under CFAP 2;
accordingly, the CFAP 2 hog payment
rate of $23 per head has been deducted
from the calculated payment rate for
SMHPP.
SMHPP payments will be calculated
by multiplying the number of head of
eligible hogs, not to exceed 10,000 head,
by the payment rate per head of $54.
FSA will issue payments to eligible
producers after the application period
ends. If calculated payments exceed the
amount of available funding, payments
will be factored. SMHPP is not subject
to payment limitations.
Provisions Requiring Refund to FSA
In the event that any application for
a SMHPP payment resulted from
erroneous information reported by the
producer, the payment will be
recalculated, and the producer must
refund any excess payment to FSA,
including interest to be calculated from
the date of the disbursement to the
SMHPP producer. If, for whatever
reason, FSA determines that the
producer misrepresented the total hogs
sold through a spot market sale, the
application will be disapproved, and the
producer must refund the full SMHPP
payment to FSA with interest from the
date of disbursement. Any required
refunds must be resolved in accordance
with 7 CFR part 3.
Miscellaneous Provisions
A person or legal entity, other than a
joint venture or general partnership, is
ineligible for SMHPP payments if the
person’s or legal entity’s average
adjusted gross income (AGI), using the
average of the adjusted gross incomes
for the 2016, 2017, and 2018 tax years,
exceeds $900,000 as described in 7 CFR
part 1400, subpart F, unless the
exception described below applies.
With respect to joint ventures and
general partnerships, this average AGI
provision will be applied to members of
the joint venture and general
partnership. Average AGI provisions are
applicable to members, partners,
stockholders, heirs, and beneficiaries
with an ownership interest in a legal
entity, including a general partnership
or joint venture who are at or above the
fourth level of ownership in the
business structure. The eligible hog
producer’s payment will be reduced by
the portion of a payment attributed to a
member who exceeds the average
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$900,000 AGI limitation or is otherwise
ineligible for payment.
A person or legal entity whose
average AGI exceeds $900,000 may
otherwise be eligible for SMHPP
payments if the 2020 AGI alone is less
than $900,000. In order to qualify for
this exception to the average AGI
limitation, persons or legal entities must
submit form FSA–1123 to certify that
their 2020 AGI is not more than
$900,000 and also provide a
certification from a licensed CPA or
attorney attesting to the accuracy of the
person’s or legal entity’s certification.
A payment made to a legal entity will
be attributed to those members who
have a direct or indirect ownership
interest in the legal entity unless the
payment of the legal entity has been
reduced by the proportionate ownership
interest of the member due to that
member’s ineligibility.
Attribution of payments made to legal
entities will be tracked through four
levels of ownership in legal entities as
follows:
• First level of ownership: Any
payment made to a legal entity that is
owned in whole or in part by a person
will be attributed to the person in an
amount that represents the direct
ownership interest in the first-level or
payment legal entity;
• Second level of ownership: Any
payment made to a first-level legal
entity that is owned in whole or in part
by another legal entity (referred to as a
second-level legal entity) will be
attributed to the second-level legal
entity in proportion to the ownership of
the second-level legal entity in the firstlevel legal entity; if the second-level
legal entity is owned in whole or in part
by a person, the amount of the payment
made to the first-level legal entity will
be attributed to the person in the
amount that represents the indirect
ownership in the first-level legal entity
by the person;
• Third and fourth levels of
ownership: Except as provided in the
second-level of ownership bullet above,
any payments made to a legal entity at
the third and fourth levels of ownership
will be attributed in the same manner as
specified in the second-level of
ownership bullet above; and
• Fourth level of ownership: If the
fourth level of ownership is that of a
legal entity and not that of a person, a
reduction in payment will be applied to
the first-level or payment legal entity in
the amount that represents the indirect
ownership in the first-level or payment
legal entity by the fourth level legal
entity.
Payments made directly or indirectly
to a person who is a minor child will
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not be combined with the earnings of
the minor’s parent or legal guardian.
A producer that is a legal entity must
provide the names, addresses,
ownership share, and valid taxpayer
identification numbers of the members
holding an ownership interest in the
legal entity. Payments to a legal entity
will be reduced in proportion to a
member’s ownership share when a valid
taxpayer identification number for a
person or legal entity that holds a direct
or indirect ownership interest, at or
above the fourth level of ownership in
the business structure, is not provided
to USDA.
If an individual or legal entity is not
eligible to receive SMHPP payments due
to the individual or legal entity failing
to satisfy some other payment eligibility
provision such as AGI or conservation
compliance provisions, the payment
made either directly or indirectly to the
individual or legal entity will be
reduced to zero. The amount of the
reduction for the direct payment to the
producer will be commensurate with
the direct or indirect ownership interest
of the ineligible individual or ineligible
legal entity.
General requirements that apply to
other FSA-administered commodity
programs also apply to SMHPP,
including compliance with the
provisions of 7 CFR part 12, ‘‘Highly
Erodible Land and Wetland
Conservation,’’ and the provisions of 7
CFR 718.6, which address ineligibility
for benefits for offenses involving
controlled substances. Appeal
regulations specified in 7 CFR parts 11
and 780 and equitable relief and finality
provisions specified in 7 CFR part 718,
subpart D, apply to determinations
under SMHPP. The determination of
matters of general applicability that are
not in response to, or result from, an
individual set of facts in an individual
participant’s application for payment
are not matters that can be appealed.
Such matters of general applicability
include, but are not limited to, the
determination of the applicable time
period for eligible spot market sales and
the payment rate for SMHPP.
Participants are required to retain
documentation in support of their
application for 3 years after the date of
approval. Participants receiving SMHPP
payments or any other person who
furnishes such information to USDA
must permit authorized representatives
of USDA or the Government
Accountability Office, during regular
business hours, to enter the agricultural
operation and to inspect, examine, and
to allow representatives to make copies
of books, records, or other items for the
purpose of confirming the accuracy of
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the information provided by the
participant.
A producer may file an application
with an FSA county office after the
SMHPP application deadline, and in
such case the application will be
considered a request to waive the
deadline. The Deputy Administrator for
Farm Programs, FSA (Deputy
Administrator), has the discretion and
authority to consider the case and waive
or modify application deadlines and
other requirements or program
provisions not specified in law, in cases
where the Deputy Administrator
determines it is equitable to do so and
where the Deputy Administrator finds
that the lateness or failure to meet such
other requirements or program
provisions do not adversely affect the
operation of SMHPP. Although
producers have a right to a decision on
whether they filed applications by the
deadline or not, producers have no right
to a decision in response to a request to
waive or modify deadlines or program
provisions. The Deputy Administrator’s
refusal to exercise discretion to consider
the request will not be considered an
adverse decision and is, by itself, not
appealable.
Any payment under SMHPP will be
made without regard to questions of title
under State law and without regard to
any claim or lien. The regulations
governing offsets in 7 CFR part 3 apply
to SMHPP payments.
In either applying for or participating
in SMHPP, or both, the producer is
subject to laws against perjury and any
penalties and prosecution resulting
therefrom, with such laws including,
but not limited to, 18 U.S.C. 1621. If the
producer knowingly makes any untrue
verbal or written declaration,
certification, statement, or verification
that the producer when applying for or
participating in SMHPP, or both, then
the producer is guilty of perjury (except
as otherwise provided by law) and may
be fined, imprisoned for not more than
5 years, or both, regardless of whether
the producer makes such verbal or
written declaration, certification,
statement, or verification within or
outside the United States.
For the purposes of the effect of a lien
on eligibility for Federal programs (28
U.S.C. 3201(e)), USDA waives the
restriction on receipt of funds under
SMHPP but only as to beneficiaries
who, as a condition of the waiver, agree
to apply the SMHPP payments to reduce
the amount of the judgment lien.
In addition to any other Federal laws
that apply to SMHPP, the following
laws apply: 15 U.S.C. 714; and 18 U.S.C.
286, 287, 371, and 1001.
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Paperwork Reduction Act
Requirements
In compliance with the Paperwork
Reduction Act of 1995 (44 U.S.C.
chapter 35), FSA received the OMB
approval (control number 0560–0305) to
cover the SMHPP information collection
request under the emergency request.
FSA will include the increased burden
hours of 4,152 to cover the additional
documentation required to support the
completed form FSA–940 SMHPP
application in the 3-year approval.
Environmental Review
The environmental impacts 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 the FSA
regulation for compliance with NEPA (7
CFR part 799).
As previously stated, SMHPP is
providing payments to producers that
sold hogs through a spot market sale
from April 16, 2020, through September
1, 2020, the period in which these
producers faced the greatest reduction
in market prices due to the COVID–19
pandemic. The limited discretionary
aspects of SMHPP do not have the
potential to impact the human
environment as they are administrative.
Accordingly, these discretionary aspects
are covered by the FSA Categorical
Exclusions specified in 7 CFR
799.31(b)(6)(iv) that applies to
individual farm participation in FSA
programs where no ground disturbance
or change in land use occurs as a result
of the proposed action or participation;
and § 799.31(b)(6)(vi) that applies to
safety net programs.
No Extraordinary Circumstances
(§ 799.33) exist. As such, the
implementation of SMHPP and the
participation in SMHPP do not
constitute major Federal actions that
would significantly affect the quality of
the human environment, individually or
cumulatively. Therefore, FSA will not
prepare an environmental assessment or
environmental impact statement for this
action and this document serves as
documentation of the programmatic
environmental compliance decision for
this federal action.
Federal Assistance Programs
The title and number of the Federal
assistance programs, as found in the
Catalog of Federal Domestic Assistance,
to which this document applies is
10.144—Spot Market Hog Pandemic
Program.
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Federal Register / Vol. 87, No. 53 / Friday, March 18, 2022 / Notices
USDA Non-Discrimination Policy
DEPARTMENT OF AGRICULTURE
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-aprogram-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: OAC@
usda.gov.
USDA is an equal opportunity
provider, employer, and lender.
Forest Service
Zach Ducheneaux,
Administrator, Farm Service Agency.
[FR Doc. 2022–05672 Filed 3–17–22; 8:45 am]
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BILLING CODE 3410–05–P
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Notice of Proposed Administrative
Settlement Agreement and Order on
Consent for Removal Action,
Nacimiento Mine Site, Santa Fe
National Forest, New Mexico
Forest Service, Agriculture
(USDA).
ACTION: Notice of settlement; request for
comment.
AGENCY:
In accordance with the
Comprehensive Environmental
Response, Compensation and Liability
Act of 1980, as amended (CERCLA),
notice is hereby given of a proposed
Administrative Settlement Agreement
and Order on Consent (ASAOC),
between the United States Department
of Agriculture Forest Service (Forest
Service) and Williams Express LLC
(Williams), regarding the Nacimiento
Mine Site located on the Santa Fe
National Forest near Cuba, New Mexico.
The property that is the subject of this
proposed ASAOC are areas where
hazardous substances and/or pollutants
or contaminants are located on the
surface features of the federally-owned
portion of the Site designated as
Operable Unit 1 (OU1).
DATES: Comments must be received in
writing by April 18, 2022.
ADDRESSES: The proposed settlement
and additional background information
relating to the settlement are available
for public inspection at the offices of the
United States Department of
Agriculture, Forest Service,
Southwestern Regional Office, 333
Broadway SE, Albuquerque, NM 87102,
or from Kirk M. Minckler with USDA’s
Office of the General Counsel, email:
kirk.minckler@usda.gov, phone: (303)
275–5549. Comments should reference
the Nacimiento Mine, Santa Fe National
Forest, Sandoval County, New Mexico,
and should be addressed to Kirk M.
Minckler, USDA Office of the General
Counsel, 1617 Cole Boulevard, Suite
385E, Lakewood, Colorado 80401–3305.
The United States’ response to any
comments received will be available for
public inspection at the USDA, Office of
General Counsel, Mountain Region,
1617 Cole Boulevard, Suite 385E,
Lakewood, Colorado 80401, and at the
Forest Service’s Southwestern Regional
Office, 333 Broadway SE, Albuquerque,
NM 87102.
FOR FURTHER INFORMATION CONTACT:
Technical information: Steven J.
McDonald, USDA Forest Service
Southwestern Region, 333 Broadway SE,
Albuquerque, NM 87102; phone: 505–
SUMMARY:
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15363
842–3838, email: steven.mcdonald@
usda.gov.
Legal information: Kirk M. Minckler,
USDA Office of the General Counsel,
1617 Cole Boulevard, Suite 385E,
Lakewood, Colorado 80401–3305;
phone (303) 275–5549, Fax: (303) 275–
5557; email: kirk.minckler@usda.gov.
Individuals who use
telecommunications devices for the deaf
or hard of hearing (TDD) may call the
Federal Relay Service (FRS) at 800–877–
8339 24 hours a day, every day of the
year, including holidays.
SUPPLEMENTARY INFORMATION: The
proposed ASAOC between the Forest
Service and Williams, in accordance
with Section 122(i) of CERCLA, as
amended, 42 U.S.C. 9622(i) under
Sections 104, 107 and 122, requires
Williams to perform a Removal Action
necessary to implement the selected
cleanup alternative involving mining
waste piles and other surface features
located on the federally owned portion
of OU1 at the Site. The performance of
this work must be approved and
monitored by the Forest Service. Also,
under the proposed ASAOC, Williams
will reimburse the Forest Service’s
inspections, monitoring, and
maintenance costs related to the
Removal Action as Future Response
Costs.
For thirty (30) days following the date
of publication of this notice, the United
States will receive written comments
relating to the ASAOC. The United
States will consider all comments
received and may modify or withdraw
its consent to the ASAOC if comments
received disclose facts or considerations
that indicate that the settlement is
inappropriate, improper, or inadequate.
Dated: March 15, 2022.
Kerwin S. Dewberry,
Acting Deputy Regional Forester,
Southwestern Region.
[FR Doc. 2022–05787 Filed 3–17–22; 8:45 am]
BILLING CODE 3411–15–P
DEPARTMENT OF COMMERCE
Census Bureau
Agency Information Collection
Activities; Submission to the Office of
Management and Budget (OMB) for
Review and Approval; Comment
Request; Certification of Identity (Form
BC–300)
Census Bureau, Department of
Commerce.
ACTION: Notice of information collection;
request for comment.
AGENCY:
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]]>Agencies
[Federal Register Volume 87, Number 53 (Friday, March 18, 2022)]
[Notices]
[Pages 15358-15363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05672]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Farm Service Agency
[Docket ID FSA-2021-0012]
Notice of Funds Availability; Spot Market Hog Pandemic Program
(SMHPP)
AGENCY: Farm Service Agency, USDA.
ACTION: Notification of funding availability.
-----------------------------------------------------------------------
SUMMARY: The Farm Service Agency (FSA) published a notice on December
14, 2021, announcing the availability of $50 million for the Spot
Market Hog Pandemic Program (SMHPP). This document clarifies hog
eligibility, documentation requirements, and payment factoring. SMHPP
assists
[[Page 15359]]
producers who sold hogs through a spot market sale from April 16, 2020,
through September 1, 2020, the period during which these producers
faced the greatest reduction in market prices due to the COVID-19
pandemic. SMHPP excludes non-adult pigs or other swine that were not
intended for slaughter. SMHPP also excludes hogs sold under contracts
that had a premium or other formula outside a spot market sale. The
eligibility requirements, payment calculation, and application
procedure for SMHPP are included in this notice.
DATES:
Funding availability: Implementation will begin March 18, 2022.
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:
Revision and Clarification
FSA published the initial notice on December 14, 2021 (86 FR 71003-
71007), which announced the availability of $50 million for SMHPP. In
response to stakeholder concerns and additional USDA analysis, USDA is
issuing this document to clarify hog eligibility, documentation
requirements, and payment factoring. Other provisions of the initial
notice remain unchanged. This document provides these clarifications by
incorporating the changes into the text from the prior notice, starting
with the Background section below. This section explains the
clarifications and revisions.
Based upon review and stakeholder feedback, USDA is revising SMHPP
eligibility to better target the effectiveness of SMHPP. As a result,
this document revises eligible spot market sales to include additional
negotiated sales, and third-party intermediary sales as defined in this
NOFA. When the COVID-19 pandemic disrupted normal marketing channels,
producers sold their hogs either directly or through third-party
intermediaries to local processors, butchers, individuals, brokers,
sale barns, or livestock aggregators. The use of third-party
intermediaries was the only available marketing alternative for many
producers when access to packers was not feasible due to the pandemic
and they used these sales avenues rather than depopulation; therefore,
these sales alternatives are included in SMHPP. The only sales directly
to packers that are eligible remain those through a negotiated sale.
Hogs sold through a contract that includes a premium of the spot-market
price or other formula such as the wholesale cut-out price remain
ineligible. This document also clarifies that eligible hogs:
Do not include immature swine (that is, pigs), and
Must be suitable and intended for slaughter as determined
by USDA.
FSA became aware that some producers were confused about the
eligibility of sales and what information they needed to submit when
compared to what they had submitted for previous pandemic assistance.
Therefore, FSA is requiring that all producers provide verifiable or
reliable documentation of their eligibility of sales to ensure SMHPP
payment eligibility and to prevent erroneous payments.
To ensure SMHPP funding availability is disbursed equitably to all
eligible producers, FSA will issue payments after the application
period ends. If calculated payments exceed the amount of available
funding, payments will be factored.
As a result of these revisions, the SMHPP application period has
been extended to April 29, 2022.
Background
The Coronavirus Aid, Relief, Economic Security (CARES) Act (Pub. L.
116-136) provides funding to prevent, prepare for, and respond to the
COVID-19 pandemic by providing support for agricultural producers who
were impacted. The Secretary announced the USDA Pandemic Assistance for
Producers initiative on March 24, 2021. As a part of that initiative,
FSA implemented SMHPP, as directed by the Secretary, to make payments
to producers that sold hogs through a spot market sale from April 16,
2020, through September 1, 2020, the period in which these producers
faced the greatest reduction in market prices due to the COVID-19
pandemic.
FSA and USDA's Agricultural Marketing Service (AMS) identified
negotiated hogs as a sector of the agricultural industry significantly
impacted by the pandemic that had not been adequately addressed by
previous pandemic relief programs and experienced the greatest market
price impacts out of all hog purchase types. Using a price analysis of
the average daily national negotiated sales during the pandemic
compared to the daily 5-year average for years 2015 through 2019. FSA
and AMS determined April 16, 2020, through September 1, 2020, to be the
period with the greatest market impacts on hogs sold through a
negotiated sale due to the pandemic. The reduced market prices were a
result of fewer negotiated hogs being procured, packer production
decreases due to employee illness, and supply chain issues. This period
also generally aligns with the Coronavirus Food Assistance Program
(CFAP) 2 eligibility period for swine, which ran from April 16, 2020,
through August 31, 2020.
When the COVID-19 pandemic disrupted normal marketing channels,
including access to packers, producers sold their hogs through cash
sales to local processors or butchers, direct sales to individuals, and
third-party intermediaries which, may include, but are not limited to,
sale barns or brokers. The use of third-party intermediaries was the
only available marketing alternative for many producers and they used
these sales avenues rather than depopulation; therefore, these sales
alternatives are included in SMHPP.
Direct payments are limited to hog producers located in the United
States. This assistance will be available to hog producers through
SMHPP as provided in this notice.
FSA is administering SMHPP under the general supervision and
direction of the FSA Administrator and AMS. AMS is providing technical
assistance to FSA, which includes, but is not limited to, sharing
expertise on the hog industry regarding the impact of the COVID-19
pandemic on the industry.
Definitions
The definitions in 7 CFR parts 718 and 1400 apply to SMHPP, except
as otherwise provided in this document. The following definitions also
apply.
Contract grower means a person or legal entity who grows or
produces eligible livestock under contract for or on behalf of another
person or entity. The contract grower's income is dependent upon the
successful production of livestock or offspring from livestock. The
contract grower does not have ownership in the livestock and is not
entitled to a share from sales proceeds of the livestock.
Hogs means adult swine of an appropriate size and condition for
slaughter as evidenced by sale and acceptance for slaughter, if
determined to be reasonable for the size for slaughter for the area
from April 16, 2020, through September 1, 2020, by the applicable FSA
county committee.
Negotiated sale means a sale by a producer of hogs to a packer
under which the base price for the hogs is determined by seller-buyer
interaction and agreement on a delivery day. The hogs are scheduled for
delivery to the packer not more than 14 days after the
[[Page 15360]]
date on which the hogs are committed to the packer. A negotiated
formula sale is also considered a negotiated sale.
Negotiated formula sale means a hog or pork market formula sale
under which:
(1) The formula is determined by negotiation on a lot-by-lot basis;
and
(2) The hogs are scheduled for delivery to the packer not later
than 14 days after the date on which the formula is negotiated and the
hogs are committed to the packer.
Ownership interest means to have either a legal ownership interest
or a beneficial ownership interest in a legal entity. For the purposes
of administering SMHPP, a person or legal entity that owns a share or
stock in a legal entity that is a corporation, limited liability
company, limited partnership, or similar type entity where members hold
a legal ownership interest and shares in the profits or losses of such
entity is considered to have an ownership interest in such legal
entity. A person or legal entity that is a beneficiary of a trust or
heir of an estate who benefits from the profits or losses of such
entity is considered to have a beneficial ownership interest in such
legal entity.
Packer means a packer as defined in section 201 of the Packers and
Stockyards Act, 1921 (7 U.S.C. 191). Therefore, packer means any person
engaged in the business:
(a) Of buying livestock in commerce for purposes of slaughter;
(b) Of manufacturing or preparing meats or meat food products for
sale or shipment in commerce; or
(c) Of marketing meats, meat food products, or livestock products
in an unmanufactured form acting as a wholesale broker, dealer, or
distributor in commerce.
Pig an immature, non-adult swine weighing less than 120 pounds.
Producer means a person or legal entity who has ownership of the
hogs and whose production and facilities are located in the United
States.
Reliable record means any non-verifiable record available that can
reasonably be used to substantiate the eligible hog sales and how
prices were determined for the sale, as determined acceptable by the
FSA county committee.
Sold means the producer and the buyer agreed on the negotiated
price through a spot market sale, and the producer delivered the hogs
within the time of that agreement. For SMHPP, a hog is considered sold
on the date of the agreement, rather than when the hog or payment is
delivered.
Spot market sale means hogs marketed for slaughter to an individual
or through a negotiated sale or through an intermediary who interacts
with the buyer on behalf of the seller, which may include, but is not
limited to, sale barns, brokers, or other intermediaries as determined
by DAFP.
Swine means domesticated omnivorous pig, hog, or boar.
United States means all 50 states of the United States, the
District of Columbia, the Commonwealth of Puerto Rico and any other
territory or possession of the United States.
Verifiable record means a document provided by the producer that
can be verified by the FSA county committee through an independent
source and can be used to substantiate the eligible hog sales and how
prices were determined for the sale.
Eligible Hog Sales
Eligible hogs are hogs sold through a spot market sale by producers
from April 16, 2020, through September 1, 2020. FSA is providing
assistance for these sales because USDA has determined producers that
sold hogs through a spot market sale were affected by the greatest
reduction in market prices for swine producers due to the COVID-19
pandemic during this period.
The hogs must have been physically located in the United States at
the time of sale and advertised or offered as ready for slaughter.
Ineligible Hog Sales
Ineligible hog sales include:
(1) Any other types of sales identified by the AMS Livestock
Mandatory Reporting (LMR), including: Formulas linked to futures or
formulas based on the cutout based on the wholesale meat prices, such
as other market formula and swine or pork market formula,
Packer-owned swine.
(2) Contracts that include a premium above the spot market price;
and
(3) Sales of either pigs or hogs that are marketed for purposes
other than slaughter, such as for breeding stock or to grow out.
Eligible Producers
An eligible producer is a person or legal entity who has ownership
of the eligible hogs and whose production and facilities are in the
United States.
To be eligible for SMHPP, a producer must be any of the following:
(1) Citizen of the United States;
(2) Resident alien, which for purposes of this subpart means
``lawful alien'' as defined in 7 CFR part 1400;
(3) Partnership of citizens or resident aliens of the United
States;
(4) Corporation, limited liability company, or other organizational
structure organized under State law solely owned by U.S. citizens or
resident aliens; or
(5) Indian Tribe or Tribal organization, as defined in section 4(b)
of the Indian Self-Determination and Education Assistance Act (25
U.S.C. 5304).
Eligible producers must have sold the hogs through a spot market
sale during the time frame of April 16, 2020, through September 1,
2020.
Ineligible Producers
Ineligible producers include:
(1) Contract growers;
(2) Federal, State, and local governments, including public
schools; and
(3) Packers.
Application Process
FSA will accept applications from December 15, 2021, through April
29, 2022. To apply for SMHPP, eligible producers must submit a complete
form FSA-940, Spot Market Hog Pandemic Program (SMHPP) Application.
Applications may be submitted to any FSA county office in person or by
mail, email, facsimile, or other methods announced by FSA.
Producers must also submit all the following items, if not
previously filed with FSA:
Form AD-2047, Customer Data Worksheet for new customers or
existing customers needing to update their customer profile;
Form CCC-902, Farm Operating Plan for an individual or
legal entity as provided in 7 CFR part 1400;
Form CCC-901, Member Information for Legal Entities (if
applicable);
Form CCC-941, Average Adjusted Gross Income (AGI)
Certification and Consent to Disclosure of Tax Information, for the
2020 program year for the person or legal entity, including the legal
entity's members, partners, shareholders, heirs, or beneficiaries as
provided in 7 CFR part 1400;
Form FSA-1123, Certification of 2020 Adjusted Gross
Income, if applicable; and
A highly erodible land conservation (sometimes referred to
as HELC) and wetland conservation certification as provided in 7 CFR
part 12 (form AD-1026 Highly Erodible Land Conservation (HELC) and
Wetland Conservation (WC) Certification for the SMHPP producer and
applicable affiliates.
Producers must submit all required eligibility documentation
specified
[[Page 15361]]
above, as applicable, no later than 60 days from the date a producer
signs and submits the form FSA-940. If the producer does not timely
submit the required eligibility forms, or a member who is required to
submit the form AD-1026 does not do so, FSA will not issue a payment.
When the other required eligibility forms are not timely submitted for
a member of a legal entity, FSA will reduce the payment based on the
member's ownership interest in the legal entity.
All producers must provide documentation to support the accuracy of
information provided on the application, including to substantiate the
number of hogs reported on the application that were sold through a
spot market sale and how the price was determined for the sale. The
supporting documentation must be verifiable or reliable records that
substantiate the reported number of hogs sold through a spot market
sale and how the price was determined for the sale. Producers who apply
for SMHPP after the publication of this document are required to submit
supporting documentation to FSA within 15 days from submitting the FSA-
940 to FSA or the application will be disapproved. For producers who
applied for SMHPP prior to the publication of this document, FSA will
notify producers and request supporting documentation to verify the
sales of hogs sold through a spot market sale. The documentation must
be submitted to FSA within 30 days from the request or the application
will be disapproved by FSA.
Payment
SMHPP payments compensate eligible hog producers for hogs sold
through a spot market sale from April 16, 2020, through September 1,
2020. To simplify administration of SMHPP, FSA and AMS have determined
a single payment rate of $54 per head.
USDA calculated the average daily difference in the negotiated
sales price during the applicable time frame, compared to the daily 5-
year average for negotiated sales prices during April 16 through
September 1 for years 2015 through 2019. The average daily difference
was equal to $77 per hog based on the average carcass weight that was
submitted to AMS through livestock mandatory reporting.
The SMHPP payment rate of $54 per head is equal to the $77 per head
minus the CFAP 2 rate of $23 per head. CFAP 2 paid for the highest hog
inventory from April 16, 2020, through August 31, 2020. CFAP 2 was
available to all swine producers who qualified under the terms and
conditions of such program and the application period for CFAP 2 was
extended, ending October 12, 2021, to allow additional time for all
eligible producers to apply. SMHPP is therefore not intended to cover
pandemic impacts that were or could have been compensated under CFAP 2;
accordingly, the CFAP 2 hog payment rate of $23 per head has been
deducted from the calculated payment rate for SMHPP.
SMHPP payments will be calculated by multiplying the number of head
of eligible hogs, not to exceed 10,000 head, by the payment rate per
head of $54. FSA will issue payments to eligible producers after the
application period ends. If calculated payments exceed the amount of
available funding, payments will be factored. SMHPP is not subject to
payment limitations.
Provisions Requiring Refund to FSA
In the event that any application for a SMHPP payment resulted from
erroneous information reported by the producer, the payment will be
recalculated, and the producer must refund any excess payment to FSA,
including interest to be calculated from the date of the disbursement
to the SMHPP producer. If, for whatever reason, FSA determines that the
producer misrepresented the total hogs sold through a spot market sale,
the application will be disapproved, and the producer must refund the
full SMHPP payment to FSA with interest from the date of disbursement.
Any required refunds must be resolved in accordance with 7 CFR part 3.
Miscellaneous Provisions
A person or legal entity, other than a joint venture or general
partnership, is ineligible for SMHPP payments if the person's or legal
entity's average adjusted gross income (AGI), using the average of the
adjusted gross incomes for the 2016, 2017, and 2018 tax years, exceeds
$900,000 as described in 7 CFR part 1400, subpart F, unless the
exception described below applies. With respect to joint ventures and
general partnerships, this average AGI provision will be applied to
members of the joint venture and general partnership. Average AGI
provisions are applicable to members, partners, stockholders, heirs,
and beneficiaries with an ownership interest in a legal entity,
including a general partnership or joint venture who are at or above
the fourth level of ownership in the business structure. The eligible
hog producer's payment will be reduced by the portion of a payment
attributed to a member who exceeds the average $900,000 AGI limitation
or is otherwise ineligible for payment.
A person or legal entity whose average AGI exceeds $900,000 may
otherwise be eligible for SMHPP payments if the 2020 AGI alone is less
than $900,000. In order to qualify for this exception to the average
AGI limitation, persons or legal entities must submit form FSA-1123 to
certify that their 2020 AGI is not more than $900,000 and also provide
a certification from a licensed CPA or attorney attesting to the
accuracy of the person's or legal entity's certification.
A payment made to a legal entity will be attributed to those
members who have a direct or indirect ownership interest in the legal
entity unless the payment of the legal entity has been reduced by the
proportionate ownership interest of the member due to that member's
ineligibility.
Attribution of payments made to legal entities will be tracked
through four levels of ownership in legal entities as follows:
First level of ownership: Any payment made to a legal
entity that is owned in whole or in part by a person will be attributed
to the person in an amount that represents the direct ownership
interest in the first-level or payment legal entity;
Second level of ownership: Any payment made to a first-
level legal entity that is owned in whole or in part by another legal
entity (referred to as a second-level legal entity) will be attributed
to the second-level legal entity in proportion to the ownership of the
second-level legal entity in the first-level legal entity; if the
second-level legal entity is owned in whole or in part by a person, the
amount of the payment made to the first-level legal entity will be
attributed to the person in the amount that represents the indirect
ownership in the first-level legal entity by the person;
Third and fourth levels of ownership: Except as provided
in the second-level of ownership bullet above, any payments made to a
legal entity at the third and fourth levels of ownership will be
attributed in the same manner as specified in the second-level of
ownership bullet above; and
Fourth level of ownership: If the fourth level of
ownership is that of a legal entity and not that of a person, a
reduction in payment will be applied to the first-level or payment
legal entity in the amount that represents the indirect ownership in
the first-level or payment legal entity by the fourth level legal
entity.
Payments made directly or indirectly to a person who is a minor
child will
[[Page 15362]]
not be combined with the earnings of the minor's parent or legal
guardian.
A producer that is a legal entity must provide the names,
addresses, ownership share, and valid taxpayer identification numbers
of the members holding an ownership interest in the legal entity.
Payments to a legal entity will be reduced in proportion to a member's
ownership share when a valid taxpayer identification number for a
person or legal entity that holds a direct or indirect ownership
interest, at or above the fourth level of ownership in the business
structure, is not provided to USDA.
If an individual or legal entity is not eligible to receive SMHPP
payments due to the individual or legal entity failing to satisfy some
other payment eligibility provision such as AGI or conservation
compliance provisions, the payment made either directly or indirectly
to the individual or legal entity will be reduced to zero. The amount
of the reduction for the direct payment to the producer will be
commensurate with the direct or indirect ownership interest of the
ineligible individual or ineligible legal entity.
General requirements that apply to other FSA-administered commodity
programs also apply to SMHPP, including compliance with the provisions
of 7 CFR part 12, ``Highly Erodible Land and Wetland Conservation,''
and the provisions of 7 CFR 718.6, which address ineligibility for
benefits for offenses involving controlled substances. Appeal
regulations specified in 7 CFR parts 11 and 780 and equitable relief
and finality provisions specified in 7 CFR part 718, subpart D, apply
to determinations under SMHPP. The determination of matters of general
applicability that are not in response to, or result from, an
individual set of facts in an individual participant's application for
payment are not matters that can be appealed. Such matters of general
applicability include, but are not limited to, the determination of the
applicable time period for eligible spot market sales and the payment
rate for SMHPP.
Participants are required to retain documentation in support of
their application for 3 years after the date of approval. Participants
receiving SMHPP payments or any other person who furnishes such
information to USDA must permit authorized representatives of USDA or
the Government Accountability Office, during regular business hours, to
enter the agricultural operation and to inspect, examine, and to allow
representatives to make copies of books, records, or other items for
the purpose of confirming the accuracy of the information provided by
the participant.
A producer may file an application with an FSA county office after
the SMHPP application deadline, and in such case the application will
be considered a request to waive the deadline. The Deputy Administrator
for Farm Programs, FSA (Deputy Administrator), has the discretion and
authority to consider the case and waive or modify application
deadlines and other requirements or program provisions not specified in
law, in cases where the Deputy Administrator determines it is equitable
to do so and where the Deputy Administrator finds that the lateness or
failure to meet such other requirements or program provisions do not
adversely affect the operation of SMHPP. Although producers have a
right to a decision on whether they filed applications by the deadline
or not, producers have no right to a decision in response to a request
to waive or modify deadlines or program provisions. The Deputy
Administrator's refusal to exercise discretion to consider the request
will not be considered an adverse decision and is, by itself, not
appealable.
Any payment under SMHPP will be made without regard to questions of
title under State law and without regard to any claim or lien. The
regulations governing offsets in 7 CFR part 3 apply to SMHPP payments.
In either applying for or participating in SMHPP, or both, the
producer is subject to laws against perjury and any penalties and
prosecution resulting therefrom, with such laws including, but not
limited to, 18 U.S.C. 1621. If the producer knowingly makes any untrue
verbal or written declaration, certification, statement, or
verification that the producer when applying for or participating in
SMHPP, or both, then the producer is guilty of perjury (except as
otherwise provided by law) and may be fined, imprisoned for not more
than 5 years, or both, regardless of whether the producer makes such
verbal or written declaration, certification, statement, or
verification within or outside the United States.
For the purposes of the effect of a lien on eligibility for Federal
programs (28 U.S.C. 3201(e)), USDA waives the restriction on receipt of
funds under SMHPP but only as to beneficiaries who, as a condition of
the waiver, agree to apply the SMHPP payments to reduce the amount of
the judgment lien.
In addition to any other Federal laws that apply to SMHPP, the
following laws apply: 15 U.S.C. 714; and 18 U.S.C. 286, 287, 371, and
1001.
Paperwork Reduction Act Requirements
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C.
chapter 35), FSA received the OMB approval (control number 0560-0305)
to cover the SMHPP information collection request under the emergency
request. FSA will include the increased burden hours of 4,152 to cover
the additional documentation required to support the completed form
FSA-940 SMHPP application in the 3-year approval.
Environmental Review
The environmental impacts 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 the FSA regulation
for compliance with NEPA (7 CFR part 799).
As previously stated, SMHPP is providing payments to producers that
sold hogs through a spot market sale from April 16, 2020, through
September 1, 2020, the period in which these producers faced the
greatest reduction in market prices due to the COVID-19 pandemic. The
limited discretionary aspects of SMHPP do not have the potential to
impact the human environment as they are administrative. Accordingly,
these discretionary aspects are covered by the FSA Categorical
Exclusions specified in 7 CFR 799.31(b)(6)(iv) that applies to
individual farm participation in FSA programs where no ground
disturbance or change in land use occurs as a result of the proposed
action or participation; and Sec. 799.31(b)(6)(vi) that applies to
safety net programs.
No Extraordinary Circumstances (Sec. 799.33) exist. As such, the
implementation of SMHPP and the participation in SMHPP do not
constitute major Federal actions that would significantly affect the
quality of the human environment, individually or cumulatively.
Therefore, FSA will not prepare an environmental assessment or
environmental impact statement for this action and this document serves
as documentation of the programmatic environmental compliance decision
for this federal action.
Federal Assistance Programs
The title and number of the Federal assistance programs, as found
in the Catalog of Federal Domestic Assistance, to which this document
applies is 10.144--Spot Market Hog Pandemic Program.
[[Page 15363]]
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. 2022-05672 Filed 3-17-22; 8:45 am]
BILLING CODE 3410-05-P
