Rule2024-14412
Emergency Assistance for Livestock, Honeybees, and Farm-Raised Fish Program (ELAP)
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 1, 2024
Effective
July 1, 2024
Issuing agencies
Agriculture DepartmentCommodity Credit Corporation
Abstract
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.
Full Text
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<title>Federal Register, Volume 89 Issue 126 (Monday, July 1, 2024)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-14412]
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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.
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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.
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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: <a href="/cdn-cgi/l/email-protection#641701100c4a07160b171724111700054a030b12"><span class="__cf_email__" data-cfemail="552630213d7b36273a262615202631347b323a23">[email protected]</span></a>. 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.
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\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 <a href="https://www.fsa.usda.gov/programs-and-services/disaster-assistance-program/livestock-forage/index">https://www.fsa.usda.gov/programs-and-services/disaster-assistance-program/livestock-forage/index</a>.
\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 <a href="https://www.fsa.usda.gov/programs-and-services/disaster-assistance-program/livestock-indemnity/index">https://www.fsa.usda.gov/programs-and-services/disaster-assistance-program/livestock-indemnity/index</a>.
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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.
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\3\ For more information regarding H5N1, see <a href="https://www.cdc.gov/flu/avianflu/">https://www.cdc.gov/flu/avianflu/</a> and <a href="https://www.aphis.usda.gov/livestock-poultry-disease/avian/avian-influenza">https://www.aphis.usda.gov/livestock-poultry-disease/avian/avian-influenza</a>. For biosecurity resources for
detection of HPAI in livestock, see <a href="https://www.aphis.usda.gov/livestock-poultry-disease/avian/avian-influenza/hpai-detections/livestock">https://www.aphis.usda.gov/livestock-poultry-disease/avian/avian-influenza/hpai-detections/livestock</a>.
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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.
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\4\ See <a href="https://www.aphis.usda.gov/sites/default/files/hpai-livestock-case-definition.pdf">https://www.aphis.usda.gov/sites/default/files/hpai-livestock-case-definition.pdf</a>.
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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\
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\5\ See 7 CFR part 1416, subpart A, and 7 CFR part 1400, subpart
F.
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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:
<bullet> 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;
<bullet> 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;
<bullet> Maintained for commercial milk production as part of the
producer's farming operation on the positive H5N1 test collection date;
[[Page 54332]]
<bullet> Part of a herd that has a minimum of one confirmed
positive H5N1 test from NVSL; and
<bullet> 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:
<bullet> 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\);
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\6\ See <a href="https://www.aphis.usda.gov/sites/default/files/hpai-livestock-case-definition.pdf">https://www.aphis.usda.gov/sites/default/files/hpai-livestock-case-definition.pdf</a>.
\7\ See <a href="https://www.aphis.usda.gov/sites/default/files/hpai-livestock-testing-recommendations.pdf">https://www.aphis.usda.gov/sites/default/files/hpai-livestock-testing-recommendations.pdf</a>.
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<bullet> A notice of loss (CCC-939) indicating the date of the
eligible loss condition, which is the positive H5N1 test collection
date; and
<bullet> 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.
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\8\ NASS milk production data is available at <a href="https://usda.library.cornell.edu/concern/publications/h989r321c?locale=en">https://usda.library.cornell.edu/concern/publications/h989r321c?locale=en</a>.
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 <a href="https://usda.library.cornell.edu/concern/publications/c821gj76b">https://usda.library.cornell.edu/concern/publications/c821gj76b</a>. 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:
<bullet> Exempt from the notice and comment provisions of 5 U.S.C.
553; and
<bullet> 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 <a href="https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint">https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint</a> 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: <a href="/cdn-cgi/l/email-protection#4535372a223724286b2c2b31242e2005303621246b222a33"><span class="__cf_email__" data-cfemail="c5b5b7aaa2b7a4a8ebacabb1a4aea085b0b6a1a4eba2aab3">[email protected]</span></a>.
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
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