Notice of Funds Availability; 2021 Emergency Livestock Relief Program (ELRP) Phase 2, 66366-66372 [2023-21088]

Agencies

• DEPARTMENT OF AGRICULTURE
• Farm Service Agency

[Federal Register Volume 88, Number 186 (Wednesday, September 27, 2023)]
[Notices]
[Pages 66366-66372]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21088]


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DEPARTMENT OF AGRICULTURE

Farm Service Agency

[Docket ID FSA-2023-00015]


Notice of Funds Availability; 2021 Emergency Livestock Relief 
Program (ELRP) Phase 2

AGENCY: Farm Service Agency, USDA.

ACTION: Notification of funding availability.

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SUMMARY: The Farm Service Agency (FSA) is issuing this notice 
announcing ELRP Phase 2. This document provides the eligibility 
requirements and payment calculation for the second phase of ELRP 
assistance. ELRP Phase 2 will provide assistance to eligible livestock 
producers for the loss of the value of winter forage from the 
deterioration of grazing cover due to a qualifying drought or wildfire 
during the 2021 normal grazing period, which has been exacerbated by a 
continued lack of precipitation. This document also makes a correction 
and amendment to ELRP Phase 1.

DATES: Funding availability: Implementation will begin September 27, 
2023.

FOR FURTHER INFORMATION CONTACT: Kathy Sayers, telephone: (202) 720-
7649; email: [email protected]. Individuals 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:

Background

    The Extending Government Funding and Delivering Emergency 
Assistance Act, (Division B, Title I, Pub. L. 117-43) provides $10 
billion for necessary expenses related to losses of crops (including 
milk, on-farm stored commodities, crops prevented from planting in 2020 
and 2021, and harvested adulterated wine grapes), trees, bushes, and 
vines, as a consequence of droughts, wildfires, hurricanes, floods, 
derechos, excessive heat, winter storms, freeze, including a polar 
vortex, smoke exposure, quality losses of crops, and excessive moisture 
occurring in calendar years 2020 and 2021. From the $10 billion, the 
Secretary of Agriculture is to use $750 million to assist producers of 
livestock for losses incurred during calendar year 2021 due to 
qualifying droughts or wildfires. The livestock producers who suffered 
losses due to drought are eligible for assistance if any area within 
the county in which the loss occurred was rated by the U.S. Drought 
Monitor as having a D2 (severe drought) for eight consecutive weeks or 
a D3 (extreme drought) or higher level of drought intensity during the 
applicable year.
    On April 4, 2022, FSA announced that assistance for livestock 
producers would be provided through ELRP (87 FR 19465-19470).\1\ ELRP 
Phase 1 paid for a portion of eligible producers' increased 
supplemental feed costs in 2021 based on the number of animal units 
(AU), limited by available grazing acreage, in eligible drought 
counties. In order to deliver this assistance quickly, FSA used certain 
2021 Livestock Forage Disaster Program (LFP) data and a percentage of 
the payment made through LFP applications as a proxy for these 
increased supplemental feed costs to eliminate the requirement for 
producers to resubmit information for ELRP Phase 1.
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    \1\ In addition, a clarification to the notice of funds 
availability for ELRP Phase 1 was published on August 18, 2022 (87 
FR 50828-50830).
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    To stay within the available funding, ELRP Phase 1 payments were 
calculated at 90 percent of the gross LFP calculated payment for 
underserved farmers and ranchers and 75 percent of the gross LFP 
calculated payment for all other producers.\2\
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    \2\ ``Underserved farmer or rancher'' means a beginning farmer 
or rancher, limited resource farmer or rancher, socially 
disadvantaged farmer or rancher, or veteran farmer or rancher. FSA 
calculates payments based on a higher payment factor for underserved 
farmers and ranchers (or specific groups included in that term) in 
several programs, such as Emergency Conservation Program; Emergency 
Assistance for Livestock, Honeybees, and Farm-Raised Fish Program; 
and the Tree Assistance Program. FSA has also used higher payment 
factors for these producers in several recently announced programs: 
the Food Safety Certification for Specialty Crops Program, the 
Organic and Transitional Education and Certification Program, 
Emergency Relief Program, and Pandemic Assistance Revenue Program. 
In addition, the Noninsured Crop Disaster Assistance Program 
provides a reduced service fee and premium for underserved farmers 
and ranchers. This approach supports the equitable administration of 
FSA programs, as underserved farmers and ranchers are more likely to 
lack financial reserves and access to capital that would allow them 
to cope with losses due to unexpected events outside of their 
control.
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    This document provides the eligibility requirements and payment 
calculation for ELRP Phase 2 assistance. It also corrects an error in 
the ELRP Phase 1 provisions related to payment eligibility and amends 
ELRP Phase 1 to be consistent with LFP and ELRP Phase 2.

ELRP Phase 2

    For each eligible livestock producer who previously received an 
ELRP Phase 1 payment, FSA will issue an ELRP Phase 2 payment to assist 
with losses in the value of winter forage from the deterioration of 
grazing cover due to a qualifying drought or wildfire during the 2021 
normal grazing period, which has been exacerbated by the continued lack 
of precipitation, using the ELRP Phase 1 payment as a proxy to 
calculate those losses. ELRP Phase 2 assistance is subject to the same 
ELRP payment limitation provided in the previous notice of funds 
availability. Because FSA is using LFP and ELRP Phase 1 information to 
calculate a producer's ELRP Phase 2 payment and determine eligibility 
due to a qualifying drought or wildfire during the 2021 normal grazing 
period, no action is required for eligible

[[Page 66367]]

producers to receive ELRP Phase 2 payments.
    For eligible producers, ELRP Phase 2 will provide assistance for a 
portion of the loss in value of winter grazing in 2021 based on the 
Phase 1 payment which used the number of AU, limited by available 
grazing acreage, in eligible drought and wildfire counties. In order to 
deliver this assistance quickly, FSA is using the ELRP Phase 1 payment 
calculation data as a proxy to issue an additional payment equal to 20 
percent of the ELRP Phase 1 payment to pay for a percentage (44 percent 
or 52 percent) of the estimated losses in the value of winter forage to 
eliminate the requirement for producers to resubmit information for 
ELRP Phase 2.
    According to the US Drought Monitor, more than one-third of the 
country was categorically in a ``D2 Severe'' to ``D4 Exceptional'' 
drought throughout the entire calendar year 2021. Extreme drought 
predominately affected areas highly concentrated with rangeland needed 
for livestock production, therefore drought and wildfire caused 
economic hardship on producers that were reliant on rangeland, 
requiring them to purchase supplemental feed at elevated prices to 
sustain production throughout 2021 and not isolated to during the 
normal grazing periods.
    For eligible producers, ELRP Phase 1 compensated 57 to 69 percent 
of the calculated increased supplemental feed costs. Due to the 
excessive and expansive drought and wildfires in 2021, these livestock 
participants suffered extreme grazing losses that were not concentrated 
only to the normal grazing periods which directly impacted winter 
grazing. According to USDA's September 28, 2021, Weekly Weather and 
Crop Bulletin (see https://www.fsa.usda.gov/programs-and-services/emergency-relief/index), ``on August 29, rangeland and pastures were 
rated more than one-half very poor to poor in every state along and 
northwest of a line from California to Minnesota,'' that is generally 
the same area that was determined eligible for 2021 LFP and ELRP Phase 
1. According to the report, pasture and range conditions for the week 
ending September 25, 2021, for the states that triggered for LFP in 
2021 and received ELRP Phase 1 assistance, rated 46 percent poor to 
very poor conditions going into the winter grazing months. The weekly 
weather data in the bulletin indicated the percentage of normal 
precipitation at that time in those areas was 79.4 percent, which 
results as a direct indicator of a 20.6 percent negative impact to 
winter forage availability beginning in October 2021. LFP calculated 
the monthly value of forage in 2021, which based on corn prices was 
$31.18 per AU per month. A 20.6 percent decrease to normal 
precipitation equates to a $6.42 impact ($31.18 x 20.6 percent) per AU 
per month.
    An additional factor that contributed to the lack of winter grazing 
availability during the 2021 drought was the lack of optimal grazing 
use. Recommended grazing use rates or percentages commonly used by the 
Natural Resource Conservation Service and university extension services 
provide that a grazing plan should allow for vigorous plant re-growth 
following a period of grazing and never have more than 50 percent use 
during the major growing season, and not more than 65 percent use 
during the dormant season or slowed growth period to maintain or 
improve range ecological condition and rangeland health, reduce soil 
erosion, as well as improve livestock performance. The drought and 
wildfire impact to the losses to winter grazing were not considered 
when developing ELRP Phase 1 but have been determined to be significant 
and, after considering funding limitations, FSA will compensate for the 
estimated impact of winter forage availability on eligible livestock 
producers at 52 percent and 44 percent for underserved farmers and 
ranchers and for all other farmers and ranchers, respectively.
    Therefore, for eligible producers, the ELRP Phase 2 payment will be 
equal to 20 percent of the 2021 gross ELRP Phase 1 payment to 
compensate for the loss of winter grazing directly affected by the 
drought and wildfire conditions during the normal grazing period that 
continued to be exacerbated by conditions in the final quarter of 2021, 
which was not compensated by LFP or ELRP Phase 1. The payment per AU 
per month is calculated as follows:
     20 percent of $16.84 = $3.37 (equivalent to 52 percent of 
the calculated winter grazing loss per month per AU based on percentage 
of normal precipitation as of October 1, 2021) for underserved farmers 
and ranchers, and
     20 percent of $14.03 = $2.81 (equivalent to 44 percent of 
the calculated winter grazing loss per month per AU based on percentage 
of normal precipitation as of October 1, 2021) for all other farmers 
and ranchers.

                           Table 1--Review of 2021 ELRP Phase 1 Calculated Assistance
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                           ELRP Phase 1 assistance for increased supplement feed costs
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                                                       2021 LFP payment                         Gross 2021 ELRP
                                                         rate--60% per     2021 ELRP Phase 1  Phase 1 calculated
          2021 LFP monthly value of forage               month (max 5     payment percentage   benefit per month
                                                           months) *                            per eligible AU
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$31.18..............................................              $18.71                  75              $14.03
                                                                                          90               16.84
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                                Table 2--2021 ELRP Phase 2 Calculated Assistance
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  ELRP Phase 2 assistance for winter grazing losses in relation to % of normal precipitation on October 1, 2021
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                                                                                               % 2021 ELRP Phase
                                                                          $ Impact to winter     2 assistance
 Gross 2021 ELRP Phase 2 calculated      Oct 1% of    Result of % impact   grazing per month  coverage of winter
benefit (20% of Phase 1 payment) per      normal       to winter grazing    per AU on Oct 1    grazing loss per
        month per eligible AU          precipitation    beginning Oct 1    ($31.18 x 20.6%)   month per eligible
                                                                                                      AU
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$2.81...............................            79.4                20.6               $6.42                  44

[[Page 66368]]

 
3.37                                                                                                          52
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* The 2021 LFP payment rate may be adjusted according to LFP provisions in 7 CFR 1416.207 for mitigated
  livestock and restricted grazed AU due to a qualifying fire.

    Because FSA is using ELRP Phase 1 payment information to generate a 
reasonable approximation for the loss covered by ELRP Phase 2, no 
action is required for eligible producers to receive these payments. If 
funding remains available after initial payments, an additional 
payment(s) may be issued, not to exceed 80 percent of the calculated 
winter grazing loss per AU per month based on the percentage of normal 
precipitation data as of October 1, 2021.\3\
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    \3\ FSA is using an 80 percent threshold similar to the 
Coronavirus Food Assistance Program 2 (also known as CFAP 2) which 
provided pandemic assistance payments to livestock contract growers 
to cover not more than 80 percent of revenue losses.
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Definitions

    The definitions in 7 CFR parts 718, 1400, and Sec.  1416.202 apply 
to ELRP Phase 2, except as otherwise provided in this document. The 
following definitions also apply.
    Average adjusted gross farm income means the average of the person 
or legal entity's adjusted gross income derived from farming, ranching, 
and forestry operations for the 3 taxable years preceding the most 
immediately preceding complete taxable year.
    (a) If the resulting average adjusted gross farm income derived 
from items 1 through 12 of the definition of income derived from 
farming, ranching and forestry operations is at least 66.66 percent of 
the average adjusted gross income of the person or legal entity, then 
the average adjusted gross farm income may also take into consideration 
income or benefits derived from the following:
    (1) The sale of equipment to conduct farm, ranch, or forestry 
operations; and
    (2) The provision of production inputs and services to farmers, 
ranchers, foresters, and farm operations.
    (b) The relevant tax years for the 2021 program year are 2017, 
2018, and 2019.
    Beginning farmer or rancher means a farmer or rancher who has not 
operated a farm or ranch for more than 10 years and who materially and 
substantially participates in the operation. For a legal entity to be 
considered a beginning farmer or rancher, at least 50 percent of the 
interest must be beginning farmers or ranchers.
    Income derived from farming, ranching, and forestry operations 
means income of an individual or entity derived from:
    (1) Production of crops, specialty crops, and unfinished raw 
forestry products;
    (2) Production of livestock, aquaculture products used for food, 
honeybees, and products derived from livestock;
    (3) Production of farm-based renewable energy;
    (4) Selling (including the sale of easements and development 
rights) of farm, ranch, and forestry land, water or hunting rights, or 
environmental benefits;
    (5) Rental or lease of land or equipment used for farming, 
ranching, or forestry operations, including water or hunting rights;
    (6) Processing, packing, storing, and transportation of farm, 
ranch, forestry commodities including renewable energy;
    (7) Feeding, rearing, or finishing of livestock;
    (8) Payments of benefits, including benefits from risk management 
practices, crop insurance indemnities, and catastrophic risk protection 
plans;
    (9) Sale of land that has been used for agricultural purposes;
    (10) Payments and benefits authorized under any program made 
available and applicable to payment eligibility and payment limitation 
rules;
    (11) Income reported on Internal Revenue Service (IRS) Schedule F 
or other schedule used by the person or legal entity to report income 
from such operations to the IRS;
    (12) Wages or dividends received from a closely held corporation, 
and Interest Charge Domestic International Sales Corporation (IC-DISC) 
or legal entity comprised entirely of family members when more than 50 
percent of the legal entity's gross receipts for each tax year are 
derived from farming, ranching, or forestry activities as defined in 
this part; and
    (13) Any other activity related to farming, ranching, and forestry, 
as determined by the Deputy Administrator for Farm Programs (Deputy 
Administrator).
    LFP means the Livestock Forage Disaster Program under section 1501 
of the Agricultural Act of 2014 (7 U.S.C. 9081) and 7 CFR part 1416, 
subpart C.
    Limited resource farmer or rancher means a farmer or rancher who is 
both of the following:
    (1) A person whose direct or indirect gross farm sales did not 
exceed $179,000 (the amount applicable to the 2021 program year) in 
each of the 2018 and 2019 calendar years; and
    (2) A person whose total household income was at or below the 
national poverty level for a family of four in each of the same two 
previous years referenced in paragraph (1) of this definition. Limited 
resource farmer or rancher status can be determined using a website 
available through the Limited Resource Farmer and Rancher Online Self 
Determination Tool through National Resources and Conservation Service 
at https://lrftool.sc.egov.usda.gov.
    For an entity to be considered a limited resource farmer or 
rancher, all members who hold an ownership interest in the entity must 
meet the criteria in paragraphs (1) and (2) of this definition.
    Ownership interest means to have either a legal ownership interest 
or a beneficial ownership interest in a legal entity. For the purposes 
of administering ELRP, 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

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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.
    Socially disadvantaged farmer or rancher means a farmer or rancher 
who is a member of a group whose members have been subjected to racial, 
ethnic, or gender prejudice because of their identity as members of a 
group without regard to their individual qualities. For entities, at 
least 50 percent of the ownership interest must be held by individuals 
who are members of such a group. Socially disadvantaged groups include 
the following and no others unless approved in writing by the Deputy 
Administrator:
    (1) American Indians or Alaskan Natives;
    (2) Asians or Asian-Americans;
    (3) Blacks or African Americans;
    (4) Hispanics or Hispanic Americans;
    (5) Native Hawaiians or other Pacific Islanders; and
    (6) Women.
    Underserved farmer or rancher means a beginning farmer or rancher, 
limited resource farmer or rancher, socially disadvantaged farmer or 
rancher, or veteran farmer or rancher.
    Veteran farmer or rancher means a farmer or rancher who has served 
in the Armed Forces (as defined in 38 U.S.C. 101(10)) \4\ and:
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    \4\ The term ``Armed Forces'' means the United States Army, 
Navy, Marine Corps, Air Force, Space Force, and Coast Guard, 
including the reserve components.
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    (1) Has not operated a farm or ranch for more than 10 years; or
    (2) Has obtained status as a veteran (as defined in 38 U.S.C. 
101(2)) \5\ during the most recent 10-year period.
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    \5\ The term ``veteran'' means a person who served in the active 
military, naval, air, or space service, and who was discharged or 
released under conditions other than dishonorable.
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    For an entity to be considered a veteran farmer or rancher, at 
least 50 percent of the ownership interest must be held by members who 
have served in the Armed Forces and meet the criteria in paragraph (1) 
or (2) of this definition.
    Wildfire for ELRP Phase 2 means fire as used in 7 CFR part 1416, 
subpart C.

Eligible Livestock Producers

    Eligible livestock producers for ELRP Phase 2 are producers with an 
approved 2021 LFP application who received an ELRP Phase 1 payment. For 
ELRP Phase 2, the eligibility criteria applicable to LFP (7 CFR part 
1416, subparts A and C) also applies, excluding the LFP average 
adjusted gross income (AGI) limitation. FSA will use livestock 
inventories, forage acreage, restricted AU and grazing days due to 
fire, and drought intensity levels already reported to FSA for the 2021 
Livestock Forage Disaster Program Application \6\ (form number CCC-
853), and the ELRP Phase 1 payment to determine eligibility and 
calculate a ELRP Phase 2 payment. Eligible livestock producers are not 
required to submit an application for ELRP Phase 2; however, if not 
already on file, they must have the following additional forms on file 
with FSA within 60-days of ELRP Phase 2 deadline announced by the 
Deputy Administrator to be eligible to receive a payment:
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    \6\ As provided in 7 CFR 1416.206 and publicized by FSA, the LFP 
application deadline for the 2021 program year was January 31, 2022.
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     Form AD-2047, Customer Data Worksheet;
     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); 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 ELRP Phase 2 producer 
and applicable affiliates.
    For a producer to be eligible for a payment based on the higher 
payment rate for eligible underserved farmers or ranchers or increased 
payment limitation as described below, the following must be submitted 
within 60-days of the ELRP Phase 2 deadline announced by the Deputy 
Administrator:
     Form CCC-860, Socially Disadvantaged, Limited Resource, 
Beginning and Veteran Farmer or Rancher Certification, applicable for 
the 2021 program year; \7\ or
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    \7\ A producer who has filed CCC-860 certifying their status as 
a socially disadvantaged, beginning, or veteran farmer or rancher 
for a prior program year is not required to submit a subsequent 
certification of their status for the 2021 program year because a 
producer's status as socially disadvantaged would not change in 
different years, and their certification as a beginning or veteran 
farmer or rancher includes the relevant date needed to determine for 
what programs years the status would apply. Because a producer's 
status as a limited resource farmer or rancher may change annually 
depending on the producer's direct and indirect gross farm sales, 
those producers must submit CCC-860 for each applicable program 
year.
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     FSA-510, Request for an Exception to the $125,000 Payment 
Limitation for Certain Programs, accompanied by a certification from a 
certified public accountant or attorney as to that person or legal 
entity's certification, for a legal entity and all members of that 
entity.

Payment Calculation

    The ELRP Phase 2 payment will be equal to the eligible livestock 
producer's gross 2021 ELRP Phase 1 payment \8\ multiplied by 20 
percent. The same percentage will be applied to underserved farmers and 
ranchers and all other producers. If funding remains available after 
initial payments, an additional payment(s) may be issued, not to exceed 
80 percent of the calculated winter grazing loss per AU per month based 
on the percentage of normal precipitation data as of October 1, 2021.
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    \8\ The gross ELRP Phase 1 calculated payment is the amount 
calculated according to the ELRP Phase 1 NOFA, prior to any payment 
reductions for reasons including, but not limited to, sequestration, 
payment limitation, and the applicant or member of an applicant that 
is an entity exceeding the average AGI limitation.
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    For example, a livestock producer's gross 2021 ELRP Phase 1 
calculated payment of $10,000 is multiplied by 20 percent, resulting in 
an ELRP Phase 2 payment of $2,000. This ELRP Phase 2 payment is 
intended to represent a reasonable approximation of 44 to 52 percent of 
the calculated winter grazing loss per AU per month based on the 
percentage of normal precipitation data as of October 1, 2021.
    FSA will issue ELRP Phase 2 payments as 2021 ELRP Phase 1 payments 
are processed and approved. If a producer files the CCC-860 Socially 
Disadvantaged, Limited Resource, Beginning and Veteran Farmer or 
Rancher Certification or FSA-510 form and the accompanying 
certification by the deadline announced by the Deputy Administrator but 
after their ELRP Phase 2 payment is issued, FSA will recalculate the 
ELRP Phase 1 and Phase 2 payment and issue the additional calculated 
amount as applicable until the ELRP deadline announced by the Deputy 
Administrator.

Payment Limitation

    The payment limitation for ELRP is determined by the person's or 
legal entity's average adjusted gross farm income (as defined above). 
Specifically, a person or legal entity, other than a joint venture or 
general partnership, cannot receive, directly or indirectly, more than 
$125,000 in payments under ELRP if their average adjusted gross farm 
income is less than 75 percent of their average AGI for tax years 2017, 
2018, and 2019. If at least 75 percent of the person or legal entity's 
average AGI is derived from farming, ranching, or forestry related 
activities and the participant provides the required certification and 
documentation, as discussed below, the person or legal

[[Page 66370]]

entity, other than a joint venture or general partnership, is eligible 
to receive, directly or indirectly, up to $250,000 in ELRP payments.
    To receive more than $125,000 in ELRP payments, producers must 
submit form FSA-510, accompanied by a certification from a certified 
public accountant or attorney as to that person or legal entity's 
certification. If a producer requesting the $250,000 payment limitation 
is a legal entity, all members of that entity must also complete FSA-
510 and provide the required certification according to the direct 
attribution provisions in 7 CFR 1400.105, ``Attribution of Payments.'' 
If a legal entity would be eligible for the $250,000 payment limitation 
based on the legal entity's average adjusted gross farm income but a 
member of that legal entity either does not complete an FSA-510 and 
provide the required certification or is not eligible for the $250,000 
payment limitation, the payment to the legal entity will be reduced for 
the limitation applicable to the share of the ELRP payment attributed 
to that member.
    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 and in the fourth-level 
of ownership bullet below, 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 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 of less than 10 percent, at the first through fourth levels of 
ownership in the business structure, is not provided to FSA. A legal 
entity is not eligible to receive ELRP payments when a valid taxpayer 
identification number for a person or legal entity that holds a direct 
or indirect ownership interest of 10 percent or more, at the first 
through fourth levels of ownership in the business structure, is not 
provided to FSA.
    If an individual or legal entity is not eligible to receive ELRP 
payments due to the individual or legal entity failing to satisfy 
payment eligibility 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. Like other programs 
administered by FSA, payments made to an 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), will not 
be subject to payment limitation.

Provisions Requiring Refund to FSA

    If any ELRP payment resulted from erroneous information reported by 
the producer or if the producer's 2021 LFP payment is recalculated 
after the ELRP Phase 1 payment or ELRP Phase 2 payment is issued, the 
ELRP payment will be recalculated, and the producer must refund any 
excess payment to FSA. This includes interest to be calculated from the 
date of the disbursement to the producer. If FSA determines that the 
producer intentionally misrepresented information used to determine the 
producer's ELRP payment amount, the application will be disapproved and 
the producer must refund the full payment to FSA with interest from the 
date of disbursement. Any required refunds must be resolved in 
accordance with debt settlement regulations in 7 CFR part 3.

General Provisions

    General requirements that apply to other FSA-administered commodity 
programs also apply to ELRP, 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 in 7 CFR parts 11 and 780 and equitable relief and finality 
provisions in 7 CFR part 718, subpart D, apply to determinations under 
ELRP. The determination of matters of general applicability that are 
not in response to, or result from, an individual set of facts are not 
matters that can be appealed. Such matters of general applicability 
include, but are not limited to, the ELRP eligibility criteria and 
payment calculation.
    Participants are required to retain documentation in support of 
their application for 3 years after the date of approval. Participants 
receiving ELRP 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.
    The Deputy Administrator has the discretion and authority to waive 
or modify filing 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 ELRP. 
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

[[Page 66371]]

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 ELRP 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 ELRP payments.
    In either applying for or participating in ELRP, 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 willfully makes and 
represents as true any verbal or written declaration, certification, 
statement, or verification that the producer knows or believes not to 
be true, in the course of either applying for or participating in ELRP, 
or both, then the producer is guilty of perjury and, except as 
otherwise provided by law, 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 ELRP but only as to beneficiaries who, as a condition of 
the waiver, agree to apply the ELRP payments to reduce the amount of 
the judgment lien.
    In addition to any other Federal laws that apply to ELRP, the 
following laws apply: 15 U.S.C. 714; and 18 U.S.C. 286, 287, 371, and 
1001.

ELRP Phase 1

    FSA announced ELRP Phase 1 in a NOFA published on April 4, 2022 (87 
FR 19465-19470). This document corrects an error in that NOFA and 
amends ELRP Phase 1 related to the requirement to provide the names, 
addresses, ownership share, and valid taxpayer identification numbers 
of the members holding an ownership interest in a legal entity. The 
ELRP Phase 1 NOFA provided that ``the eligibility criteria applicable 
to LFP . . . also applies to ELRP Phase 1,'' which would include 
notification of interest provisions applicable to LFP.
    LFP is subject to the payment eligibility provisions of 7 CFR part 
1400, including the notification of interest requirements. When the 
ELRP Phase 1 NOFA was published, the provisions in Sec.  1400.107 
required a legal entity to provide the names, addresses, ownership 
share, and valid taxpayer identification numbers of the members holding 
an ownership interest in order to receive any LFP payment. This is how 
FSA has been implementing ELRP Phase 1, consistent with LFP prior to 
January 2023, despite certain conflicting language in the ELRP Phase 1 
NOFA that appears to permit partial ELRP payments to be issued after 
reduction in proportion to a member's share if the required information 
was not provided to FSA.
    On January 11, 2023, FSA published a final rule (88 FR 1862-1892) 
that removed Sec.  1400.107 and added a new Sec.  1400.10, which 
specified that for certain FSA programs, including LFP, 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 of less than 
10 percent, at or above the fourth level of ownership in the business 
structure, is not provided to USDA. The provisions in Sec.  1400.10 
also specify that a legal entity will not be eligible to receive 
payment when a valid taxpayer identification number for a person or 
legal entity that holds a direct or indirect ownership interest of 10 
percent or greater at, or above the fourth level of ownership in the 
business structure, is not provided to USDA. This change was made 
retroactive to the 2020 program year for LFP.
    This document amends ELRP Phase 1 to be consistent with these 
provisions of Sec.  1400.10 that currently apply to LFP for the 2021 
program year, and which also apply to ELRP Phase 2.

Paperwork Reduction Act Requirements

    In compliance with the Paperwork Reduction Act (44 U.S.C. chapter 
35), the information collection request for ELRP Phase 2 has been 
approved by OMB under the control number 0503-0028. FSA will collect 
the information from the livestock producer to qualify for the payment 
to assist with the loss of winter grazing. This NOFA is the one-time 
announcement of the new ELRP Phase 2 federal financial assistance. For 
the ELRP Phase 1 correction, there is no new information collection 
required.

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 through 1508), and the FSA 
regulation for compliance with NEPA (7 CFR part 799).
    As previously stated, ELRP Phase 2 is providing payments to 
eligible livestock producers for loss of the value of winter forage 
from the deterioration of grazing cover due to a qualifying drought or 
wildfire during the 2021 normal grazing period, which has been 
exacerbated by a continued lack of precipitation. The limited 
discretionary aspects of ELRP 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 Sec.  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 exist under Sec.  799.33. As such, 
the implementation of ELRP and the participation in ELRP 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 program, as found in 
the Assistance Listing \9\ (formerly referred to as the Catalog of 
Federal Domestic Assistance), to which this document applies is 
10.148--Emergency Livestock Relief Program.
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    \9\ See https://sam.gov/content/assistance-listings.
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USDA Non-Discrimination Policy

    In accordance with Federal civil rights law and U.S. Department of 
Agriculture (USDA) civil rights regulations and policies, USDA, its 
Agencies, offices, and employees, and institutions participating in or 
administering USDA programs are prohibited from discriminating based on 
race, color, national origin, religion, sex, gender identity (including 
gender expression), sexual orientation, disability, age, marital 
status, family or parental status, income derived from a public 
assistance program, political beliefs, or reprisal or retaliation for 
prior civil rights activity, in any program or activity conducted or 
funded by USDA (not all bases apply to all programs). Remedies and 
complaint filing deadlines vary by program or incident.

[[Page 66372]]

    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 
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). 
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.

Zach Ducheneaux,
Administrator, Farm Service Agency.
[FR Doc. 2023-21088 Filed 9-26-23; 8:45 am]
BILLING CODE 3410-05-P