[Federal Register Volume 69, Number 171 (Friday, September 3, 2004)]
[Notices]
[Pages 53880-53882]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20108]
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Notices
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains documents other than rules
or proposed rules that are applicable to the public. Notices of hearings
and investigations, committee meetings, agency decisions and rulings,
delegations of authority, filing of petitions and applications and agency
statements of organization and functions are examples of documents
appearing in this section.
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Federal Register / Vol. 69, No. 171 / Friday, September 3, 2004 /
Notices
[[Page 53880]]
DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
Notice of Funds Availability: Tebuthiuron Application Losses--
Additional Assistance for Producers in New Mexico
AGENCY: Commodity Credit Corporation, USDA.
ACTION: Notice.
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SUMMARY: The Commodity Credit Corporation (CCC) is issuing this notice
to inform interested parties that additional payments are available
under the 2003 New Mexico Tebuthiuron Program (NMTP). The Agricultural
Assistance Act of 2003 (the 2003 Act) required the Secretary to
reimburse certain agricultural producers on farms in New Mexico for
losses claimed in relation to the application by the Federal Government
of the herbicide Tebuthiuron on land on or near the farms of the
producers during July 2002. A Notice was published on July 8, 2003
announcing the terms of the program (68 FR 40619). This notice is to
inform producers that remaining funds from this program are available
to those producers who suffered crops losses in 2004 from the lingering
residue of Tebuthiuron.
DATES: The Farm Service Agency (FSA) will accept applications from
September 3, 2004, through October 4, 2004.
FOR FURTHER INFORMATION CONTACT: Eloise Taylor, Chief, Compliance
Branch, FSA/PECD, 1400 Independence Ave., SW., Washington, DC 20250-
0517, (202) 720-9882, or e-mail at: [email protected].
Persons with disabilities who require alternative means of
communication (Braille, large print, audiotape, etc.) should contact
USDA's TARGET Center at (202) 720-2600 (voice and TDD).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
Section 217 of the 2003 Act (Pub. L. 108-7) requires that this
program be administered without regard to 44 U.S.C. 35, the Paperwork
Reduction Act (PRA) and exempts this action from notice and comment
requirements that might otherwise apply. This means the information to
be collected from the public to implement this program and the burden,
in time and money, the collection of the information would have on the
public does not need to be approved by the Office of Management and
Budget nor is it subject to the 60-day public comment period required
by the PRA.
Background
This notice provides NMTP terms and conditions and informs affected
parties that they may be eligible for additional benefits. Section 210
of the 2003 Act, as amended by Public Law 108-11, provides that the
Secretary shall use not more than $1,650,000 of Commodity Credit
Corporation funds to reimburse agricultural producers on farms located
in the vicinity of Malaga, New Mexico, for all losses to crops and
related expenses incurred as the result of the application by the
Federal Government of Tebuthiuron on land on or near the farms of the
producers during July 2002. An amount of $414,614 remains. The agency
will disburse this remaining amount to eligible producers that suffered
losses from Tebuthiuron during the 2004 crop year.
Tebuthiuron is a commercially available herbicide that is used to
control broadleaf weeds, grasses, and brush. It can be toxic to many
plants and can kill trees, shrubs and other desirable plants with roots
extending into treated areas.
Tebuthiuron has been used in the past by Federal agencies, such as
the Forest Service and Natural Resources Conservation Service (NRCS) of
USDA, and the Bureau of Land Management (BLM) of the Department of
Interior, in drug crop eradication efforts and to control brush and
weeds on public lands. Producers have claimed that Tebuthiuron use by
the Federal Government and by a private landowner on July 8, 10, and
12, 2002, caused water drawn from the Black River to be tainted,
causing losses to crops and livestock in the vicinity of Malaga, New
Mexico. The 2003 Act provided funds to address those claims. The
program is limited to farmers in that area and for their losses and
related expenses due to the July, 2002, applications. No other claims
will be allowed. Allowance of claims is not intended to be, and is not,
an admission of fact or liability on the part of anyone, but is
intended to carry out the program as required by the 2003 Act, based on
the claims of the producers and the assessment of New Mexico State
University (NMSU), which will help collect and assess the information.
Assistance will be provided to affected producers in proportion to the
losses incurred. No claims will be paid except upon the making of a
proper application during the application period as announced in this
notice. All claims are subject to the availability of funds. Funding is
limited to the $414,614, which are the funds remaining from the 2003
Act. Each producer must file a claim on a form developed by FSA and
provide supporting documentation for 2004 losses. Losses must have
occurred prior to the filing of the application. They must not have
been previously compensated under this program. Applications must be
submitted by the program application deadline, which will be 30 days
after the publication of this notice in the Federal Register, unless
extended. Once the money is expended, all other claims must be
rejected. The final determinations in this matter will be made by the
FSA Deputy Administrator for Farm Programs (Deputy Administrator).
Should funds still remain after this new round is completed, producers
who file in this round may, in the period September 1-10, 2005,
petition the Deputy Administrator for additional payments.
New Mexico Tebuthiuron Program
I. How To Apply
(A) Producers must submit the following to FSA:
(1) Application for benefits;
(2) Certification from a qualified crop consultant or New Mexico
Department of Agriculture soil test, that supports the producer's
contention that the acreage claimed to have been damaged was caused by
the July, 2002, Tebuthiuron applications; and
(3) Verifiable or reliable production records for 2004 for the crop
and farm, including, as applicable, commercial
[[Page 53881]]
receipts, settlement sheets, warehouse ledgers, load summaries, or
appraisal information from a loss adjuster acceptable to CCC. In the
absence of such records, CCC may assign production.
(4) Records for any production of a crop that is grown with an
arrangement or contract for guaranteed payment. Failure to report any
applicable guaranteed contract or similar agreement shall be considered
as providing false information to CCC, will render producers ineligible
for NMTP payments, and may lead to other civil or criminal sanctions.
(5) For applicable prevented planting claims for 2004, a
certification by a qualified crop consultant that supports the
producer's claim that a crop could not be taken to maturity because of
the presence of Tebuthiuron. Prevented planted acreage shall be limited
to the acres of the crop planted in 2002. Late-filed acreage reports
can be submitted according to 7 CFR 1480.16.
(6) Other information needed to verify the amount of the claim,
including but not limited to information relating to acres planted,
actual yields, actual production history, replanting expenses, legal
fees, livestock records and associated matters as determined necessary
by CCC or as offered by the producer in support of the claim.
II. References and Payment Limitations
(A) ``Deputy Administrator'' in this notice means the Farm Service
Agency (FSA) Deputy Administrator for Farm Programs.
(B) Funding for the program is limited to $414,614. In the event
that amount is insufficient to pay all approved claims, CCC will reduce
payments of all eligible and timely submitted claims on a pro rata
basis or other method deemed appropriate by CCC.
(C) Total NMTP payments are not subject to a per person payment
limitation as defined in 7 CFR part 1400.
(D) NMTP payments shall be made without regard to crop liens or
title under State law, but may be assigned.
III. Who Is Eligible
Eligible producers for NMTP payments are agricultural producers in
the State of New Mexico who suffered an eligible loss in 2004 claimed
in good faith to be a result of residue of the herbicide Tebuthiuron in
the Black River watershed in July 2002 in the vicinity of Malaga, New
Mexico. An eligible loss will be a loss that meets all the criteria in
section IV of this notice, plus those set out elsewhere in this notice,
and those contained in the program application or otherwise imposed by
the Deputy Administrator.
IV. Eligibility Determinations
Eligibility determinations will be made by the Deputy Administrator
upon receipt of all of the necessary data and the report of eligible
claims timely submitted. Subject to the continued availability of
funds, eligible losses are only those (1) claimed as a direct result
from the Federal Government's use of Tebuthiuron in the vicinity of
Malaga, New Mexico; (2) incurred before the filing of the producer's
application; and (3) not previously paid under the NMTP program
provided for in the Federal Register notice published July 8, 2003. All
three criteria must also be met. All other applicable criteria must
also be met. Payments are subject to the availability of funds. Claims
are subject to proration if the claims of all applicants filing in the
2004 application period set out in this notice exceed the remaining
available funding ($414,614) provided in this notice or any other level
as restricted by law. Proration shall be on the basis described
elsewhere in this notice. The Deputy Administrator shall determine the
level of proof needed to substantiate a claim for purposes of payment.
V. Payment Calculations
Subject to all the other conditions of this notice or conditions of
the application, and subject to the availability of funds and
proration, payment shall only be made to eligible producers for
eligible losses and, to the extent practicable, shall be calculated in
the following manner:
(A) NMTP payments for crop losses shall be based on the producer's
share of the crop lost, or, if no crop was produced, the share the
producer would have received if the crop had been produced. When
calculating a payment for a unit loss:
(1) An unharvested payment factor shall be applied to the crop
acreage planted but not harvested;
(2) A prevented planting factor shall be applied to any prevented
planted acreage eligible for payment; and
(B) NMTP payments for lost crops will be calculated using the
``county expected yield'', as established by the Deputy Administrator,
which will be the Olympic average (disregard the high and low yields)
yield for base period 1999-2003. In lieu of county expected yields, as
determined acceptable by the Deputy Administrator, payment may be based
on the use of ``approved yields'' using provisions similar to those for
developing an ``actual production history'' (APH) for producers under
the provisions of the Noninsured Crop Disaster Assistance Program at 7
CFR 1437, subpart B. Verifiable or reliable production evidence
acceptable to the Deputy Administrator may be used to establish the
farms APH.
(C) NMTP payments to producers under this notice for losses to
crops shall be based on an amount determined by multiplying the
eligible loss of production for the farm by the applicable payment
rate. The payment rate will be based on the 2004 established Risk
Management Agency (RMA) price for local, applicable insured crops, or
the 1999-2003 Olympic average for local, applicable noninsured crops,
as determined by the Deputy Administrator. Prices will be established
by the Deputy Administrator, using supporting data from RMA, NASS, or
other available sources. Grazing losses will be based on the loss of
forage value.
(D) Attorney's fees may be claimed for representation resulting
from eligible losses due to the application of Tebuthiuron if the
attorney certifies in a manner acceptable to the Deputy Administrator
that representation was provided to a farmer. A written agreement of
the terms and conditions must be provided along with the amount (by
formula or dollar amount) as certified by the producer and attorney for
which the producer is currently obligated or will be obligated to the
attorney upon receipt of the NMTP payments.
VI. General
(A) The NMTP shall be under the supervision of the Deputy
Administrator, who shall have the authority to modify terms and
conditions of the NMTP, and to impose additional terms and conditions,
in order to achieve the purposes of the program.
(B) The producer, to receive payment, must meet all conditions set
out in these regulations, the program application, or otherwise imposed
by the Deputy Administrator.
(C) For additional information, and to submit an application
directly to FSA, affected producers should contact the Farm Service
Agency at the address above or contact the Eddy County FSA Office in
Carlsbad, New Mexico.
(D) Payments are subject to administrative offset.
VII. Procedure, Application Deadline, Appeals, and Appeals Resolutions
FSA will collect the information from all claimants. Claimants must
submit an application by the close of business on October 4, 2004. You
must submit an
[[Page 53882]]
application for benefits at the Eddy County, New Mexico FSA office. CCC
will accept or reject each application in whole or in part and will
notify each producer in writing of such determination. If a producer
disagrees with the determination, the producer may request
reconsideration, file an appeal, and enter into Alternative Dispute
Resolution (ADR) according to the regulations found at 7 CFR part 780,
Appeal Regulations, and 7 CFR part 11.
If there are amounts in dispute, those amounts may be withheld from
distribution to address those claims. If there is to be a pro-ration,
such a withholding can affect all claimants. Alternatively, CCC may
resolve the matter based upon the information at hand and make a full
distribution, in which case there may not be sufficient funds to allow
an appeal. The Deputy Administrator shall make the final
determinations. All determinations on all claims shall be final except
to the extent a withholding is made to allow for appeal to the USDA
National Appeals Division. Notwithstanding any provision of this
notice, the Deputy Administrator can adjust claims in any manner deemed
appropriate to accomplish the goals of the program, may allow waivers
of requirements as appropriate, and may prorate or withhold funds as
needed to resolve claims under this program within the funding limit.
The purpose of this notice is to inform producers of the availability
of the program and to establish the basis on which program
determinations can be made. Upon the end of the 2004 application period
referred to in this section, the Deputy Administrator shall decide
whether, based on the total claims filed, a proration is appropriate or
needed. If a proration is decided upon, payment calculations shall be
adjusted accordingly.
If after paying claims for the 2004 applications, funds remain from
the $414, 614 referred to in section II of this notice, then, subject
to conditions that will now be set out, those eligible producers who
filed 2004 claims may file additional claims. The conditions are as
follow. The claims must be filed in the period September 1-10, 2005.
Payments on those claims may not exceed the funds remaining of the
$414, 614 mentioned above. The losses must meet the same criteria,
except as to the time of occurrence, as the 2004 claims. The claims may
be prorated as needed to reflect the remaining funds. The Deputy
Administrator may set additional conditions as deemed warranted by the
Deputy Administrator.
Signed at Washington, DC, August 24, 2004.
Michael W. Yost,
Acting Executive Vice President, Commodity Credit Corporation.
[FR Doc. 04-20108 Filed 9-2-04; 8:45 am]
BILLING CODE 0510-034-P