Emergency Assistance for Livestock, Honeybees, and Farm-Raised Fish Program (ELAP), 54331-54336 [2024-14412]
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Rules and Regulations
Federal Register
Vol. 89, No. 126
Monday, July 1, 2024
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR Part 1416
[Docket ID: CCC–2024–0002]
RIN 0560–AI67
Emergency Assistance for Livestock,
Honeybees, and Farm-Raised Fish
Program (ELAP)
Commodity Credit Corporation
(CCC) and Farm Service Agency (FSA),
USDA.
ACTION: Final rule.
AGENCY:
This rule makes changes to
ELAP to provide financial assistance to
dairy producers who face milk losses
due to H5N1 infection of their dairy
herds.
SUMMARY:
DATES:
Effective July 1, 2024.
Seth
Cross; telephone: (402) 309–3338; email:
seth.cross@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).
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
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Background
As authorized by section 1501 of the
Agricultural Act of 2014 (Pub. L. 113–
79, 7 U.S.C. 9081(d)), ELAP provides
emergency relief to eligible producers of
livestock, honeybees, and farm-raised
fish to aid in the reduction of losses due
to disease (including cattle tick fever),
adverse weather, or other conditions,
such as blizzards and wildfires, as
determined by the Secretary of
Agriculture, that are not covered by the
Livestock Forage Disaster Program
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(LFP) 1 or the Livestock Indemnity
Program (LIP).2 FSA, which administers
ELAP on behalf of CCC, identified
discretionary changes to the ELAP
regulations; this rule is making those
changes in 7 CFR part 1416, subpart B,
as described below.
Highly Pathogenic Avian Influenza
(HPAI) H5N1 clade 2.3.4.4b (referred to
as H5N1 hereafter) infection in dairy
cattle results in milk losses for dairy
producers due to removal of
symptomatic dairy cattle from
commercial milk production and
reduced production after the dairy cattle
recover from H5N1 infection.3 The
Secretary has determined that ELAP is
authorized to provide financial
assistance to eligible dairy producers to
cover a portion of the financial loss
incurred because of milk production
loss due to H5N1 infection in dairy
cattle. Milk losses due to H5N1 that
were incurred prior to the publication of
this rule are eligible for payment if they
meet all eligibility requirements
described in this rule.
Producer Eligibility
To be eligible for milk losses due to
H5N1, a producer must prove that at
least one adult dairy cow in their herd
has an H5N1 infection by submitting a
positive test, as defined in the Animal
and Plant Health Inspection Service
(APHIS) H5N1 case definition,4 on
individual animal or bulk tank samples
confirmed at National Veterinary
Services Laboratories (NVSL). The date
of the eligible loss condition is the
positive H5N1 test collection date,
meaning the date the sample was taken
1 LFP provides benefits to livestock producers
who suffer eligible grazing losses due to qualifying
drought or are prohibited by a federal agency from
grazing on managed rangeland due to a fire. See 7
CFR part 1416, subpart C, and https://
www.fsa.usda.gov/programs-and-services/disasterassistance-program/livestock-forage/index.
2 LIP provides benefits to livestock producers for
livestock deaths due to eligible adverse weather,
eligible disease, or eligible attacks by animals
reintroduced into the wild by the Federal
Government. See 7 CFR part 1416, subpart D, and
https://www.fsa.usda.gov/programs-and-services/
disaster-assistance-program/livestock-indemnity/
index.
3 For more information regarding H5N1, see
https://www.cdc.gov/flu/avianflu/ and https://
www.aphis.usda.gov/livestock-poultry-disease/
avian/avian-influenza. For biosecurity resources for
detection of HPAI in livestock, see https://
www.aphis.usda.gov/livestock-poultry-disease/
avian/avian-influenza/hpai-detections/livestock.
4 See https://www.aphis.usda.gov/sites/default/
files/hpai-livestock-case-definition.pdf.
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from the cow, because that is the date
on which H5N1 infection was
confirmed to be present in the
producer’s herd. Throughout this rule,
‘‘herd’’ refers to one or more dairy cows
that are under common ownership or
supervision and are grouped on a single
premises (lot, farm, or ranch) or
multiple premises that are
geographically separated, but physically
located in the same county, as shared
personnel and equipment in addition to
the movement of livestock are
recognized risks for disease
transmission.
In addition, a producer must have
owned, cash-leased, purchased, or been
a contract grower of eligible adult dairy
cows for not less than 60 days before the
positive H5N1 test collection date.
Regardless of ownership type, the
producer must have had financial risk
in the production of milk from the
eligible adult dairy cow at the time of
the positive H5N1 test collection date.
For example, if an owner of eligible
adult dairy cows has cash leased those
animals to another producer who is
entitled to the milk production under
the terms of the lease, the owner of the
cows is not considered to have financial
risk in the milk production and is not
eligible, and only the producer entitled
to the milk production may participate.
In addition, all general ELAP eligibility
rules apply to producers applying for
payment for milk losses due to H5N1.5
Dairy Cow Eligibility
To be considered an eligible adult
dairy cow for milk losses due to H5N1
under ELAP, it must be all of the
following:
• Currently in one of the lactation
phases (early, mid, or late) of their
lactation cycle and producing milk in
which the producer had financial risk at
the time of the positive H5N1 test
collection date;
• Owned, cash-leased, purchased, or
been raised by a contract grower or
eligible livestock owner, for not less
than 60 days before the positive H5N1
test collection date;
• Maintained for commercial milk
production as part of the producer’s
farming operation on the positive H5N1
test collection date;
5 See 7 CFR part 1416, subpart A, and 7 CFR part
1400, subpart F.
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• Part of a herd that has a minimum
of one confirmed positive H5N1 test
from NVSL; and
• Initially removed from commercial
milk production due to confirmed or
suspected H5N1 infection at some point
during the time period beginning 14
days before the positive H5N1 test
collection date through 120 days after
the positive H5N1 test collection date.
The time period beginning 14 days
before the positive H5N1 test collection
date is used for dairy cow eligibility
because of responses recorded by APHIS
via epidemiologic surveys as of the
publication of this rule: (a) 14 days
before a positive H5N1 test collection
date is a reasonable time for a producer
to recognize symptom onset in cattle
with H5N1 infections and collect
samples, and (b) the maximum 120 days
after a positive H5N1 collection date
reflects the time after an initial positive
test where H5N1 virus could be detected
in the herd based on current APHIS
understanding as of the time of
publication of this rule, and is
consistent with the time period for other
APHIS support programs.
An adult dairy cow that meets all of
the above requirements is considered
eligible to be reported only for the
month in which it is initially removed
from commercial milk production due
to confirmed or suspected H5N1
infection. For example, an eligible adult
dairy cow that was removed from
commercial milk production on April
22, 2024, and continued to remain
removed from milk production through
May 12, 2024, should be reported on the
application as an eligible adult dairy
cow only for the month of April. In
order to prevent duplicate benefits for
the same loss, an adult dairy cow cannot
be reported as an eligible animal for any
subsequent month unless the animal has
returned to milk production and is later
removed from milk production due to a
new H5N1 infection in its herd. During
the 120 day time period after the initial
positive H5N1 test collection date, an
animal in that herd is only eligible for
payment one time, based on the positive
H5N1 test for that herd.
found in the APHIS H5N1 Testing
Guidance document 7);
• A notice of loss (CCC–939)
indicating the date of the eligible loss
condition, which is the positive H5N1
test collection date; and
• An application for payment (CCC–
939–H5N1) certifying the number of
eligible adult dairy cows, the month the
cows were removed from milk
production, and the producer’s share of
the milk production.
Producers must also submit the
following forms, if not already on file
with FSA: AD–1026, Highly Erodible
Land Conservation (HELC) and Wetland
Conservation (WC) Certification; AD–
2047, Customer Data Worksheet; CCC–
901, Member Information for Legal
Entities (if applicable); CCC–902, Farm
Operating Plan for Payment Eligibility;
and CCC–941, Average Adjusted Gross
Income (AGI) Certification and Consent
to Disclosure of Tax Information.
FSA may confirm the validity of the
positive H5N1 test result with APHIS
records. FSA may also request
documentation to substantiate the
information certified on an application,
including current and prior year milk
production and herd inventory records,
which FSA will use to verify the
number of animals in the herd that were
removed from production. FSA may
request other records, including but not
limited to veterinary records and feed
records or receipts, if required to
support a producer’s certifications.
How To Apply
To be eligible for a payment for milk
losses, a dairy producer must submit all
of the following to FSA:
• Proof of herd infection through a
confirmed positive H5N1 test, based on
the APHIS H5N1 case definition,6 on
individual animal or bulk tank samples
confirmed at NVSL (preferred
individual animal sample types can be
Payment Calculation
FSA will calculate payments for milk
loss due to H5N1 by multiplying a per
head payment rate by the number of
eligible adult dairy cows, multiplied by
the producer’s share of such dairy cows’
milk production, multiplied by an ELAP
payment rate of 90 percent as required
by 7 U.S.C. 9081(d)(4). The per head
payment rate is calculated based on
national milk production per head, per
month, and a typical number of days
that an infected dairy cow is expected
to have reduced or no production,
which has been established in
consultation with APHIS based on
available data on the reported effects of
H5N1 infection in dairy herds at the
time of publication of this rule. In order
to streamline delivery of assistance and
minimize the reporting burden for dairy
producers, FSA has determined that the
estimated milk loss per cow due to
H5N1 will be based on an expected 21day period of no milk production when
the cow is removed from the milking
herd, followed by a period of 7 days
6 See https://www.aphis.usda.gov/sites/default/
files/hpai-livestock-case-definition.pdf.
7 See https://www.aphis.usda.gov/sites/default/
files/hpai-livestock-testing-recommendations.pdf.
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when it has returned to milking but
produces approximately 50 percent of
the normal amount of production. This
approach minimizes the information
that a producer would need to track and
report to FSA, and it aligns with the
estimated loss of milk production based
on data reported to APHIS as of the time
of publication of this rule. To determine
the expected milk production per day,
FSA will use the monthly national
average production in pounds per head,
per month, reported by the National
Agricultural Statistics Service (NASS).8
FSA determined that national
production data will be used because
monthly data, which would allow FSA
to account for more seasonal variation
in milk production, is unavailable at the
regional level and for some states.
Collecting monthly data at the state or
regional level where it is not currently
available is not feasible and would
delay payments. FSA will divide the
NASS monthly average production per
cow by 28 days to calculate an
estimated average loss of milk in
pounds per cow, per day. FSA will then
multiply that estimated average loss per
day by 21 days to account for the time
period when no production is expected.
FSA will also multiply the estimated
average loss per day by 7 days,
multiplied by 50 percent to account for
the time period when the dairy cow has
returned to milk production but the
amount of production is reduced. FSA
will add those 2 amounts (for 21 days
and 7 days) to calculate the estimated
average loss of milk production per cow,
which will be multiplied by the all-milk
price 9 to determine the per head
payment rate. FSA will use the national
all-milk price, which is also used in the
Dairy Margin Coverage Program,
because price data is not available for all
states, and collecting data in states
where it is currently unavailable is not
feasible and would delay payments.
For example, a dairy producer with a
100 percent share in milk production
certifies that 50 eligible adult dairy
8 NASS milk production data is available at
https://usda.library.cornell.edu/concern/
publications/h989r321c?locale=en. To locate the
national monthly production data for a specific
month, open the report published for the relevant
payment month and locate the milk per cow for the
specific month in the table titled ‘‘Estimated Milk
Cows and Production by Month—United States.’’
9 The all-milk price is published in a monthly
report available at https://usda.library.cornell.edu/
concern/publications/c821gj76b. To locate the allmilk price for a specific month, open the report
published for the relevant payment month and
locate the United States price in the table titled
‘‘Prices Received for All Milk—States and United
States.’’ The report provides the all-milk price in
dollars per cwt, and FSA has converted it to dollars
per pound for the purpose of calculating the per
head payment rate.
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cows were removed from production in
April 2024 due to H5N1 and provides
the required documentation of a
positive test confirming H5N1 herd
infection. The per head payment rate for
April is determined by multiplying the
expected daily production per cow of
73.18 pounds (based on the NASS
monthly national production data) by
100 percent of the milk production loss,
multiplied by 21 days (for the first 21
days, which equals 1,536.78), then
adding 73.18 pounds multiplied by 50
percent of the milk production loss,
multiplied by 7 days (for the last 7 days,
which equals 256.13), resulting in a
total of 1,792.91 pounds as the
estimated lost production. That amount
is then multiplied by $0.205 per pound,
which is the all-milk price for April,
resulting in a per head payment rate of
$367.55 for April. The producer’s ELAP
payment will be equal to $367.55
multiplied by 50 cows, multiplied by a
100 percent share of the producer’s milk
production, multiplied by the ELAP
payment rate of 90 percent, which is
equal to $16,539.75. The producer will
update their application to report any
animals that are removed from
production in a later month within the
120 days of the positive H5N1 test. Each
subsequent update must include the
beginning date for the month that the
cows are removed from milk
production.
ELAP payments are not subject to
payment limitation. General
requirements for ELAP payment
eligibility, including AGI limitation,
apply to ELAP payments for milk loss.
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Other Changes
This rule also makes minor technical
corrections to fix typographical errors in
paragraph references in § 1416.105(c)
and (d).
Notice and Comment, Effective Date,
and Exemptions
The Administrative Procedure Act (5
U.S.C. 553) provides that the notice and
comment and 30-day delay in the
effective date provisions do not apply
when the rule involves a matter relating
to agency management or personnel or
to public property, loans, grants,
benefits, or contracts. This rule involves
a program for payments to certain
agricultural commodity producers and
thus falls within the exemption for rules
related to benefits. Further, as specified
in 7 U.S.C. 9091(c)(2), the regulations to
implement ELAP are:
• Exempt from the notice and
comment provisions of 5 U.S.C. 553;
and
• Exempt from the Paperwork
Reduction Act (44 U.S.C. chapter 35).
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In addition, 7 U.S.C. 9091(c)(3) directs
the Secretary to use the authority
provided in 5 U.S.C. 808 (part of the
Congressional Review Act), which
provides that when an agency finds
there is good cause that notice and
public procedure are impracticable,
unnecessary, or contrary to the public
interest, the rule may take effect at such
time as the agency determines. The
beneficiaries of this rule have been
impacted by H5N1, which has resulted
in economic losses, and the availability
of these ELAP payments will encourage
testing. FSA finds that a delay in the
effective date of the rule is contrary to
the public interest and therefore this
rule is effective upon publication in the
Federal Register.
This rule is exempt from the
regulatory analysis requirements of the
Regulatory Flexibility Act (5 U.S.C.
601–612), as amended by the Small
Business Regulatory Enforcement
Fairness Act of 1996.
Subtitle E of the Small Business
Regulatory Enforcement Fairness Act of
1996 (also known as the Congressional
Review Act) requires a delay in the
effective date for 60 days from the date
of publication to allow for
Congressional review of rules that meet
the criteria specified in 5 U.S.C. 804(2).
The Office of Information and
Regulatory Affairs has determined that
this rule meets the criteria in 5 U.S.C.
804(2). As discussed above, FSA finds
that a delay in the effective date of the
rule is contrary to the public interest
and therefore this rule is effective upon
publication in the Federal Register.
Executive Orders 12866, 13563, and
14094
Executive Order 12866, ‘‘Regulatory
Planning and Review,’’ was amended by
Executive Order 13563, ‘‘Improving
Regulation and Regulatory Review,’’ and
Executive Order 14094, ‘‘Modernizing
Regulatory Review.’’ Executive Orders
12866 and 13563 direct agencies to
assess all costs and benefits of available
regulatory alternatives and, if regulation
is necessary, to select regulatory
approaches that maximize net benefits.
The assessment should include
potential economic, environmental,
public health and safety effects,
distributive impacts, and equity.
Executive Order 13563 emphasized the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. The requirements in
Executive Orders 12866 and 13563 for
the analysis of costs and benefits apply
to rules that are determined to be
significant.
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54333
Executive Order 14094 requires
Federal agencies to increase and
improve public participation in the
regulatory process. The Executive
Order’s objective is to improve public
trust in the regulatory process by
reducing the risk or appearance of
unequal or unfair influence in
regulatory development.
The Office of Management and Budget
(OMB) designated this rule as not
significant under Executive Order
12866, and therefore, OMB has not
reviewed this rule and an analysis of
costs and benefits to loans is not
required under either Executive Order
12866 or 13563.
Environmental Review
The environmental impacts of this
final rule have been considered in a
manner consistent with the provisions
of the National Environmental Policy
Act (NEPA, 42 U.S.C. 4321–4347), the
regulations of the Council on
Environmental Quality (40 CFR parts
1500–1508), and because USDA will be
making the payments to producers, the
USDA regulation for compliance with
NEPA (7 CFR part 1b).
This rule makes discretionary changes
to ELAP. The discretionary aspects are
to improve administration of ELAP and
clarify existing program requirements.
FSA is providing the disaster assistance
under ELAP to eligible producers. The
discretionary provisions would not alter
any environmental impacts resulting
from implementing the mandatory
changes to ELAP. Accordingly, these
discretionary aspects are covered by the
following Categorical Exclusion in 7
CFR 799.31(b)(6)(vi) safety net programs
administrated by FSA.
Through this review, FSA determined
that the proposed discretionary changes
in this rule fit within the categorical
exclusions listed above. Categorical
exclusions apply when no extraordinary
circumstances (§ 799.33) exist. This rule
presents only discretionary amendments
that will not have an impact on the
human environments, individually or
cumulatively. Therefore, FSA will not
prepare an environmental assessment or
environmental impact statement for this
rule. This rule serves as documentation
of the environmental compliance
decision for this federal action.
Executive Order 12988
This rule has been reviewed under
Executive Order 12988, ‘‘Civil Justice
Reform.’’ This rule will not preempt
State or local laws, regulations, or
policies unless they represent an
irreconcilable conflict with this rule.
Payments for milk losses due to H5N1
will be made retroactively for eligible
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losses incurred prior to the publication
of this rule, as discussed above. Before
any judicial actions may be brought
regarding the provisions of this rule, the
administrative appeal provisions of 7
CFR parts 11 and 780 are to be
exhausted.
Executive Order 13175
This rule has been reviewed in
accordance with the requirements of
Executive Order 13175, ‘‘Consultation
and Coordination with Indian Tribal
Governments.’’ Executive Order 13175
requires Federal agencies to consult and
coordinate with Tribes on a
government-to-government basis on
policies that have Tribal implications,
including regulations, legislative
comments, or proposed legislation, and
other policy statements or actions that
have substantial direct effects on one or
more Indian Tribes, on the relationship
between the Federal Government and
Indian Tribes, or on the distribution of
power and responsibilities between the
Federal Government and Indian Tribes.
FSA has assessed the impact of this
rule on Indian Tribes and determined
that this rule does not, to our
knowledge, have significant Tribal
implications that require ongoing
adherence to Executive Order 13175 at
this time. If a Tribe requests
consultation, the USDA Office of Tribal
Relations will ensure meaningful
consultation is provided where changes,
additions, and modifications are not
expressly mandated by law.
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The Unfunded Mandates Reform Act of
1995
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA, Pub. L.
104–4) requires Federal agencies to
assess the effects of their regulatory
actions on State, local, and Tribal
governments or the private sector.
Agencies generally must prepare a
written statement, including a cost
benefit analysis, for proposed and final
rules with Federal mandates that may
result in expenditures of $100 million or
more in any 1 year for State, local, or
Tribal governments, in the aggregate, or
to the private sector. UMRA generally
requires agencies to consider
alternatives and adopt the more cost
effective or least burdensome alternative
that achieves the objectives of the rule.
This rule contains no Federal mandates,
as defined in Title II of UMRA, for State,
local, and Tribal governments, or the
private sector. Therefore, this rule is not
subject to the requirements of sections
202 and 205 of UMRA.
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Federal Assistance
The title and number of the Federal
Domestic Assistance Program found in
the Catalog of Federal Domestic
Assistance to which this rule applies is
10.091—Emergency Assistance for
Livestock, Honeybees, and Farm-raised
Fish Program.
USDA Non-Discrimination Policy
In accordance with Federal civil
rights law and U.S. Department of
Agriculture (USDA) civil rights
regulations and policies, USDA, its
Agencies, offices, and employees, and
institutions participating in or
administering USDA programs are
prohibited from discriminating based on
race, color, national origin, religion, sex,
gender identity (including gender
expression), sexual orientation,
disability, age, marital status, family or
parental status, income derived from a
public assistance program, political
beliefs, or reprisal or retaliation for prior
civil rights activity, in any program or
activity conducted or funded by USDA
(not all bases apply to all programs).
Remedies and complaint filing
deadlines vary by program or incident.
Individuals who require alternative
means of communication for program
information (for example, braille, large
print, audiotape, American Sign
Language, etc.) should contact the
responsible Agency or USDA TARGET
Center at (202) 720–2600 (voice and text
telephone (TTY)) dial 711 for
Telecommunications Relay Service
(both voice and text telephone users can
initiate this call from any telephone).
Additionally, program information may
be made available in languages other
than English.
To file a program discrimination
complaint, complete the USDA Program
Discrimination Complaint Form, AD–
3027, found online at https://
www.usda.gov/oascr/how-to-file-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.
List of Subjects in 7 CFR Part 1416
Administrative practice and
procedure, Agriculture, Bees, Dairy
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products, Disaster assistance, Fruits,
Livestock, Nursery stock, Reporting and
recordkeeping requirements, Seafood.
For the reasons discussed above, this
final rule amends 7 CFR part 1416 as
follows:
PART 1416—EMERGENCY
AGRICULTURAL DISASTER
ASSISTANCE PROGRAMS
1. The authority citation for part 1416
continues to read as follows:
■
Authority: Title I, Pub. L. 113–79, 128 Stat.
649; Title I, Pub. L. 115–123; Title VII, Pub.
L. 115–141; and Title I, Pub. L. 116–20.
Subpart B—Emergency Assistance for
Livestock, Honeybees, and FarmRaised Fish Program
2. In § 1416.102, add the definitions of
‘‘All-milk price’’, ‘‘H5N1’’, ‘‘H5N1 test’’,
‘‘Herd’’, ‘‘NVSL’’, and ‘‘Positive H5N1
test collection date’’ in alphabetical
order to read as follows:
■
§ 1416.102
Definitions.
*
*
*
*
*
All-milk price means the national
average price received, per
hundredweight of milk, by dairy
operations for all milk sold to dairy
plants and milk dealers in the United
States, as determined by the Secretary.
*
*
*
*
*
H5N1 means Highly Pathogenic Avian
Influenza A (HPAI) H5N1 virus as either
detected in milk and other bovine-origin
samples associated with illness in dairy
cattle, or, when pertaining to infection
in cattle themselves, as confirmed by
means of an H5N1 test.
H5N1 test means a test, as defined in
the APHIS H5N1 case definition, on
individual animal or bulk tank samples
confirmed at NVSL.
Herd means, for milk losses due to
H5N1, one or more dairy cows that are
under common ownership or
supervision and are grouped on a single
premises (lot, farm, or ranch) or
multiple premises which are
geographically separated but physically
located in the same county.
*
*
*
*
*
NVSL means the APHIS National
Veterinary Services Laboratories.
Positive H5N1 test collection date
means the date of sample collection for
a positive H5N1 test that is reported to
an NVSL and indicated on the H5N1
test result.
*
*
*
*
*
3. In § 1416.103, add paragraph (j) to
read as follows.
■
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§ 1416.103 Eligible losses, adverse
weather, and other loss conditions.
*
*
*
*
*
(j) For milk losses due to H5N1 to be
considered eligible, the producer must
have had reduced milk production as a
result of removal of adult dairy cows
from daily milking due to H5N1
infection. Such infection must be
confirmed for the herd by at least one
positive H5N1 test for a dairy cow
within that herd. The date of the eligible
loss condition for milk losses due to
H5N1 is the positive H5N1 test
collection date.
■ 4. In § 1416.104, add paragraphs (g)
and (h) to read as follows.
§ 1416.104 Eligible livestock, honeybees,
and farm-raised fish.
ddrumheller on DSK120RN23PROD with RULES1
*
*
*
*
*
(g) To be considered eligible for milk
losses due to H5N1, livestock must be
adult dairy cows that are:
(1) Currently in one of the lactation
phases (early, mid, or late) of their
lactation cycle and producing milk in
which the producer had financial risk at
the time of the positive H5N1 test
collection date;
(2) Owned, cash-leased, purchased, or
been raised by a contract grower or
eligible livestock owner, for not less
than 60 days before the date of the
eligible loss condition;
(3) Maintained for commercial milk
production as part of the producer’s
farming operation on the positive H5N1
test collection date;
(4) Part of a herd that has a minimum
of one positive H5N1 test; and
(5) Initially removed from commercial
milk production due to confirmed or
suspected H5N1 infection at some point
during the time period beginning 14
days before the positive H5N1 test
collection date through 120 days after
the positive H5N1 test collection date.
(h) An adult dairy cow that meets the
requirements of paragraph (g) of this
section is considered eligible to be
reported for payment only for the month
in which it is initially removed from
commercial milk production due to
confirmed or suspected H5N1 infection.
In order to prevent duplicate benefits for
the same loss, an adult dairy cow cannot
be reported as an eligible animal for any
subsequent month after the initial
month of eligibility unless the animal
has returned to milk production and is
later removed from milk production due
to a new infection after the initial 120
day eligibility from an APHIS confirmed
positive test within the herd. During the
120 day time period after a positive
H5N1 test collection date, an animal is
only eligible for payment one time,
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16:19 Jun 28, 2024
Jkt 262001
based on the positive H5N1 test for that
herd.
■ 5. Amend § 1416.105 by:
■ a. In paragraph (c), removing
‘‘§ 1416.104(g)’’ and adding
‘‘§ 1416.104(e)’’ in its place and
removing ‘‘§ 1416.103(h) or (i)’’ and
adding ‘‘§ 1416.103(h)’’ in its place;
■ b. In paragraph (d), removing
‘‘§ 1416.104(h)’’ and adding
‘‘§ 1416.104(f)’’ in its place and
removing ‘‘§ 1416.103(h) or (j)’’ and
adding ‘‘§ 1416.103(i)’’ in its place; and
■ c. Adding paragraph (f).
The addition reads as follows.
§ 1416.105 Eligible producers, owners, and
contract growers.
*
*
*
*
*
(f) To be considered an eligible
producer for the purpose of milk losses
due to H5N1, the producer must have:
(1) Owned, cash-leased, purchased, or
been a contract grower of eligible adult
dairy cows, as specified in
§ 1416.104(g), for not less than 60 days
before the positive H5N1 test collection
date;
(2) Had financial risk in the milk
production of the eligible adult dairy
cows, as specified in § 1416.104(g), on
the positive H5N1 test collection date;
and
(3) Had an eligible loss as specified in
§ 1416.103(j).
■ 6. Amend § 1416.106 by:
■ a. In paragraph (a)(2), introductory
text, removing ‘‘both’’ and adding
‘‘more’’ in its place;
■ b. Adding paragraph (a)(2)(iii);
■ c. In paragraph (e), adding a sentence
at the end of the paragraph; and
■ d. Adding paragraph (f).
The additions read as follows.
§ 1416.106
process.
Notice of loss and application
(a) * * *
(2) * * *
(iii) For milk losses due to H5N1, a
completed Emergency Loss Assistance
for H5N1 Application;
*
*
*
*
*
(e) * * * This paragraph does not
apply to documentation for milk losses
due to H5N1.
(f) For milk losses due to H5N1, the
producer must provide to FSA a
positive H5N1 test at the time the
application for payment is filed. The
producer must also provide current and
prior year milk production records and
herd inventory records if requested by
FSA to substantiate the certified number
of eligible adult dairy cows removed
from production through a comparison
of the per head production rates for the
current and prior years. If requested by
FSA, the producer must also provide
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
54335
any other records necessary to
substantiate the information provided
on the producer’s application, including
the producer’s share of the milk
production. An eligible adult dairy cow
must be reported on the application for
the month it was initially removed from
milk production and cannot be included
in subsequent months in the same
application for payment. If the producer
removes adult dairy cows from
commercial milk production due to
H5N1 infection more than 120 days after
the positive H5N1 test reported to FSA,
the producer must submit another
notice of loss and application for
payment for the subsequent positive
H5N1 test after the initial 120 day
eligibility from an APHIS confirmed
positive test within the herd.
■ 7. Amend § 1416.107 by:
■ a. In paragraph (a)(1), removing
‘‘honeybees’’ and adding ‘‘honeybees
and milk’’ in its place;
■ b. Redesignating paragraph (a)(3) as
paragraph (a)(4); and
■ c. Adding a new paragraph (a)(3).
The addition reads as follows.
§ 1416.107
period.
Notice of loss and application
(a) * * *
(3) For milk losses due to H5N1,
provide a notice of loss and positive
H5N1 test result required by
§ 1416.106(f) to FSA by the application
for payment deadline in paragraph (b) of
this section;
*
*
*
*
*
■ 8. Amend § 1416.109 by revising the
section heading and adding paragraph
(d) to read as follows:
§ 1416.109
National payment rate.
*
*
*
*
*
(d) For an eligible livestock producer
with milk losses due to H5N1, payments
calculated in § 1416.113 will be based
on a national payment rate of 90
percent.
■ 9. Add § 1416.113 to read as follows.
§ 1416.113
Milk losses due to H5N1.
(a) Payments for milk losses due to
H5N1 are based on a standard number
of days of lost production and the
expected production for an eligible
adult dairy cow. The payment for milk
losses due to H5N1 is equal to the
payment rate per head specified in
paragraph (b) of this section, multiplied
by the number of eligible adult dairy
cows specified in § 1416.109(g),
multiplied by the producer’s share of
milk production from the eligible adult
dairy cows, multiplied by the national
payment rate specified in § 1416.109(d).
(b) The payment rate per head varies
by month and is equal to the expected
E:\FR\FM\01JYR1.SGM
01JYR1
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Federal Register / Vol. 89, No. 126 / Monday, July 1, 2024 / Rules and Regulations
milk production loss for an eligible
adult dairy cow, as determined by FSA,
multiplied by the all-milk price. The
applicable payment rate will be
determined by the month in which an
eligible adult dairy cow was removed
from milk production, as reported on
the application. To determine the
expected milk production loss for an
eligible adult dairy cow, FSA will:
(1) Determine the daily expected
production by dividing the total
expected production for 28 days of
production, as determined by FSA
based on a month-specific national
production value obtained from NASS
data, by 28 days; and
(2) Calculate the sum of:
(i) The result of paragraph (b)(1) of
this section multiplied by 21 days, and
(ii) The result of paragraph (b)(1) of
this section multiplied by 7 days,
multiplied by 50 percent.
(c) Payments calculated in this section
are subject to the adjustments and limits
provided for in this part.
William Marlow,
Acting Executive Vice President, Commodity
Credit Corporation, and Acting
Administrator, Farm Service Agency.
[FR Doc. 2024–14412 Filed 6–28–24; 8:45 am]
BILLING CODE 3410–05–P
DEPARTMENT OF ENERGY
10 CFR Part 612
RIN 1901–AB57
Civil Nuclear Credit Program and
Recapture of Credits
Grid Deployment Office,
Department of Energy.
ACTION: Final rule.
AGENCY:
The Department of Energy
(DOE or the Department) is adopting the
interim final rule (IFR) published on
January 8, 2024, as final, without
change. This final rule establishes the
procedure for the recapture of credits
awarded under the Civil Nuclear Credit
(CNC) Program in accordance with the
Infrastructure Investment and Jobs Act.
DATES: This rule is effective on July 1,
2024.
FOR FURTHER INFORMATION CONTACT: Mr.
Theodore Taylor, Civil Nuclear Credit
Program Manager, U.S. Department of
Energy, Grid Deployment Office, 1000
Independence Avenue SW, Washington,
DC 20585, (240) 477–0458, CNC_
Program_Mailbox@hq.doe.gov.
ADDRESSES: The docket for this
rulemaking, which includes Federal
Register notices and comments, can be
found at Regulations.gov
ddrumheller on DSK120RN23PROD with RULES1
SUMMARY:
VerDate Sep<11>2014
16:19 Jun 28, 2024
Jkt 262001
(www.regulations.gov/document/DOEHQ-2024-0005). The docket web page
contains instruction on how to access
all documents, including public
comments, in the docket.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Summary of the Final Rule
II. Authority and Background
A. The Statute
B. Interim Final Rule
III. Public Comments on the IFR
IV. Section by Section Analysis of the Final
Rule
A. Purpose, Applicability, and Definitions
B. Recapture
C. Notice and Reconsideration of Recapture
Determination
D. Petition to the Department’s Office of
Hearings and Appeals
V. Regulatory Review
A. Review Under Executive Orders 12866,
13563, and 14094
B. Executive Order 13132
C. National Environmental Policy Act of
1969
D. Paperwork Reduction Act of 1995
E. Regulatory Flexibility Act
F. Executive Order 12988
G. Unfunded Mandates Reform Act of 1995
H. Treasury and General Government
Appropriations Act, 1999
I. Treasury and General Government
Appropriations Act, 2001
J. Executive Order 12630
K. Executive Order 13211
L. Congressional Notification
VII. Approval of the Office of the Secretary
I. Summary of the Final Rule
Section 40323 of the Infrastructure
Investment and Jobs Act (IIJA) (Pub. L.
117–58), codified at 42 U.S.C. 18753,
also known as the Bipartisan
Infrastructure Law, directs the
Department to establish the Civil
Nuclear Credit Program to prevent
premature closures of nuclear power
plants by providing financial support
for existing nuclear reactors projected to
cease operations due to economic
factors.
The IIJA also directs the Department
to promulgate a regulation to provide for
the recapture of credits awarded to a
nuclear reactor if either (a) the nuclear
reactor terminates operations during the
4-year award period or (b) the nuclear
reactor does not operate at an annual
loss in the absence of an allocation of
credits. The purpose of this final rule is
to establish the procedure for the
recapture of credits under the CNC
Program. The rule provides a
mechanism for the Department to
enforce the obligation of the nuclear
reactor to continue operation during the
4-year award period and to relinquish
its rights to credits if the nuclear reactor
is not operating at a loss in the absence
of the credits. To minimize the
PO 00000
Frm 00006
Fmt 4700
Sfmt 4700
likelihood for the need to recapture
credits under the rule, the Department
has included in the CNC Program an
audit and annual payment adjustment
mechanism at the end of each award
year during the 4-year award period to
evaluate the financial results of
operation for that year and to adjust
payment of credits based on that
evaluation. The recapture regulation
ensures that a reactor cannot retain the
value of credits if, despite the annual
adjustment, the nuclear reactor would
not have operated at an annual loss in
the absence of an allocation of credits
over the 4-year award period or if the
nuclear reactor terminates operations
despite its contractual obligation to
operate for the entire 4-year award
period.
II. Authority and Background
A. The Statute
Section 40323 of the IIJA directs the
Department to establish the CNC
Program to provide financial support for
existing nuclear reactors projected to
cease operations due to economic
factors in the form of credits to be
awarded for a 4-year award period.
Section 40323(g)(2) of the IIJA requires
that the Secretary, ‘‘by regulation,
provide for the recapture of the
allocation of any credit to a certified
nuclear reactor that during [the 4-year
award period]—(A) terminates
operations; or (B) does not operate at an
annual loss in the absence of an
allocation of credits to the certified
nuclear reactor.’’ IIJA section
40323(g)(2). This final rule establishes
the procedure for the recapture of
credits in accordance with that
requirement. This final rule relates only
to the recapture provision. No other
provision of the CNC Program is subject
to implementation by regulation.
B. Interim Final Rule
On January 8, 2024, DOE published
an IFR and request for comments. 89 FR
864 (Jan. 8, 2024). The IFR established
an interim final rule for the recapture of
credits awarded under the CNC
Program. DOE accepted public
comments through February 7, 2024.
DOE received three comments, none of
which commented on the text of the
regulation itself.
III. Public Comments on the IFR
DOE received three comments from
individuals in response to the IFR.
These comments are available in the
public docket for this rulemaking. One
commenter expressed ‘‘strong support’’
for both the CNC Program and IFR. The
commenter described the CNC Program
E:\FR\FM\01JYR1.SGM
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]]>Agencies
[Federal Register Volume 89, Number 126 (Monday, July 1, 2024)]
[Rules and Regulations]
[Pages 54331-54336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14412]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
Federal Register / Vol. 89, No. 126 / Monday, July 1, 2024 / Rules
and Regulations
[[Page 54331]]
DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR Part 1416
[Docket ID: CCC-2024-0002]
RIN 0560-AI67
Emergency Assistance for Livestock, Honeybees, and Farm-Raised
Fish Program (ELAP)
AGENCY: Commodity Credit Corporation (CCC) and Farm Service Agency
(FSA), USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule makes changes to ELAP to provide financial
assistance to dairy producers who face milk losses due to H5N1
infection of their dairy herds.
DATES: Effective July 1, 2024.
FOR FURTHER INFORMATION CONTACT: Seth Cross; telephone: (402) 309-3338;
email: [email protected]. Individuals who require alternative means
for communication should contact the USDA Target Center at (202) 720-
2600 (voice and text telephone (TTY)) or dial 711 for
Telecommunications Relay service (both voice and text telephone users
can initiate this call from any telephone).
SUPPLEMENTARY INFORMATION:
Background
As authorized by section 1501 of the Agricultural Act of 2014 (Pub.
L. 113-79, 7 U.S.C. 9081(d)), ELAP provides emergency relief to
eligible producers of livestock, honeybees, and farm-raised fish to aid
in the reduction of losses due to disease (including cattle tick
fever), adverse weather, or other conditions, such as blizzards and
wildfires, as determined by the Secretary of Agriculture, that are not
covered by the Livestock Forage Disaster Program (LFP) \1\ or the
Livestock Indemnity Program (LIP).\2\ FSA, which administers ELAP on
behalf of CCC, identified discretionary changes to the ELAP
regulations; this rule is making those changes in 7 CFR part 1416,
subpart B, as described below.
---------------------------------------------------------------------------
\1\ LFP provides benefits to livestock producers who suffer
eligible grazing losses due to qualifying drought or are prohibited
by a federal agency from grazing on managed rangeland due to a fire.
See 7 CFR part 1416, subpart C, and https://www.fsa.usda.gov/programs-and-services/disaster-assistance-program/livestock-forage/index.
\2\ LIP provides benefits to livestock producers for livestock
deaths due to eligible adverse weather, eligible disease, or
eligible attacks by animals reintroduced into the wild by the
Federal Government. See 7 CFR part 1416, subpart D, and https://www.fsa.usda.gov/programs-and-services/disaster-assistance-program/livestock-indemnity/index.
---------------------------------------------------------------------------
Highly Pathogenic Avian Influenza (HPAI) H5N1 clade 2.3.4.4b
(referred to as H5N1 hereafter) infection in dairy cattle results in
milk losses for dairy producers due to removal of symptomatic dairy
cattle from commercial milk production and reduced production after the
dairy cattle recover from H5N1 infection.\3\ The Secretary has
determined that ELAP is authorized to provide financial assistance to
eligible dairy producers to cover a portion of the financial loss
incurred because of milk production loss due to H5N1 infection in dairy
cattle. Milk losses due to H5N1 that were incurred prior to the
publication of this rule are eligible for payment if they meet all
eligibility requirements described in this rule.
---------------------------------------------------------------------------
\3\ For more information regarding H5N1, see https://www.cdc.gov/flu/avianflu/ and https://www.aphis.usda.gov/livestock-poultry-disease/avian/avian-influenza. For biosecurity resources for
detection of HPAI in livestock, see https://www.aphis.usda.gov/livestock-poultry-disease/avian/avian-influenza/hpai-detections/livestock.
---------------------------------------------------------------------------
Producer Eligibility
To be eligible for milk losses due to H5N1, a producer must prove
that at least one adult dairy cow in their herd has an H5N1 infection
by submitting a positive test, as defined in the Animal and Plant
Health Inspection Service (APHIS) H5N1 case definition,\4\ on
individual animal or bulk tank samples confirmed at National Veterinary
Services Laboratories (NVSL). The date of the eligible loss condition
is the positive H5N1 test collection date, meaning the date the sample
was taken from the cow, because that is the date on which H5N1
infection was confirmed to be present in the producer's herd.
Throughout this rule, ``herd'' refers to one or more dairy cows that
are under common ownership or supervision and are grouped on a single
premises (lot, farm, or ranch) or multiple premises that are
geographically separated, but physically located in the same county, as
shared personnel and equipment in addition to the movement of livestock
are recognized risks for disease transmission.
---------------------------------------------------------------------------
\4\ See https://www.aphis.usda.gov/sites/default/files/hpai-livestock-case-definition.pdf.
---------------------------------------------------------------------------
In addition, a producer must have owned, cash-leased, purchased, or
been a contract grower of eligible adult dairy cows for not less than
60 days before the positive H5N1 test collection date. Regardless of
ownership type, the producer must have had financial risk in the
production of milk from the eligible adult dairy cow at the time of the
positive H5N1 test collection date. For example, if an owner of
eligible adult dairy cows has cash leased those animals to another
producer who is entitled to the milk production under the terms of the
lease, the owner of the cows is not considered to have financial risk
in the milk production and is not eligible, and only the producer
entitled to the milk production may participate. In addition, all
general ELAP eligibility rules apply to producers applying for payment
for milk losses due to H5N1.\5\
---------------------------------------------------------------------------
\5\ See 7 CFR part 1416, subpart A, and 7 CFR part 1400, subpart
F.
---------------------------------------------------------------------------
Dairy Cow Eligibility
To be considered an eligible adult dairy cow for milk losses due to
H5N1 under ELAP, it must be all of the following:
Currently in one of the lactation phases (early, mid, or
late) of their lactation cycle and producing milk in which the producer
had financial risk at the time of the positive H5N1 test collection
date;
Owned, cash-leased, purchased, or been raised by a
contract grower or eligible livestock owner, for not less than 60 days
before the positive H5N1 test collection date;
Maintained for commercial milk production as part of the
producer's farming operation on the positive H5N1 test collection date;
[[Page 54332]]
Part of a herd that has a minimum of one confirmed
positive H5N1 test from NVSL; and
Initially removed from commercial milk production due to
confirmed or suspected H5N1 infection at some point during the time
period beginning 14 days before the positive H5N1 test collection date
through 120 days after the positive H5N1 test collection date.
The time period beginning 14 days before the positive H5N1 test
collection date is used for dairy cow eligibility because of responses
recorded by APHIS via epidemiologic surveys as of the publication of
this rule: (a) 14 days before a positive H5N1 test collection date is a
reasonable time for a producer to recognize symptom onset in cattle
with H5N1 infections and collect samples, and (b) the maximum 120 days
after a positive H5N1 collection date reflects the time after an
initial positive test where H5N1 virus could be detected in the herd
based on current APHIS understanding as of the time of publication of
this rule, and is consistent with the time period for other APHIS
support programs.
An adult dairy cow that meets all of the above requirements is
considered eligible to be reported only for the month in which it is
initially removed from commercial milk production due to confirmed or
suspected H5N1 infection. For example, an eligible adult dairy cow that
was removed from commercial milk production on April 22, 2024, and
continued to remain removed from milk production through May 12, 2024,
should be reported on the application as an eligible adult dairy cow
only for the month of April. In order to prevent duplicate benefits for
the same loss, an adult dairy cow cannot be reported as an eligible
animal for any subsequent month unless the animal has returned to milk
production and is later removed from milk production due to a new H5N1
infection in its herd. During the 120 day time period after the initial
positive H5N1 test collection date, an animal in that herd is only
eligible for payment one time, based on the positive H5N1 test for that
herd.
How To Apply
To be eligible for a payment for milk losses, a dairy producer must
submit all of the following to FSA:
Proof of herd infection through a confirmed positive H5N1
test, based on the APHIS H5N1 case definition,\6\ on individual animal
or bulk tank samples confirmed at NVSL (preferred individual animal
sample types can be found in the APHIS H5N1 Testing Guidance document
\7\);
---------------------------------------------------------------------------
\6\ See https://www.aphis.usda.gov/sites/default/files/hpai-livestock-case-definition.pdf.
\7\ See https://www.aphis.usda.gov/sites/default/files/hpai-livestock-testing-recommendations.pdf.
---------------------------------------------------------------------------
A notice of loss (CCC-939) indicating the date of the
eligible loss condition, which is the positive H5N1 test collection
date; and
An application for payment (CCC-939-H5N1) certifying the
number of eligible adult dairy cows, the month the cows were removed
from milk production, and the producer's share of the milk production.
Producers must also submit the following forms, if not already on
file with FSA: AD-1026, Highly Erodible Land Conservation (HELC) and
Wetland Conservation (WC) Certification; AD-2047, Customer Data
Worksheet; CCC-901, Member Information for Legal Entities (if
applicable); CCC-902, Farm Operating Plan for Payment Eligibility; and
CCC-941, Average Adjusted Gross Income (AGI) Certification and Consent
to Disclosure of Tax Information.
FSA may confirm the validity of the positive H5N1 test result with
APHIS records. FSA may also request documentation to substantiate the
information certified on an application, including current and prior
year milk production and herd inventory records, which FSA will use to
verify the number of animals in the herd that were removed from
production. FSA may request other records, including but not limited to
veterinary records and feed records or receipts, if required to support
a producer's certifications.
Payment Calculation
FSA will calculate payments for milk loss due to H5N1 by
multiplying a per head payment rate by the number of eligible adult
dairy cows, multiplied by the producer's share of such dairy cows' milk
production, multiplied by an ELAP payment rate of 90 percent as
required by 7 U.S.C. 9081(d)(4). The per head payment rate is
calculated based on national milk production per head, per month, and a
typical number of days that an infected dairy cow is expected to have
reduced or no production, which has been established in consultation
with APHIS based on available data on the reported effects of H5N1
infection in dairy herds at the time of publication of this rule. In
order to streamline delivery of assistance and minimize the reporting
burden for dairy producers, FSA has determined that the estimated milk
loss per cow due to H5N1 will be based on an expected 21-day period of
no milk production when the cow is removed from the milking herd,
followed by a period of 7 days when it has returned to milking but
produces approximately 50 percent of the normal amount of production.
This approach minimizes the information that a producer would need to
track and report to FSA, and it aligns with the estimated loss of milk
production based on data reported to APHIS as of the time of
publication of this rule. To determine the expected milk production per
day, FSA will use the monthly national average production in pounds per
head, per month, reported by the National Agricultural Statistics
Service (NASS).\8\ FSA determined that national production data will be
used because monthly data, which would allow FSA to account for more
seasonal variation in milk production, is unavailable at the regional
level and for some states. Collecting monthly data at the state or
regional level where it is not currently available is not feasible and
would delay payments. FSA will divide the NASS monthly average
production per cow by 28 days to calculate an estimated average loss of
milk in pounds per cow, per day. FSA will then multiply that estimated
average loss per day by 21 days to account for the time period when no
production is expected. FSA will also multiply the estimated average
loss per day by 7 days, multiplied by 50 percent to account for the
time period when the dairy cow has returned to milk production but the
amount of production is reduced. FSA will add those 2 amounts (for 21
days and 7 days) to calculate the estimated average loss of milk
production per cow, which will be multiplied by the all-milk price \9\
to determine the per head payment rate. FSA will use the national all-
milk price, which is also used in the Dairy Margin Coverage Program,
because price data is not available for all states, and collecting data
in states where it is currently unavailable is not feasible and would
delay payments.
---------------------------------------------------------------------------
\8\ NASS milk production data is available at https://usda.library.cornell.edu/concern/publications/h989r321c?locale=en.
To locate the national monthly production data for a specific month,
open the report published for the relevant payment month and locate
the milk per cow for the specific month in the table titled
``Estimated Milk Cows and Production by Month--United States.''
\9\ The all-milk price is published in a monthly report
available at https://usda.library.cornell.edu/concern/publications/c821gj76b. To locate the all-milk price for a specific month, open
the report published for the relevant payment month and locate the
United States price in the table titled ``Prices Received for All
Milk--States and United States.'' The report provides the all-milk
price in dollars per cwt, and FSA has converted it to dollars per
pound for the purpose of calculating the per head payment rate.
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For example, a dairy producer with a 100 percent share in milk
production certifies that 50 eligible adult dairy
[[Page 54333]]
cows were removed from production in April 2024 due to H5N1 and
provides the required documentation of a positive test confirming H5N1
herd infection. The per head payment rate for April is determined by
multiplying the expected daily production per cow of 73.18 pounds
(based on the NASS monthly national production data) by 100 percent of
the milk production loss, multiplied by 21 days (for the first 21 days,
which equals 1,536.78), then adding 73.18 pounds multiplied by 50
percent of the milk production loss, multiplied by 7 days (for the last
7 days, which equals 256.13), resulting in a total of 1,792.91 pounds
as the estimated lost production. That amount is then multiplied by
$0.205 per pound, which is the all-milk price for April, resulting in a
per head payment rate of $367.55 for April. The producer's ELAP payment
will be equal to $367.55 multiplied by 50 cows, multiplied by a 100
percent share of the producer's milk production, multiplied by the ELAP
payment rate of 90 percent, which is equal to $16,539.75. The producer
will update their application to report any animals that are removed
from production in a later month within the 120 days of the positive
H5N1 test. Each subsequent update must include the beginning date for
the month that the cows are removed from milk production.
ELAP payments are not subject to payment limitation. General
requirements for ELAP payment eligibility, including AGI limitation,
apply to ELAP payments for milk loss.
Other Changes
This rule also makes minor technical corrections to fix
typographical errors in paragraph references in Sec. 1416.105(c) and
(d).
Notice and Comment, Effective Date, and Exemptions
The Administrative Procedure Act (5 U.S.C. 553) provides that the
notice and comment and 30-day delay in the effective date provisions do
not apply when the rule involves a matter relating to agency management
or personnel or to public property, loans, grants, benefits, or
contracts. This rule involves a program for payments to certain
agricultural commodity producers and thus falls within the exemption
for rules related to benefits. Further, as specified in 7 U.S.C.
9091(c)(2), the regulations to implement ELAP are:
Exempt from the notice and comment provisions of 5 U.S.C.
553; and
Exempt from the Paperwork Reduction Act (44 U.S.C. chapter
35).
In addition, 7 U.S.C. 9091(c)(3) directs the Secretary to use the
authority provided in 5 U.S.C. 808 (part of the Congressional Review
Act), which provides that when an agency finds there is good cause that
notice and public procedure are impracticable, unnecessary, or contrary
to the public interest, the rule may take effect at such time as the
agency determines. The beneficiaries of this rule have been impacted by
H5N1, which has resulted in economic losses, and the availability of
these ELAP payments will encourage testing. FSA finds that a delay in
the effective date of the rule is contrary to the public interest and
therefore this rule is effective upon publication in the Federal
Register.
This rule is exempt from the regulatory analysis requirements of
the Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the
Small Business Regulatory Enforcement Fairness Act of 1996.
Subtitle E of the Small Business Regulatory Enforcement Fairness
Act of 1996 (also known as the Congressional Review Act) requires a
delay in the effective date for 60 days from the date of publication to
allow for Congressional review of rules that meet the criteria
specified in 5 U.S.C. 804(2). The Office of Information and Regulatory
Affairs has determined that this rule meets the criteria in 5 U.S.C.
804(2). As discussed above, FSA finds that a delay in the effective
date of the rule is contrary to the public interest and therefore this
rule is effective upon publication in the Federal Register.
Executive Orders 12866, 13563, and 14094
Executive Order 12866, ``Regulatory Planning and Review,'' was
amended by Executive Order 13563, ``Improving Regulation and Regulatory
Review,'' and Executive Order 14094, ``Modernizing Regulatory Review.''
Executive Orders 12866 and 13563 direct agencies to assess all costs
and benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits.
The assessment should include potential economic, environmental, public
health and safety effects, distributive impacts, and equity. Executive
Order 13563 emphasized the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. The requirements in Executive Orders 12866 and 13563 for
the analysis of costs and benefits apply to rules that are determined
to be significant.
Executive Order 14094 requires Federal agencies to increase and
improve public participation in the regulatory process. The Executive
Order's objective is to improve public trust in the regulatory process
by reducing the risk or appearance of unequal or unfair influence in
regulatory development.
The Office of Management and Budget (OMB) designated this rule as
not significant under Executive Order 12866, and therefore, OMB has not
reviewed this rule and an analysis of costs and benefits to loans is
not required under either Executive Order 12866 or 13563.
Environmental Review
The environmental impacts of this final rule have been considered
in a manner consistent with the provisions of the National
Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations
of the Council on Environmental Quality (40 CFR parts 1500-1508), and
because USDA will be making the payments to producers, the USDA
regulation for compliance with NEPA (7 CFR part 1b).
This rule makes discretionary changes to ELAP. The discretionary
aspects are to improve administration of ELAP and clarify existing
program requirements. FSA is providing the disaster assistance under
ELAP to eligible producers. The discretionary provisions would not
alter any environmental impacts resulting from implementing the
mandatory changes to ELAP. Accordingly, these discretionary aspects are
covered by the following Categorical Exclusion in 7 CFR
799.31(b)(6)(vi) safety net programs administrated by FSA.
Through this review, FSA determined that the proposed discretionary
changes in this rule fit within the categorical exclusions listed
above. Categorical exclusions apply when no extraordinary circumstances
(Sec. 799.33) exist. This rule presents only discretionary amendments
that will not have an impact on the human environments, individually or
cumulatively. Therefore, FSA will not prepare an environmental
assessment or environmental impact statement for this rule. This rule
serves as documentation of the environmental compliance decision for
this federal action.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, ``Civil
Justice Reform.'' This rule will not preempt State or local laws,
regulations, or policies unless they represent an irreconcilable
conflict with this rule. Payments for milk losses due to H5N1 will be
made retroactively for eligible
[[Page 54334]]
losses incurred prior to the publication of this rule, as discussed
above. Before any judicial actions may be brought regarding the
provisions of this rule, the administrative appeal provisions of 7 CFR
parts 11 and 780 are to be exhausted.
Executive Order 13175
This rule has been reviewed in accordance with the requirements of
Executive Order 13175, ``Consultation and Coordination with Indian
Tribal Governments.'' Executive Order 13175 requires Federal agencies
to consult and coordinate with Tribes on a government-to-government
basis on policies that have Tribal implications, including regulations,
legislative comments, or proposed legislation, and other policy
statements or actions that have substantial direct effects on one or
more Indian Tribes, on the relationship between the Federal Government
and Indian Tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes.
FSA has assessed the impact of this rule on Indian Tribes and
determined that this rule does not, to our knowledge, have significant
Tribal implications that require ongoing adherence to Executive Order
13175 at this time. If a Tribe requests consultation, the USDA Office
of Tribal Relations will ensure meaningful consultation is provided
where changes, additions, and modifications are not expressly mandated
by law.
The Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L.
104-4) requires Federal agencies to assess the effects of their
regulatory actions on State, local, and Tribal governments or the
private sector. Agencies generally must prepare a written statement,
including a cost benefit analysis, for proposed and final rules with
Federal mandates that may result in expenditures of $100 million or
more in any 1 year for State, local, or Tribal governments, in the
aggregate, or to the private sector. UMRA generally requires agencies
to consider alternatives and adopt the more cost effective or least
burdensome alternative that achieves the objectives of the rule. This
rule contains no Federal mandates, as defined in Title II of UMRA, for
State, local, and Tribal governments, or the private sector. Therefore,
this rule is not subject to the requirements of sections 202 and 205 of
UMRA.
Federal Assistance
The title and number of the Federal Domestic Assistance Program
found in the Catalog of Federal Domestic Assistance to which this rule
applies is 10.091--Emergency Assistance for Livestock, Honeybees, and
Farm-raised Fish Program.
USDA Non-Discrimination Policy
In accordance with Federal civil rights law and U.S. Department of
Agriculture (USDA) civil rights regulations and policies, USDA, its
Agencies, offices, and employees, and institutions participating in or
administering USDA programs are prohibited from discriminating based on
race, color, national origin, religion, sex, gender identity (including
gender expression), sexual orientation, disability, age, marital
status, family or parental status, income derived from a public
assistance program, political beliefs, or reprisal or retaliation for
prior civil rights activity, in any program or activity conducted or
funded by USDA (not all bases apply to all programs). Remedies and
complaint filing deadlines vary by program or incident.
Individuals who require alternative means of communication for
program information (for example, braille, large print, audiotape,
American Sign Language, etc.) should contact the responsible Agency or
USDA TARGET Center at (202) 720-2600 (voice and text telephone (TTY))
dial 711 for Telecommunications Relay Service (both voice and text
telephone users can initiate this call from any telephone).
Additionally, program information may be made available in languages
other than English.
To file a program discrimination complaint, complete the USDA
Program Discrimination Complaint Form, AD-3027, found online at https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint and
at any USDA office or write a letter addressed to USDA and provide in
the letter all the information requested in the form. To request a copy
of the complaint form, call (866) 632-9992. Submit your completed form
or letter to USDA by: (1) mail to: U.S. Department of Agriculture,
Office of the Assistant Secretary for Civil Rights, 1400 Independence
Avenue SW, Washington, DC 20250-9410; (2) fax: (202) 690-7442; or (3)
email: [email protected].
USDA is an equal opportunity provider, employer, and lender.
List of Subjects in 7 CFR Part 1416
Administrative practice and procedure, Agriculture, Bees, Dairy
products, Disaster assistance, Fruits, Livestock, Nursery stock,
Reporting and recordkeeping requirements, Seafood.
For the reasons discussed above, this final rule amends 7 CFR part
1416 as follows:
PART 1416--EMERGENCY AGRICULTURAL DISASTER ASSISTANCE PROGRAMS
0
1. The authority citation for part 1416 continues to read as follows:
Authority: Title I, Pub. L. 113-79, 128 Stat. 649; Title I, Pub.
L. 115-123; Title VII, Pub. L. 115-141; and Title I, Pub. L. 116-20.
Subpart B--Emergency Assistance for Livestock, Honeybees, and Farm-
Raised Fish Program
0
2. In Sec. 1416.102, add the definitions of ``All-milk price'',
``H5N1'', ``H5N1 test'', ``Herd'', ``NVSL'', and ``Positive H5N1 test
collection date'' in alphabetical order to read as follows:
Sec. 1416.102 Definitions.
* * * * *
All-milk price means the national average price received, per
hundredweight of milk, by dairy operations for all milk sold to dairy
plants and milk dealers in the United States, as determined by the
Secretary.
* * * * *
H5N1 means Highly Pathogenic Avian Influenza A (HPAI) H5N1 virus as
either detected in milk and other bovine-origin samples associated with
illness in dairy cattle, or, when pertaining to infection in cattle
themselves, as confirmed by means of an H5N1 test.
H5N1 test means a test, as defined in the APHIS H5N1 case
definition, on individual animal or bulk tank samples confirmed at
NVSL.
Herd means, for milk losses due to H5N1, one or more dairy cows
that are under common ownership or supervision and are grouped on a
single premises (lot, farm, or ranch) or multiple premises which are
geographically separated but physically located in the same county.
* * * * *
NVSL means the APHIS National Veterinary Services Laboratories.
Positive H5N1 test collection date means the date of sample
collection for a positive H5N1 test that is reported to an NVSL and
indicated on the H5N1 test result.
* * * * *
0
3. In Sec. 1416.103, add paragraph (j) to read as follows.
[[Page 54335]]
Sec. 1416.103 Eligible losses, adverse weather, and other loss
conditions.
* * * * *
(j) For milk losses due to H5N1 to be considered eligible, the
producer must have had reduced milk production as a result of removal
of adult dairy cows from daily milking due to H5N1 infection. Such
infection must be confirmed for the herd by at least one positive H5N1
test for a dairy cow within that herd. The date of the eligible loss
condition for milk losses due to H5N1 is the positive H5N1 test
collection date.
0
4. In Sec. 1416.104, add paragraphs (g) and (h) to read as follows.
Sec. 1416.104 Eligible livestock, honeybees, and farm-raised fish.
* * * * *
(g) To be considered eligible for milk losses due to H5N1,
livestock must be adult dairy cows that are:
(1) Currently in one of the lactation phases (early, mid, or late)
of their lactation cycle and producing milk in which the producer had
financial risk at the time of the positive H5N1 test collection date;
(2) Owned, cash-leased, purchased, or been raised by a contract
grower or eligible livestock owner, for not less than 60 days before
the date of the eligible loss condition;
(3) Maintained for commercial milk production as part of the
producer's farming operation on the positive H5N1 test collection date;
(4) Part of a herd that has a minimum of one positive H5N1 test;
and
(5) Initially removed from commercial milk production due to
confirmed or suspected H5N1 infection at some point during the time
period beginning 14 days before the positive H5N1 test collection date
through 120 days after the positive H5N1 test collection date.
(h) An adult dairy cow that meets the requirements of paragraph (g)
of this section is considered eligible to be reported for payment only
for the month in which it is initially removed from commercial milk
production due to confirmed or suspected H5N1 infection. In order to
prevent duplicate benefits for the same loss, an adult dairy cow cannot
be reported as an eligible animal for any subsequent month after the
initial month of eligibility unless the animal has returned to milk
production and is later removed from milk production due to a new
infection after the initial 120 day eligibility from an APHIS confirmed
positive test within the herd. During the 120 day time period after a
positive H5N1 test collection date, an animal is only eligible for
payment one time, based on the positive H5N1 test for that herd.
0
5. Amend Sec. 1416.105 by:
0
a. In paragraph (c), removing ``Sec. 1416.104(g)'' and adding ``Sec.
1416.104(e)'' in its place and removing ``Sec. 1416.103(h) or (i)''
and adding ``Sec. 1416.103(h)'' in its place;
0
b. In paragraph (d), removing ``Sec. 1416.104(h)'' and adding ``Sec.
1416.104(f)'' in its place and removing ``Sec. 1416.103(h) or (j)''
and adding ``Sec. 1416.103(i)'' in its place; and
0
c. Adding paragraph (f).
The addition reads as follows.
Sec. 1416.105 Eligible producers, owners, and contract growers.
* * * * *
(f) To be considered an eligible producer for the purpose of milk
losses due to H5N1, the producer must have:
(1) Owned, cash-leased, purchased, or been a contract grower of
eligible adult dairy cows, as specified in Sec. 1416.104(g), for not
less than 60 days before the positive H5N1 test collection date;
(2) Had financial risk in the milk production of the eligible adult
dairy cows, as specified in Sec. 1416.104(g), on the positive H5N1
test collection date; and
(3) Had an eligible loss as specified in Sec. 1416.103(j).
0
6. Amend Sec. 1416.106 by:
0
a. In paragraph (a)(2), introductory text, removing ``both'' and adding
``more'' in its place;
0
b. Adding paragraph (a)(2)(iii);
0
c. In paragraph (e), adding a sentence at the end of the paragraph; and
0
d. Adding paragraph (f).
The additions read as follows.
Sec. 1416.106 Notice of loss and application process.
(a) * * *
(2) * * *
(iii) For milk losses due to H5N1, a completed Emergency Loss
Assistance for H5N1 Application;
* * * * *
(e) * * * This paragraph does not apply to documentation for milk
losses due to H5N1.
(f) For milk losses due to H5N1, the producer must provide to FSA a
positive H5N1 test at the time the application for payment is filed.
The producer must also provide current and prior year milk production
records and herd inventory records if requested by FSA to substantiate
the certified number of eligible adult dairy cows removed from
production through a comparison of the per head production rates for
the current and prior years. If requested by FSA, the producer must
also provide any other records necessary to substantiate the
information provided on the producer's application, including the
producer's share of the milk production. An eligible adult dairy cow
must be reported on the application for the month it was initially
removed from milk production and cannot be included in subsequent
months in the same application for payment. If the producer removes
adult dairy cows from commercial milk production due to H5N1 infection
more than 120 days after the positive H5N1 test reported to FSA, the
producer must submit another notice of loss and application for payment
for the subsequent positive H5N1 test after the initial 120 day
eligibility from an APHIS confirmed positive test within the herd.
0
7. Amend Sec. 1416.107 by:
0
a. In paragraph (a)(1), removing ``honeybees'' and adding ``honeybees
and milk'' in its place;
0
b. Redesignating paragraph (a)(3) as paragraph (a)(4); and
0
c. Adding a new paragraph (a)(3).
The addition reads as follows.
Sec. 1416.107 Notice of loss and application period.
(a) * * *
(3) For milk losses due to H5N1, provide a notice of loss and
positive H5N1 test result required by Sec. 1416.106(f) to FSA by the
application for payment deadline in paragraph (b) of this section;
* * * * *
0
8. Amend Sec. 1416.109 by revising the section heading and adding
paragraph (d) to read as follows:
Sec. 1416.109 National payment rate.
* * * * *
(d) For an eligible livestock producer with milk losses due to
H5N1, payments calculated in Sec. 1416.113 will be based on a national
payment rate of 90 percent.
0
9. Add Sec. 1416.113 to read as follows.
Sec. 1416.113 Milk losses due to H5N1.
(a) Payments for milk losses due to H5N1 are based on a standard
number of days of lost production and the expected production for an
eligible adult dairy cow. The payment for milk losses due to H5N1 is
equal to the payment rate per head specified in paragraph (b) of this
section, multiplied by the number of eligible adult dairy cows
specified in Sec. 1416.109(g), multiplied by the producer's share of
milk production from the eligible adult dairy cows, multiplied by the
national payment rate specified in Sec. 1416.109(d).
(b) The payment rate per head varies by month and is equal to the
expected
[[Page 54336]]
milk production loss for an eligible adult dairy cow, as determined by
FSA, multiplied by the all-milk price. The applicable payment rate will
be determined by the month in which an eligible adult dairy cow was
removed from milk production, as reported on the application. To
determine the expected milk production loss for an eligible adult dairy
cow, FSA will:
(1) Determine the daily expected production by dividing the total
expected production for 28 days of production, as determined by FSA
based on a month-specific national production value obtained from NASS
data, by 28 days; and
(2) Calculate the sum of:
(i) The result of paragraph (b)(1) of this section multiplied by 21
days, and
(ii) The result of paragraph (b)(1) of this section multiplied by 7
days, multiplied by 50 percent.
(c) Payments calculated in this section are subject to the
adjustments and limits provided for in this part.
William Marlow,
Acting Executive Vice President, Commodity Credit Corporation, and
Acting Administrator, Farm Service Agency.
[FR Doc. 2024-14412 Filed 6-28-24; 8:45 am]
BILLING CODE 3410-05-P
