2004 Dairy Disaster Assistance Payment Program, 30009-30015 [05-10444]
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Federal Register / Vol. 70, No. 100 / Wednesday, May 25, 2005 / Proposed Rules
Chilean Technical Barriers to Trade
(TBT) inquiry point for notifications
under the U.S-Chile Free Trade
Agreement, the embassies of Argentina,
Brazil, Canada, Chile, Italy, Mexico,
Peru, and South Africa, and known
grape importers will be notified of the
proposed action. Finally, interested
persons are invited to submit
information on the regulatory and
informational impacts of this action on
small businesses.
A small business guide on complying
with fruit, vegetable, and specialty crop
marketing agreements and orders may
be viewed at: https://www.ams.usda.gov/
fv/moab.html. Any questions about the
compliance guide should be sent to Jay
Guerber at the previously mentioned
address in the FOR FURTHER INFORMATION
CONTACT section.
In accordance with section 8e of the
Act, the United States Trade
Representative has concurred with the
issuance of this proposed rule.
A 60-day comment period is provided
to allow interested persons to respond
to this proposal. All written comments
timely received will be considered
before a final determination is made on
this matter.
List of Subjects
7 CFR Part 925
Grapes, Marketing agreements,
Reporting and recordkeeping
requirements.
7 CFR Part 944
Avocados, Food grades and standards,
Grapefruit, Grapes, Imports, Kiwifruit,
Limes, Olives, Oranges.
For the reasons set forth in the
preamble, 7 CFR parts 925 and 944 are
proposed to be amended as follows:
PART 925—GRAPES GROWN IN A
DESIGNATED AREA OF
SOUTHEASTERN CALIFORNIA
1. The authority citation for 7 CFR
parts 925 and 944 continues to read as
follows:
Authority: 7 U.S.C. 601–674.
2. The introductory text to § 925.304
is proposed to be revised to read as
follows:
§ 925.304 California Desert Grape
Regulation 6.
During the period April 1 through
July 10 each year, no person shall pack
or repack any variety of grapes except
Emperor, Almeria, Calmeria, and Ribier
varieties, on any Saturday, Sunday,
Memorial Day, or the observed
Independence Day holiday, unless
approved in accordance with paragraph
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30009
(e) of this section, nor handle any
variety of grapes except Emperor,
Calmeria, Almeria, and Ribier varieties,
unless such grapes meet the
requirements specified in this section.
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DEPARTMENT OF AGRICULTURE
PART 944—FRUITS; IMPORT
REGULATIONS
2004 Dairy Disaster Assistance
Payment Program
3. In § 944.503, paragraphs (a)(1)
introductory text, (a)(1)(ii), and (a)(3) are
proposed to be revised to read as
follows: § 944.503 Table Grape Import
Regulation 4.
(a)(1) Pursuant to section 8e of the Act
and Part 944—Fruits, Import
Regulations, the importation into the
United States of any variety of Vinifera
species table grapes, except Emperor,
Calmeria, Almeria, and Ribier varieties,
is prohibited unless such grapes meet
the minimum grade and size
requirements specified in 7 CFR 51.884
for U.S. No. 1 table, as set forth in the
United States Standards for Grades of
Table Grapes (European Vinifera Type,
7 CFR 51.880 through 51.914), or shall
meet all the requirements of U.S. No. 1
Institutional with the exception of the
tolerance for bunch size. Such tolerance
shall be 33 percent instead of 4 percent
as is required to meet U.S. No. 1
Institutional grade. Grapes meeting
these quality requirements shall not be
marked ‘‘Institutional Pack,’’ but may be
marked ‘‘DGAC No. 1 Institutional.’’
(i) * * *
(ii) Grapes of the Flame Seedless
variety shall meet the minimum berry
size requirement of ten-sixteenths of an
inch (1.5875 centimeters) and shall be
considered mature if the juice meets or
exceeds 16.5 percent soluble solids, or
the juice contains not less than 15
percent soluble solids and the soluble
solids are equal to or in excess of 20
parts to every part acid contained in the
juice, in accordance with applicable
sampling and testing procedures
specified in sections 1436.3, 1436.5,
1436.6, 1436.7, 1436.12, and 1436.17 of
Article 25 of Title 3: California Code of
Regulations (CCR).
*
*
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(3) All regulated varieties of grapes
offered for importation shall be subject
to the grape import requirements
contained in this section effective April
1 through July 10.
*
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AGENCIES:
Dated: May 20, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing
Service.
[FR Doc. 05–10440 Filed 5–24–05; 8:45 am]
BILLING CODE 3410–02–P
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Commodity Credit Corporation
7 CFR Part 1430
RIN 0560–AH28
Commodity Credit
Corporation, USDA.
ACTION: Proposed rule.
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
https://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 https://www.fsa.usda.gov/
dafp/psd/.
FOR FURTHER INFORMATION CONTACT:
Danielle Cooke, phone: (202) 720–1919;
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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
Producer A
(South Carolina)
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 B
(Florida)
Producer C
(Alabama)
Producer D
(Georgia)
Total Base Production .....................................................
Actual Production .............................................................
Pounds Dumped or Spoiled ............................................
Total Eligible Loss ...........................................................
20% of Base Production ..................................................
Pounds of loss above 20% loss level .............................
Payment Rate ..................................................................
DDAP for loss above 20% ...............................................
DDAP for under 20% loss @ $0.12/lb. (example only) ..
800,000
485,000
5,000
320,000
160,000
160,000
1 $0.1559
$24,944
$19,200
2,000,000
1,820,000
20,000
200,000
400,000
0
1 $0.1762
$0
$24,000
1,500,000
1,070,000
20,000
450,000
300,000
150,000
1 $0.1626
$24,390
$36,000
600,000
490,000
10,000
120,000
120,000
0
1 $0.1626
$0
$14,400
Total DDAP ...............................................................
Eligible Losses x average price .......................................
Percent production loss suffered .....................................
Percent financial losses recovered from DDAP ..............
$44,144
$49,888
40
88
$24,000
$35,240
10
68
$60,390
$73,100
30
83
$14,400
$19,512
20
74
1 Lb.
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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
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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
https://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.
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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
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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
§ 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.
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(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.
§ 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
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provided unless the participant
furnishes all requested data.
§ 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,
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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.
§ 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 https://
www.sc.egov.usda.gov.
(b) A request for benefits under this
subpart must be submitted on a
completed Application as defined in
§ 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.
§ 1430.304
Eligibility.
(a) Producers in the United States will
be eligible to receive hurricane-related
dairy disaster benefits under this part
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Jkt 205001
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.
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Sfmt 4702
§ 1430.305
30013
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 commerciallymarketed 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 § 1430.306.
§ 1430.306
incurred.
Determination of losses
(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
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30014
Federal Register / Vol. 70, No. 100 / Wednesday, May 25, 2005 / Proposed Rules
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 § 1430.305. Except as
otherwise provided in these regulations,
the starting base production, as defined
in § 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.
VerDate jul<14>2003
17:25 May 24, 2005
Jkt 205001
(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 § 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 § 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.
§ 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 § 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
PO 00000
Frm 00014
Fmt 4702
Sfmt 4702
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 § 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.
§ 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.
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Federal Register / Vol. 70, No. 100 / Wednesday, May 25, 2005 / Proposed Rules
§ 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 §§ 1430.307
and 1430.308.
§ 1430.310
or device.
Misrepresentation and scheme
(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.
§ 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.
§ 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.
VerDate jul<14>2003
17:25 May 24, 2005
Jkt 205001
§ 1430.313
liability.
Refunds; joint and several
(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.
§ 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.
§ 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
§ 1430.304. All eligibility
determinations shall be final except as
PO 00000
Frm 00015
Fmt 4702
Sfmt 4702
30015
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
NUCLEAR REGULATORY
COMMISSION
10 CFR Part 72
RIN 3150–AH72
List of Approved Spent Fuel Storage
Casks: Standardized NUHOMS–24P,
–52B, –61BT, –32PT, –24PHB, and
–24PTH Revision
Nuclear Regulatory
Commission.
ACTION: Proposed rule.
AGENCY:
SUMMARY: The Nuclear Regulatory
Commission (NRC) is proposing to
amend its regulations revising the
Transnuclear, Inc., Standardized
NUHOMS System listing within the
‘‘List of approved spent fuel storage
casks’’ to include Amendment No. 8 to
Certificate of Compliance Number (CoC
No.) 1004. Amendment No. 8 to the
Standardized NUHOMS System CoC
would modify the cask design by adding
a new spent fuel storage and transfer
system, designated the NUHOMS–
24PTH System. The NUHOMS–24PTH
System consists of new or modified
components: the –24PTH dry shielded
canister (DSC); a new –24PTH DSC
basket design; a modified horizontal
storage module (HSM), designated the
HSM–H; and a modified transfer cask
(TC), designated the OS 197FC TC. The
NUHOMS–24PTH System is designed
to store fuel with a maximum average
burnup of up to 62 gigawatts-day/metric
ton of uranium; maximum average
initial enrichment of 5.0 weight percent;
minimum cooling time of 3.0 years; and
maximum heat load of 40.8 kilowatts
per DSC, under a general license.
DATES: Comments on the proposed rule
must be received on or before June 24,
2005.
ADDRESSES: You may submit comments
by any one of the following methods.
Please include the following number
(RIN 3150–AH72) in the subject line of
your comments. Comments on
rulemakings submitted in writing or in
electronic form will be made available
for public inspection. Because your
comments will not be edited to remove
any identifying or contact information,
E:\FR\FM\25MYP1.SGM
25MYP1
]]>Agencies
[Federal Register Volume 70, Number 100 (Wednesday, May 25, 2005)]
[Proposed Rules]
[Pages 30009-30015]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-10444]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 https://
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 https://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
DDAP for under 20% loss @ $0.12/ $19,200 $24,000 $36,000 $14,400
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 https://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 https://
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
