Notice of Funds Availability; Emergency Relief Program 2022 (ERP 2022), 74404-74419 [2023-24009]
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bringing about a balance between
production, and utilization of
agricultural products.’’ The collection of
information in this request is based on
the AMA, title II, subtitle A, § 203,
principally, paragraphs (b), (g), and (k)
that direct the Secretary of Agriculture
to determine agricultural marketing
costs and develop efficient marketing
methods to reduce the price spread
between producer and consumer; to
collect and disseminate marketing
information to bring about a balance
between production and utilization of
agricultural products; and to collect,
tabulate, and disseminate agricultural
marketing statistics.
Under this authority, the Agricultural
Marketing Service (AMS) Livestock,
Poultry, and Grain Market News
(LPGMN) Division works to provide
timely information of prices, supply,
demands, trends, movement, and other
details affecting the trade of livestock,
poultry, meat, eggs, grain, and their
related products, as well as locally
produced and marketed products. The
information requested is used to
compile and disseminate market reports
that provide current, unbiased
information to all stakeholders in the
U.S. agricultural industry.
Need and Use of the Information:
Information is used by the private sector
to make economic decisions to establish
market values for application in
contracts or settlement value, and to
address specific concerns or issues
related to trade agreements and disputes
as well as being used by educational
institutions, specifically, agricultural
colleges and universities. Government
agencies such as the Foreign
Agricultural Service, Economic
Research Service and the National
Agricultural Statistics Service use
market news data in the performance of
their missions. LPGMN reports provide
interested segments of the market chain
and the general public with unbiased
comprehensive livestock, poultry, meat,
eggs, wool, grain market data which
helps equalize the competitive position
of all market participants. The absence
of these data would deny primary and
secondary users information that
otherwise would be available to aid
them in their production and marketing
decisions, analyses, research and
knowledge of current market conditions.
The omission of these data could
adversely affect prices, supply, and
demand.
Description of Respondents: Business
or other for-profit; Farms.
Number of Respondents: 3,220.
Frequency of Responses: Reporting:
Weekly; Annually.
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Total Burden Hours: 17,970.
Levi S. Harrell,
Departmental Information Collection
Clearance Officer.
[FR Doc. 2023–23952 Filed 10–30–23; 8:45 am]
BILLING CODE 3410–02–P
DEPARTMENT OF AGRICULTURE
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
requested 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 November 30,
2023 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
displays a currently valid OMB control
number.
Food and Nutrition Service
Title: Understanding States’ SNAP
Customer Service Strategies (NEW).
OMB Control Number: 0584–NEW.
Summary of Collection: The Food and
Nutrition Service (FNS) is interested in
exploring how State agencies define and
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measure the quality of customer service
for Supplemental Nutrition Assistance
Program (SNAP) applicants and
participants, particularly strategies that
go beyond the minimum requirements
set by FNS; and how State SNAP
agencies implement and refine their
customer service approaches. This study
will conduct case studies in up to nine
states to understand their approaches to
defining, measuring, and improving
customer service in SNAP.
Need and Use of the Information: (1)
Review of existing studies, reports, and
data on customer services strategies and
approaches. (2) Case studies in up to
nine states with diverse approaches to
supporting and monitoring customer
service in SNAP.
The research team will collect case
study data during two-day in-person site
visits to each selected State that will
include interviews with State, regional
(e.g., call center), and local SNAP staff
and key stakeholders, review of relevant
documents and reports, and
observations of staff interactions with
customer service systems.
Description of Respondents: State,
Local and Tribal Governments,
Businesses.
Number of Respondents: 116.
Frequency of Responses: Reporting:
Once.
Total Burden Hours: 144.
Ruth Brown,
Departmental Information Collection
Clearance Officer.
[FR Doc. 2023–23960 Filed 10–30–23; 8:45 am]
BILLING CODE 3410–30–P
DEPARTMENT OF AGRICULTURE
Farm Service Agency
[Docket ID FSA–2023–0020]
Notice of Funds Availability;
Emergency Relief Program 2022 (ERP
2022)
Farm Service Agency, USDA.
Notice of funds availability.
AGENCY:
ACTION:
The Farm Service Agency
(FSA) is issuing this notice announcing
ERP 2022, which will provide payments
to eligible crop producers for losses due
to qualifying disaster events including
wildfires, hurricanes, floods, derechos,
excessive heat, tornadoes, winter
storms, freeze (including a polar vortex),
smoke exposure, excessive moisture,
qualifying drought, and related
conditions that occurred in calendar
year 2022. ERP 2022 will be
administered through 2 tracks (referred
to as Track 1 and Track 2). Track 1 will
SUMMARY:
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assist eligible crop producers who
received indemnities for eligible crop or
tree losses through certain Federal crop
insurance policies or payments for crop
losses through the Noninsured Crop
Disaster Assistance Program (NAP).
Track 2 will assist eligible crop
producers for other eligible crop and
tree losses through a revenue-based
approach.
DATES:
Funding availability: Application
period for Track 1 will begin October
31, 2023. Application period for Track
2 will begin October 31, 2023.
Comments: We will consider
comments we receive by January 2,
2024.
ADDRESSES: You may submit comments
by the following method: Federal
eRulemaking Portal: Go to https://
www.regulations.gov and search for
Docket ID FSA–2023–0020. You may
also send comments to the Desk Officer
for Agriculture, Office of the
Information and Regulatory Affairs,
Office of Management and Budget,
Washington, DC 20503. Comments will
be available for public inspection online
at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Kathy Sayers; telephone: (202) 720–
6825; email: kathy.sayers@usda.gov.
Individuals who require alternative
means for communication should
contact the USDA Target Center at (202)
720–2600 (voice and text telephone
(TTY)) or dial 711 for
Telecommunications Relay service (both
voice and text telephone users can
initiate this call from any telephone).
SUPPLEMENTARY INFORMATION:
Background
Title I of the Disaster Relief
Supplemental Appropriations Act, 2023
(Division N of the Consolidated
Appropriations Act, 2023; Pub. L. 117–
328) provides approximately $3.74
billion, to remain available until
expended, for necessary expenses
related to losses of revenue, quality, or
production losses of crops (including
milk, on-farm stored commodities, crops
prevented from planting in 2022, and
harvested adulterated wine grapes),
trees, bushes, and vines, as a
consequence of droughts, wildfires,
hurricanes, floods, derechos, excessive
heat, tornadoes, winter storms, freeze,
including a polar vortex, smoke
exposure, and excessive moisture
occurring in calendar year 2022. Losses
due to drought are only 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 8 consecutive weeks
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or a D3 (extreme drought) or higher
level of drought intensity.
FSA is using the funding to assist
eligible producers who suffered eligible
losses through several programs.1 In this
document, FSA is announcing ERP
2022, which will assist eligible crop
producers who suffered eligible losses
due to qualifying disaster events as
defined in this document. These
producers have been significantly
impacted by qualifying disaster events
occurring in 2022, which have resulted
in significant losses. FSA has designed
ERP 2022 consistent with the public
interest in streamlining and expediting
disaster assistance payments to
agricultural producers to the greatest
extent possible. ERP 2022 will be
administered through 2 tracks:
• Track 1 will use a streamlined
process with pre-filled application
forms, as discussed in this document. It
will provide payments for eligible crop
losses and tree losses, described below,
where data are already on file with FSA
or the Risk Management Agency (RMA),
as a result of the producer previously
receiving a NAP payment or an
indemnity under certain Federal crop
insurance policies for a loss in the same
year that could have been affected by a
qualifying disaster event; and
• Track 2 will provide payments for
eligible crop and tree losses through a
revenue-based approach using data
provided by eligible producers on
application forms.
Producers with losses that are eligible
for Track 1 may apply for Track 1, Track
2, or both tracks; however, the Track 2
payment calculation will take into
account any payments the producer
receives under Track 1 to ensure a
producer is not receiving duplicate
benefits under both tracks.
Both tracks cover the same eligible
crops, as defined below. For payment
limitation purposes, ERP 2022 classifies
eligible crops into the following
categories:
• specialty crops;
• non-specialty crops;
• high value crops; and
• other crops.
The term ‘‘non-specialty crop’’ only
applies to Track 1, the terms ‘‘high
value crop’’ and ‘‘other crop’’ only
apply to Track 2, and the term
‘‘specialty crop’’ applies to both tracks;
those terms are defined in this
1 FSA previously announced Emergency
Livestock Relief Program 2022 (ELRP 2022) on
September 27, 2023 (88 FR 66361–66366) and the
Milk Loss Program on September 11, 2023 (88 FR
62285–62292). ELRP 2022 and Milk Loss Program
payments for 2022 losses have the same funding
source as ERP 2022.
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document and discussed below in the
payment limitation section.
Definitions
The definitions in 7 CFR parts 718
and 1400 apply to ERP 2022, except as
otherwise provided in this document.
The following definitions also apply.
2017 WHIP means the 2017 Wildfires
and Hurricanes Indemnity Program (7
CFR part 760, subpart O).
Administrative fee means the amount
an insured producer paid for
catastrophic risk protection and any
additional coverage for each crop year
as specified in the applicable Federal
crop insurance policy.
Aquaculture means any species of
aquatic organisms grown as food for
human or livestock consumption or for
industrial or biomass uses, fish raised as
feed for fish that are consumed by
humans, and ornamental fish
propagated and reared in an aquatic
medium. Eligible aquacultural species
must be raised by a commercial operator
and in water in a controlled
environment.
ARC means the Agriculture Risk
Coverage program (7 CFR part 1412).
Average adjusted gross farm income
means the average of the person or legal
entity’s adjusted gross income (AGI)
derived from farming, ranching, and
forestry operations, including losses, for
the base period consisting of the 2018,
2019, and 2020 tax years.
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 AGI 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 production services to
farmers, ranchers, foresters, and farm
operations.
For legal entities not required to file
a Federal income tax return, or a person
or legal entity that did not have taxable
income in one or more tax years during
the base period, the average will be the
adjusted gross farm income, including
losses, averaged for the 2018, 2019, and
2020 tax years, as determined by FSA.
A new legal entity will have its adjusted
gross farm income averaged only for
those years of the base period for which
it was in business; however, a new legal
entity will not be considered ‘‘new’’ to
the extent it takes over an existing
operation and has any elements of
common ownership interest and land
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with the preceding person or legal entity
from which it took over. When there is
such commonality, income of the
previous person or legal entity will be
averaged with that of the new legal
entity for the base period. For a person
filing a joint tax return, the certification
of average adjusted farm income may be
reported as if the person had filed a
separate Federal tax return and the
calculation is consistent with the
information supporting the filed joint
return.
Average AGI means the average of the
AGI as defined under 26 U.S.C. 62 or
comparable measure of the person or
legal entity. The relevant tax years for
the 2022 program year are 2018, 2019,
and 2020.
BCAP means the Biomass Crop
Assistance Program (7 CFR part 1450).
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.
Buy-up NAP coverage means NAP
coverage at a payment amount that is
equal to an indemnity amount
calculated for buy-up coverage
computed under section 508(c)I or (h) of
the Federal Crop Insurance Act and
equal to the amount that the buy-up
coverage yield for the crop exceeds the
actual yield for the crop.
Catastrophic coverage has the same
meaning as for NAP (in 7 CFR 1437.3),
which is:
(1) For insured crops, the coverage
offered by the Federal Crop Insurance
Corporation (FCIC) under section 508(b)
of the Federal Crop Insurance Act.
(2) For eligible NAP crops, coverage at
the following levels due to an eligible
cause of loss impacting the NAP
covered crop during the coverage
period:
(i) Prevented planting in excess of 35
percent of the intended acres;
(ii) A yield loss in excess of 50
percent of the approved yield;
(iii) A value loss in excess of 50
percent; or
(iv) An animal-unit-days (AUD) loss
greater than 50 percent of expected
AUD.
CFAP means the Coronavirus Food
Assistance Program 1 and 2 under 7
CFR part 9, subparts A through C,
excluding assistance for contract
producers specified in § 9.203(l) through
(o).
Certifying agent means a private or
governmental entity accredited by the
USDA Secretary for the purpose of
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certifying a production, processing, or
handling operation as organic.
Controlled environment means an
environment in which everything that
can practicably be controlled by the
producer with structures, facilities, and
growing media (including but not
limited to water, soil, or nutrients), is in
fact controlled by the producer, as
determined by industry standards.
Coverage level means the percentage
determined by multiplying the elected
yield percentage under a Federal crop
insurance policy or NAP coverage by
the elected price percentage.
Crop year means:
(1) For insured crops and trees, the
crop year as defined according to the
applicable Federal crop insurance
policy; and
(2) For NAP-covered crops, the crop
year as defined in 7 CFR 1437.3.
Deputy Administrator means the FSA
Deputy Administrator for Farm
Programs.
Direct market crop means a crop sold
directly to consumers without the
intervention of an intermediary such as
a registered handler, wholesaler,
retailer, packer, processor, shipper, or
buyer (for example, a crop sold at a
farmer’s market or roadside stand),
excluding crops sold for livestock
consumption.
Disaster year means the calendar year
in which the qualifying disaster event
occurred (that is, 2022).
ELAP means the Emergency
Assistance for Livestock, Honeybees,
and Farm-Raised Fish Program (7 CFR
part 1416, subpart B).
Eligible crop means a crop, including
eligible aquaculture, that is produced, or
would have been produced if the
qualifying disaster event had not
occurred (for example, crops prevented
from planting), in the United States as
part of a farming operation. It excludes:
(1) Crops for grazing;
(2) Aquatic species that do not meet
the definition of aquaculture;
(3) Cannabis sativa L. and any part of
that plant that does not meet the
definition of hemp; and
(4) Timber.
Farming operation means a business
enterprise engaged in the production of
agricultural products, commodities, or
livestock, operated by a person, legal
entity, or joint operation. A person or
legal entity may have more than one
farming operation if the person or legal
entity is a member of one or more legal
entity or joint operation.
FCIC means the Federal Crop
Insurance Corporation, a wholly owned
Government Corporation of USDA,
administered by RMA.
Federal crop insurance means an
insurance policy reinsured by FCIC
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administered by RMA under the
provisions of the Federal Crop
Insurance Act (7 U.S.C. 1501–1524), as
amended. It does not include private
plans of insurance.
Federal crop insurance indemnity
means the payment to a participant for
crop losses covered under Federal crop
insurance administered by RMA in
accordance with the Federal Crop
Insurance Act.
Feedstock means a crop including,
but not limited to, grasses or legumes,
algae, cotton, peanuts, coarse grains,
small grains, oilseeds, or short rotation
woody crops grown expressly for the
purpose of producing a biobased
material or product, and does not
include residues and by-products of
crops grown for any other purpose.
Hemp means the plant species
Cannabis sativa L. and any part of that
plant, including the seeds and all
derivatives, extracts, cannabinoids,
isomers, acids, salts, and salts of
isomers, whether growing or not, with a
delta-9 tetrahydrocannabinol
concentration of not more than 0.3
percent on a dry weight basis, that is
grown under a license or other required
authorization issued by the applicable
governing authority that permits the
production of the hemp.
High value crop means, for Track 2:
(1) Any eligible crop that is not
specifically identified as a specialty
crop or listed in the definition of ‘‘other
crop’’; and
(2) Any eligible crop, regardless of
whether it is identified as a specialty
crop or listed in the definition of ‘‘other
crop,’’ if the crop is a direct market
crop, organic crop, or a crop grown for
a specific market in which specialized
products can be sold resulting in an
increased value compared to the typical
market for the crops (for example,
soybeans intended for tofu production),
as determined by the Deputy
Administrator.
Note: The term ‘‘high value crop’’
does not apply to Track 1.
Income derived from farming,
ranching, and forestry operations means
income of a person or legal entity
derived from:
(1) Production of 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;
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(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, or forestry
commodities including for renewable
energy;
(7) Feeding, rearing, or finishing of
livestock;
(8) Payments of benefits, including
benefits from risk management
practices, Federal crop insurance
indemnities, and catastrophic risk
protection plans;
(9) Sale of land that has been used for
agricultural purposes;
(10) Benefits (including, but not
limited to, cost-share assistance and
other payments) from any Federal
program made available and applicable
to payment eligibility and payment
limitation rules, as provided in 7 CFR
part 1400;
(11) Income reported on 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, an
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, and forestry activities as
defined in this document; and
(13) Any other activity related to
farming, ranching, or forestry, as
determined by the Deputy
Administrator.
IRS means the Department of the
Treasury, Internal Revenue Service.
LDP means the Loan Deficiency
Payment programs (7 CFR parts 1421,
1425, 1427, 1434, and 1435).
Legal entity means a corporation, joint
stock company, association, limited
partnership, limited liability company,
irrevocable trust, estate, charitable
organization, general partnership, joint
venture, or other similar organization
created under Federal or State law
including any such organization
participating in a business structure as
a partner in a general partnership, a
participant in a joint venture, a grantor
of a revocable trust, or as a participant
in a similar organization. A business
operating as a sole proprietorship is
considered a legal entity.
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
$189,200 in each of the 2019 and 2020
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calendar years (the relevant years for the
2022 program year); 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 2019 and 2020 calendar years.
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 the
Natural Resources 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.
LFP means the Livestock Forage
Disaster Program (7 CFR part 1416,
subpart C).
MLG means marketing loan gains from
the Marketing Assistance Loan program
(7 CFR parts 1421, 1425, 1427, 1434,
and 1435).
Minor child means a person who is
under 18 years of age as of June 1, 2022.
MFP means the 2018 Market
Facilitation Program (7 CFR part 1409,
subpart A) and the 2019 Market
Facilitation Program (7 CFR part 1409,
subpart B).
NAP means the Noninsured Crop
Disaster Assistance Program (7 CFR part
1437).
NAP service fee means the fee the
producer paid to obtain NAP coverage
specified in 7 CFR 1437.7.
Non-specialty crop means a crop,
under Track 1, that does not meet the
definition of specialty crop. Note: The
term ‘‘non-specialty crop’’ does not
apply to Track 2.
On-Farm Storage Loss Program means
the On-Farm Storage Loss Program (7
CFR part 760, subpart P).
Organic crop means a crop that is
grown on acreage certified by a
certifying agent as conforming to
organic standards (7 CFR part 205) and
organically produced consistent with
section 2103 of the Organic Foods
Production Act of 1990 (7 U.S.C. 6502).
Other crop means, for Track 2, cotton,
peanuts, rice, feedstock, and any crop
grown with an intended use of grain,
silage, or forage, unless the crop meets
the requirements in paragraph (2) of the
definition of ‘‘high value crop.’’ Note:
The term ‘‘other crop’’ does not apply to
Track 1.
Ownership interest means to have
either a legal ownership interest or a
beneficial ownership interest in a legal
entity. For the purposes of
administering ERP 2022, a person or
legal entity that owns a share or stock
in a legal entity that is a corporation,
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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 also considered to have
a beneficial ownership interest in such
legal entity.
Person means an individual who is a
natural person and does not include a
legal entity.
PLC means the Price Loss Coverage
program (7 CFR part 1412).
Premium means the premium paid by
the producer for Federal crop insurance
coverage or NAP buy-up coverage
levels.
Producer means a person or legal
entity who was entitled to a share in the
eligible crop or would have shared had
the eligible crop been produced.
Production inputs mean material to
conduct farming operations, such as
seeds, chemicals, and fencing supplies.
Production services mean services
provided to support a farming
operation, such as custom farming,
custom feeding, and custom fencing.
Qualifying disaster event means
wildfires, hurricanes, floods, derechos,
excessive heat, tornadoes, winter
storms, freeze (including a polar vortex),
smoke exposure, excessive moisture,
qualifying drought, and related
conditions occurring in 2022.
Qualifying drought means an area
within the county was rated by the U.S.
Drought Monitor as having a drought
intensity of D2 (severe drought) for 8
consecutive weeks or D3 (extreme
drought) or higher level for any period
of time during the applicable calendar
year.
QLA Program means the Quality Loss
Adjustment Program (7 CFR part 760,
subpart R).
Related condition means damaging
weather and adverse natural
occurrences that occurred concurrently
with and as a direct result of a specified
qualifying disaster event. Related
conditions include, but are not limited
to:
(1) Excessive wind that occurred as a
direct result of a derecho;
(2) Silt and debris that occurred as a
direct and proximate result of flooding;
(3) Excessive wind, storm surges,
tropical storms, and tropical
depressions that occurred as a direct
result of a hurricane; and
(4) Excessive wind and blizzards that
occurred as a direct result of a winter
storm.
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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.
Specialty crops means fruits, tree
nuts, vegetables, culinary herbs and
spices, medicinal plants, and nursery,
floriculture, and horticulture crops. This
includes common specialty crops
identified by USDA’s Agricultural
Marketing Service at https://
www.ams.usda.gov/services/grants/
scbgp/specialty-crop and other crops as
designated by the Deputy
Administrator. This term also includes
trees covered by Federal crop insurance
policies included in Track 1.
STRP means the Seafood Trade Relief
Program (announced in the notice of
funds availability published on
September 14, 2020 (85 FR 56572)).
Substantial beneficial interest (SBI)
has the same meaning as specified in 7
CFR 457.8. For the purposes of ERP
2022 Track 1, Federal crop insurance
records for ‘‘transfer of coverage, right to
indemnity’’ are considered the same as
SBIs.
Tree means a tall, woody plant having
comparatively great height, and a single
trunk from which an annual crop is
produced for commercial market for
human consumption, such as a maple
tree for syrup, or papaya or orchard tree
for fruit. It includes immature trees that
are intended for commercial purposes.
Nursery stock, banana and plantain
plants, and trees used for pulp or timber
are not considered eligible trees.
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.
Unit means the unit structure as
defined under the applicable Federal
crop insurance policy for insured crops
or in 7 CFR 1437.9 for NAP-covered
crops.
United States means all 50 States of
the United States, the District of
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Columbia, the Commonwealth of Puerto
Rico, and any other territory or
possession of the United States.
USDA means the U.S. Department of
Agriculture.
U.S. Drought Monitor means the
system for classifying drought severity
according to a range of abnormally dry
to exceptional drought. It is a
collaborative effort between Federal and
academic partners, produced on a
weekly basis, to synthesize multiple
indices, outlooks, and drought impacts
on a map and in narrative form. This
synthesis of indices is reported by the
National Drought Mitigation Center at
https://droughtmonitor.unl.edu.
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)) 2 and:
(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)) 3 during the
most recent 10-year period.
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.
WFRP means Whole-Farm Revenue
Protection available through the FCIC,
including coverage under the Micro
Farm Program.
WHIP+ means the Wildfires and
Hurricanes Indemnity Program Plus (7
CFR part 760, subpart O).
Producer Eligibility
To be eligible for ERP 2022, a
producer must meet all requirements
described below for Track 1 or Track 2,
as applicable, and be a:
(1) Citizen of the United States;
(2) Resident alien, which for purposes
of ERP 2022 means ‘‘lawful alien’’ as
defined in 7 CFR part 1400;
(3) Partnership organized under State
law;
(4) Corporation, limited liability
company, or other organizational
structure organized under State law;
(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); or
(6) Foreign person or foreign entity
who meets all requirements as described
in 7 CFR part 1400.
2 The term ‘‘Armed Forces’’ means the United
States Army, Navy, Marine Corps, Air Force, Space
Force, and Coast Guard, including the reserve
components.
3 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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Track 1 Overview
Track 1 will provide a streamlined
application process for eligible crop and
tree losses during the 2022 or 2023 crop
years 4 for which a producer had:
• A Federal crop insurance policy
that provided coverage for crop
production losses or tree losses related
to the qualifying disaster events and
received an indemnity 5 for a crop and
unit, excluding:
—crops with an intended use of
grazing,6
—livestock policies,
—forage seeding,
—Margin Protection Plan policies
purchased without a base policy,7
—banana plants insured under the
Hawaii Tropical Trees provisions,8
and
—policies issued in Puerto Rico; 9 or
• NAP coverage and received a NAP
payment for a crop and unit, excluding
crops with an intended use of grazing.
The applicable Federal crop insurance
policies and NAP provide payments to
producers for crop and tree losses due
to eligible causes of loss, as defined in
the producer’s Federal crop insurance
policy or NAP regulations and basic
provisions. RMA and FSA are using
data submitted by producers for Federal
crop insurance or NAP purposes to
calculate a producer’s eligible loss
under Track 1. The Track 1 payment
calculation is intended to compensate
eligible crop and tree producers for a
percentage of that loss determined by
the applicable ERP factor, which varies
based on the producer’s level of Federal
crop insurance or NAP coverage, as
described later in this document. To be
eligible for payment under Track 1, a
producer must have suffered a crop or
tree loss that was caused, in whole or in
part, by a qualifying disaster event.
Because the amount of loss due to a
4 The 2023 crop year is included because a
qualifying disaster event occurring in the 2022
calendar year may have caused a loss of a crop
during the 2023 crop year, based on how ‘‘crop
year’’ is defined in the applicable Federal crop
insurance policy or NAP provisions.
5 For purposes of Track 1, ‘‘indemnity’’ does not
include cottonseed endorsement payments, downed
rice endorsement payments, sugarcane crop
replacement endorsement payments, replant
payments, or raisin reconditioning payments.
6 Crops with an intended use of grazing are
covered under ELRP 2022.
7 While the majority of crop insurance policies
cover an eligible crop loss, a small number do not
and are not eligible for ERP, including livestock
policies, forage seeding, and margin policies.
8 While bananas are covered under crops, the
banana plants are not a tree, bush or a vine.
9 Federal crop insurance policies issued in Puerto
Rico are not transmitted through the standardized
Policy Acceptance and Storage System. Therefore,
pre-filled applications cannot be automatically
generated under Track 1.
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qualifying disaster event cannot be
separated from the amount of loss
caused by other causes of loss covered
by some Federal crop insurance policies
or NAP, the Track 1 payment will be
based on the producer’s loss as long as
those losses were caused, in whole or in
part, by a qualifying disaster event.
Track 1 excludes losses to
aquacultural species for which the
producer received a payment under
ELAP to avoid providing duplicate
benefits for losses already at least
partially compensated for by ELAP. It
also excludes losses for which the
producer received a Phase 1 payment
under the previous ERP.10
In some situations, a producer may
have received both a NAP payment for
a crop loss and an indemnity under a
Federal crop insurance policy that is
included in Track 1 to address the same
loss. Examples of these policies include
Rainfall Index plans for Annual Forage;
Pasture, Rangeland, and Forage; and
Apiculture. In those situations, the
producer must elect whether to receive
the Track 1 payment based only on the
data associated with their Federal crop
insurance indemnity or their NAP
payment, but they cannot receive a
Track 1 payment based on both the crop
insurance indemnity and NAP payment.
This policy is necessary to avoid
compensating producers twice for the
same loss under Track 1.
Track 1 Applications
FSA and RMA will identify the
producers who meet the criteria
described above to apply for Track 1.
For each of those producers, FSA will
generate an FSA–523, Emergency Relief
Program (ERP) 2022 Track 1
Application, with certain items prefilled with information already on file
with USDA, as listed below. Producers
cannot alter the data in these pre-filled
items; any alterations in the pre-filled
data on the application will result in the
producer’s Track 1 application being
considered incomplete and the
application will not be processed by
FSA. FSA will not calculate Track 1
payments using data manually
submitted by producers. Track 1
payments will only be calculated using
data already on file with RMA and FSA.
If a producer believes that any
information that has been pre-filled is
incorrect, the producer should contact
their Federal crop insurance agent for
insured crops or their FSA county office
10 The previous ERP provided assistance for
eligible crop losses due to qualifying disaster events
in calendar years 2020 and 2021. Phase 1 of that
program included 2022 crop year losses if the loss
was due, in whole or in part, to a qualifying disaster
event that occurred in the 2021 calendar year.
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for NAP-covered crops. Once the
corrected data have been received and
processed by RMA and FSA, an updated
Track 1 application may be generated
for the producer.
For producers who received a Federal
crop insurance indemnity for eligible
policies, the pre-filled application will
include:
• the producer’s physical State and
county codes,
• unit numbers,
• crops, and
• crop years.
For producers who received a NAP
payment, the pre-filled applications will
include:
• the producer’s administrative State
and county codes,
• unit numbers,
• crop years,
• pay crops, and
• pay groups.
FSA will also pre-fill the calculated
Track 1 payment amounts, prior to any
payment reductions for reasons such as
payment limitation and factoring of
payments to stay within available
funding.
Receipt of a pre-filled application
form is not a confirmation that the
producer is eligible to receive a Track 1
payment. In order to receive a payment,
the producer must certify that their
Federal crop insurance indemnity or
NAP payment on which the Track 1
payment will be based was due, in
whole or in part, to a crop production
loss or a tree loss caused by a qualifying
disaster event. Producers are
responsible for reviewing the list of
qualifying disaster events, and if a loss
was due to drought, producers must also
ensure that the county where the crop
and unit was located meets the
definition of ‘‘qualifying drought.’’ FSA
will provide a factsheet and other
materials to provide examples and more
details on the qualifying disaster events
to assist producers (available through
FSA county offices and at https://
www.fsa.usda.gov/programs-andservices/emergency-relief/index).
Producers who received a Federal crop
insurance indemnity under a WFRP
policy or for a whole-farm unit must
also certify to the percentage of their
expected revenue or total liability for
the unit, respectively, from specialty
crops for the purpose of administration
of ERP 2022 payment limitations.11
11 WFRP provides risk management safety for
specialty and non-specialty crops under one
Federal crop insurance policy. The producer
certifies to the percentage of expected revenue or
total liability for the unit for specialty crops, which
results in the attribution of the specialty and nonspecialty crop portions of the ERP 2022 payment to
the separate payment limitations.
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74409
Producers must also certify on FSA–
523 that they will meet the requirement
to purchase Federal crop insurance or
NAP coverage for the next 2 available
crop years, as described later in this
document. If multiple crops and units
are listed on an application and the
producer only agrees to purchase
Federal crop insurance or NAP coverage
for only some of the crops and units, a
Track 1 payment will be issued only for
those crops and units for which the
producer agrees to purchase Federal
crop insurance or NAP coverage for the
next 2 available crop years.
The portion of the form for producers
who had Federal crop insurance will list
the primary policy holder and all
producers with an SBI who have a
record established with FSA. If one or
more producers with an SBI had a share
in a crop, the primary policy holder
must update the application to show the
share in the crop for each of those
producers in addition to the primary
policy holder. If the producer(s) are
determined to be eligible, payments will
be issued to the primary policy holder
and to any eligible producers with an
SBI based on their ownership share of
the crop. To receive a payment, each
person or entity that is listed as having
a share of the Track 1 payment for a
crop and unit must sign the application
and agree to purchase Federal crop
insurance or NAP coverage for that crop
and unit.
Track 1 Payment Calculation
FSA and RMA will calculate Track 1
payments using the loss data on file
with FSA or RMA at the time of
payment calculation or as later updated
by FSA or RMA upon identification of
an error in the data on file at time of
payment calculation.12 The Track 1
payment calculation for a crop and unit
will depend on the type and level of
Federal crop insurance or NAP coverage
obtained by the producer. Crops covered
under a WFRP policy or included in a
whole-farm unit will be treated as a
single crop for payment calculation
purposes. Separate payment limitations
will apply to the portions of the
payments that are attributed to specialty
and to non-specialty crops, as described
later in this document.
Each payment calculation will use an
ERP factor based on the producer’s level
of Federal crop insurance or NAP
coverage for that eligible crop or tree, as
specified in the following tables.
12 Track 1 payments will be calculated using only
data on file with RMA and FSA. FSA will not
calculate Track 1 payments using data manually
submitted by producers.
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Federal crop insurance
coverage level
ERP factor
(%)
Catastrophic coverage ..............
More than catastrophic coverage but less than 55 percent .......................................
At least 55 percent but less
than 60 percent .....................
At least 60 percent but less
than 65 percent .....................
At least 65 percent but less
than 70 percent .....................
At least 70 percent but less
than 75 percent .....................
At least 75 percent but less
than 80 percent .....................
At least 80 percent ...................
NAP coverage level
75.0
80.0
82.5
85.0
87.5
90.0
92.5
95.0
ERP factor
(%)
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Catastrophic coverage ..............
50 percent .................................
55 percent .................................
60 percent .................................
65 percent .................................
75.0
80.0
85.0
90.0
95.0
When determining the ERP factors,
analysis was conducted to ensure that
payments do not exceed available
funding and, in aggregate across all
eligible crop and tree producers, do not
exceed 90 percent of losses, as required
by Title I of the Disaster Relief
Supplemental Appropriations Act,
2023. The difference between the ERP
factors for Federal crop insurance and
NAP is due to differences in the
available coverage levels under Federal
crop insurance and NAP. Federal crop
insurance is available at the catastrophic
coverage level (50 percent production
coverage of 55 percent of the price) and
buy-up coverage levels (50 percent to 85
percent of the production for 100
percent of the price). The coverage level
for NAP is limited by law to a maximum
of 65 percent buy-up coverage. For both
NAP and Federal crop insurance, the
ERP payment factor for the catastrophic
and maximum buy-up levels are 75
percent and 95 percent, respectively,
with the ERP factors stair-stepping for
the buy-up options in-between as shown
in the tables above. Title I of the
Disaster Relief Supplemental
Appropriations Act, 2023, provides that
payments to eligible crop and tree
producers who did not have Federal
crop insurance or NAP coverage cannot
exceed 70 percent of their loss. The
lowest ERP factor for eligible crop and
tree producers who had Federal crop
insurance or NAP is set at 75 percent.
Payment limits and other reductions
will result in reducing ERP 2022
payments, further lowering the percent
of losses covered.
For eligible crop producers who
received Federal crop insurance
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For another example, to apply
progressive factoring to a calculated loss
(after subtraction of indemnities) of
$430,000, FSA would multiply:
• the first $2,000 by a factor of 100
percent ($2,000 × 100% = $2,000),
• the second $2,000 by a factor of 80
percent ($2,000 × 80% = $1,600),
• the third $2,000 by a factor of 60
percent ($2,000 × 60% = $1,200),
• the fourth $2,000 by a factor of 40
percent ($2,000 × 40% = $800),
• the fifth $2,000 by a factor of 20%
($2,000 × 20% = $400), and
• the remaining $420,000 by a factor
of 10 percent ($420,000 × 10% =
$42,000).
The sum of those calculations is
$48,000, which is the calculated ERP
2022 payment after progressive
factoring.
For underserved producers, the
producer’s share of the Federal crop
insurance administrative fee and
premium will be added to the resulting
sum.15
For all eligible crop producers, FSA
will then apply a final payment factor
of 75 percent, resulting in the
producer’s calculated Track 1 payment.
For NAP-covered crops and trees,
FSA will use the producer’s crop
production or inventory data that are
already on file, which provides the
necessary information to determine the
Progressive
producer’s amount of loss. NAP
Payment range
factor
provides financial assistance for crop
(%)
losses due to specified natural disasters
Up to $2,000 .............................
100 and uses a producer’s crop production
$2,001 to $4,000 ......................
80 or inventory data to calculate a payment
$4,001 to $6,000 ......................
60 based on the level of NAP coverage
$6,001 to $8,000 ......................
40 elected by the producer. As previously
$8,001 to $10,000 ....................
20
discussed, ERP 2022 is intended to
Over $10,000 ............................
10
compensate eligible crop and tree
producers for a percentage of loss
For example, to apply progressive
determined by the applicable ERP factor
factoring to a calculated loss (after
based on their NAP coverage level;
subtraction of indemnities) of $5,000,
FSA would multiply:
15 Providing a refund of underserved producers’
• the first $2,000 by a factor of 100
premiums and fees supports the equitable
percent ($2,000 × 100% = $2,000),
administration of FSA programs by targeting
• the second $2,000 by a factor of 80
limited resources to support underserved farmers
and ranchers, who are more likely to lack financial
percent ($2,000 × 80% = $1,600), and
reserves and access to capital to invest in future risk
• the remaining $1,000 by a factor of
protection while coping with losses due to
60 percent ($1,000 × 60% = $600).
unexpected events outside of their control. The
The sum of those calculations is
refund of premiums and fees for these more-often
$4,200, which is the calculated ERP
vulnerable and smaller operations who often lack
financial resources supports access to higher levels
2022 payment after progressive
of coverage available through Federal crop
factoring.
indemnities, RMA will use the
producer’s data that are already on file,
which provide the necessary
information to determine the producer’s
amount of loss. Federal crop insurance
provides financial assistance for crop
losses due to specified natural disasters
and uses a producer’s data to calculate
a payment based on the type of Federal
crop insurance coverage elected by the
producer. As previously discussed,
Track 1 is intended to compensate
eligible crop and tree producers for a
percentage of their loss determined by
the applicable ERP factor based on the
level of Federal crop insurance coverage
purchased; therefore, RMA will
calculate each producer’s loss consistent
with the approved RMA loss procedures
for the type of coverage purchased 13 but
using the ERP factor. This calculated
amount will then be adjusted by
subtracting the gross Federal crop
insurance indemnity.
After calculating the producer’s loss
and subtracting the gross Federal crop
insurance indemnity as described above
for each crop and unit, progressive
factoring 14 will be applied. Progressive
factoring will be applied by payment
range, according to the table below, and
FSA will calculate the sum of each of
those calculations.
13 For example, ERP 2022 for Area Risk Protection
Insurance (ARPI) and Stacked Income Protection
(STAX) is based on area-wide (for example, county)
production losses.
14 Progressive factoring is a mechanism that
ensures the limited available funding is distributed
in a manner benefitting the majority of producers
rather than a few. Additionally, progressive
factoring increases emergency relief payments to
most participants while reducing larger potential
payments which increases the proportion of
funding provided to smaller producers.
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insurance or NAP. This approach is consistent with
the intent to provide reduced service fees and
premium reductions to underserved farmers and
ranchers for other FSA programs as authorized by
law. NAP provides a reduced service fee and
premium for underserved farmers and ranchers (7
U.S.C. 7333(k)(2) and 7 U.S.C. 7333(l)(3)). In
addition, Federal crop insurance provides an
administrative fee waiver for limited resource
farmers, beginning farmers or ranchers, and veteran
farmers or ranchers; and offers a premium reduction
for beginning farmers or ranchers and veteran
farmers or ranchers (7 U.S.C. 1508(b)(5)(E)(i) and 7
U.S.C. 1508(e)(8)).
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therefore, FSA will perform a
calculation that is consistent with the
NAP payment calculation for the pay
crop and unit, as provided in 7 CFR part
1437, but using the ERP factor in the
table above applicable to the producer’s
NAP coverage level as the applicable
guarantee in those calculations. For
example, the guarantee for a producer
that had purchased 60 percent NAP
coverage would be adjusted and
recalculated based on a 90 percent ERP
factor. The calculated amount using the
ERP factor would then be adjusted by
subtracting the producer’s gross NAP
payment.16 For underserved producers,
the producer’s share of the NAP service
fees and premium will be added to the
result of that calculation.17
The calculated amount for NAPcovered crops will not be subject to the
progressive factoring 18 that applies to
ERP 2022 payments based on Federal
crop insurance indemnities; however, it
will be multiplied by a final payment
factor of 75 percent to ensure that total
payments do not exceed the available
funding.
FSA will issue Track 1 payments as
applications are processed and
approved. All ERP 2022 payments are
subject to the availability of funding. If
additional funding is available after all
eligible ERP 2022 applications have
Track 2 Overview
Track 2 will provide assistance for
eligible revenue, production, and
quality losses of eligible crops not
included in Track 1. FSA has
determined that the best estimation of
such losses is a producer’s decrease in
disaster year revenue compared to a
benchmark year revenue, where
benchmark year revenue represents a
producer’s revenue prior to the impact
of the qualifying disaster event. This
difference in revenue will reflect losses
in both production and quality due in
whole or in part to qualifying disaster
events without requiring the more
extensive calculations and
documentation required under some
previous FSA programs addressing crop
losses due to disaster events. Decreases
in disaster year revenue compared to
benchmark revenue also reflect a
producer’s loss due to a qualifying
disaster event regardless of whether the
loss occurs before harvest or after
harvest while the crop is in storage,
further streamlining the delivery of
assistance.
To be eligible for Track 2, a producer
must certify that they suffered a loss in
Option
Benchmark year revenue
Tax Year .......................
A producer’s allowable gross revenue for the 2018 or
2019 tax year, as elected by the producer.
A producer’s expected revenue from all eligible crops that
could have been affected by a qualifying disaster event
in calendar year 2022.
Expected Revenue .......
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been processed and payments have been
issued, FSA may issue an additional
payment, not to exceed the maximum
amount allowed by law.
74411
disaster year revenue, as compared to a
benchmark year revenue, that was due
to necessary expenses associated with
losses of eligible crops due in whole or
in part to a qualifying disaster event that
occurred in the 2022 calendar year.
Track 2 provides 2 options for
determining the benchmark and disaster
year revenues:
• The tax year option, which allows
producers to use certain information
located in their tax records to apply for
Track 2;19 or
• The expected revenue option,
which is intended to better address
situations such as a change in operation
capacity 20 in the disaster year, as
compared to the 2018 or 2019
benchmark year; the 2018 and 2019 tax
years not reasonably reflecting a normal
year’s revenue for reasons including
losses due to disaster events in 2018 and
2019 or changes in crop prices; or
production of crops that do not generate
revenue for the producer directly from
the sale of the crop (for example, forage
fed to livestock or grapes used by the
producer to make wine).
The following table summarizes
benchmark and disaster year revenue for
the 2 options. Sources of revenue to be
included in allowable gross revenue,
expected revenue, and actual revenue
are explained below in greater detail.
Disaster year revenue
A producer’s allowable gross revenue for the 2022 or
2023 tax year, as elected by the producer.
A producer’s actual revenue from all eligible crops that
were included in the producer’s expected revenue.
Although most producers may choose
between the 2 options when applying
for Track 2, there are two situations that
require a producer to use a specific
option:
• Situation 1: Producers who
received a payment under the previous
ERP for the 2021 disaster year and
elected the 2022 tax year for their
representative disaster year for Phase 2
can only apply for Track 2 using the tax
year option, and they must select 2023
as their representative disaster year to
ensure that they are not paid for the
same loss under both programs, as those
producers had previously certified that
2022 losses were the result of 2021
disaster events.21
• Situation 2: Producers, except those
described in Situation 1, must use the
expected revenue option if they had a
decrease in operating capacity during
their disaster year, as compared to the
2018 or 2019 benchmark year, were a
new producer with no benchmark year
revenue in 2018 or 2019, or produced
any crop or crops that did not generate
revenue directly from the sale of the
crop and that the producer uses within
their ordinary operation.
Producers who had an increase in
operation capacity may elect either the
tax year option or the expected revenue
option; however, they may not adjust
benchmark year revenue under the tax
year option to reflect the change, which
16 The gross NAP payment is the amount
calculated according to 7 CFR part 1437, prior to
any payment reductions for reasons including, but
not limited to, sequestration, payment limitation,
and average AGI limitations.
17 See footnote 15. NAP service fees are waived
for producers with a CCC–860 certification of
underserved status on file; however, if an
underserved producer did not previously file CCC–
860 to receive a service fee waiver, but files one
now, their service fee will be added in the Track
1 payment calculation.
18 Progressive factoring will not apply to ERP
Track 1 payments calculated based on NAP
payments as they traditionally support smaller
producers and non-traditional crops. Nontraditional crops are not typically covered by
Federal crop insurance products so the higher
levels of coverage and risk protection under Federal
crop insurance are not available to offset losses for
producers of those crops in times of disaster.
19 The tax year option is similar to the approach
used in Phase 2 of the previous ERP, which
provided assistance for crop losses due to disaster
events in 2020 and 2021.
20 Change in operation capacity does not include
crop rotation from year to year, changes in farming
practices such as converting from conventional
tillage to no-till, or changing the amount of
fertilizers or chemicals used.
21 Producers applying for Phase 2 of the previous
ERP for losses due to qualifying disaster events in
the 2021 calendar year selected either the 2021 or
2022 tax year as the applicable disaster year.
Producers who selected the 2022 tax year have
already been compensated for their 2022 tax year
losses, but may select the 2023 tax year for the
disaster year for Track 2.
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is likely to result in a lower Track 2
payment because the 2018 or 2019 tax
year would not accurately reflect their
expected revenue at their 2022
operating capacity.
Producers must use the same option
to calculate both the benchmark year
revenue and disaster year revenue. For
example, a producer who uses the
expected revenue option for the
benchmark year must also use the actual
revenue option for the disaster year;
they cannot use 2022 or 2023 tax year
revenue for the disaster year.
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Track 2 Tax Year Option
Producers who use the tax year option
for Track 2 will select 2018 or 2019 for
their benchmark year revenue and 2022
or 2023 as their representative year for
the disaster year revenue and will
certify to their allowable gross revenue
for those years. Allowable gross revenue
is based on the year for which the
revenue would be reported for the
purpose of filing a tax return, except for
the ERP 2022 Track 1 payments
specified below. Producers who file or
would be eligible to file a joint tax
return will certify their allowable gross
revenue based on what it would have
been had they filed taxes separately for
the applicable year.
Allowable gross revenue includes
revenue from:
(1) Sales of eligible crops produced by
the producer, which includes sales
resulting from value added through
post-production activities (for example,
sales of jam from the processing of
strawberries) that were reportable on
IRS Schedule F;
(2) Sales of eligible crops a producer
purchased for resale that had a change
in characteristic due to the time held
(for example, a plant purchased at a size
of 2 inches and sold as an 18-inch plant
after 4 months), less the cost or other
basis of such eligible crops;
(3) Cooperative distributions directly
related to the sale of the eligible crops
produced by the producer, such as
patronage paid to producers for gross
grain sales;
(4) Benefits for eligible crops under
the following agricultural programs:
2017 WHIP, ARC and PLC, BCAP,
CFAP, ELAP (for aquaculture crops),
ERP Phases 1 and 2, LDP, MLG, MFP,
the On-Farm Storage Loss Program,
Pandemic Assistance Revenue Program,
QLA Program, STRP, and WHIP+;
(5) Commodity Credit Corporation
loans for eligible crops, if treated as
income and reported to the IRS;
(6) Federal crop insurance proceeds
for eligible crops, minus the amount of
administrative fees and premiums;
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(7) NAP payments for eligible crops,
minus the amount of service fees and
premiums;
(8) Proceeds for eligible crops under
private insurance policies;
(9) Payments issued through grant
agreements with FSA for losses of
eligible crops;
(10) Grants from the Department of
Commerce, National Oceanic and
Atmospheric Administration (NOAA)
and State program funds providing
direct payments for the loss of eligible
crops or the loss of revenue from
eligible crops;
(11) Other revenue directly related to
the production of eligible crops that the
IRS requires the producer to report as
income, such as commodity-specific
income received from State or local
governments and net gain from hedging;
and
(12) For the disaster year only, ERP
2022 Track 1 payments issued to
another person or entity for the
producer’s share of an eligible crop,
regardless of the tax year in which the
payment would be reported to the IRS.22
Allowable gross revenue does not
include revenue from sources other than
those listed above, including but not
limited to, revenue from:
(1) Federal assistance programs not
included above;
(2) Sales of livestock, animal byproducts, and any commodities that are
excluded from ‘‘eligible crops;’’
(3) Resale items not held for
characteristic change;
(4) Income from a pass-through entity
such as an S Corp or limited liability
company;
(5) Conservation program payments;
(6) Any pandemic assistance
payments that were not for the loss of
eligible crops or the loss of revenue
from eligible crops including, but not
limited to, the Pandemic Livestock
Indemnity Program, Pandemic
Assistance for Timber Harvesters and
Haulers, and Spot Market Hog Pandemic
Program;
(7) Custom hire income;
(8) Net gain from speculation;
(9) Wages, salaries, tips, and cash
rent;
(10) Rental of equipment or supplies;
and
(11) Acting as a contract producer of
an agricultural commodity.
22 Track 1 allows producers who received prefilled application forms to indicate shares in the
crop. In some cases, payment for a producer’s share
of a crop may have been issued to a different person
or entity than the producer applying for a related
revenue loss under Track 2. Applications for Track
2 must include any Track 1 payments issued to
another person or entity for the producer’s share of
an eligible crop in order to prevent duplicate
benefits being issued for the same loss.
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Form FSA–524–A, Emergency Relief
Program (ERP) 2022 Track 2 Tax Year
Revenue Worksheet, is an optional form
that producers may use to assist in
determining their allowable gross
revenue. It is available at https://
www.fsa.usda.gov/programs-andservices/emergency-relief/index.
Track 2 Tax Year Option Special
Provisions for Certain Producers
As stated above, producers who
received a payment under the previous
ERP for the 2021 program year and
elected the 2022 tax year for their
representative disaster year revenue are
required to use the tax year option for
Track 2, and they must use the 2023 tax
year for disaster year revenue.
Those producers must certify to an
allowable gross revenue for the
benchmark year that they adjusted if the
producer had a decreased operation
capacity in a disaster year for which
they are applying for ERP Track 2,
compared to the benchmark year. Those
producers may certify to an allowable
gross revenue that they adjusted for the
benchmark year on FSA–524 if either of
the following apply:
(1) The producer did not have a full
year of revenue for 2018 or 2019; or
(2) The producer had expanded their
operation capacity in the disaster year
compared to the benchmark year.
Change in operation capacity does not
include crop rotation from year to year,
changes in farming practices such as
converting from conventional tillage to
no-till, or increasing the rate of
fertilizers or chemicals.
If requested by FSA, producers are
required to submit documentation to
FSA to support their adjustments within
30 calendar days of the request. The
documentation to support an
adjustment due to a change in operation
capacity must show that the adjustment
to the producer’s benchmark year
revenue is due to:
(1) An addition or decrease in
production capacity of the farming
operation;
(2) An increase or decrease in the use
of existing production capacity; or
(3) Physical alterations that were
made to existing production capacity.
If a producer did not have allowable
gross revenue in a benchmark year
because they began farming in 2020 or
later, the producer may adjust
benchmark year revenue on FSA–524
that represents the producer’s
reasonably expected disaster year
revenue prior to the impact of the
qualifying disaster event.
If requested by FSA, documentation
required to support a producer’s
certification must be provided within 30
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calendar days of FSA’s request, or the
producer will be considered ineligible
for ERP Track 2. Acceptable
documentation must be generated in the
ordinary course of business and dated
prior to the impact of the qualifying
disaster event and includes, but is not
limited to:
(1) Financial documents such as a
business plan or cash flow statement
that demonstrate an expected level of
revenue;
(2) Sales contracts or purchase
agreements; and
(3) Documentation supporting
production capacity, use of existing
production capacity, or physical
alterations that demonstrate production
capacity.
Producers who received a payment
under the previous ERP for the 2021
program year and elected the 2022 tax
year for their representative disaster
year must also include in the allowable
gross revenue a value for certain crops,
when and as determined by the Deputy
Administrator, that they produced that
did not generate revenue directly from
the sale of the crop and that the
producer uses within their ordinary
operation. This would include, for
example, wine makers who grow their
own wine grapes and process those
grapes into wine and producers of
forage crops who store the crop to feed
to livestock on their farm. These
producers would not have revenue from
the sale of the portion of their crop used
for these purposes. The determination
that producers may include a crop’s
value is at the Deputy Administrator’s
discretion. Wine grapes used to process
grapes into wine, forage crops that are
stored and fed to livestock, and certain
other crops, as listed on the FSA
website at https://www.fsa.usda.gov/
programs-and-services/emergencyrelief/index, have been determined by
the Deputy administrator to qualify for
including the crop’s value.
The value of the eligible crop reported
in the producer’s allowable gross
revenue will be based on the producer’s
actual production of the crop and a
price for the crop based on the best
available data for each crop, such as
published price data for the crop 23 or
the average price obtained by other
producers in the area, as determined by
the Deputy Administrator and
published through guidance on FSA’s
website. This provision is intended to
address a gap in how crop losses in
these situations may be accounted for in
23 Published sources of price data that the Deputy
Administrator may consider include, but are not
limited to, FCIC-established prices, FSA-established
NCT prices, and National Agricultural Statistic
Service prices.
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a producer’s payment, and it does not
cover crops that were sold by a
producer.
These adjustment provisions only
apply to producers that received a
payment under the previous ERP for the
2021 program year based on the 2022
tax year for their representative disaster
year revenue because those producers
must use the tax year option. All other
producers that would require such
adjustments must use the expected
revenue option, as previously explained
in this document.
Track 2 Expected Revenue Option
As mentioned above, for Track 2, as
an alternative to using the tax year
option, a producer may certify to a
benchmark year revenue that represents
the producer’s reasonably expected
revenue prior to the impact of the
qualifying disaster event, as well as
their actual disaster year revenue. The
producer’s total expected revenue must
include all eligible crops that could
have been affected by a qualifying
disaster event in calendar year 2022,
including crops prevented from being
planted, planted crops (including
annual, perennial, and inventory), and
crops that were in storage. It does not
include revenue from crop by-products,
such as cotton seed and corn stalks.
Expected revenue will be based on:
• For perennial, planted, and
prevented planted yield-based crops,
the producer’s expected acres
multiplied by their expected yield per
acre, multiplied by the expected price;
• For inventory crops, the total
inventory prior to the impact of the
qualifying disaster event multiplied by
the expected price; and
• For crops in storage, the producer’s
production in storage multiplied by the
expected price.
Expected revenue must be based on
realistic projections that can be
supported by acceptable documentation
of expected inventory, acres, yield, and
unit price, such as the following:
• sales contracts,
• purchase agreements,
• market agreements,
• settlement sheets,
• scale tickets,
• lease agreements,
• local market prices,
• FCIC established yield and prices,
• Federal crop insurance documents,
• historical yield data,
• appraisals,
• farm business plans,
• acreage reports,
• FSA National Crop Table (NCT)
data,24
24 NCT data are available at https://
www.fsa.usda.gov/programs-and-services/disaster-
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74413
• ARC and PLC prices and yields 25
• cooperative extension service and
university data,
• financial institute documentation,
and
• National Agricultural Statistics
Service data.
The producer must maintain
sufficient documentation to support that
their projection is reasonable and
realistic; that documentation must be
available if requested.
Actual disaster year revenue for the
expected revenue option is equal to the
actual revenue from all crops that were
included in the producer’s expected
revenue. Actual disaster year revenue
includes:
• Revenue from sales of eligible
crops;
• Federal crop insurance indemnities
for eligible crops, minus premiums and
administrative fees;
• NAP payments for eligible crops,
minus premiums and service fees;
• Indemnities for eligible crops under
private crop insurance policies;
• The value of eligible crops
produced but not sold (such as crops in
storage or inventory, or fed to the
producer’s livestock);
• FSA Payments issued for 2022
calendar year disaster losses, including
but not limited to payments under:
Æ ELAP for aquaculture crops,
Æ ARC,
Æ LDP,
Æ MLG,
• Net gains from hedging from
eligible crops produced;
• Grants from NOAA and State
programs for the direct loss of eligible
crops or the loss of revenue for eligible
crops; and
• Other revenue directly related to
the production of eligible crops that IRS
requires the producer to report as
income.
For crops produced in the 2022 or
2023 crop years but not sold, the value
included in actual disaster year revenue
may differ from the expected revenue
for the crops due to market price
fluctuations between planting and time
of marketing, quality losses, or
production losses related to qualifying
disaster events occurring in the 2022
calendar year. Crops in storage from
2021 or earlier must use the expected
price to calculate the value included in
actual disaster year revenue if the crop
remains in storage at the time of
application since ERP 2022 does not pay
assistance-program/noninsured-crop-disasterassistance/index.
25 ARC and PLC information is available at
https://www.fsa.usda.gov/programs-and-services/
arcplc_program/arcplc-program-data/index.
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for market fluctuations for prior year
crops.
Form FSA–524–B, Emergency Relief
Program (ERP) 2022 Track 2 Expected
Revenue Worksheet, is an optional form
that producers may use to assist in
calculating their expected and actual
revenue. It is available at https://
www.fsa.usda.gov/programs-andservices/emergency-relief/index.
Track 2 Applications
Producers applying for Track 2 must
submit FSA–524, Emergency Relief
Program (ERP) 2022 Track 2
Application, certifying their benchmark
year revenue and disaster year revenue.
The FSA–524 Appendix provides a
guide for what should be included as
applicable revenue for the option
elected by the producer. In addition, all
producers applying for Track 2 must
submit FSA–525, Crop Insurance and/or
NAP Coverage Agreement, by the
application deadline to have a complete
application on file.
For the purpose of administration of
the ERP 2022 payment limitations,
producers applying for Track 2 must
certify to the percentage of their disaster
year revenue from specialty and high
value crops combined, and from other
crops on their application. The
percentages certified must be equal to
the percentages that the producer would
have reasonably expected to receive for
the disaster year if not for the qualifying
disaster event. Producers must also
certify to whether all acreage of all
eligible crops (including crops grown,
prevented from being planted, and in
storage or inventory in the disaster year)
were covered by Federal crop insurance
or NAP, for the purpose of determining
the applicable ERP factor, as explained
below.
If requested by FSA, documentation
required to support a producer’s
certifications of revenue and other
information provided on the application
must be submitted within 30 calendar
days of FSA’s request, or the producer
will be considered ineligible for Track 2.
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Track 2 Payment Calculation
To determine a producer’s Track 2
payment amount, FSA will calculate:
Step 1 The producer’s benchmark year
revenue, multiplied by the ERP factor of
90 percent if all acres of all eligible
crops were covered by Federal crop
insurance or NAP, or 70 percent if not
all acres of all eligible crops were
covered by Federal crop insurance or
NAP; minus
Step 2 The producer’s disaster year
revenue; minus
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Step 3 The sum of the producer’s
gross Track 1 payments.26
After performing the calculation
described above, progressive factoring 27
will be applied to the calculated amount
according to the table below.
producer’s calculated Track 2 payment
will be equal to the lesser of the
resulting amount or the amount
calculated after step 3 above.28 For all
other eligible producers, the sum of the
results for each range will be the
calculated Track 2 payment. FSA will
Progressive multiply that amount by the percentage
Payment range
factor
of the expected disaster year revenue for
(%)
specialty and high value crops or other
Up to $2,000 .............................
100 crops, as applicable, to determine the
$2,001 to $4,000 ......................
80 amounts that will apply to the payment
$4,001 to $6,000 ......................
60 limitations for specialty and high value
$6,001 to $8,000 ......................
40 crops (combined) and other crops.
$8,001 to $10,000 ....................
20
For example, the amount calculated
Over $10,000 ............................
10 after step 3 above is $430,000 and is
reduced to $48,000 after progressive
For example, to apply progressive
factoring. For an underserved producer,
factoring to a calculated loss of $5,000,
FSA would multiply $48,000 times 115
FSA would multiply:
percent which equals $55,200 which is
• the first $2,000 by a factor of 100
less than the max payment amount of
percent ($2,000 × 100% = $2,000),
$430,000. The producer certified to 50
• the second $2,000 by a factor of 80
percent of expected revenue as being
percent ($2,000 × 80% = $1,600), and
from specialty crops. FSA would
• the remaining $1,000 by a factor of
multiply $55,200 times 50 percent
60 percent ($1,000 × 60% = $600).
which equals $27,600 gross payment
• The sum of those calculations is
attributed to specialty crops. FSA would
$4,200.
subtract $27,600 from $55,200 which
For another example, to apply
equals $27,600 gross payment attributed
progressive factoring to a calculated loss to other crops. The producer’s total
of $430,000, FSA would multiply:
payment is $55,200 ($27,600 + $27,600
• the first $2,000 by a factor of 100
= $55,200). FSA will apply a final
percent ($2,000 × 100% = $2,000),
payment factor of 75 percent to all
• the second $2,000 by a factor of 80
calculated Track 2 payments, including
percent ($2,000 × 80% = $1,600),
payments to underserved producers, to
• the third $2,000 by a factor of 60
ensure payments do not exceed
percent ($2,000 × 60% = $1,200),
available funding.
• the fourth $2,000 by a factor of 40
If a producer receives a Track 1
percent ($2,000 × 40% = $800),
payment after their Track 2 payment is
• the fifth $2,000 by a factor of 20%
calculated, the producer’s Track 2
($2,000 × 20% = $400), and
payment will be recalculated and the
• the remaining $420,000 by a factor
producer must refund any resulting
of 10 percent ($420,000 × 10% =
overpayment.
$42,000).
FSA will issue Track 2 payments as
The sum of those calculations is
applications are processed and
$48,000, which is the gross ERP 2022
approved. All ERP 2022 payments are
payment after progressive factoring.
subject to the availability of funding. If
FSA will calculate the total of the
additional funding is available after ERP
results for each range above. For
underserved producers, the sum of the
28 Underserved producers will receive an increase
results will be multiplied by a factor of
to their Track 2 payment that is equal to 15 percent
of the gross Track 2 payment after progressive
115 percent, and the underserved
26 The
gross ERP Track 1 calculated payment is
the calculated payment amount after all applicable
factoring and prior to any payment reductions for
reasons including, but not limited to, sequestration
and payment limitation.
27 Track 2 applies progressive factoring in a
manner consistent with the progressive factoring of
Track 1 payments based on Federal crop insurance
indemnified losses. Track 2 assistance is calculated
based on a decrease in disaster year revenue for
eligible revenue, production, and quality losses of
eligible insured, non-insurable, and uninsured
crops not included in Track 1. While Track 1
payments based on NAP payments are not subject
to progressive factoring, Track 2 assistance is
calculated based on the overall decrease in disaster
year revenue and does not calculate assistance
independently for insured crops and NAP crops in
a manner similar to Track 1; therefore, progressive
factoring is applied to all Track 2 payments.
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factoring not to exceed the calculated Track 2
payment before progressive factoring. 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, ELAP, 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, Pandemic Assistance
Revenue Program, and the previous ELRP and ERP
programs for qualifying disaster events in calendar
years 2020 and 2021. In addition, NAP 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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2022 payments are issued, FSA may
issue an additional payment, not to
exceed the maximum amount allowed
by law as explained below.
Applying for ERP 2022
FSA expects to begin mailing Track 1
application forms on or around
November 8, 2023, to producers who
received Federal crop insurance
indemnities, and to begin mailing forms
to producers who received NAP
payments on or around November 8,
2023. For Track 2, FSA will begin
accepting applications on October 31,
2023, and producers may obtain an
application form and FSA–525, Crop
Insurance and/or Nap Coverage
Agreement for ERP 2022, through their
county office or online at https://
www.fsa.usda.gov/programs-andservices/emergency-relief/index.
Applications may be submitted in
person or by mail, email, facsimile, or
other methods announced by FSA. A
complete application for each track a
producer is applying for must be
submitted to the producer’s recording
county office by the close of business on
the deadline announced by FSA (the
ERP 2022 deadline).
To receive an ERP 2022 payment,
producers, including any producers
with an SBI who have a share in a crop
as indicated on a Track 1 application,
must also have the following forms on
file with FSA within 60 days of the ERP
2022 deadline:
• 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
producer and applicable affiliates.
Many producers, especially if they
have participated in FSA programs
recently, will already have these forms
on file with FSA.
In addition to the forms listed above,
certain producers will also need to
submit the following forms in order to
have their payment calculated as
described above for underserved
producers or to qualify for an increased
payment limitation, as described in the
Payment Limitation section in this
document:
• Form CCC–860, Socially
Disadvantaged, Limited Resource,
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Beginning and Veteran Farmer or
Rancher Certification, applicable for the
2022 program year; 29 or
• Form FSA–510, Request for an
Exception to the $125,000 Payment
Limitation for Certain Programs,
including the certification from a
certified public accountant or attorney
that the person or legal entity has met
the requirements to be eligible for the
increased payment limitation, for a
person or a legal entity and all members
of that entity, for the 2022 program year.
FSA will continue to accept forms
CCC–860 and FSA–510 for ERP 2022
until 60 days after the ERP 2022
deadline. If a producer files a CCC–860
or FSA–510 and the accompanying
certification after their ERP 2022
payment is issued but before the
deadline to submit these forms, FSA
will process the form CCC–860 or FSA–
510 and issue any resulting additional
payment amount.
Payment Limitation
As required by Title I of the Disaster
Relief Supplemental Appropriations
Act, 2023, the payment limitation for
ERP 2022 is determined by the person’s
or legal entity’s average adjusted gross
farm income. 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 for specialty and
high value crops combined and
$125,000 in payment for all nonspecialty crops and other crops under
ERP 2022 (for Track 1 and Track 2
combined) if their average adjusted
gross farm income is less than 75
percent of their average AGI the 3
taxable years preceding the most
immediately preceding complete tax
year.
If at least 75 percent of the person or
legal entity’s average AGI is income
derived from farming, ranching, and
29 A person 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 CCC–
860 certifying their status for a later program year
because a person’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 program years the status would
apply.
An entity that has filed CCC–860 certifying its
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 its status for a later program year unless the
entity’s status has changed due to changes in
membership.
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 and household income, those producers must
submit CCC–860 for each applicable program year.
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74415
forestry related activities and the
participant provides the required
certification and documentation, as
discussed below, the person or legal
entity, other than a joint venture or
general partnership, is eligible to
receive, directly or indirectly, up to:
• $900,000 for specialty crops under
Tracks 1 and 2 and high value crops
under Track 2 combined; and
• $250,000 for non-specialty crops
under Track 1 and other crops under
Track 2, combined.
The relevant tax years for establishing
a producer’s AGI and percentage
derived from farming, ranching, and
forestry related activities are 2018, 2019,
and 2020.
To receive more than $125,000 in ERP
2022 payments, producers must submit
form FSA–510, including the
certification from a certified public
accountant or attorney that the person
or legal entity has met the requirements
to be eligible for the increased payment
limitation. If a producer requesting the
increased payment limitation is a legal
entity, all members of that entity must
also complete form 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
increased payment limitation based on
the legal entity’s average AGI that is
income derived from farming, ranching,
and forestry related activities but a
member of that legal entity either does
not complete a form FSA–510 and
provide the required certification or is
not eligible for the increased payment
limitation, the payment to the legal
entity will be reduced for the payment
limitation applicable to the share of the
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; 30
30 The ‘‘first level or payment legal entity’’ means
that the payment entity will have a reduction
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• 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
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 person or legal entity must provide
the name, address, valid taxpayer
identification number, and ownership
share of each person, or the name,
address, valid taxpayer identification
number, and ownership share of each
legal entity, that holds or acquires an
ownership interest in the legal entity.
ERP 2022 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. 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
applied, and if the payment entity happens to be
a joint venture, that reduction is applied to the first
level, or highest level, for payments. The ‘‘first level
or payment legal entity’’ is the highest level of
ownership of the applicant to whom payments can
be attributed or limited. If the applicant is a
business type that does not have a limitation or
attribution, the reduction is applied to the first
level, but if the business type can have the
reduction applied directly to it, then the limitation
applies.
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interest of 10 percent or greater at or
above the fourth level of ownership in
the business structure is not provided to
USDA.
If a person or legal entity is not
eligible to receive ERP 2022 payments
due to the person or legal entity failing
to satisfy payment eligibility provisions,
the payment made either directly or
indirectly to the person 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 person 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 SelfDetermination and Education
Assistance Act (25 U.S.C. 5304), will not
be subject to payment limitation.
Requirement To Purchase Federal Crop
Insurance or NAP Coverage
Title I of the Disaster Relief
Supplemental Appropriations Act,
2023, requires all producers who receive
ERP 2022 payments, including those
receiving a Track 1 payment for a tree
loss under a Federal crop insurance
policy, to purchase Federal crop
insurance, or NAP coverage where
Federal crop insurance is not available,
for the next 2 available crop years, as
determined by the Secretary.
Participants must file an accurate
acreage report and obtain Federal crop
insurance or NAP coverage, as may be
applicable:
• At a coverage level equal to or
greater than 60 percent for insurable
crops and trees; or
• At the catastrophic level or higher
for NAP-eligible crops.
Availability will be determined from
the date a producer receives an ERP
2022 payment and may vary depending
on the timing and availability of Federal
crop insurance or NAP coverage for a
producer’s particular crops. The final
crop year to purchase Federal crop
insurance or NAP coverage to meet the
second year of coverage for this
requirement is the 2027 crop year.
In situations where Federal crop
insurance is unavailable for a crop, an
ERP 2022 participant must obtain NAP
coverage. Section 1001D of the Food
Security Act of 1985 (1985 Farm Bill;
Pub. L. 99–198) provides that a person
or entity with an average AGI greater
than $900,000 is not eligible to
participate in NAP; however, producers
with an average AGI greater than
$900,000 are eligible to participate in
ERP 2022. To reconcile this restriction
in the 1985 Farm Bill and the
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requirement to obtain NAP or Federal
crop insurance coverage, ERP 2022
participants may meet the purchase
requirement by purchasing WFRP
coverage, if eligible, or they may pay the
applicable NAP service fee despite their
ineligibility for a NAP payment. In other
words, the service fee must be paid even
though no NAP payment may be made
because the average AGI of the person
or entity exceeds the 1985 Farm Bill
limitation.
For Track 1, the Federal crop
insurance and NAP coverage
requirements are specific to the crop
and county (which is the county where
the crop is physically located for
insured crops and the administrative
county for NAP-covered crops) for
which Track 1 payments are paid.
Producers who receive a Track 1
payment that was calculated based on
an indemnity under a Pasture,
Rangeland, and Forage policy; Annual
Forage policy; or WFRP policy must
purchase the same type of policy or a
combination of individual policies for
the crops that had covered losses under
ERP 2022 to meet the Federal crop
insurance and NAP coverage
requirement.
Producers who receive a Track 1
payment on a crop in a county and who
have the crop or crop acreage in
subsequent years, as provided in this
document, and who fail to obtain the 2
years of Federal crop insurance or NAP
coverage required as specified in this
document must refund all Track 1
payments for that crop in that county
with interest from the date of
disbursement.
Producers who were paid under Track
1 for a crop in a county, but do not plant
that crop in that county in a year for
which the Federal crop insurance and
NAP coverage requirement applies, are
not subject to the Federal crop
insurance or NAP purchase requirement
for that year.
For Track 2, producers must report all
crops that suffered a revenue loss in
whole or in part due to a qualifying
disaster event on form FSA–525, Crop
Insurance and/or NAP Coverage
Agreement, and obtain the required
level of Federal crop insurance or NAP
coverage in all counties where the crop
is grown for the applicable years. For all
crops listed on form FSA–525,
producers who have the crop or crop
acreage in subsequent years and who
fail to obtain the required 2 years of
Federal crop insurance or NAP coverage
must refund the ERP Track 2 payment
with interest from the date of
disbursement.
If both Federal crop insurance and
NAP coverage are unavailable for a crop,
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the producer must obtain WFRP Federal
crop insurance coverage, if eligible.
Producers who receive an ERP Track
1 payment for a crop are not required to
obtain additional years of Federal crop
insurance or NAP coverage for that crop
if they also receive an ERP Track 2
payment for a loss associated with that
crop.
Producers who do not plant a crop
listed on form FSA–525 in a year for
which the Federal crop insurance and
NAP coverage requirement applies are
not subject to the Federal crop
insurance or NAP purchase requirement
for that crop for that year.
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Provisions Requiring Refund to FSA
In the event that any ERP 2022
payment resulted from erroneous
information reported by the producer, or
any person acting on their behalf, or if
the producer’s data are updated after
RMA or FSA calculates a producer’s
Track 1 payment, the ERP 2022 payment
for both Track 1 and Track 2, as
applicable, 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 producer. If FSA
determines that the producer
intentionally misrepresented
information used to determine the
producer’s ERP 2022 payment amount,
the application will be disapproved and
the producer must refund the full
payment to FSA with interest from the
date of disbursement. All persons with
a financial interest in a legal entity
receiving payments are jointly and
severally liable for any refund,
including related charges, which is
determined to be due to FSA for any
reason. Any required refunds must be
resolved in accordance with debt
settlement regulations in 7 CFR part 3.
General Provisions
Applicable general eligibility
requirements, including recordkeeping
requirements and required compliance
with HELC and Wetland Conservation
provisions, are similar to those for
previous ad hoc crop disaster programs
and current permanent disaster
programs.
General requirements that apply to
other FSA-administered commodity
programs also apply to ERP 2022.
Accordingly, producers that receive ERP
2022 must be in 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
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and equitable relief and finality
provisions in 7 CFR part 718, subpart D,
apply to determinations under ERP
2022. As described above, Track 1
payments are calculated using data on
file with RMA and FSA at the time of
payment calculation, unless that data
are later updated. Producers who
receive a Track 1 application and
disagree with the calculated payment
amount or data used in the calculation
may apply for Track 2, which will allow
them to provide their data to FSA
through a traditional application
process.
Participants are required to retain
documentation in support of their
application for 3 years after the date of
approval. All information provided to
FSA for program eligibility and payment
calculation purposes, including
certification that a producer suffered a
loss due to a qualifying disaster event,
is subject to spot check. Participants
receiving ERP 2022 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.
If requested by FSA, the producer
must provide additional documentation
that establishes the producer’s eligibility
for ERP 2022. If supporting
documentation is requested, the
documentation must be submitted to
FSA within 30 calendar days from the
request or the application will be
disapproved by FSA. FSA may request
supporting documentation to verify
information provided by the producer
and the producer’s eligibility including,
but not limited to, the producer’s
ownership share in the crop or
commodity, benchmark year revenue,
disaster year revenue, and percentage of
expected revenue from specialty and
high value crops and other crops.
ERP 2022 applicants filing an FSA–
510 are subject to an FSA audit of
information submitted for the purpose
of increasing the program’s payment
limitation. As a part of this audit, FSA
may request income tax returns, and if
requested, must be supplied by all
related persons and legal entities. In
addition to any other requirement under
any Federal statute, relevant Federal
income tax returns and documentation
must be retained a minimum of 3 years
after the end of the calendar year
corresponding to the year for which
payments or benefits are requested.
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74417
Failure to provide necessary and
accurate information to verify
compliance, or failure to comply with
these requirements will result in
ineligibility for ERP 2022 benefits and
require refund of any ERP 2022
payments, including interest to be
calculated from the date of the
disbursement to the producer.
Applicants have a right to a decision
in response to a timely-filed complete
application.
If an applicant files a late ERP 2022
application, the application will be
considered a request to waive the
deadline. Requests to waive or modify
program provisions are at the discretion
of the Deputy Administrator. The
Deputy Administrator has the authority
to 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 the lateness or failure to
meet such other requirements or
program provisions do not adversely
affect the operation of ERP 2022.
Applicants who request to waive or
modify program provisions do not have
a right to a decision on those requests.
The Deputy Administrator’s refusal to
exercise discretion on requests to waive
or modify ERP 2022 provisions will not
be considered an adverse decision and
is, by itself, not appealable.
Any payment under ERP 2022 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 ERP 2022 payments.
If any person who would otherwise be
eligible to receive a payment dies before
the payment is received, payment may
be released as specified in 7 CFR 707.3.
Similarly, if any person or legal entity
who would otherwise have been eligible
to apply for a payment dies or is
dissolved, respectively, before the
payment is applied for, payment may be
released in accordance with this
document if a timely application is filed
by an authorized representative. Proof of
authority to sign for the deceased
producer or dissolved entity must be
provided. If a participant is now a
dissolved general partnership or joint
venture, all members of the general
partnership or joint venture at the time
of dissolution or their duly authorized
representatives must sign the
application for payment. Eligibility of
such participant will be determined, as
it is for other participants, based on
ownership share and risk in producing
the crop.
In either applying for or participating
in ERP 2022, or both, the producer is
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subject to laws against perjury
(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 ERP 2022, or both,
then the producer may be found to be
guilty of perjury. Except as otherwise
provided by law, if guilty of perjury the
applicant 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
ERP 2022 under the following
condition: by applying for ERP 2022,
applicants agree, as a condition of the
waiver, that the ERP 2022 payments will
be applied to reduce the amount of the
judgment lien.
In addition to any other Federal laws
that apply to ERP 2022, 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 provisions of
the Paperwork Reduction Act (44 U.S.C.
chapter 35), the information collection
request has been approved by OMB
under an emergency request under
control number 0560–0316. FSA will
collect the information from producers
to qualify for an ERP 2022 payment.
ERP 2022 is a one-time funding as
described in this NOFA.
In accordance with the Paperwork
Reduction Act, FSA is requesting
comments from all interested
individuals and organizations on a new
information collection request that
supports ERP 2022.
Description of Information Collection
Title: Emergency Relief Program 2022
(ERP 2022).
OMB Control Number: 0560–0316.
Type of Request: New.
Abstract: FSA is providing assistance
to eligible crop producers to cover the
necessary expenses related losses of
revenue, quality, or production 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, tornadoes, floods, derechos,
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17:18 Oct 30, 2023
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excessive heat, winter storms, freeze,
including a polar vortex, smoke
exposure, quality losses of crops, and
excessive moisture occurring in
calendar year 2022.
FSA is administering ERP in two
tracks (referred to as Track 1 and Track
2). ERP Track 1 will use a streamlined
process with pre-filled application
forms for losses where the data are
already on file with FSA or the Risk
Management Agency (RMA) as a result
of the producers previously receiving a
Noninsured Crop Disaster Assistance
Program (NAP) payment or a Federal
crop insurance indemnity under certain
Federal crop insurance policies. ERP
Track 2 will provide payments for other
eligible losses through a revenue-based
approach using a traditional application
process during which producers will
provide the information required to
calculate a payment.
For the following estimated total
annual burden on respondents, the
formula used to calculate the total
burden hours is the estimated average
time per response multiplied by the
estimated total annual responses.
Estimate of Average Time to Respond:
Public reporting burden for collecting
information under this notice is
estimated to average 0.305 hour per
response, including the time for
reviewing instructions, searching
existing data sources, gathering and
maintaining the data needed, and
completing and reviewing the
collections of information.
Type of Respondents: Producers.
Estimated Number of Respondents:
230,000.
Estimated Average Number of
Responses per Respondent: 1.43.
Estimated Total Annual Responses:
327,855.
Estimated Total Annual Burden on
Respondents: 100,072 hours.
The purpose of this notice is to
request comments from the public (as
well as affected agencies) concerning
the information collection request.
The comments will help us:
(1) Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the agency, including
whether the information will have
practical utility;
(2) Evaluate the accuracy of the
agency’s estimate of burden of the
collection of information including the
validity of the methodology and
assumptions used;
(3) Evaluate the quality, utility and
clarity of the information technology;
and
(4) Minimize the burden of the
information collection on those who
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respond through the use of appropriate
automated, electronic, mechanical, or
other technological collection
techniques or other forms of information
technology.
All comments received in response to
this notice, including names and
addresses where provided, will be made
a matter of public record. Comments
will be summarized and included in the
submission for Office of Management
and Budget 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). ERP 2022 is authorized
by Title I of the Disaster Relief
Supplemental Appropriations Act,
2023. The intent of ERP 2022 is to
provide payments to eligible crop
producers who suffered eligible crop
and tree losses due to wildfires,
hurricanes, floods, derechos, excessive
heat, tornadoes, winter storms, freeze
(including a polar vortex), smoke
exposure, excessive moisture, and
qualifying drought, and related
conditions occurring in calendar year
2022.
The limited discretionary aspects of
the program were designed to be
consistent with established FSA disaster
programs. As such, the Categorical
Exclusions in 7 CFR part 799.31 apply,
specifically 7 CFR 799.31(b)(6)(iv) and
(vi) (that is, § 799.31(b)(6)(iv) Individual
farm participation in FSA programs
where no ground disturbance or change
in land use occurred as a result of the
action or participation; and
§ 799.31(b)(6)(vi) Safety net programs
administered by FSA). No Extraordinary
Circumstances (7 CFR 799.33) exist. As
such, FSA has determined that the
implementation of ERP 2022 and the
participation in ERP 2022 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
regulatory action, and this notice serves
as documentation of the programmatic
environmental compliance decision.
Federal Assistance Programs
The titles and numbers of the Federal
assistance programs, as found in the
Assistance Listings, to which this
document applies are 10.964—
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Emergency Relief Program and 10.979—
Emergency Relief Program 2022.
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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.
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-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: (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: program.intake@usda.gov.
USDA is an equal opportunity
provider, employer, and lender.
Zach Ducheneaux,
Administrator, Farm Service Agency.
[FR Doc. 2023–24009 Filed 10–30–23; 8:45 am]
BILLING CODE 3410–05–P
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Jkt 262001
COMMISSION ON CIVIL RIGHTS
Notice of Public Briefing of the
Minnesota Advisory Committee to the
U.S. Commission on Civil Rights
U.S. Commission on Civil
Rights.
ACTION: Notice of public briefing.
AGENCY:
Notice is hereby given,
pursuant to the provisions of the rules
and regulations of the U.S. Commission
on Civil Rights (Commission) and the
Federal Advisory Committee Act, that
the Minnesota Advisory Committee
(Committee) to the U.S. Commission on
Civil Rights will hold a public briefing
via Zoom at 12 p.m. CT on Wednesday,
January 17, 2024. The purpose of this
briefing is to hear testimony on housing
affordability in the state.
DATES: Wednesday, January 17, 2024,
from 12 p.m.–2 p.m. Central Time.
ADDRESSES: The meeting will be held
via Zoom.
Registration Link (Audio/Visual):
https://www.zoomgov.com/j/
1610159425.
Join by Phone (Audio Only): (833)
435–1820 USA Toll-Free; Meeting ID:
161 015 9425.
FOR FURTHER INFORMATION CONTACT: Ana
Victoria Fortes, Designated Federal
Officer, at afortes@usccr.gov or (202)
519–2938.
SUPPLEMENTARY INFORMATION: This
committee meeting is available to the
public through the registration link
above. Any interested member of the
public may listen to the meeting. An
open comment period will be provided
to allow members of the public to make
a statement as time allows. Per the
Federal Advisory Committee Act, public
minutes of the meeting will include a
list of persons who are present at the
meeting. If joining via phone, callers can
expect to incur regular charges for calls
they initiate over wireless lines,
according to their wireless plan. The
Commission will not refund any
incurred charges. Callers will incur no
charge for calls they initiate over landline connections to the toll-free
telephone number. Closed captioning
will be available for individuals who are
deaf, hard of hearing, or who have
certain cognitive or learning
impairments. To request additional
accommodations, please email Liliana
Schiller, Support Services Specialist, at
lschiller@usccr.gov at least 10 business
days prior to the meeting.
Members of the public are entitled to
submit written comments; the
comments must be received in the
regional office within 30 days following
SUMMARY:
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74419
the meeting. Written comments may be
emailed to Ana Victoria Fortes at
afortes@usccr.gov. Persons who desire
additional information may contact the
Regional Programs Coordination Unit at
(312) 353–8311.
Records generated from this meeting
may be inspected and reproduced at the
Regional Programs Coordination Unit
Office, as they become available, both
before and after the meeting. Records of
the meetings will be available via
www.facadatabase.gov under the
Commission on Civil Rights, Minnesota
Advisory Committee link. Persons
interested in the work of this Committee
are directed to the Commission’s
website, https://www.usccr.gov, or may
contact the Regional Programs
Coordination Unit at lschiller@
usccr.gov.
Agenda
I. Welcome & Roll Call
II. Introductory Remarks
III. Panelist Presentations & Committee
Q&A
IV. Public Comment
V. Closing Remarks
VI. Adjournment
Dated: October 25, 2023.
David Mussatt,
Supervisory Chief, Regional Programs Unit.
[FR Doc. 2023–23945 Filed 10–30–23; 8:45 am]
BILLING CODE P
COMMISSION ON CIVIL RIGHTS
Notice of Public Briefing of the
Minnesota Advisory Committee to the
U.S. Commission on Civil Rights
U.S. Commission on Civil
Rights.
ACTION: Notice of public briefing.
AGENCY:
Notice is hereby given,
pursuant to the provisions of the rules
and regulations of the U.S. Commission
on Civil Rights (Commission) and the
Federal Advisory Committee Act, that
the Minnesota Advisory Committee
(Committee) to the U.S. Commission on
Civil Rights will hold a public briefing
via Zoom at 12 p.m. CT on Friday,
January 26, 2024. The purpose of this
briefing is to hear testimony on housing
affordability in the state.
DATES: Friday, January 26, 2024, from 12
p.m.–2 p.m. Central Time.
ADDRESSES: The meeting will be held
via Zoom.
Registration Link (Audio/Visual):
https://www.zoomgov.com/j/
1613104128.
Join by Phone (Audio Only): (833)
435–1820 USA Toll-Free; Meeting ID:
161 310 4128.
SUMMARY:
E:\FR\FM\31OCN1.SGM
31OCN1
Agencies
[Federal Register Volume 88, Number 209 (Tuesday, October 31, 2023)]
[Notices]
[Pages 74404-74419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-24009]
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DEPARTMENT OF AGRICULTURE
Farm Service Agency
[Docket ID FSA-2023-0020]
Notice of Funds Availability; Emergency Relief Program 2022 (ERP
2022)
AGENCY: Farm Service Agency, USDA.
ACTION: Notice of funds availability.
-----------------------------------------------------------------------
SUMMARY: The Farm Service Agency (FSA) is issuing this notice
announcing ERP 2022, which will provide payments to eligible crop
producers for losses due to qualifying disaster events including
wildfires, hurricanes, floods, derechos, excessive heat, tornadoes,
winter storms, freeze (including a polar vortex), smoke exposure,
excessive moisture, qualifying drought, and related conditions that
occurred in calendar year 2022. ERP 2022 will be administered through 2
tracks (referred to as Track 1 and Track 2). Track 1 will
[[Page 74405]]
assist eligible crop producers who received indemnities for eligible
crop or tree losses through certain Federal crop insurance policies or
payments for crop losses through the Noninsured Crop Disaster
Assistance Program (NAP). Track 2 will assist eligible crop producers
for other eligible crop and tree losses through a revenue-based
approach.
DATES:
Funding availability: Application period for Track 1 will begin
October 31, 2023. Application period for Track 2 will begin October 31,
2023.
Comments: We will consider comments we receive by January 2, 2024.
ADDRESSES: You may submit comments by the following method: Federal
eRulemaking Portal: Go to https://www.regulations.gov and search for
Docket ID FSA-2023-0020. You may also send comments to the Desk Officer
for Agriculture, Office of the Information and Regulatory Affairs,
Office of Management and Budget, Washington, DC 20503. Comments will be
available for public inspection online at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Kathy Sayers; telephone: (202) 720-
6825; email: [email protected]. Individuals who require alternative
means for communication should contact the USDA Target Center at (202)
720-2600 (voice and text telephone (TTY)) or dial 711 for
Telecommunications Relay service (both voice and text telephone users
can initiate this call from any telephone).
SUPPLEMENTARY INFORMATION:
Background
Title I of the Disaster Relief Supplemental Appropriations Act,
2023 (Division N of the Consolidated Appropriations Act, 2023; Pub. L.
117-328) provides approximately $3.74 billion, to remain available
until expended, for necessary expenses related to losses of revenue,
quality, or production losses of crops (including milk, on-farm stored
commodities, crops prevented from planting in 2022, and harvested
adulterated wine grapes), trees, bushes, and vines, as a consequence of
droughts, wildfires, hurricanes, floods, derechos, excessive heat,
tornadoes, winter storms, freeze, including a polar vortex, smoke
exposure, and excessive moisture occurring in calendar year 2022.
Losses due to drought are only 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 8 consecutive weeks
or a D3 (extreme drought) or higher level of drought intensity.
FSA is using the funding to assist eligible producers who suffered
eligible losses through several programs.\1\ In this document, FSA is
announcing ERP 2022, which will assist eligible crop producers who
suffered eligible losses due to qualifying disaster events as defined
in this document. These producers have been significantly impacted by
qualifying disaster events occurring in 2022, which have resulted in
significant losses. FSA has designed ERP 2022 consistent with the
public interest in streamlining and expediting disaster assistance
payments to agricultural producers to the greatest extent possible. ERP
2022 will be administered through 2 tracks:
---------------------------------------------------------------------------
\1\ FSA previously announced Emergency Livestock Relief Program
2022 (ELRP 2022) on September 27, 2023 (88 FR 66361-66366) and the
Milk Loss Program on September 11, 2023 (88 FR 62285-62292). ELRP
2022 and Milk Loss Program payments for 2022 losses have the same
funding source as ERP 2022.
---------------------------------------------------------------------------
Track 1 will use a streamlined process with pre-filled
application forms, as discussed in this document. It will provide
payments for eligible crop losses and tree losses, described below,
where data are already on file with FSA or the Risk Management Agency
(RMA), as a result of the producer previously receiving a NAP payment
or an indemnity under certain Federal crop insurance policies for a
loss in the same year that could have been affected by a qualifying
disaster event; and
Track 2 will provide payments for eligible crop and tree
losses through a revenue-based approach using data provided by eligible
producers on application forms.
Producers with losses that are eligible for Track 1 may apply for
Track 1, Track 2, or both tracks; however, the Track 2 payment
calculation will take into account any payments the producer receives
under Track 1 to ensure a producer is not receiving duplicate benefits
under both tracks.
Both tracks cover the same eligible crops, as defined below. For
payment limitation purposes, ERP 2022 classifies eligible crops into
the following categories:
specialty crops;
non-specialty crops;
high value crops; and
other crops.
The term ``non-specialty crop'' only applies to Track 1, the terms
``high value crop'' and ``other crop'' only apply to Track 2, and the
term ``specialty crop'' applies to both tracks; those terms are defined
in this document and discussed below in the payment limitation section.
Definitions
The definitions in 7 CFR parts 718 and 1400 apply to ERP 2022,
except as otherwise provided in this document. The following
definitions also apply.
2017 WHIP means the 2017 Wildfires and Hurricanes Indemnity Program
(7 CFR part 760, subpart O).
Administrative fee means the amount an insured producer paid for
catastrophic risk protection and any additional coverage for each crop
year as specified in the applicable Federal crop insurance policy.
Aquaculture means any species of aquatic organisms grown as food
for human or livestock consumption or for industrial or biomass uses,
fish raised as feed for fish that are consumed by humans, and
ornamental fish propagated and reared in an aquatic medium. Eligible
aquacultural species must be raised by a commercial operator and in
water in a controlled environment.
ARC means the Agriculture Risk Coverage program (7 CFR part 1412).
Average adjusted gross farm income means the average of the person
or legal entity's adjusted gross income (AGI) derived from farming,
ranching, and forestry operations, including losses, for the base
period consisting of the 2018, 2019, and 2020 tax years.
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 AGI 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 production services to
farmers, ranchers, foresters, and farm operations.
For legal entities not required to file a Federal income tax
return, or a person or legal entity that did not have taxable income in
one or more tax years during the base period, the average will be the
adjusted gross farm income, including losses, averaged for the 2018,
2019, and 2020 tax years, as determined by FSA. A new legal entity will
have its adjusted gross farm income averaged only for those years of
the base period for which it was in business; however, a new legal
entity will not be considered ``new'' to the extent it takes over an
existing operation and has any elements of common ownership interest
and land
[[Page 74406]]
with the preceding person or legal entity from which it took over. When
there is such commonality, income of the previous person or legal
entity will be averaged with that of the new legal entity for the base
period. For a person filing a joint tax return, the certification of
average adjusted farm income may be reported as if the person had filed
a separate Federal tax return and the calculation is consistent with
the information supporting the filed joint return.
Average AGI means the average of the AGI as defined under 26 U.S.C.
62 or comparable measure of the person or legal entity. The relevant
tax years for the 2022 program year are 2018, 2019, and 2020.
BCAP means the Biomass Crop Assistance Program (7 CFR part 1450).
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.
Buy-up NAP coverage means NAP coverage at a payment amount that is
equal to an indemnity amount calculated for buy-up coverage computed
under section 508(c)I or (h) of the Federal Crop Insurance Act and
equal to the amount that the buy-up coverage yield for the crop exceeds
the actual yield for the crop.
Catastrophic coverage has the same meaning as for NAP (in 7 CFR
1437.3), which is:
(1) For insured crops, the coverage offered by the Federal Crop
Insurance Corporation (FCIC) under section 508(b) of the Federal Crop
Insurance Act.
(2) For eligible NAP crops, coverage at the following levels due to
an eligible cause of loss impacting the NAP covered crop during the
coverage period:
(i) Prevented planting in excess of 35 percent of the intended
acres;
(ii) A yield loss in excess of 50 percent of the approved yield;
(iii) A value loss in excess of 50 percent; or
(iv) An animal-unit-days (AUD) loss greater than 50 percent of
expected AUD.
CFAP means the Coronavirus Food Assistance Program 1 and 2 under 7
CFR part 9, subparts A through C, excluding assistance for contract
producers specified in Sec. 9.203(l) through (o).
Certifying agent means a private or governmental entity accredited
by the USDA Secretary for the purpose of certifying a production,
processing, or handling operation as organic.
Controlled environment means an environment in which everything
that can practicably be controlled by the producer with structures,
facilities, and growing media (including but not limited to water,
soil, or nutrients), is in fact controlled by the producer, as
determined by industry standards.
Coverage level means the percentage determined by multiplying the
elected yield percentage under a Federal crop insurance policy or NAP
coverage by the elected price percentage.
Crop year means:
(1) For insured crops and trees, the crop year as defined according
to the applicable Federal crop insurance policy; and
(2) For NAP-covered crops, the crop year as defined in 7 CFR
1437.3.
Deputy Administrator means the FSA Deputy Administrator for Farm
Programs.
Direct market crop means a crop sold directly to consumers without
the intervention of an intermediary such as a registered handler,
wholesaler, retailer, packer, processor, shipper, or buyer (for
example, a crop sold at a farmer's market or roadside stand), excluding
crops sold for livestock consumption.
Disaster year means the calendar year in which the qualifying
disaster event occurred (that is, 2022).
ELAP means the Emergency Assistance for Livestock, Honeybees, and
Farm-Raised Fish Program (7 CFR part 1416, subpart B).
Eligible crop means a crop, including eligible aquaculture, that is
produced, or would have been produced if the qualifying disaster event
had not occurred (for example, crops prevented from planting), in the
United States as part of a farming operation. It excludes:
(1) Crops for grazing;
(2) Aquatic species that do not meet the definition of aquaculture;
(3) Cannabis sativa L. and any part of that plant that does not
meet the definition of hemp; and
(4) Timber.
Farming operation means a business enterprise engaged in the
production of agricultural products, commodities, or livestock,
operated by a person, legal entity, or joint operation. A person or
legal entity may have more than one farming operation if the person or
legal entity is a member of one or more legal entity or joint
operation.
FCIC means the Federal Crop Insurance Corporation, a wholly owned
Government Corporation of USDA, administered by RMA.
Federal crop insurance means an insurance policy reinsured by FCIC
administered by RMA under the provisions of the Federal Crop Insurance
Act (7 U.S.C. 1501-1524), as amended. It does not include private plans
of insurance.
Federal crop insurance indemnity means the payment to a participant
for crop losses covered under Federal crop insurance administered by
RMA in accordance with the Federal Crop Insurance Act.
Feedstock means a crop including, but not limited to, grasses or
legumes, algae, cotton, peanuts, coarse grains, small grains, oilseeds,
or short rotation woody crops grown expressly for the purpose of
producing a biobased material or product, and does not include residues
and by-products of crops grown for any other purpose.
Hemp means the plant species Cannabis sativa L. and any part of
that plant, including the seeds and all derivatives, extracts,
cannabinoids, isomers, acids, salts, and salts of isomers, whether
growing or not, with a delta-9 tetrahydrocannabinol concentration of
not more than 0.3 percent on a dry weight basis, that is grown under a
license or other required authorization issued by the applicable
governing authority that permits the production of the hemp.
High value crop means, for Track 2:
(1) Any eligible crop that is not specifically identified as a
specialty crop or listed in the definition of ``other crop''; and
(2) Any eligible crop, regardless of whether it is identified as a
specialty crop or listed in the definition of ``other crop,'' if the
crop is a direct market crop, organic crop, or a crop grown for a
specific market in which specialized products can be sold resulting in
an increased value compared to the typical market for the crops (for
example, soybeans intended for tofu production), as determined by the
Deputy Administrator.
Note: The term ``high value crop'' does not apply to Track 1.
Income derived from farming, ranching, and forestry operations
means income of a person or legal entity derived from:
(1) Production of 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;
[[Page 74407]]
(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, or forestry commodities including for renewable energy;
(7) Feeding, rearing, or finishing of livestock;
(8) Payments of benefits, including benefits from risk management
practices, Federal crop insurance indemnities, and catastrophic risk
protection plans;
(9) Sale of land that has been used for agricultural purposes;
(10) Benefits (including, but not limited to, cost-share assistance
and other payments) from any Federal program made available and
applicable to payment eligibility and payment limitation rules, as
provided in 7 CFR part 1400;
(11) Income reported on 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,
an 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, and forestry activities as defined in
this document; and
(13) Any other activity related to farming, ranching, or forestry,
as determined by the Deputy Administrator.
IRS means the Department of the Treasury, Internal Revenue Service.
LDP means the Loan Deficiency Payment programs (7 CFR parts 1421,
1425, 1427, 1434, and 1435).
Legal entity means a corporation, joint stock company, association,
limited partnership, limited liability company, irrevocable trust,
estate, charitable organization, general partnership, joint venture, or
other similar organization created under Federal or State law including
any such organization participating in a business structure as a
partner in a general partnership, a participant in a joint venture, a
grantor of a revocable trust, or as a participant in a similar
organization. A business operating as a sole proprietorship is
considered a legal entity.
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 $189,200 in each of the 2019 and 2020 calendar years (the
relevant years for the 2022 program year); 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 2019 and
2020 calendar years. 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 the Natural
Resources 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.
LFP means the Livestock Forage Disaster Program (7 CFR part 1416,
subpart C).
MLG means marketing loan gains from the Marketing Assistance Loan
program (7 CFR parts 1421, 1425, 1427, 1434, and 1435).
Minor child means a person who is under 18 years of age as of June
1, 2022.
MFP means the 2018 Market Facilitation Program (7 CFR part 1409,
subpart A) and the 2019 Market Facilitation Program (7 CFR part 1409,
subpart B).
NAP means the Noninsured Crop Disaster Assistance Program (7 CFR
part 1437).
NAP service fee means the fee the producer paid to obtain NAP
coverage specified in 7 CFR 1437.7.
Non-specialty crop means a crop, under Track 1, that does not meet
the definition of specialty crop. Note: The term ``non-specialty crop''
does not apply to Track 2.
On-Farm Storage Loss Program means the On-Farm Storage Loss Program
(7 CFR part 760, subpart P).
Organic crop means a crop that is grown on acreage certified by a
certifying agent as conforming to organic standards (7 CFR part 205)
and organically produced consistent with section 2103 of the Organic
Foods Production Act of 1990 (7 U.S.C. 6502).
Other crop means, for Track 2, cotton, peanuts, rice, feedstock,
and any crop grown with an intended use of grain, silage, or forage,
unless the crop meets the requirements in paragraph (2) of the
definition of ``high value crop.'' Note: The term ``other crop'' does
not apply to Track 1.
Ownership interest means to have either a legal ownership interest
or a beneficial ownership interest in a legal entity. For the purposes
of administering ERP 2022, 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 also considered to have a beneficial ownership interest in
such legal entity.
Person means an individual who is a natural person and does not
include a legal entity.
PLC means the Price Loss Coverage program (7 CFR part 1412).
Premium means the premium paid by the producer for Federal crop
insurance coverage or NAP buy-up coverage levels.
Producer means a person or legal entity who was entitled to a share
in the eligible crop or would have shared had the eligible crop been
produced.
Production inputs mean material to conduct farming operations, such
as seeds, chemicals, and fencing supplies.
Production services mean services provided to support a farming
operation, such as custom farming, custom feeding, and custom fencing.
Qualifying disaster event means wildfires, hurricanes, floods,
derechos, excessive heat, tornadoes, winter storms, freeze (including a
polar vortex), smoke exposure, excessive moisture, qualifying drought,
and related conditions occurring in 2022.
Qualifying drought means an area within the county was rated by the
U.S. Drought Monitor as having a drought intensity of D2 (severe
drought) for 8 consecutive weeks or D3 (extreme drought) or higher
level for any period of time during the applicable calendar year.
QLA Program means the Quality Loss Adjustment Program (7 CFR part
760, subpart R).
Related condition means damaging weather and adverse natural
occurrences that occurred concurrently with and as a direct result of a
specified qualifying disaster event. Related conditions include, but
are not limited to:
(1) Excessive wind that occurred as a direct result of a derecho;
(2) Silt and debris that occurred as a direct and proximate result
of flooding;
(3) Excessive wind, storm surges, tropical storms, and tropical
depressions that occurred as a direct result of a hurricane; and
(4) Excessive wind and blizzards that occurred as a direct result
of a winter storm.
[[Page 74408]]
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.
Specialty crops means fruits, tree nuts, vegetables, culinary herbs
and spices, medicinal plants, and nursery, floriculture, and
horticulture crops. This includes common specialty crops identified by
USDA's Agricultural Marketing Service at https://www.ams.usda.gov/services/grants/scbgp/specialty-crop and other crops as designated by
the Deputy Administrator. This term also includes trees covered by
Federal crop insurance policies included in Track 1.
STRP means the Seafood Trade Relief Program (announced in the
notice of funds availability published on September 14, 2020 (85 FR
56572)).
Substantial beneficial interest (SBI) has the same meaning as
specified in 7 CFR 457.8. For the purposes of ERP 2022 Track 1, Federal
crop insurance records for ``transfer of coverage, right to indemnity''
are considered the same as SBIs.
Tree means a tall, woody plant having comparatively great height,
and a single trunk from which an annual crop is produced for commercial
market for human consumption, such as a maple tree for syrup, or papaya
or orchard tree for fruit. It includes immature trees that are intended
for commercial purposes. Nursery stock, banana and plantain plants, and
trees used for pulp or timber are not considered eligible trees.
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.
Unit means the unit structure as defined under the applicable
Federal crop insurance policy for insured crops or in 7 CFR 1437.9 for
NAP-covered crops.
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.
USDA means the U.S. Department of Agriculture.
U.S. Drought Monitor means the system for classifying drought
severity according to a range of abnormally dry to exceptional drought.
It is a collaborative effort between Federal and academic partners,
produced on a weekly basis, to synthesize multiple indices, outlooks,
and drought impacts on a map and in narrative form. This synthesis of
indices is reported by the National Drought Mitigation Center at https://droughtmonitor.unl.edu.
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)) \2\ and:
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\2\ The term ``Armed Forces'' means the United States Army,
Navy, Marine Corps, Air Force, Space Force, and Coast Guard,
including the reserve components.
---------------------------------------------------------------------------
(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)) \3\ during the most recent 10-year period.
---------------------------------------------------------------------------
\3\ 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.
---------------------------------------------------------------------------
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.
WFRP means Whole-Farm Revenue Protection available through the
FCIC, including coverage under the Micro Farm Program.
WHIP+ means the Wildfires and Hurricanes Indemnity Program Plus (7
CFR part 760, subpart O).
Producer Eligibility
To be eligible for ERP 2022, a producer must meet all requirements
described below for Track 1 or Track 2, as applicable, and be a:
(1) Citizen of the United States;
(2) Resident alien, which for purposes of ERP 2022 means ``lawful
alien'' as defined in 7 CFR part 1400;
(3) Partnership organized under State law;
(4) Corporation, limited liability company, or other organizational
structure organized under State law;
(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); or
(6) Foreign person or foreign entity who meets all requirements as
described in 7 CFR part 1400.
Track 1 Overview
Track 1 will provide a streamlined application process for eligible
crop and tree losses during the 2022 or 2023 crop years \4\ for which a
producer had:
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\4\ The 2023 crop year is included because a qualifying disaster
event occurring in the 2022 calendar year may have caused a loss of
a crop during the 2023 crop year, based on how ``crop year'' is
defined in the applicable Federal crop insurance policy or NAP
provisions.
---------------------------------------------------------------------------
A Federal crop insurance policy that provided coverage for
crop production losses or tree losses related to the qualifying
disaster events and received an indemnity \5\ for a crop and unit,
excluding:
---------------------------------------------------------------------------
\5\ For purposes of Track 1, ``indemnity'' does not include
cottonseed endorsement payments, downed rice endorsement payments,
sugarcane crop replacement endorsement payments, replant payments,
or raisin reconditioning payments.
--crops with an intended use of grazing,\6\
---------------------------------------------------------------------------
\6\ Crops with an intended use of grazing are covered under ELRP
2022.
---------------------------------------------------------------------------
--livestock policies,
--forage seeding,
--Margin Protection Plan policies purchased without a base policy,\7\
---------------------------------------------------------------------------
\7\ While the majority of crop insurance policies cover an
eligible crop loss, a small number do not and are not eligible for
ERP, including livestock policies, forage seeding, and margin
policies.
---------------------------------------------------------------------------
--banana plants insured under the Hawaii Tropical Trees provisions,\8\
and
---------------------------------------------------------------------------
\8\ While bananas are covered under crops, the banana plants are
not a tree, bush or a vine.
---------------------------------------------------------------------------
--policies issued in Puerto Rico; \9\ or
---------------------------------------------------------------------------
\9\ Federal crop insurance policies issued in Puerto Rico are
not transmitted through the standardized Policy Acceptance and
Storage System. Therefore, pre-filled applications cannot be
automatically generated under Track 1.
NAP coverage and received a NAP payment for a crop and
unit, excluding crops with an intended use of grazing.
The applicable Federal crop insurance policies and NAP provide
payments to producers for crop and tree losses due to eligible causes
of loss, as defined in the producer's Federal crop insurance policy or
NAP regulations and basic provisions. RMA and FSA are using data
submitted by producers for Federal crop insurance or NAP purposes to
calculate a producer's eligible loss under Track 1. The Track 1 payment
calculation is intended to compensate eligible crop and tree producers
for a percentage of that loss determined by the applicable ERP factor,
which varies based on the producer's level of Federal crop insurance or
NAP coverage, as described later in this document. To be eligible for
payment under Track 1, a producer must have suffered a crop or tree
loss that was caused, in whole or in part, by a qualifying disaster
event. Because the amount of loss due to a
[[Page 74409]]
qualifying disaster event cannot be separated from the amount of loss
caused by other causes of loss covered by some Federal crop insurance
policies or NAP, the Track 1 payment will be based on the producer's
loss as long as those losses were caused, in whole or in part, by a
qualifying disaster event.
Track 1 excludes losses to aquacultural species for which the
producer received a payment under ELAP to avoid providing duplicate
benefits for losses already at least partially compensated for by ELAP.
It also excludes losses for which the producer received a Phase 1
payment under the previous ERP.\10\
---------------------------------------------------------------------------
\10\ The previous ERP provided assistance for eligible crop
losses due to qualifying disaster events in calendar years 2020 and
2021. Phase 1 of that program included 2022 crop year losses if the
loss was due, in whole or in part, to a qualifying disaster event
that occurred in the 2021 calendar year.
---------------------------------------------------------------------------
In some situations, a producer may have received both a NAP payment
for a crop loss and an indemnity under a Federal crop insurance policy
that is included in Track 1 to address the same loss. Examples of these
policies include Rainfall Index plans for Annual Forage; Pasture,
Rangeland, and Forage; and Apiculture. In those situations, the
producer must elect whether to receive the Track 1 payment based only
on the data associated with their Federal crop insurance indemnity or
their NAP payment, but they cannot receive a Track 1 payment based on
both the crop insurance indemnity and NAP payment. This policy is
necessary to avoid compensating producers twice for the same loss under
Track 1.
Track 1 Applications
FSA and RMA will identify the producers who meet the criteria
described above to apply for Track 1. For each of those producers, FSA
will generate an FSA-523, Emergency Relief Program (ERP) 2022 Track 1
Application, with certain items pre-filled with information already on
file with USDA, as listed below. Producers cannot alter the data in
these pre-filled items; any alterations in the pre-filled data on the
application will result in the producer's Track 1 application being
considered incomplete and the application will not be processed by FSA.
FSA will not calculate Track 1 payments using data manually submitted
by producers. Track 1 payments will only be calculated using data
already on file with RMA and FSA. If a producer believes that any
information that has been pre-filled is incorrect, the producer should
contact their Federal crop insurance agent for insured crops or their
FSA county office for NAP-covered crops. Once the corrected data have
been received and processed by RMA and FSA, an updated Track 1
application may be generated for the producer.
For producers who received a Federal crop insurance indemnity for
eligible policies, the pre-filled application will include:
the producer's physical State and county codes,
unit numbers,
crops, and
crop years.
For producers who received a NAP payment, the pre-filled
applications will include:
the producer's administrative State and county codes,
unit numbers,
crop years,
pay crops, and
pay groups.
FSA will also pre-fill the calculated Track 1 payment amounts,
prior to any payment reductions for reasons such as payment limitation
and factoring of payments to stay within available funding.
Receipt of a pre-filled application form is not a confirmation that
the producer is eligible to receive a Track 1 payment. In order to
receive a payment, the producer must certify that their Federal crop
insurance indemnity or NAP payment on which the Track 1 payment will be
based was due, in whole or in part, to a crop production loss or a tree
loss caused by a qualifying disaster event. Producers are responsible
for reviewing the list of qualifying disaster events, and if a loss was
due to drought, producers must also ensure that the county where the
crop and unit was located meets the definition of ``qualifying
drought.'' FSA will provide a factsheet and other materials to provide
examples and more details on the qualifying disaster events to assist
producers (available through FSA county offices and at https://www.fsa.usda.gov/programs-and-services/emergency-relief/index).
Producers who received a Federal crop insurance indemnity under a WFRP
policy or for a whole-farm unit must also certify to the percentage of
their expected revenue or total liability for the unit, respectively,
from specialty crops for the purpose of administration of ERP 2022
payment limitations.\11\
---------------------------------------------------------------------------
\11\ WFRP provides risk management safety for specialty and non-
specialty crops under one Federal crop insurance policy. The
producer certifies to the percentage of expected revenue or total
liability for the unit for specialty crops, which results in the
attribution of the specialty and non-specialty crop portions of the
ERP 2022 payment to the separate payment limitations.
---------------------------------------------------------------------------
Producers must also certify on FSA-523 that they will meet the
requirement to purchase Federal crop insurance or NAP coverage for the
next 2 available crop years, as described later in this document. If
multiple crops and units are listed on an application and the producer
only agrees to purchase Federal crop insurance or NAP coverage for only
some of the crops and units, a Track 1 payment will be issued only for
those crops and units for which the producer agrees to purchase Federal
crop insurance or NAP coverage for the next 2 available crop years.
The portion of the form for producers who had Federal crop
insurance will list the primary policy holder and all producers with an
SBI who have a record established with FSA. If one or more producers
with an SBI had a share in a crop, the primary policy holder must
update the application to show the share in the crop for each of those
producers in addition to the primary policy holder. If the producer(s)
are determined to be eligible, payments will be issued to the primary
policy holder and to any eligible producers with an SBI based on their
ownership share of the crop. To receive a payment, each person or
entity that is listed as having a share of the Track 1 payment for a
crop and unit must sign the application and agree to purchase Federal
crop insurance or NAP coverage for that crop and unit.
Track 1 Payment Calculation
FSA and RMA will calculate Track 1 payments using the loss data on
file with FSA or RMA at the time of payment calculation or as later
updated by FSA or RMA upon identification of an error in the data on
file at time of payment calculation.\12\ The Track 1 payment
calculation for a crop and unit will depend on the type and level of
Federal crop insurance or NAP coverage obtained by the producer. Crops
covered under a WFRP policy or included in a whole-farm unit will be
treated as a single crop for payment calculation purposes. Separate
payment limitations will apply to the portions of the payments that are
attributed to specialty and to non-specialty crops, as described later
in this document.
---------------------------------------------------------------------------
\12\ Track 1 payments will be calculated using only data on file
with RMA and FSA. FSA will not calculate Track 1 payments using data
manually submitted by producers.
---------------------------------------------------------------------------
Each payment calculation will use an ERP factor based on the
producer's level of Federal crop insurance or NAP coverage for that
eligible crop or tree, as specified in the following tables.
[[Page 74410]]
------------------------------------------------------------------------
ERP factor
Federal crop insurance coverage level (%)
------------------------------------------------------------------------
Catastrophic coverage...................................... 75.0
More than catastrophic coverage but less than 55 percent... 80.0
At least 55 percent but less than 60 percent............... 82.5
At least 60 percent but less than 65 percent............... 85.0
At least 65 percent but less than 70 percent............... 87.5
At least 70 percent but less than 75 percent............... 90.0
At least 75 percent but less than 80 percent............... 92.5
At least 80 percent........................................ 95.0
------------------------------------------------------------------------
------------------------------------------------------------------------
ERP factor
NAP coverage level (%)
------------------------------------------------------------------------
Catastrophic coverage...................................... 75.0
50 percent................................................. 80.0
55 percent................................................. 85.0
60 percent................................................. 90.0
65 percent................................................. 95.0
------------------------------------------------------------------------
When determining the ERP factors, analysis was conducted to ensure
that payments do not exceed available funding and, in aggregate across
all eligible crop and tree producers, do not exceed 90 percent of
losses, as required by Title I of the Disaster Relief Supplemental
Appropriations Act, 2023. The difference between the ERP factors for
Federal crop insurance and NAP is due to differences in the available
coverage levels under Federal crop insurance and NAP. Federal crop
insurance is available at the catastrophic coverage level (50 percent
production coverage of 55 percent of the price) and buy-up coverage
levels (50 percent to 85 percent of the production for 100 percent of
the price). The coverage level for NAP is limited by law to a maximum
of 65 percent buy-up coverage. For both NAP and Federal crop insurance,
the ERP payment factor for the catastrophic and maximum buy-up levels
are 75 percent and 95 percent, respectively, with the ERP factors
stair-stepping for the buy-up options in-between as shown in the tables
above. Title I of the Disaster Relief Supplemental Appropriations Act,
2023, provides that payments to eligible crop and tree producers who
did not have Federal crop insurance or NAP coverage cannot exceed 70
percent of their loss. The lowest ERP factor for eligible crop and tree
producers who had Federal crop insurance or NAP is set at 75 percent.
Payment limits and other reductions will result in reducing ERP 2022
payments, further lowering the percent of losses covered.
For eligible crop producers who received Federal crop insurance
indemnities, RMA will use the producer's data that are already on file,
which provide the necessary information to determine the producer's
amount of loss. Federal crop insurance provides financial assistance
for crop losses due to specified natural disasters and uses a
producer's data to calculate a payment based on the type of Federal
crop insurance coverage elected by the producer. As previously
discussed, Track 1 is intended to compensate eligible crop and tree
producers for a percentage of their loss determined by the applicable
ERP factor based on the level of Federal crop insurance coverage
purchased; therefore, RMA will calculate each producer's loss
consistent with the approved RMA loss procedures for the type of
coverage purchased \13\ but using the ERP factor. This calculated
amount will then be adjusted by subtracting the gross Federal crop
insurance indemnity.
---------------------------------------------------------------------------
\13\ For example, ERP 2022 for Area Risk Protection Insurance
(ARPI) and Stacked Income Protection (STAX) is based on area-wide
(for example, county) production losses.
---------------------------------------------------------------------------
After calculating the producer's loss and subtracting the gross
Federal crop insurance indemnity as described above for each crop and
unit, progressive factoring \14\ will be applied. Progressive factoring
will be applied by payment range, according to the table below, and FSA
will calculate the sum of each of those calculations.
---------------------------------------------------------------------------
\14\ Progressive factoring is a mechanism that ensures the
limited available funding is distributed in a manner benefitting the
majority of producers rather than a few. Additionally, progressive
factoring increases emergency relief payments to most participants
while reducing larger potential payments which increases the
proportion of funding provided to smaller producers.
------------------------------------------------------------------------
Progressive
Payment range factor (%)
------------------------------------------------------------------------
Up to $2,000............................................... 100
$2,001 to $4,000........................................... 80
$4,001 to $6,000........................................... 60
$6,001 to $8,000........................................... 40
$8,001 to $10,000.......................................... 20
Over $10,000............................................... 10
------------------------------------------------------------------------
For example, to apply progressive factoring to a calculated loss
(after subtraction of indemnities) of $5,000, FSA would multiply:
the first $2,000 by a factor of 100 percent ($2,000 x 100%
= $2,000),
the second $2,000 by a factor of 80 percent ($2,000 x 80%
= $1,600), and
the remaining $1,000 by a factor of 60 percent ($1,000 x
60% = $600).
The sum of those calculations is $4,200, which is the calculated
ERP 2022 payment after progressive factoring.
For another example, to apply progressive factoring to a calculated
loss (after subtraction of indemnities) of $430,000, FSA would
multiply:
the first $2,000 by a factor of 100 percent ($2,000 x 100%
= $2,000),
the second $2,000 by a factor of 80 percent ($2,000 x 80%
= $1,600),
the third $2,000 by a factor of 60 percent ($2,000 x 60% =
$1,200),
the fourth $2,000 by a factor of 40 percent ($2,000 x 40%
= $800),
the fifth $2,000 by a factor of 20% ($2,000 x 20% = $400),
and
the remaining $420,000 by a factor of 10 percent ($420,000
x 10% = $42,000).
The sum of those calculations is $48,000, which is the calculated
ERP 2022 payment after progressive factoring.
For underserved producers, the producer's share of the Federal crop
insurance administrative fee and premium will be added to the resulting
sum.\15\
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\15\ Providing a refund of underserved producers' premiums and
fees supports the equitable administration of FSA programs by
targeting limited resources to support underserved farmers and
ranchers, who are more likely to lack financial reserves and access
to capital to invest in future risk protection while coping with
losses due to unexpected events outside of their control. The refund
of premiums and fees for these more-often vulnerable and smaller
operations who often lack financial resources supports access to
higher levels of coverage available through Federal crop insurance
or NAP. This approach is consistent with the intent to provide
reduced service fees and premium reductions to underserved farmers
and ranchers for other FSA programs as authorized by law. NAP
provides a reduced service fee and premium for underserved farmers
and ranchers (7 U.S.C. 7333(k)(2) and 7 U.S.C. 7333(l)(3)). In
addition, Federal crop insurance provides an administrative fee
waiver for limited resource farmers, beginning farmers or ranchers,
and veteran farmers or ranchers; and offers a premium reduction for
beginning farmers or ranchers and veteran farmers or ranchers (7
U.S.C. 1508(b)(5)(E)(i) and 7 U.S.C. 1508(e)(8)).
---------------------------------------------------------------------------
For all eligible crop producers, FSA will then apply a final
payment factor of 75 percent, resulting in the producer's calculated
Track 1 payment.
For NAP-covered crops and trees, FSA will use the producer's crop
production or inventory data that are already on file, which provides
the necessary information to determine the producer's amount of loss.
NAP provides financial assistance for crop losses due to specified
natural disasters and uses a producer's crop production or inventory
data to calculate a payment based on the level of NAP coverage elected
by the producer. As previously discussed, ERP 2022 is intended to
compensate eligible crop and tree producers for a percentage of loss
determined by the applicable ERP factor based on their NAP coverage
level;
[[Page 74411]]
therefore, FSA will perform a calculation that is consistent with the
NAP payment calculation for the pay crop and unit, as provided in 7 CFR
part 1437, but using the ERP factor in the table above applicable to
the producer's NAP coverage level as the applicable guarantee in those
calculations. For example, the guarantee for a producer that had
purchased 60 percent NAP coverage would be adjusted and recalculated
based on a 90 percent ERP factor. The calculated amount using the ERP
factor would then be adjusted by subtracting the producer's gross NAP
payment.\16\ For underserved producers, the producer's share of the NAP
service fees and premium will be added to the result of that
calculation.\17\
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\16\ The gross NAP payment is the amount calculated according to
7 CFR part 1437, prior to any payment reductions for reasons
including, but not limited to, sequestration, payment limitation,
and average AGI limitations.
\17\ See footnote 15. NAP service fees are waived for producers
with a CCC-860 certification of underserved status on file; however,
if an underserved producer did not previously file CCC-860 to
receive a service fee waiver, but files one now, their service fee
will be added in the Track 1 payment calculation.
---------------------------------------------------------------------------
The calculated amount for NAP-covered crops will not be subject to
the progressive factoring \18\ that applies to ERP 2022 payments based
on Federal crop insurance indemnities; however, it will be multiplied
by a final payment factor of 75 percent to ensure that total payments
do not exceed the available funding.
---------------------------------------------------------------------------
\18\ Progressive factoring will not apply to ERP Track 1
payments calculated based on NAP payments as they traditionally
support smaller producers and non-traditional crops. Non-traditional
crops are not typically covered by Federal crop insurance products
so the higher levels of coverage and risk protection under Federal
crop insurance are not available to offset losses for producers of
those crops in times of disaster.
---------------------------------------------------------------------------
FSA will issue Track 1 payments as applications are processed and
approved. All ERP 2022 payments are subject to the availability of
funding. If additional funding is available after all eligible ERP 2022
applications have been processed and payments have been issued, FSA may
issue an additional payment, not to exceed the maximum amount allowed
by law.
Track 2 Overview
Track 2 will provide assistance for eligible revenue, production,
and quality losses of eligible crops not included in Track 1. FSA has
determined that the best estimation of such losses is a producer's
decrease in disaster year revenue compared to a benchmark year revenue,
where benchmark year revenue represents a producer's revenue prior to
the impact of the qualifying disaster event. This difference in revenue
will reflect losses in both production and quality due in whole or in
part to qualifying disaster events without requiring the more extensive
calculations and documentation required under some previous FSA
programs addressing crop losses due to disaster events. Decreases in
disaster year revenue compared to benchmark revenue also reflect a
producer's loss due to a qualifying disaster event regardless of
whether the loss occurs before harvest or after harvest while the crop
is in storage, further streamlining the delivery of assistance.
To be eligible for Track 2, a producer must certify that they
suffered a loss in disaster year revenue, as compared to a benchmark
year revenue, that was due to necessary expenses associated with losses
of eligible crops due in whole or in part to a qualifying disaster
event that occurred in the 2022 calendar year. Track 2 provides 2
options for determining the benchmark and disaster year revenues:
The tax year option, which allows producers to use certain
information located in their tax records to apply for Track 2; \19\ or
---------------------------------------------------------------------------
\19\ The tax year option is similar to the approach used in
Phase 2 of the previous ERP, which provided assistance for crop
losses due to disaster events in 2020 and 2021.
---------------------------------------------------------------------------
The expected revenue option, which is intended to better
address situations such as a change in operation capacity \20\ in the
disaster year, as compared to the 2018 or 2019 benchmark year; the 2018
and 2019 tax years not reasonably reflecting a normal year's revenue
for reasons including losses due to disaster events in 2018 and 2019 or
changes in crop prices; or production of crops that do not generate
revenue for the producer directly from the sale of the crop (for
example, forage fed to livestock or grapes used by the producer to make
wine).
---------------------------------------------------------------------------
\20\ Change in operation capacity does not include crop rotation
from year to year, changes in farming practices such as converting
from conventional tillage to no-till, or changing the amount of
fertilizers or chemicals used.
---------------------------------------------------------------------------
The following table summarizes benchmark and disaster year revenue
for the 2 options. Sources of revenue to be included in allowable gross
revenue, expected revenue, and actual revenue are explained below in
greater detail.
------------------------------------------------------------------------
Benchmark year Disaster year
Option revenue revenue
------------------------------------------------------------------------
Tax Year.................... A producer's A producer's
allowable gross allowable gross
revenue for the revenue for the
2018 or 2019 tax 2022 or 2023 tax
year, as elected by year, as elected by
the producer. the producer.
Expected Revenue............ A producer's A producer's actual
expected revenue revenue from all
from all eligible eligible crops that
crops that could were included in
have been affected the producer's
by a qualifying expected revenue.
disaster event in
calendar year 2022.
------------------------------------------------------------------------
Although most producers may choose between the 2 options when
applying for Track 2, there are two situations that require a producer
to use a specific option:
Situation 1: Producers who received a payment under the
previous ERP for the 2021 disaster year and elected the 2022 tax year
for their representative disaster year for Phase 2 can only apply for
Track 2 using the tax year option, and they must select 2023 as their
representative disaster year to ensure that they are not paid for the
same loss under both programs, as those producers had previously
certified that 2022 losses were the result of 2021 disaster events.\21\
---------------------------------------------------------------------------
\21\ Producers applying for Phase 2 of the previous ERP for
losses due to qualifying disaster events in the 2021 calendar year
selected either the 2021 or 2022 tax year as the applicable disaster
year. Producers who selected the 2022 tax year have already been
compensated for their 2022 tax year losses, but may select the 2023
tax year for the disaster year for Track 2.
---------------------------------------------------------------------------
Situation 2: Producers, except those described in
Situation 1, must use the expected revenue option if they had a
decrease in operating capacity during their disaster year, as compared
to the 2018 or 2019 benchmark year, were a new producer with no
benchmark year revenue in 2018 or 2019, or produced any crop or crops
that did not generate revenue directly from the sale of the crop and
that the producer uses within their ordinary operation.
Producers who had an increase in operation capacity may elect
either the tax year option or the expected revenue option; however,
they may not adjust benchmark year revenue under the tax year option to
reflect the change, which
[[Page 74412]]
is likely to result in a lower Track 2 payment because the 2018 or 2019
tax year would not accurately reflect their expected revenue at their
2022 operating capacity.
Producers must use the same option to calculate both the benchmark
year revenue and disaster year revenue. For example, a producer who
uses the expected revenue option for the benchmark year must also use
the actual revenue option for the disaster year; they cannot use 2022
or 2023 tax year revenue for the disaster year.
Track 2 Tax Year Option
Producers who use the tax year option for Track 2 will select 2018
or 2019 for their benchmark year revenue and 2022 or 2023 as their
representative year for the disaster year revenue and will certify to
their allowable gross revenue for those years. Allowable gross revenue
is based on the year for which the revenue would be reported for the
purpose of filing a tax return, except for the ERP 2022 Track 1
payments specified below. Producers who file or would be eligible to
file a joint tax return will certify their allowable gross revenue
based on what it would have been had they filed taxes separately for
the applicable year.
Allowable gross revenue includes revenue from:
(1) Sales of eligible crops produced by the producer, which
includes sales resulting from value added through post-production
activities (for example, sales of jam from the processing of
strawberries) that were reportable on IRS Schedule F;
(2) Sales of eligible crops a producer purchased for resale that
had a change in characteristic due to the time held (for example, a
plant purchased at a size of 2 inches and sold as an 18-inch plant
after 4 months), less the cost or other basis of such eligible crops;
(3) Cooperative distributions directly related to the sale of the
eligible crops produced by the producer, such as patronage paid to
producers for gross grain sales;
(4) Benefits for eligible crops under the following agricultural
programs: 2017 WHIP, ARC and PLC, BCAP, CFAP, ELAP (for aquaculture
crops), ERP Phases 1 and 2, LDP, MLG, MFP, the On-Farm Storage Loss
Program, Pandemic Assistance Revenue Program, QLA Program, STRP, and
WHIP+;
(5) Commodity Credit Corporation loans for eligible crops, if
treated as income and reported to the IRS;
(6) Federal crop insurance proceeds for eligible crops, minus the
amount of administrative fees and premiums;
(7) NAP payments for eligible crops, minus the amount of service
fees and premiums;
(8) Proceeds for eligible crops under private insurance policies;
(9) Payments issued through grant agreements with FSA for losses of
eligible crops;
(10) Grants from the Department of Commerce, National Oceanic and
Atmospheric Administration (NOAA) and State program funds providing
direct payments for the loss of eligible crops or the loss of revenue
from eligible crops;
(11) Other revenue directly related to the production of eligible
crops that the IRS requires the producer to report as income, such as
commodity-specific income received from State or local governments and
net gain from hedging; and
(12) For the disaster year only, ERP 2022 Track 1 payments issued
to another person or entity for the producer's share of an eligible
crop, regardless of the tax year in which the payment would be reported
to the IRS.\22\
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\22\ Track 1 allows producers who received pre-filled
application forms to indicate shares in the crop. In some cases,
payment for a producer's share of a crop may have been issued to a
different person or entity than the producer applying for a related
revenue loss under Track 2. Applications for Track 2 must include
any Track 1 payments issued to another person or entity for the
producer's share of an eligible crop in order to prevent duplicate
benefits being issued for the same loss.
---------------------------------------------------------------------------
Allowable gross revenue does not include revenue from sources other
than those listed above, including but not limited to, revenue from:
(1) Federal assistance programs not included above;
(2) Sales of livestock, animal by-products, and any commodities
that are excluded from ``eligible crops;''
(3) Resale items not held for characteristic change;
(4) Income from a pass-through entity such as an S Corp or limited
liability company;
(5) Conservation program payments;
(6) Any pandemic assistance payments that were not for the loss of
eligible crops or the loss of revenue from eligible crops including,
but not limited to, the Pandemic Livestock Indemnity Program, Pandemic
Assistance for Timber Harvesters and Haulers, and Spot Market Hog
Pandemic Program;
(7) Custom hire income;
(8) Net gain from speculation;
(9) Wages, salaries, tips, and cash rent;
(10) Rental of equipment or supplies; and
(11) Acting as a contract producer of an agricultural commodity.
Form FSA-524-A, Emergency Relief Program (ERP) 2022 Track 2 Tax
Year Revenue Worksheet, is an optional form that producers may use to
assist in determining their allowable gross revenue. It is available at
https://www.fsa.usda.gov/programs-and-services/emergency-relief/index.
Track 2 Tax Year Option Special Provisions for Certain Producers
As stated above, producers who received a payment under the
previous ERP for the 2021 program year and elected the 2022 tax year
for their representative disaster year revenue are required to use the
tax year option for Track 2, and they must use the 2023 tax year for
disaster year revenue.
Those producers must certify to an allowable gross revenue for the
benchmark year that they adjusted if the producer had a decreased
operation capacity in a disaster year for which they are applying for
ERP Track 2, compared to the benchmark year. Those producers may
certify to an allowable gross revenue that they adjusted for the
benchmark year on FSA-524 if either of the following apply:
(1) The producer did not have a full year of revenue for 2018 or
2019; or
(2) The producer had expanded their operation capacity in the
disaster year compared to the benchmark year.
Change in operation capacity does not include crop rotation from
year to year, changes in farming practices such as converting from
conventional tillage to no-till, or increasing the rate of fertilizers
or chemicals.
If requested by FSA, producers are required to submit documentation
to FSA to support their adjustments within 30 calendar days of the
request. The documentation to support an adjustment due to a change in
operation capacity must show that the adjustment to the producer's
benchmark year revenue is due to:
(1) An addition or decrease in production capacity of the farming
operation;
(2) An increase or decrease in the use of existing production
capacity; or
(3) Physical alterations that were made to existing production
capacity.
If a producer did not have allowable gross revenue in a benchmark
year because they began farming in 2020 or later, the producer may
adjust benchmark year revenue on FSA-524 that represents the producer's
reasonably expected disaster year revenue prior to the impact of the
qualifying disaster event.
If requested by FSA, documentation required to support a producer's
certification must be provided within 30
[[Page 74413]]
calendar days of FSA's request, or the producer will be considered
ineligible for ERP Track 2. Acceptable documentation must be generated
in the ordinary course of business and dated prior to the impact of the
qualifying disaster event and includes, but is not limited to:
(1) Financial documents such as a business plan or cash flow
statement that demonstrate an expected level of revenue;
(2) Sales contracts or purchase agreements; and
(3) Documentation supporting production capacity, use of existing
production capacity, or physical alterations that demonstrate
production capacity.
Producers who received a payment under the previous ERP for the
2021 program year and elected the 2022 tax year for their
representative disaster year must also include in the allowable gross
revenue a value for certain crops, when and as determined by the Deputy
Administrator, that they produced that did not generate revenue
directly from the sale of the crop and that the producer uses within
their ordinary operation. This would include, for example, wine makers
who grow their own wine grapes and process those grapes into wine and
producers of forage crops who store the crop to feed to livestock on
their farm. These producers would not have revenue from the sale of the
portion of their crop used for these purposes. The determination that
producers may include a crop's value is at the Deputy Administrator's
discretion. Wine grapes used to process grapes into wine, forage crops
that are stored and fed to livestock, and certain other crops, as
listed on the FSA website at https://www.fsa.usda.gov/programs-and-services/emergency-relief/index, have been determined by the Deputy
administrator to qualify for including the crop's value.
The value of the eligible crop reported in the producer's allowable
gross revenue will be based on the producer's actual production of the
crop and a price for the crop based on the best available data for each
crop, such as published price data for the crop \23\ or the average
price obtained by other producers in the area, as determined by the
Deputy Administrator and published through guidance on FSA's website.
This provision is intended to address a gap in how crop losses in these
situations may be accounted for in a producer's payment, and it does
not cover crops that were sold by a producer.
---------------------------------------------------------------------------
\23\ Published sources of price data that the Deputy
Administrator may consider include, but are not limited to, FCIC-
established prices, FSA-established NCT prices, and National
Agricultural Statistic Service prices.
---------------------------------------------------------------------------
These adjustment provisions only apply to producers that received a
payment under the previous ERP for the 2021 program year based on the
2022 tax year for their representative disaster year revenue because
those producers must use the tax year option. All other producers that
would require such adjustments must use the expected revenue option, as
previously explained in this document.
Track 2 Expected Revenue Option
As mentioned above, for Track 2, as an alternative to using the tax
year option, a producer may certify to a benchmark year revenue that
represents the producer's reasonably expected revenue prior to the
impact of the qualifying disaster event, as well as their actual
disaster year revenue. The producer's total expected revenue must
include all eligible crops that could have been affected by a
qualifying disaster event in calendar year 2022, including crops
prevented from being planted, planted crops (including annual,
perennial, and inventory), and crops that were in storage. It does not
include revenue from crop by-products, such as cotton seed and corn
stalks. Expected revenue will be based on:
For perennial, planted, and prevented planted yield-based
crops, the producer's expected acres multiplied by their expected yield
per acre, multiplied by the expected price;
For inventory crops, the total inventory prior to the
impact of the qualifying disaster event multiplied by the expected
price; and
For crops in storage, the producer's production in storage
multiplied by the expected price.
Expected revenue must be based on realistic projections that can be
supported by acceptable documentation of expected inventory, acres,
yield, and unit price, such as the following:
sales contracts,
purchase agreements,
market agreements,
settlement sheets,
scale tickets,
lease agreements,
local market prices,
FCIC established yield and prices,
Federal crop insurance documents,
historical yield data,
appraisals,
farm business plans,
acreage reports,
FSA National Crop Table (NCT) data,\24\
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\24\ NCT data are available at https://www.fsa.usda.gov/programs-and-services/disaster-assistance-program/noninsured-crop-disaster-assistance/index.
---------------------------------------------------------------------------
ARC and PLC prices and yields \25\
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\25\ ARC and PLC information is available at https://www.fsa.usda.gov/programs-and-services/arcplc_program/arcplc-program-data/index.
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cooperative extension service and university data,
financial institute documentation, and
National Agricultural Statistics Service data.
The producer must maintain sufficient documentation to support that
their projection is reasonable and realistic; that documentation must
be available if requested.
Actual disaster year revenue for the expected revenue option is
equal to the actual revenue from all crops that were included in the
producer's expected revenue. Actual disaster year revenue includes:
Revenue from sales of eligible crops;
Federal crop insurance indemnities for eligible crops,
minus premiums and administrative fees;
NAP payments for eligible crops, minus premiums and
service fees;
Indemnities for eligible crops under private crop
insurance policies;
The value of eligible crops produced but not sold (such as
crops in storage or inventory, or fed to the producer's livestock);
FSA Payments issued for 2022 calendar year disaster
losses, including but not limited to payments under:
[cir] ELAP for aquaculture crops,
[cir] ARC,
[cir] LDP,
[cir] MLG,
Net gains from hedging from eligible crops produced;
Grants from NOAA and State programs for the direct loss of
eligible crops or the loss of revenue for eligible crops; and
Other revenue directly related to the production of
eligible crops that IRS requires the producer to report as income.
For crops produced in the 2022 or 2023 crop years but not sold, the
value included in actual disaster year revenue may differ from the
expected revenue for the crops due to market price fluctuations between
planting and time of marketing, quality losses, or production losses
related to qualifying disaster events occurring in the 2022 calendar
year. Crops in storage from 2021 or earlier must use the expected price
to calculate the value included in actual disaster year revenue if the
crop remains in storage at the time of application since ERP 2022 does
not pay
[[Page 74414]]
for market fluctuations for prior year crops.
Form FSA-524-B, Emergency Relief Program (ERP) 2022 Track 2
Expected Revenue Worksheet, is an optional form that producers may use
to assist in calculating their expected and actual revenue. It is
available at https://www.fsa.usda.gov/programs-and-services/emergency-relief/index.
Track 2 Applications
Producers applying for Track 2 must submit FSA-524, Emergency
Relief Program (ERP) 2022 Track 2 Application, certifying their
benchmark year revenue and disaster year revenue. The FSA-524 Appendix
provides a guide for what should be included as applicable revenue for
the option elected by the producer. In addition, all producers applying
for Track 2 must submit FSA-525, Crop Insurance and/or NAP Coverage
Agreement, by the application deadline to have a complete application
on file.
For the purpose of administration of the ERP 2022 payment
limitations, producers applying for Track 2 must certify to the
percentage of their disaster year revenue from specialty and high value
crops combined, and from other crops on their application. The
percentages certified must be equal to the percentages that the
producer would have reasonably expected to receive for the disaster
year if not for the qualifying disaster event. Producers must also
certify to whether all acreage of all eligible crops (including crops
grown, prevented from being planted, and in storage or inventory in the
disaster year) were covered by Federal crop insurance or NAP, for the
purpose of determining the applicable ERP factor, as explained below.
If requested by FSA, documentation required to support a producer's
certifications of revenue and other information provided on the
application must be submitted within 30 calendar days of FSA's request,
or the producer will be considered ineligible for Track 2.
Track 2 Payment Calculation
To determine a producer's Track 2 payment amount, FSA will
calculate:
Step 1 The producer's benchmark year revenue, multiplied by the ERP
factor of 90 percent if all acres of all eligible crops were covered by
Federal crop insurance or NAP, or 70 percent if not all acres of all
eligible crops were covered by Federal crop insurance or NAP; minus
Step 2 The producer's disaster year revenue; minus
Step 3 The sum of the producer's gross Track 1 payments.\26\
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\26\ The gross ERP Track 1 calculated payment is the calculated
payment amount after all applicable factoring and prior to any
payment reductions for reasons including, but not limited to,
sequestration and payment limitation.
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After performing the calculation described above, progressive
factoring \27\ will be applied to the calculated amount according to
the table below.
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\27\ Track 2 applies progressive factoring in a manner
consistent with the progressive factoring of Track 1 payments based
on Federal crop insurance indemnified losses. Track 2 assistance is
calculated based on a decrease in disaster year revenue for eligible
revenue, production, and quality losses of eligible insured, non-
insurable, and uninsured crops not included in Track 1. While Track
1 payments based on NAP payments are not subject to progressive
factoring, Track 2 assistance is calculated based on the overall
decrease in disaster year revenue and does not calculate assistance
independently for insured crops and NAP crops in a manner similar to
Track 1; therefore, progressive factoring is applied to all Track 2
payments.
------------------------------------------------------------------------
Progressive
Payment range factor (%)
------------------------------------------------------------------------
Up to $2,000............................................... 100
$2,001 to $4,000........................................... 80
$4,001 to $6,000........................................... 60
$6,001 to $8,000........................................... 40
$8,001 to $10,000.......................................... 20
Over $10,000............................................... 10
------------------------------------------------------------------------
For example, to apply progressive factoring to a calculated loss of
$5,000, FSA would multiply:
the first $2,000 by a factor of 100 percent ($2,000 x 100%
= $2,000),
the second $2,000 by a factor of 80 percent ($2,000 x 80%
= $1,600), and
the remaining $1,000 by a factor of 60 percent ($1,000 x
60% = $600).
The sum of those calculations is $4,200.
For another example, to apply progressive factoring to a calculated
loss of $430,000, FSA would multiply:
the first $2,000 by a factor of 100 percent ($2,000 x 100%
= $2,000),
the second $2,000 by a factor of 80 percent ($2,000 x 80%
= $1,600),
the third $2,000 by a factor of 60 percent ($2,000 x 60% =
$1,200),
the fourth $2,000 by a factor of 40 percent ($2,000 x 40%
= $800),
the fifth $2,000 by a factor of 20% ($2,000 x 20% = $400),
and
the remaining $420,000 by a factor of 10 percent ($420,000
x 10% = $42,000).
The sum of those calculations is $48,000, which is the gross ERP
2022 payment after progressive factoring.
FSA will calculate the total of the results for each range above.
For underserved producers, the sum of the results will be multiplied by
a factor of 115 percent, and the underserved producer's calculated
Track 2 payment will be equal to the lesser of the resulting amount or
the amount calculated after step 3 above.\28\ For all other eligible
producers, the sum of the results for each range will be the calculated
Track 2 payment. FSA will multiply that amount by the percentage of the
expected disaster year revenue for specialty and high value crops or
other crops, as applicable, to determine the amounts that will apply to
the payment limitations for specialty and high value crops (combined)
and other crops.
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\28\ Underserved producers will receive an increase to their
Track 2 payment that is equal to 15 percent of the gross Track 2
payment after progressive factoring not to exceed the calculated
Track 2 payment before progressive factoring. 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, ELAP, 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, Pandemic
Assistance Revenue Program, and the previous ELRP and ERP programs
for qualifying disaster events in calendar years 2020 and 2021. In
addition, NAP 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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For example, the amount calculated after step 3 above is $430,000
and is reduced to $48,000 after progressive factoring. For an
underserved producer, FSA would multiply $48,000 times 115 percent
which equals $55,200 which is less than the max payment amount of
$430,000. The producer certified to 50 percent of expected revenue as
being from specialty crops. FSA would multiply $55,200 times 50 percent
which equals $27,600 gross payment attributed to specialty crops. FSA
would subtract $27,600 from $55,200 which equals $27,600 gross payment
attributed to other crops. The producer's total payment is $55,200
($27,600 + $27,600 = $55,200). FSA will apply a final payment factor of
75 percent to all calculated Track 2 payments, including payments to
underserved producers, to ensure payments do not exceed available
funding.
If a producer receives a Track 1 payment after their Track 2
payment is calculated, the producer's Track 2 payment will be
recalculated and the producer must refund any resulting overpayment.
FSA will issue Track 2 payments as applications are processed and
approved. All ERP 2022 payments are subject to the availability of
funding. If additional funding is available after ERP
[[Page 74415]]
2022 payments are issued, FSA may issue an additional payment, not to
exceed the maximum amount allowed by law as explained below.
Applying for ERP 2022
FSA expects to begin mailing Track 1 application forms on or around
November 8, 2023, to producers who received Federal crop insurance
indemnities, and to begin mailing forms to producers who received NAP
payments on or around November 8, 2023. For Track 2, FSA will begin
accepting applications on October 31, 2023, and producers may obtain an
application form and FSA-525, Crop Insurance and/or Nap Coverage
Agreement for ERP 2022, through their county office or online at
https://www.fsa.usda.gov/programs-and-services/emergency-relief/index.
Applications may be submitted in person or by mail, email,
facsimile, or other methods announced by FSA. A complete application
for each track a producer is applying for must be submitted to the
producer's recording county office by the close of business on the
deadline announced by FSA (the ERP 2022 deadline).
To receive an ERP 2022 payment, producers, including any producers
with an SBI who have a share in a crop as indicated on a Track 1
application, must also have the following forms on file with FSA within
60 days of the ERP 2022 deadline:
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 producer and
applicable affiliates.
Many producers, especially if they have participated in FSA
programs recently, will already have these forms on file with FSA.
In addition to the forms listed above, certain producers will also
need to submit the following forms in order to have their payment
calculated as described above for underserved producers or to qualify
for an increased payment limitation, as described in the Payment
Limitation section in this document:
Form CCC-860, Socially Disadvantaged, Limited Resource,
Beginning and Veteran Farmer or Rancher Certification, applicable for
the 2022 program year; \29\ or
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\29\ A person 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 CCC-860
certifying their status for a later program year because a person'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
program years the status would apply.
An entity that has filed CCC-860 certifying its 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 its status for a later program year unless the
entity's status has changed due to changes in membership.
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 and household income, those producers must
submit CCC-860 for each applicable program year.
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Form FSA-510, Request for an Exception to the $125,000
Payment Limitation for Certain Programs, including the certification
from a certified public accountant or attorney that the person or legal
entity has met the requirements to be eligible for the increased
payment limitation, for a person or a legal entity and all members of
that entity, for the 2022 program year.
FSA will continue to accept forms CCC-860 and FSA-510 for ERP 2022
until 60 days after the ERP 2022 deadline. If a producer files a CCC-
860 or FSA-510 and the accompanying certification after their ERP 2022
payment is issued but before the deadline to submit these forms, FSA
will process the form CCC-860 or FSA-510 and issue any resulting
additional payment amount.
Payment Limitation
As required by Title I of the Disaster Relief Supplemental
Appropriations Act, 2023, the payment limitation for ERP 2022 is
determined by the person's or legal entity's average adjusted gross
farm income. 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 for specialty and high value crops
combined and $125,000 in payment for all non-specialty crops and other
crops under ERP 2022 (for Track 1 and Track 2 combined) if their
average adjusted gross farm income is less than 75 percent of their
average AGI the 3 taxable years preceding the most immediately
preceding complete tax year.
If at least 75 percent of the person or legal entity's average AGI
is income derived from farming, ranching, and forestry related
activities and the participant provides the required certification and
documentation, as discussed below, the person or legal entity, other
than a joint venture or general partnership, is eligible to receive,
directly or indirectly, up to:
$900,000 for specialty crops under Tracks 1 and 2 and high
value crops under Track 2 combined; and
$250,000 for non-specialty crops under Track 1 and other
crops under Track 2, combined.
The relevant tax years for establishing a producer's AGI and
percentage derived from farming, ranching, and forestry related
activities are 2018, 2019, and 2020.
To receive more than $125,000 in ERP 2022 payments, producers must
submit form FSA-510, including the certification from a certified
public accountant or attorney that the person or legal entity has met
the requirements to be eligible for the increased payment limitation.
If a producer requesting the increased payment limitation is a legal
entity, all members of that entity must also complete form 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 increased payment limitation based on
the legal entity's average AGI that is income derived from farming,
ranching, and forestry related activities but a member of that legal
entity either does not complete a form FSA-510 and provide the required
certification or is not eligible for the increased payment limitation,
the payment to the legal entity will be reduced for the payment
limitation applicable to the share of the 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; \30\
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\30\ The ``first level or payment legal entity'' means that the
payment entity will have a reduction applied, and if the payment
entity happens to be a joint venture, that reduction is applied to
the first level, or highest level, for payments. The ``first level
or payment legal entity'' is the highest level of ownership of the
applicant to whom payments can be attributed or limited. If the
applicant is a business type that does not have a limitation or
attribution, the reduction is applied to the first level, but if the
business type can have the reduction applied directly to it, then
the limitation applies.
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[[Page 74416]]
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 person or legal entity must provide the name, address, valid
taxpayer identification number, and ownership share of each person, or
the name, address, valid taxpayer identification number, and ownership
share of each legal entity, that holds or acquires an ownership
interest in the legal entity. ERP 2022 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. 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.
If a person or legal entity is not eligible to receive ERP 2022
payments due to the person or legal entity failing to satisfy payment
eligibility provisions, the payment made either directly or indirectly
to the person 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 person 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.
Requirement To Purchase Federal Crop Insurance or NAP Coverage
Title I of the Disaster Relief Supplemental Appropriations Act,
2023, requires all producers who receive ERP 2022 payments, including
those receiving a Track 1 payment for a tree loss under a Federal crop
insurance policy, to purchase Federal crop insurance, or NAP coverage
where Federal crop insurance is not available, for the next 2 available
crop years, as determined by the Secretary. Participants must file an
accurate acreage report and obtain Federal crop insurance or NAP
coverage, as may be applicable:
At a coverage level equal to or greater than 60 percent
for insurable crops and trees; or
At the catastrophic level or higher for NAP-eligible
crops.
Availability will be determined from the date a producer receives
an ERP 2022 payment and may vary depending on the timing and
availability of Federal crop insurance or NAP coverage for a producer's
particular crops. The final crop year to purchase Federal crop
insurance or NAP coverage to meet the second year of coverage for this
requirement is the 2027 crop year.
In situations where Federal crop insurance is unavailable for a
crop, an ERP 2022 participant must obtain NAP coverage. Section 1001D
of the Food Security Act of 1985 (1985 Farm Bill; Pub. L. 99-198)
provides that a person or entity with an average AGI greater than
$900,000 is not eligible to participate in NAP; however, producers with
an average AGI greater than $900,000 are eligible to participate in ERP
2022. To reconcile this restriction in the 1985 Farm Bill and the
requirement to obtain NAP or Federal crop insurance coverage, ERP 2022
participants may meet the purchase requirement by purchasing WFRP
coverage, if eligible, or they may pay the applicable NAP service fee
despite their ineligibility for a NAP payment. In other words, the
service fee must be paid even though no NAP payment may be made because
the average AGI of the person or entity exceeds the 1985 Farm Bill
limitation.
For Track 1, the Federal crop insurance and NAP coverage
requirements are specific to the crop and county (which is the county
where the crop is physically located for insured crops and the
administrative county for NAP-covered crops) for which Track 1 payments
are paid.
Producers who receive a Track 1 payment that was calculated based
on an indemnity under a Pasture, Rangeland, and Forage policy; Annual
Forage policy; or WFRP policy must purchase the same type of policy or
a combination of individual policies for the crops that had covered
losses under ERP 2022 to meet the Federal crop insurance and NAP
coverage requirement.
Producers who receive a Track 1 payment on a crop in a county and
who have the crop or crop acreage in subsequent years, as provided in
this document, and who fail to obtain the 2 years of Federal crop
insurance or NAP coverage required as specified in this document must
refund all Track 1 payments for that crop in that county with interest
from the date of disbursement.
Producers who were paid under Track 1 for a crop in a county, but
do not plant that crop in that county in a year for which the Federal
crop insurance and NAP coverage requirement applies, are not subject to
the Federal crop insurance or NAP purchase requirement for that year.
For Track 2, producers must report all crops that suffered a
revenue loss in whole or in part due to a qualifying disaster event on
form FSA-525, Crop Insurance and/or NAP Coverage Agreement, and obtain
the required level of Federal crop insurance or NAP coverage in all
counties where the crop is grown for the applicable years. For all
crops listed on form FSA-525, producers who have the crop or crop
acreage in subsequent years and who fail to obtain the required 2 years
of Federal crop insurance or NAP coverage must refund the ERP Track 2
payment with interest from the date of disbursement.
If both Federal crop insurance and NAP coverage are unavailable for
a crop,
[[Page 74417]]
the producer must obtain WFRP Federal crop insurance coverage, if
eligible.
Producers who receive an ERP Track 1 payment for a crop are not
required to obtain additional years of Federal crop insurance or NAP
coverage for that crop if they also receive an ERP Track 2 payment for
a loss associated with that crop.
Producers who do not plant a crop listed on form FSA-525 in a year
for which the Federal crop insurance and NAP coverage requirement
applies are not subject to the Federal crop insurance or NAP purchase
requirement for that crop for that year.
Provisions Requiring Refund to FSA
In the event that any ERP 2022 payment resulted from erroneous
information reported by the producer, or any person acting on their
behalf, or if the producer's data are updated after RMA or FSA
calculates a producer's Track 1 payment, the ERP 2022 payment for both
Track 1 and Track 2, as applicable, 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 producer. If FSA
determines that the producer intentionally misrepresented information
used to determine the producer's ERP 2022 payment amount, the
application will be disapproved and the producer must refund the full
payment to FSA with interest from the date of disbursement. All persons
with a financial interest in a legal entity receiving payments are
jointly and severally liable for any refund, including related charges,
which is determined to be due to FSA for any reason. Any required
refunds must be resolved in accordance with debt settlement regulations
in 7 CFR part 3.
General Provisions
Applicable general eligibility requirements, including
recordkeeping requirements and required compliance with HELC and
Wetland Conservation provisions, are similar to those for previous ad
hoc crop disaster programs and current permanent disaster programs.
General requirements that apply to other FSA-administered commodity
programs also apply to ERP 2022. Accordingly, producers that receive
ERP 2022 must be in 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 ERP 2022. As described above,
Track 1 payments are calculated using data on file with RMA and FSA at
the time of payment calculation, unless that data are later updated.
Producers who receive a Track 1 application and disagree with the
calculated payment amount or data used in the calculation may apply for
Track 2, which will allow them to provide their data to FSA through a
traditional application process.
Participants are required to retain documentation in support of
their application for 3 years after the date of approval. All
information provided to FSA for program eligibility and payment
calculation purposes, including certification that a producer suffered
a loss due to a qualifying disaster event, is subject to spot check.
Participants receiving ERP 2022 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.
If requested by FSA, the producer must provide additional
documentation that establishes the producer's eligibility for ERP 2022.
If supporting documentation is requested, the documentation must be
submitted to FSA within 30 calendar days from the request or the
application will be disapproved by FSA. FSA may request supporting
documentation to verify information provided by the producer and the
producer's eligibility including, but not limited to, the producer's
ownership share in the crop or commodity, benchmark year revenue,
disaster year revenue, and percentage of expected revenue from
specialty and high value crops and other crops.
ERP 2022 applicants filing an FSA-510 are subject to an FSA audit
of information submitted for the purpose of increasing the program's
payment limitation. As a part of this audit, FSA may request income tax
returns, and if requested, must be supplied by all related persons and
legal entities. In addition to any other requirement under any Federal
statute, relevant Federal income tax returns and documentation must be
retained a minimum of 3 years after the end of the calendar year
corresponding to the year for which payments or benefits are requested.
Failure to provide necessary and accurate information to verify
compliance, or failure to comply with these requirements will result in
ineligibility for ERP 2022 benefits and require refund of any ERP 2022
payments, including interest to be calculated from the date of the
disbursement to the producer.
Applicants have a right to a decision in response to a timely-filed
complete application.
If an applicant files a late ERP 2022 application, the application
will be considered a request to waive the deadline. Requests to waive
or modify program provisions are at the discretion of the Deputy
Administrator. The Deputy Administrator has the authority to 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 the lateness or failure to meet
such other requirements or program provisions do not adversely affect
the operation of ERP 2022. Applicants who request to waive or modify
program provisions do not have a right to a decision on those requests.
The Deputy Administrator's refusal to exercise discretion on requests
to waive or modify ERP 2022 provisions will not be considered an
adverse decision and is, by itself, not appealable.
Any payment under ERP 2022 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 ERP 2022
payments.
If any person who would otherwise be eligible to receive a payment
dies before the payment is received, payment may be released as
specified in 7 CFR 707.3. Similarly, if any person or legal entity who
would otherwise have been eligible to apply for a payment dies or is
dissolved, respectively, before the payment is applied for, payment may
be released in accordance with this document if a timely application is
filed by an authorized representative. Proof of authority to sign for
the deceased producer or dissolved entity must be provided. If a
participant is now a dissolved general partnership or joint venture,
all members of the general partnership or joint venture at the time of
dissolution or their duly authorized representatives must sign the
application for payment. Eligibility of such participant will be
determined, as it is for other participants, based on ownership share
and risk in producing the crop.
In either applying for or participating in ERP 2022, or both, the
producer is
[[Page 74418]]
subject to laws against perjury (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 ERP 2022, or both,
then the producer may be found to be guilty of perjury. Except as
otherwise provided by law, if guilty of perjury the applicant 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 ERP 2022 under the following condition: by applying for ERP
2022, applicants agree, as a condition of the waiver, that the ERP 2022
payments will be applied to reduce the amount of the judgment lien.
In addition to any other Federal laws that apply to ERP 2022, 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 provisions of the Paperwork Reduction Act
(44 U.S.C. chapter 35), the information collection request has been
approved by OMB under an emergency request under control number 0560-
0316. FSA will collect the information from producers to qualify for an
ERP 2022 payment. ERP 2022 is a one-time funding as described in this
NOFA.
In accordance with the Paperwork Reduction Act, FSA is requesting
comments from all interested individuals and organizations on a new
information collection request that supports ERP 2022.
Description of Information Collection
Title: Emergency Relief Program 2022 (ERP 2022).
OMB Control Number: 0560-0316.
Type of Request: New.
Abstract: FSA is providing assistance to eligible crop producers to
cover the necessary expenses related losses of revenue, quality, or
production 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, tornadoes, floods, derechos, excessive heat,
winter storms, freeze, including a polar vortex, smoke exposure,
quality losses of crops, and excessive moisture occurring in calendar
year 2022.
FSA is administering ERP in two tracks (referred to as Track 1 and
Track 2). ERP Track 1 will use a streamlined process with pre-filled
application forms for losses where the data are already on file with
FSA or the Risk Management Agency (RMA) as a result of the producers
previously receiving a Noninsured Crop Disaster Assistance Program
(NAP) payment or a Federal crop insurance indemnity under certain
Federal crop insurance policies. ERP Track 2 will provide payments for
other eligible losses through a revenue-based approach using a
traditional application process during which producers will provide the
information required to calculate a payment.
For the following estimated total annual burden on respondents, the
formula used to calculate the total burden hours is the estimated
average time per response multiplied by the estimated total annual
responses.
Estimate of Average Time to Respond: Public reporting burden for
collecting information under this notice is estimated to average 0.305
hour per response, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collections of information.
Type of Respondents: Producers.
Estimated Number of Respondents: 230,000.
Estimated Average Number of Responses per Respondent: 1.43.
Estimated Total Annual Responses: 327,855.
Estimated Total Annual Burden on Respondents: 100,072 hours.
The purpose of this notice is to request comments from the public
(as well as affected agencies) concerning the information collection
request.
The comments will help us:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of burden of the
collection of information including the validity of the methodology and
assumptions used;
(3) Evaluate the quality, utility and clarity of the information
technology; and
(4) Minimize the burden of the information collection on those who
respond through the use of appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology.
All comments received in response to this notice, including names
and addresses where provided, will be made a matter of public record.
Comments will be summarized and included in the submission for Office
of Management and Budget 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). ERP 2022 is authorized by
Title I of the Disaster Relief Supplemental Appropriations Act, 2023.
The intent of ERP 2022 is to provide payments to eligible crop
producers who suffered eligible crop and tree losses due to wildfires,
hurricanes, floods, derechos, excessive heat, tornadoes, winter storms,
freeze (including a polar vortex), smoke exposure, excessive moisture,
and qualifying drought, and related conditions occurring in calendar
year 2022.
The limited discretionary aspects of the program were designed to
be consistent with established FSA disaster programs. As such, the
Categorical Exclusions in 7 CFR part 799.31 apply, specifically 7 CFR
799.31(b)(6)(iv) and (vi) (that is, Sec. 799.31(b)(6)(iv) Individual
farm participation in FSA programs where no ground disturbance or
change in land use occurred as a result of the action or participation;
and Sec. 799.31(b)(6)(vi) Safety net programs administered by FSA). No
Extraordinary Circumstances (7 CFR 799.33) exist. As such, FSA has
determined that the implementation of ERP 2022 and the participation in
ERP 2022 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 regulatory
action, and this notice serves as documentation of the programmatic
environmental compliance decision.
Federal Assistance Programs
The titles and numbers of the Federal assistance programs, as found
in the Assistance Listings, to which this document applies are 10.964--
[[Page 74419]]
Emergency Relief Program and 10.979--Emergency Relief Program 2022.
USDA Non-Discrimination Policy
In accordance with Federal civil rights law and U.S. Department of
Agriculture (USDA) civil rights regulations and policies, USDA, its
Agencies, offices, and employees, and institutions participating in or
administering USDA programs are prohibited from discriminating based on
race, color, national origin, religion, sex, gender identity (including
gender expression), sexual orientation, disability, age, marital
status, family or parental status, income derived from a public
assistance program, political beliefs, or reprisal or retaliation for
prior civil rights activity, in any program or activity conducted or
funded by USDA (not all bases apply to all programs). Remedies and
complaint filing deadlines vary by program or incident.
Individuals who require alternative means of communication for
program information (for example, braille, large print, audiotape,
American Sign Language, etc.) should contact the responsible Agency or
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. 2023-24009 Filed 10-30-23; 8:45 am]
BILLING CODE 3410-05-P