[Federal Register: May 25, 2005 (Volume 70, Number 100)]
[Proposed Rules]
[Page 30009-30015]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25my05-31]
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DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR Part 1430
RIN 0560-AH28
2004 Dairy Disaster Assistance Payment Program
AGENCIES: Commodity Credit Corporation, USDA.
ACTION: Proposed rule.
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SUMMARY: This proposed rule invites comments on a new program, the 2004
Dairy Disaster Assistance Payment Program, as authorized by the
Military Construction Appropriations and Emergency Hurricane
Supplemental Appropriations Act of 2005. The proposed program will
provide up to $10 million in assistance for producers in counties
declared a disaster by the President in 2004 due to hurricanes.
Payments would be made for losses in the three month period, August-
October 2004, only. This action is designed to provide financial
assistance to producers who suffered dairy production and milk spoilage
losses due to hurricanes in 2004.
DATES: Comments on this rule must be received on or before June 24,
2005, in order to be assured consideration.
ADDRESSES: The agencies invite interested persons to submit comments on
this proposed rule. Comments may be submitted by any of the following
methods:
E-Mail: Send comments to Danielle_Cooke@wdc.usda.gov.
Fax: Submit comments by facsimile transmission to: (202)
690-1536.
Mail: Submit comments to Grady Bilberry, Director, Price
Support Division (PSD), Farm Service Agency (FSA), United States
Department of Agriculture (USDA), STOP 0512, Room 4095-S, 1400
Independence Avenue, SW., Washington, DC 20250-0512.
Hand Delivery or Courier: Deliver comments to the above
address.
Federal eRulemaking Portal: Go to http://www.regulations.gov.
Follow the online instructions for submitting
comments.
Comments may be inspected in the Office of the Director, PSD, FSA,
USDA, Room 4095 South Building, Washington, DC, between 8 a.m. and 4:30
p.m., Monday through Friday, except holidays. A copy of this proposed
rule is available on the PSD home page at http://www.fsa.usda.gov/dafp/psd/
.
FOR FURTHER INFORMATION CONTACT: Danielle Cooke, phone: (202) 720-1919;
[[Page 30010]]
e-mail: Danielle_Cooke@wdc.fsa.usda.gov.
SUPPLEMENTARY INFORMATION:
Background
Section 103 of Division B of the Military Construction
Appropriations and Emergency Hurricane Supplemental Appropriations Act
of 2005 (Pub. L. 108-324, 118 Stat. 1220) (the 2004 Act), enacted
October 13, 2004, requires the Secretary of Agriculture to use $10
million to make payments to dairy producers for losses in a county
declared a disaster by the President in 2004 due to hurricanes.
Hurricanes Charley, Frances, Ivan, and Jeanne severely impacted dairy
producers in certain areas of the southeastern portion of the United
States during the months of August and September of 2004. As a result,
many dairy producers may have incurred decreases in production due to
cattle losses and milk that had to be dumped because of lack of
electricity, closed milk plants, and damaged containment equipment.
Pursuant to the legislation, this rule sets out proposed
regulations for the new program. As proposed, dairy producers who
suffered production losses and dairy spoilage losses as a result of
2004 hurricanes may apply for compensation for losses incurred during
the period of August through October of 2004 only. Benefits will be
provided to eligible dairy producers in those counties declared
disasters under a Presidential disaster declaration issued because of a
hurricane that meet all program eligibility requirements and are
subsequently approved for participation in the 2004 Dairy Disaster
Assistance Payment Program. Dairy producers in counties contiguous to
an approved county are not eligible.
To be eligible under the proposed program, dairy producers must
have produced milk in the United States during the 2004 calendar year
in a dairy operation located in a county declared a disaster by the
President due to hurricanes in 2004. As a result of the hurricanes, the
operation must have suffered dairy production losses or dairy spoilage
losses in the eligible months. In addition, adequate evidence of dairy
production losses or spoilage losses must be provided to FSA to
substantiate the losses suffered and certified by each producer.
Subject to comment and further consideration, payments will not be
reduced as a result of payments from a milk buyer or marketing
cooperative for dumped or spoiled milk.
Applicants must apply for benefits during the sign-up period
announced by the Deputy Administrator for Farm Programs. At the close
of the sign-up period, the total production and spoilage losses from
all eligible applicants will be determined. Payment eligibilities will
be separately calculated on an operation by operation basis. An
individual may be involved in more than one operation. Payments to
eligible producers will be calculated by multiplying the eligible
pounds by the average price received for commercial milk production in
the affected areas during the eligible months. If the total amount of
available funding ($10 million, less any reserve established to account
for disputed claims) is insufficient to compensate eligible producers
for eligible losses, then CCC will pay losses at two levels in an
effort to more equitably distribute the limited funds and maximize the
effectiveness of the program. Thus, in case of inadequate funds for all
eligible losses, CCC will calculate each operation's percentage overall
quarterly percentage reduction for the full August-October period from
the calculated base for the operation for the full quarter (August
through October). Calculated losses over the period from August to
October 2004 of greater than 20 percent of their normal production
would be paid at the maximum per-pound payment rate. A loss of over 20
percent in one or two of the eligible months will not qualify for the
maximum per-pound payment. Payments for eligible losses below the 20-
percent threshold would be made at a rate that will exhaust the
available funds that remain following payment of eligible losses at the
higher level. CCC decided to establish the minimum loss level at 20
percent for this purpose in order to be consistent with other FSA and
CCC disaster programs. For example, the minimum loss that a producer
must have suffered to be eligible for the 2003 Hurricane Assistance
Program for 2002-crop sugarcane was 20 percent, for the CCC Tree
Assistance Program it is 15 percent of normal production, for the Crop
Disaster Program the minimum production loss is 35 percent and the
required quality loss is 20 percent, for the Livestock Assistance
Program losses must exceed 40 percent, for the 2002 Cattle Feed Program
the minimum was 5 percent, and for the 2001/2002-crop Sugar Beet
Disaster Program the minimum was a 35 percent. Different payments for
differing degrees of losses will distribute the limited funds provided
under this program in a manner that provides greater assistance to
producers who suffered greater losses from the subject hurricanes. An
example is below. If funds are adequate for all eligible losses, all
eligible producers will be paid at the average price received for
commercial milk production in their area during the months of August
through October of 2004. CCC encourages comments on these provisions
and the appropriate loss-level percentage.
Example:
----------------------------------------------------------------------------------------------------------------
Producer A (South Producer B Producer C Producer D
Carolina) (Florida) (Alabama) (Georgia)
----------------------------------------------------------------------------------------------------------------
Total Base Production........... 800,000 2,000,000 1,500,000 600,000
Actual Production............... 485,000 1,820,000 1,070,000 490,000
Pounds Dumped or Spoiled........ 5,000 20,000 20,000 10,000
Total Eligible Loss............. 320,000 200,000 450,000 120,000
20% of Base Production.......... 160,000 400,000 300,000 120,000
Pounds of loss above 20% loss 160,000 0 150,000 0
level..........................
Payment Rate.................... \1\ $0.1559 \1\ $0.1762 \1\ $0.1626 \1\ $0.1626
DDAP for loss above 20%......... $24,944 $0 $24,390 $0
lb. (example only).............
---------------------
Total DDAP.................. $44,144 $24,000 $60,390 $14,400
Eligible Losses x average price. $49,888 $35,240 $73,100 $19,512
Percent production loss suffered 40 10 30 20
Percent financial losses 88 68 83 74
recovered from DDAP............
----------------------------------------------------------------------------------------------------------------
\1\ Lb.
[[Page 30011]]
CCC considered two additional provisions that were not included in
the proposed rule, but which are discussed here to obtain public
comment. First, the agency considered adding an adjustment to the
producer's calculated production losses in the eligible months for cows
that were added to the milking herd in order to make up for per-cow
production decreases as a result of the hurricane. It was determined
that basing the payments in this program on the dairy operation's
production during the eligible months, less the production from cows
that were added after the base production calculation month would be
administratively difficult, and the additional step in the eligible
production calculations would make the process less reliable. Further,
the additional recordkeeping and reporting requirements imposed on
producers to report the number of cows added during each eligible
month, the corresponding dates of purchase, and per-cow production
based on the number of days of ownership during each eligible month,
was felt to be too burdensome for program participation and would
likely have a negligible effect on payments. Second, the agency
considered paying the dairy operation's milk marketing cooperative
directly for milk that was dumped. Instead, this rule proposes that
payments will be based on the reduction in the amount of production
marketed, including any dumped production, that can be verified.
Payments for eligible losses will be made directly by FSA to producers.
To segregate payments into two payment schemes, one for producers'
production losses, and one for cooperatives' losses from dumped milk,
would greatly add to the administrative burden of carrying out this
program. Further, the statute provides that these payments will be made
``* * * to dairy producers * * *'' Thus, this rule provides for making
payments only to producers. Nevertheless, the agency invites comments
on these two variations that were considered, and specifically requests
suggestions for how these options could be added to the program
regulations in a simple, straightforward way.
Producers who have received a payment under the Dairy Indemnity
Payment Program (7 CFR part 760) shall be ineligible for payments under
this rule. Gross revenue and per-person payment limits do not apply.
Information provided on applications and supporting documentation will
be subject to verification by FSA. False certifications by producers
carry strict penalties and FSA will validate applications with random
spot-checks. Dairy producers determined to have made any false
certifications or adopted any misrepresentation, scheme, or device that
defeats the program's purpose will be required to refund any payments
issued under this program with interest, and may be subject to other
civil, criminal, or administrative remedies. During the application
period, dairy producers may apply in person at FSA county offices
during regular business hours. Applications may also be submitted to
CCC by mail or FAX. Program applications may be obtained in person, by
mail, telephone, and facsimile from producers' designated FSA county
office or via the Internet at http://www.fsa.usda.gov/dafp/psd/. In
order to expedite the availability of funds it has been determined to
be in the public interest to limit the comment period to 30 days.
Executive Order 12866
This proposed rule has been determined to be ``significant'' under
Executive Order 12866 and was reviewed by the Office of Management and
Budget (OMB). A cost-benefit assessment of this rule was completed and
is available from Ms. Cooke using the contact information above.
Regulatory Flexibility Act
The Regulatory Flexibility Act does not apply to this rule because
CCC is not required by 5 U.S.C. 553 or any other law to publish a
notice of proposed rulemaking with respect to the subject of this rule.
Environmental Assessment
The environmental impacts of this proposed rule have been
considered consistent with the provisions of the National Environmental
Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., the regulations of
the Council on Environmental Quality (40 CFR parts 1500-1508), and
FSA's regulations for compliance with NEPA, 7 CFR part 799. To the
extent these authorities may apply, CCC has concluded that this rule is
categorically excluded from further environmental review as evidenced
by the completion of an environmental evaluation. No extraordinary
circumstances or other unforeseeable factors exist which would require
preparation of an environmental assessment or environmental impact
statement. A copy of the environmental evaluation is available for
inspection and review upon request.
Executive Order 12988
This rule has been reviewed in accordance with Executive Order
12998. This final rule preempts State laws to the extent such laws are
inconsistent with it. This rule is not retroactive. Before judicial
action may be brought concerning this rule, all administrative remedies
set forth at 7 CFR parts 11 and 780 must be exhausted.
Executive Order 12372
This program is not subject to Executive Order 12372, which
requires intergovernmental consultation with State and local officials.
See the notice related to 7 CFR part 3015, subpart V, published at 48
FR 29115 (June 24, 1983).
Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) does
not apply to this rule because CCC is not required by 5 U.S.C. 553 or
any other law to publish a notice of proposed rulemaking for the
subject of this rule. Further, this rule contains no unfunded mandates
as defined in sections 202 and 205 of UMRA.
Paperwork Reduction Act of 1995
In accordance with the Paperwork Reduction Act of 1995, FSA has
submitted a request for approval to the Office of Management and Budget
(OMB) of an information collection required to support this proposed
rule for the 2004 Dairy Disaster Assistance Payment Program. A notice
was published in the Federal Register on February 16, 2005, (70 FR
7923) with estimates of the information collection burden required to
implement this program and requesting comments on those requirements as
required by 5 CFR 1320.8(d)(1). Copies of the information collection
may be obtained from Danielle Cooke, phone: (202) 720-1919; e-mail:
Danielle_Cooke@wdc.fsa.usda.gov.
Government Paperwork Elimination Act
CCC is committed to compliance with the Government Paperwork
Elimination Act (GPEA) and the Freedom to E-File Act, which require
Government agencies in general, and FSA in particular, to provide the
public the option of submitting information or transacting business
electronically to the maximum extent possible. The forms and other
information collection activities required to be utilized by a person
subject to this rule are not yet fully implemented in a way that would
allow the public to conduct business with CCC electronically.
Accordingly, at
[[Page 30012]]
this time, all forms required to be submitted under this rule may be
submitted to CCC by mail or FAX.
List of Subjects in 7 CFR Part 1430
Dairy, Disaster assistance, Reporting and recordkeeping
requirements.
For the reasons set out in the preamble, 7 CFR part 1430 is
proposed to be amended as follows:
PART 1430--DAIRY PRODUCTS
1. The authority citation for part 1430 is revised to read as
follows:
Authority: 7 U.S.C. 7981 and 7982; 15 U.S.C. 714b and 714c; Pub.
L. 108-324, 118 Stat. 1220.
2. Subpart C is added to read as follows:
Subpart C--2004 Dairy Disaster Assistance Payment Program
Sec.
1430.300 Applicability.
1430.301 Administration.
1430.302 Definitions.
1430.303 Time and method of application.
1430.304 Eligibility.
1430.305 Proof of production.
1430.306 Determination of losses incurred.
1430.307 Rate of payment and limitations on funding.
1430.308 Availability of funds.
1430.309 Appeals.
1430.310 Misrepresentation and scheme or device.
1430.311 Death, incompetence, or disappearance.
1430.312 Maintaining records.
1430.313 Refunds; joint and several liability.
1430.314 Miscellaneous provisions.
1430.315 Termination of program.
Subpart C--2004 Dairy Disaster Assistance Payment Program
Sec. 1430.300 Applicability.
(a) Subject to the availability of funds, this subpart sets forth
the terms and conditions applicable to the 2004 Dairy Disaster
Assistance Payment Program authorized by section 103 of Division B of
Public Law 108-324. Benefits will be provided to eligible United States
producers who have suffered dairy production losses and dairy spoilage
losses in eligible counties as a result of a hurricane disaster in
2004.
(b) To be eligible for this program, a producer must have been a
milk producer in 2004 in a county declared a disaster by the President
of the United States due to a 2004 hurricane. Only losses occurring in
those counties are eligible for payment in this program. Producers in
contiguous counties that were not designated by the President as a
disaster county due to a hurricane in 2004 are not eligible.
(c) Subject to the availability of funds, benefits shall be
provided by the Commodity Credit Corporation (CCC) to eligible dairy
producers. Additional terms and conditions may be set forth in the
payment application that must be executed by participants to receive a
disaster assistance payment for dairy production losses and dairy
spoilage losses.
(d) To be eligible for payments, producers must comply with the
provisions of, and their losses must meet the conditions of, this
subpart and any other conditions imposed by CCC.
Sec. 1430.301 Administration.
(a) The 2004 Dairy Disaster Assistance Payment Program shall be
administered under the general supervision of the Executive Vice
President, CCC (Administrator, FSA), or a designee, and shall be
carried out in the field by FSA State and county committees (State and
county committees) and FSA employees.
(b) State and county committees, and representatives and employees
thereof, do not have the authority to modify or waive any of the
provisions of the regulations of this subpart.
(c) The State committee shall take any action required by the
regulations of this subpart that has not been taken by the county
committee. The State committee shall also:
(1) Correct, or require the county committee to correct, any action
taken by such county committee that is not in accordance with the
regulations of this subpart; and
(2) Require a county committee to withhold taking any action that
is not in accordance with the regulations of this subpart.
(d) No delegation in this subpart to a State or county committee
shall preclude the Executive Vice President, CCC, or a designee, from
determining any question arising under the program or from reversing or
modifying any determination made by the State or county committee.
(e) The Deputy Administrator for Farm Programs, FSA, may authorize
State and county committees to waive or modify deadlines in cases where
lateness or failure to meet such requirements do not adversely affect
the operation of the 2004 Dairy Disaster Assistance Payment Program and
does not violate statutory limitations on the program.
(f) Data furnished by the applicants will be used to determine
eligibility for program benefits. Although participation in the 2004
Dairy Disaster Assistance Payment Program is voluntary, program
benefits will not be provided unless the participant furnishes all
requested data.
Sec. 1430.302 Definitions.
The definitions set forth in this section shall be applicable for
all purposes of administering the 2004 Dairy Disaster Assistance
Payment Program established by this subpart.
Application means the 2004 Dairy Disaster Assistance Payment
Program Application.
Application period means the time period established by the Deputy
Administrator for producers to apply for program benefits.
CCC means the Commodity Credit Corporation of the Department.
County committee means the FSA county committee.
County office means the FSA office responsible for administering
FSA programs for farms located in a specific area in a State.
Dairy operation means any person or group of persons who, as a
single unit, as determined by CCC, produces and markets milk
commercially from cows and whose production facilities are located in
the United States.
Department or USDA means the United States Department of
Agriculture.
Deputy Administrator means the Deputy Administrator for Farm
Programs (DAFP), FSA, or a designee.
Disaster county means a county declared a disaster by the President
of the United States due to a hurricane in 2004, and is only the county
so declared, not a contiguous county.
Farm Service Agency or FSA means the Farm Service Agency of the
Department.
Hundredweight or cwt. means 100 pounds.
Milk handler or cooperative means the marketing agency to, or
through which, the producer commercially markets whole milk.
Milk marketings means a marketing of milk for which there is a
verifiable sales or delivery record of milk marketed for commercial
use.
Payment pounds means the pounds of milk production from a dairy
operation for which the dairy producer is eligible to be paid under
this subpart.
Producer means any individual, group of individuals, partnership,
corporation, estate, trust association, cooperative, or other business
enterprise or other legal entity who is, or whose members are, a
citizen of, or legal resident alien in the United States, and who
directly or indirectly, as determined by the Secretary, shares in the
risk of producing milk, and makes contributions (including land, labor,
[[Page 30013]]
management, equipment, or capital) to the dairy farming operation of
the individual or entity of the proceeds of this operation.
Starting base production means actual commercial production
marketed by the dairy operation during the month of July 2004, or
alternative period established by the Deputy Administrator.
Verifiable production records means evidence that is used to
substantiate the amount of production marketed, including any dumped
production, and that can be verified by CCC through an independent
source.
Sec. 1430.303 Time and method of application.
(a) Dairy producers may obtain an Application, in person, by mail,
by telephone, or by facsimile from any county FSA office. In addition,
applicants may download a copy of the Application at http://www.sc.egov.usda.gov
.
(b) A request for benefits under this subpart must be submitted on
a completed Application as defined in Sec. 1430.302. Applications and
any other supporting documentation shall be submitted to the FSA county
office serving the county where the dairy operation is located but, in
any case, must be received by the FSA county office by the close of
business on the date established by the Deputy Administrator.
Applications not received by the close of business on such date will be
disapproved as not having been timely filed and the dairy producer will
not be eligible for benefits under this program.
(c) All persons who share in the risk of a dairy operation's total
production must certify to the information on the Application before
the Application will be considered complete.
(d) Each dairy producer requesting benefits under this subpart must
certify to the accuracy and truthfulness of the information provided in
their application and any supporting documentation. All information
provided is subject to verification by CCC. Refusal to allow CCC or any
other agency of the Department of Agriculture to verify any information
provided will result in a denial of eligibility. Furnishing the
information is voluntary; however, without it program benefits will not
be approved. Providing a false certification to the Government may be
punishable by imprisonment, fines and other penalties or sanctions.
Sec. 1430.304 Eligibility.
(a) Producers in the United States will be eligible to receive
hurricane-related dairy disaster benefits under this part only if they
have suffered dairy production or dairy spoilage losses in counties
declared a disaster by the President due to any hurricane in 2004. To
be eligible to receive payments under this subpart, producers in a
dairy operation must:
(1) Have produced and commercially marketed milk in the United
States and commercially marketed the milk produced during the 2004
calendar year;
(2) Be a producer on a dairy farm operation physically located in a
disaster county where production and milk spoilage losses were incurred
as a result of 2004 hurricanes, and limiting their claims to losses
occurring in those counties;
(3) Provide proof of monthly milk production dumped and
commercially marketed by all persons in the eligible dairy operation
during the third quarter of the 2004 milk marketing year, or other
period as determined by FSA, to determine the total pounds of eligible
losses that will be used for payment; and
(4) Apply for payments during the application period established by
the Deputy Administrator.
(b) Payments may be made for losses suffered by an otherwise
eligible producer who is now deceased or is a dissolved entity if a
representative who currently has authority to enter into a contract for
the producer or the producer's estate signs the application for
payment. Proof of authority to sign for the deceased producer's estate
or a dissolved entity must be provided. If a producer is now a
dissolved general partnership or joint venture, all members of the
general partnership or joint venture at the time of dissolution or
their duly-authorized representatives must sign the application for
payment.
(c) Producers associated with a dairy operation must submit a
timely application and comply with all other terms and conditions of
this subpart and instructions issued by CCC, as well as comply with
those instructions that are otherwise contained in the application to
be eligible for benefits under this subpart.
(d) As a condition to receive benefits under this part, a producer
must have been in compliance with the Highly Erodible Land Conservation
and Wetland Conservation provisions of 7 CFR part 12 for the 2004
calendar year, as applicable, and must not otherwise be barred from
receiving benefits under 7 CFR part 12 or any other law or regulation.
(e) Payments will be limited to losses in eligible counties in
eligible months.
(f) All payments under this part are subject to the availability of
funds.
Sec. 1430.305 Proof of production.
(a) A dairy producer must, based on the instructions issued by the
Deputy Administrator, provide adequate proof of the dairy operation's
commercial production, including any dumped production, for each month
for July 2004 through October 2004, and must specifically identify any
dumped production for August through October 2004. If a month other
than July 2004 is used records for that month must be provided.
(1) A producer must certify and provide such proof as requested
that losses for which compensation is claimed were hurricane-related
and occurred in an eligible county in an eligible month.
(2) Additional supporting documentation may be requested by FSA as
necessary to verify production or spoilage losses to the satisfaction
of FSA.
(b) Adequate proof under paragraph (a) of this section must be
based on milk marketing statements obtained from the dairy operation's
milk handler or marketing cooperative. Supporting documents may
include, but are not limited to: tank records, milk handler records,
daily milk marketings, copies of any payments received from other
sources for production or spoilage losses, or any other documents
available to confirm the production history of the dairy operation and
determine losses incurred by the dairy operation. All information
provided is subject to verification, spot check, and audit by FSA.
Also, FSA or another CCC representative may examine the dairy
operation's production or spoilage claims.
(c) If adequate proof of commercially-marketed production and
supporting documentation is not presented to the satisfaction of CCC or
FSA, the request for benefits will be rejected. In the case of a new
producer that had no verifiable, actual, commercial production marketed
by the dairy operation during the month of July 2004, but which
suffered eligible losses, an alternate period may be established by the
Deputy Administrator.
(d) Evidence of production will be used to establish the commercial
marketing and production history of the dairy operation so that
production and spoilage losses can be computed in accordance with Sec.
1430.306.
Sec. 1430.306 Determination of losses incurred.
(a) Eligible payable losses will be calculated on a dairy operation
by dairy operation basis and will be limited to those occurring in
August to October
[[Page 30014]]
2004. Specifically, dairy production and spoilage losses incurred by
producers under this subpart will be determined on the established
history of the dairy operation's actual commercial production marketed
from August through October 2004, and actual production dumped or
otherwise not marketed from August through October 2004, as provided by
the dairy operation consistent with Sec. 1430.305. Except as otherwise
provided in these regulations, the starting base production, as defined
in Sec. 1430.302, will be adjusted downward by a percentage determined
by CCC to determine the base production for the months of August
through October 2004. These adjustments are made to account for the
seasonal declines that can occur during those months. The base
production for each of the months August through October 2004, will be
calculated by reducing the starting base production (July 2004, or
approved alternate month) as follows:
(1) August 2004 base production will be the starting base
production reduced by 9 percent;
(2) September 2004 base production will be the starting base
production reduced by 15 percent;
(3) October 2004 base production will be the starting base
production reduced by 11 percent.
(b) The eligible dairy production losses for a dairy operation
will, for each of the months of August through October 2004, will be:
(1) The new base production for the dairy operation calculated
under paragraph (a) of this section less, (2) For each such month for
each dairy operation, the total of:
(i) Actual commercially-marketed production; plus
(ii) The pounds of production dumped (whether related to the
hurricane or not), or otherwise not commercially marketed (whether
related to the hurricane or not). For dumping losses to be eligible,
they must be hurricane related, as described under paragraphs (c) and
(d) of this section.
(c) Actual production losses may be adjusted to the extent the
reduction in production is not certified by the producer to be the
result of the hurricane or is determined by FSA not to be hurricane-
related. Actual production, as adjusted, that exceeds the adjusted base
production will indicate that the dairy operation incurred no
production losses for the corresponding month as a result of the
hurricane disaster, and production for that month will not qualify as a
production loss for the purposes of this program.
(d) Eligible dairy spoilage losses incurred by producers under this
subpart for each of the months August through October 2004 will be
determined based on actual milk produced and dumped on the farm as a
result of the 2004 hurricanes. Proper documentation of milk dumped on
the farm as a result of spoilage due to a hurricane must be provided to
CCC as provided in Sec. 1430.305.
(e) Eligible production and spoilage losses as otherwise determined
under paragraphs (a) through (d) of this section will be added together
to determine total eligible losses incurred by the dairy operation
subject to all other eligibility requirements as may be included in
this part or elsewhere.
(f) Payment on eligible dairy operation losses will be calculated
using whole pounds of milk. No double counting is permitted, and only
one payment will be made for each pound of milk calculated as an
eligible loss after the distribution of the operation's eligible
production loss among the producers of the dairy operation according to
Sec. 1430.307(b). Payments under this part will not be affected by any
payments for dumped or spoiled milk that the dairy operation may have
received from its milk handler, or marketing cooperative, or any other
private party.
(g) If a producer is eligible to receive payments under this part
and benefits under any other program administered by the Secretary for
the same losses, the producer must choose whether to receive the other
program benefits or payments under this part, but shall not be eligible
for both. The limitation on multiple benefits prohibits a producer from
being compensated more than once for the same losses. If the other USDA
program benefits are not available until after an application for
benefits has been filed under this part, the producer may, to avoid
this restriction on such other benefits, refund the total amount of the
payment to the administrative FSA office from which the payment was
received.
Sec. 1430.307 Rate of payment and limitations on funding.
(a) Subject to the availability of funds, the payment rate for
eligible production and spoilage losses determined according to Sec.
1430.306 will be, depending on the State, the average monthly Mailbox
milk price for the Florida, the Southeast, or the Appalachian States
Marketing Orders as reported by the Agricultural Marketing Service
during the months of August, September, and October of 2004. Maximum
payment rates for eligible losses for dairy operations located in
specific states will be as follows:
(1) Florida--$17.62 per hundredweight ($0.1762 per pound).
(2) Alabama, Georgia, and Louisiana--$16.26 per hundredweight
($0.1626 per pound).
(3) North Carolina and South Carolina--$15.59 per hundredweight
($0.1559 per pound).
(b) Subject to the availability of funds, each eligible dairy
operation's payment will be calculated by multiplying the applicable
payment rate under paragraph (a) of this section by the operation's
total eligible losses. Where there are multiple producers in the dairy
operation, individual producers' payments will be disbursed according
to each producer's share of the dairy operation's production as
specified in the Application.
(c) If the total value of losses claimed under paragraph (b) of
this section exceeds the $10 million available for the 2004 Dairy
Disaster Assistance Payment Program, less any reserve that may be
created under paragraph (e) of this section, total eligible losses of
individual dairy operations that, as calculated as an overall
percentage for the full three month period, August-October 2004 (not a
monthly average for any one month), are greater than 20 percent of the
total base production for those three months will be paid at the
maximum rate under paragraph (a) of this section to the extent
available funding allows. A loss of over 20 percent in only one or two
of the eligible months will not of itself qualify for the maximum per-
pound payment. Total eligible losses for a producer, as calculated
under Sec. 1430.306, of less than or equal to 20 percent during the
eligibility period of August to October 2004 will be paid at a rate
determined by dividing the eligible losses of less than 20 percent by
the funds remaining after making payments for all eligible losses above
the 20-percent threshold.
(d) In no event shall the payment exceed the value determined by
multiplying the producer's total eligible loss times the average price
received for commercial milk production in their area as defined in
paragraph (a) of this section.
(e) A reserve may be created to handle claims that extend beyond
the conclusion of the application period, but claims shall not be
payable once the available funding is expended.
Sec. 1430.308 Availability of funds.
The total available program funds shall be $10 million as provided
by section 103 of Division B of Public Law 108-324.
[[Page 30015]]
Sec. 1430.309 Appeals.
Any producer who is dissatisfied with a determination made pursuant
to this subpart may request reconsideration or appeal of such
determination in accordance with the appeal regulations set forth at 7
CFR parts 11 and 780. Appeals of determinations of ineligibility or
payment amounts are subject to the limitations in Sec. Sec. 1430.307
and 1430.308.
Sec. 1430.310 Misrepresentation and scheme or device.
(a) In addition to other penalties, sanctions or remedies as may
apply, a dairy producer shall be ineligible to receive assistance under
this program if the producer is determined by FSA or CCC to have:
(1) Adopted any scheme or device that tends to defeat the purpose
of this program;
(2) Made any fraudulent representation; or
(3) Misrepresented any fact affecting a program determination.
(b) Any funds disbursed pursuant to this part to any person or
operation engaged in a misrepresentation, scheme, or device, shall be
refunded with interest together with such other sums as may become due.
Any dairy operation or person engaged in acts prohibited by this
section and any dairy operation or person receiving payment under this
subpart shall be jointly and severally liable with other persons or
operations involved in such claim for benefits for any refund due under
this section and for related charges. The remedies provided in this
subpart shall be in addition to other civil, criminal, or
administrative remedies that may apply.
Sec. 1430.311 Death, incompetence, or disappearance.
In the case of death, incompetency, disappearance, or dissolution
of a person that is eligible to receive benefits in accordance with
this subpart, such alternate person or persons specified in 7 CFR part
707 may receive such benefits, as determined appropriate by FSA.
Sec. 1430.312 Maintaining records.
Persons applying for benefits under this program must maintain
records and accounts to document all eligibility requirements specified
herein. Such records and accounts must be retained for 3 years after
the date of payment to the dairy operations under this program.
Destruction of the records after such date shall be at the risk of the
party undertaking the destruction.
Sec. 1430.313 Refunds; joint and several liability.
(a) Excess payments, payments provided as the result of erroneous
information provided by any person, or payments resulting from a
failure to comply with any requirement or condition for payment under
the application or this subpart, must be refunded to CCC.
(b) A refund required under this section shall be due with interest
determined in accordance with paragraph (d) of this section and late
payment charges as provided in 7 CFR part 1403.
(c) Persons signing a dairy operation's application as having an
interest in the operation shall be jointly and severally liable for any
refund and related charges found to be due under this section.
(d) Interest shall be applicable to any refunds required in
accordance with 7 CFR parts 792 and 1403. Such interest shall be
charged at the rate that the United States Department of the Treasury
charges CCC for funds, and shall accrue from the date FSA or CCC made
the erroneous payment to the date of repayment.
(e) FSA may waive the accrual of interest if it determines that the
cause of the erroneous determination was not due to any action of the
person, or was beyond the control of the person committing the
violation. Any waiver is at the discretion of FSA alone.
Sec. 1430.314 Miscellaneous provisions.
(a) Offset. CCC may offset or withhold any amount due CCC under
this subpart in accordance with the provisions of 7 CFR part 1403.
(b) Claims. Claims or debts will be settled in accordance with the
provisions of 7 CFR part 1403.
(c) Other interests. Payments or any portion thereof due under this
subpart shall be made without regard to questions of title under State
law and without regard to any claim or lien against the livestock, or
proceeds thereof, in favor of the owner or any other creditor except
agencies and instrumentalities of the U.S. Government.
(d) Assignments. Any producer entitled to any payment under this
part may assign any payments in accordance with the provisions of 7 CFR
part 1404.
Sec. 1430.315 Termination of program.
This program will be terminated after payment has been made to
those applicants certified as eligible pursuant to the application
period established in Sec. 1430.304. All eligibility determinations
shall be final except as otherwise determined by the Deputy
Administrator.
Signed in Washington, DC, on May 19, 2005.
James R. Little,
Executive Vice President, Commodity Credit Corporation.
[FR Doc. 05-10444 Filed 5-24-05; 8:45 am]
BILLING CODE 3410-05-P