Dairy Disaster Assistance Payment Program III, 11519-11527 [E8-4141]
Download as PDF
<![CDATA[
Federal Register / Vol. 73, No. 43 / Tuesday, March 4, 2008 / Rules and Regulations
have retroactive effect. This rule will
not preempt any State or local laws,
regulations, or policies, unless they
present an irreconcilable conflict with
this rule. There are no administrative
procedures which must be exhausted
prior to any judicial challenge to the
provisions of this rule.
Paperwork Reduction
The information collection
requirements that appear in the sections
to be amended by this action have been
previously approved by OMB and
assigned OMB Control Numbers under
the Paperwork Reduction Act (44 U.S.C.
Chapter 35) as follows: § 56.52(a)(4)—
No. 0581–0128; and § 70.77(a)(4)—No.
0581–0127.
Pursuant to 5 U.S.C. 533, it is found
and determined that good cause exists
for not postponing the effective date
until 30 days after publication in the
Federal Register. The revised fees need
to be implemented on an expedited
basis in order to avoid further financial
losses in the grading program. The
effective date of the fee increase is
March 30, 2008.
List of Subjects
7 CFR Part 56
Eggs and egg products, Food grades
and standards, Food labeling, Reporting
and recordkeeping requirements.
7 CFR Part 70
Food grades and standards, Food
labeling, Poultry and poultry products,
Rabbits and rabbit products, Reporting
and recordkeeping requirements.
I For reasons set forth in the preamble,
Title 7, Code of Federal Regulations,
parts 56 and 70 is amended as follows:
PART 56—VOLUNTARY GRADING OF
SHELL EGGS
1. The authority citation for part 56
continues to read as follows:
I
Authority: 7 U.S.C. 1621–1627.
§ 56.46
[Amended]
2. Section 56.46 is amended by:
A. Removing in paragraph (b),
‘‘$69.68’’ and adding ‘‘$74.08, beginning
March 30, 2008, and $77.28 on or after
January 25, 2009,’’ in its place.
I B. Removing in paragraph (c), ‘‘$80.12
per hour’’ and adding ‘‘$86.68 per hour,
beginning March 30, 2008, and $93.24
per hour on or after January 25, 2009,’’
in its place.
I C. Removing in paragraph (d),
‘‘$82.16’’ and adding ‘‘$87.56 beginning
March 30, 2008, and $89.20 on or after
January 25, 2009,’’ in its place.
I D. Removing in paragraph (e),
‘‘$102.84 per hour’’ and adding
rwilkins on PROD1PC63 with RULES
I
I
VerDate Aug<31>2005
16:18 Mar 03, 2008
Jkt 214001
‘‘$112.00 per hour beginning March 30,
2008, and $116.08 per hour on or after
January 25, 2009,’’ in its place.
I 3. Section 56.52 is amended by:
I A. Removing the first sentence of
paragraph (a)(1), and adding three
sentences to read as set forth below; and
I B. Removing in paragraph (a)(4),
‘‘$0.053’’ and adding ‘‘$0.055 beginning
March 30, 2008, and $0.058 on or after
January 25, 2009,’’ in its place, and
removing ‘‘$3,075’’ and adding ‘‘$3,150
beginning March 30, 2008, and $3,225
on or after January 25, 2009,’’ in its
place.
§ 56.52 Charges for continuous grading
performed on a resident basis.
*
*
*
*
*
(a) * * *
(1) When a signed application for
service has been received, the State
supervisor or the supervisor’s assistant
shall complete a plant survey pursuant
to § 56.30. The costs for completing the
plant survey shall be borne by the
applicant on a fee basis at rates set forth
in § 56.46 (a) through(c), plus any travel
and additional expenses. No charges
will be assessed when the application is
required because of a change in name or
ownership. * * *
*
*
*
*
*
11519
beginning March 30, 2008, and $0.00047
on or after January 25, 2009,’’ in its
place, and removing ‘‘$3,075’’ and
adding ‘‘$3,150 beginning March 30,
2008, and $3,225 on or after January 25,
2009,’’ in its place.
§ 70.77 Charges for continuous poultry or
rabbit grading performed on a resident
basis.
*
*
*
*
*
(a) * * *
(1) When a signed application for
service has been received, the State
supervisor or the supervisor’s assistant
shall complete a plant survey pursuant
to § 70.34. The costs for completing the
plant survey shall be borne by the
applicant on a fee basis at rates set forth
in § 70.71 (a) through (c), plus any travel
and additional expenses. No charges
will be assessed when the application is
required because of a change in name or
ownership. * * *
*
*
*
*
*
Dated: February 28, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing
Service.
[FR Doc. 08–928 Filed 2–28–08; 11:26 am]
BILLING CODE 3410–02–P
DEPARTMENT OF AGRICULTURE
PART 70—VOLUNTARY GRADING OF
POULTRY PRODUCTS AND RABBIT
PRODUCTS
Farm Service Agency
4. The authority citation for part 70
continues to read as follows:
RIN 0560–AH74
I
Dairy Disaster Assistance Payment
Program III
Authority: 7 U.S.C. 1621–1627.
§ 70.71
[Amended]
5. Section 70.71 is amended by:
A. Removing in paragraph (b)
‘‘$69.68’’ and adding ‘‘$74.08 beginning
March 30, 2008, and $77.28 on or after
January 25, 2009,’’ in its place.
I B. Removing in paragraph (c) ‘‘$80.12
per hour’’ and adding ‘‘$86.68 per hour
beginning March 30, 2008, and $93.24
per hour on or after January 25, 2009,’’
in its place.
I C. Removing in paragraph (d),
‘‘$82.16’’ and adding ‘‘$87.56 beginning
March 30, 2008, and $89.20 on or after
January 25, 2009,’’ in its place.
I D. Removing in paragraph (e),
‘‘$102.84 per hour’’ and adding
‘‘$112.00 per hour beginning March 30,
2008, and $116.08 per hour on or after
January 25, 2009,’’ in its place.
I 6. Section 70.77 is amended by:
I A. Removing the first sentence of
paragraph (a)(1), and adding three
sentences to read as set forth below; and
I B. Removing in paragraph (a)(4),
‘‘$0.00043’’ and adding ‘‘$0.00045
I
I
PO 00000
Frm 00003
Fmt 4700
Sfmt 4700
7 CFR Part 786
Farm Service Agency, USDA.
Final rule.
AGENCY:
ACTION:
SUMMARY: This final rule establishes a
new program, the Dairy Disaster
Assistance Payment Program III, as
authorized by the U.S. Troop Readiness,
Veterans’ Care, Katrina Recovery, and
Iraq Accountability Appropriations Act,
2007. The program will provide $16
million in assistance for producers in
counties designated as a major disaster
or emergency area by the President, or
those declared a natural disaster area by
the Secretary of Agriculture. Counties
declared disasters by the President may
be eligible, even though agricultural loss
was not covered by the declaration, if
there has been a Farm Service Agency
Administrator’s Physical Loss Notice
covering such losses. The natural
disaster declarations by the Secretary or
the President must have been issued
between January 1, 2005 and December
31, 2007, that is, after January 1, 2005,
and before December 31, 2007. Counties
E:\FR\FM\04MRR1.SGM
04MRR1
11520
Federal Register / Vol. 73, No. 43 / Tuesday, March 4, 2008 / Rules and Regulations
rwilkins on PROD1PC63 with RULES
contiguous to such counties will also be
eligible. This program is designed to
provide financial assistance to
producers who suffered dairy
production losses due to natural
disasters in the eligible counties.
DATES: This rule is effective on March 4,
2008.
FOR FURTHER INFORMATION CONTACT:
Danielle Cooke, telephone: (202) 720–
1919; e-mail:
Danielle.Cooke@wdc.usda.gov.
SUPPLEMENTARY INFORMATION:
Background
This rule establishes regulations
based on the proposed rule published in
the Federal Register on November 26,
2007 (72 FR 65889–65897). The 30-day
comment period for the proposed rule
closed on December 26, 2007; 16
comments were submitted. The issues
raised in the comments and the
resulting changes to the rule are
discussed later in this final rule.
The proposed rule provided that the
DDAP–III program would be based on
disaster related dairy production losses
suffered during the period of January 2,
2005, and February 27, 2007, in
counties declared or designated a
natural disaster by the President or
Secretary of Agriculture. For timely
Presidential declarations that do not
cover agricultural loss, the subject
counties may still be covered if the
county was the subject of a Farm
Service Agency (FSA) Administrator’s
Loss Notice. Counties contiguous to
such declared counties are also eligible.
The program will end at the conclusion
of the application period and
disbursement of allotted funds. The
DDAP–III program will operate under
regulations codified in 7 CFR part 786.
The proposed rule specified that dairy
producers would disclose the number of
cows in the operation’s dairy herd for
each month of the calendar year in
which a disaster declaration was issued
to determine the average number of
cows in the dairy herd for the operation
per applicable year and calculate the
qualifying production loss for the
operation. The proposed rule also
provided that spoiled or dumped milk
would be counted as production for the
relevant claim period. In addition, the
proposed rule provided that qualifying
production losses would be calculated
from a set base amount determined from
data obtained from the National
Agricultural Statistics Service (NASS).
The proposed rule provided that if the
limited program funds were not
sufficient to pay all claims for lost
production, then priority would be
given in making payments to those
VerDate Aug<31>2005
16:18 Mar 03, 2008
Jkt 214001
persons whose losses for each
applicable disaster year were greater
than 20 percent. The proposed rule also
specified that the prices at which
payments would be made would be
amounts set out in the rule which were
derived from a series of reported
‘‘mailbox’’ prices.
Comments and Changes to the Final
Rule
During the 30-day comment period
the Agency received public comments
from a dairy cooperative, five
associations, a Farm Bureau, and eight
private citizens. In general, the
comments supported the proposed rule,
however, each of the comments raised
one or more issues addressing a specific
aspect of implementing DDAP–III and
several comments raised the same
issues. As explained below, minor
changes to the regulations based on the
comments will slightly modify the
provisions specified in the proposed
rule.
Two comments opposed the program,
one indicated that assistance should
only be provided to small dairy
operations and the other objected to
anyone other than the President making
disaster declarations. One of those
comments also indicated that assistance
provided by this program is a misuse of
taxpayer dollars and that it was
misleading for Congress to insert a
statute for agriculture in a non-related
military spending bill. No changes have
been made in the rule based on these
comments. The Agency is charged with
implementing the statutory provisions
and has done so in this final rule.
One comment requested clarification
regarding spoiled or dumped milk being
counted as production during the
relevant claim period. Specifically, to
ensure that milk production that spoiled
or was dumped for a disaster related
reason would be included in the
qualifying production losses for the
dairy operation. The provision in the
rule that requires spoiled or dumped
milk being counted as production is
intended to account for milk that
spoiled or was dumped due to nondisaster related reasons and must be
counted as production. The Agency
clarified this point in the rule by
revising section 786.106, paragraphs (e)
and (h), which were proposed as
paragraphs (c) and (f), respectively.
Comments were received on the
method of payment at two levels in the
event of inadequate funds for all eligible
losses and the appropriate loss level
percentage. Two respondents opposed
the use of the 20 percent threshold
because its use over a full calendar year
for an initial round of disaster benefits
PO 00000
Frm 00004
Fmt 4700
Sfmt 4700
may not recognize the economic reality
of significantly higher input costs on
dairy farms and the devastating effect of
short term disasters. With funding
limitations, the proposed threshold
percentage provides fair compensation
and is consistent with other disaster
programs administered by the Agency.
Therefore, no change was made in
response to these comments.
One comment suggested making dairy
operations outside of eligible disaster
counties eligible when milk was
dumped as a result of the market outlet
being located in a disaster affected
county. The statutory provisions did not
provide for counties outside of disaster
declared counties to be eligible.
Therefore, no change was made in
response to this comment.
One comment requested clarification
of the phrase ‘‘legal resident alien’’ and
believed that holders of E12 Visas
should be permitted to participate in the
program. Provisions for foreign persons
used for FSA programs are provided in
7 CFR part 1400, subpart F, and apply
to this program. A definition for a
lawful alien is also provided in 1400.3.
Therefore, no change was made in
response to this comment.
Most comments received disagreed
with how the base production for the
dairy operation was determined. Twelve
respondents opposed the use of NASS
State averages to determine base
production because of the great
disparity between operations with
minor breeds or poor herd management
practices that produce significantly less
than the NASS average and those dairy
operations with higher inputs that are
more efficient and produce well above
the NASS average. Additionally, one
comment received opposed the use of
the calendar year of the disaster to
determine base production and believed
a period of weeks, months or the year
prior to the disaster would be more
representative of base period production
for comparison. Further, the comment
disagreed with the use of cow averages
during the year of the disaster to
determine base production because cow
losses would factor into a decreased
base production for the dairy operation.
These comments supported an
alternative method of determining base
production for the dairy operation that
was not based on the year of the disaster
and did not include the use of NASS
State averages based on cow averages
during the applicable disaster year.
After careful consideration of the
recommendations proposed in the
comments, the Agency will change the
determination of base annual
production for the dairy operation to
use the average of the total
E:\FR\FM\04MRR1.SGM
04MRR1
Federal Register / Vol. 73, No. 43 / Tuesday, March 4, 2008 / Rules and Regulations
commercially marketed production
during both calendar years 2003 and
2004 prior to the eligible period,
divided by the average number of cows
in the dairy herd during both calendar
years 2003 and 2004 prior to the eligible
period, to establish the average annual
production per cow. To calculate the
base annual production for the dairy
operation, the average annual
production per cow determined from
the base year information obtained from
the producer, will be multiplied by the
average number of cows (not including
cow losses resulting from the disaster
occurrence) in the dairy herd during the
applicable year of the disaster. Dairy
operations without the required
information from the 2003 and 2004
base years will use an alternative
method to estimate the average annual
production per cow that will be
determined by the FSA Administrator.
For example, for new dairies not in
operation during 2003 and 2004, FSA
may obtain information from three
similar farms to estimate the base
annual production for the operation.
These changes were made throughout
the regulations with revised definitions,
sections 786.104 through 786.106.
Miscellaneous Changes
Payment rates for the four States of
Colorado, Hawaii, Oklahoma, and
Wyoming were inadvertently left out of
the table in section 786.107 in the
proposed rule and are incorporated in
this final rule.
The Consolidated Appropriations Act
of 2008 (Pub. L. 110–161), extended the
eligible period for the program from
February 27, 2007 to December 30,
2007. Changes are incorporated
throughout to modify the date to reflect
the extension.
rwilkins on PROD1PC63 with RULES
Executive Order 12866
This rule has been determined to be
not 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 the
contact information above.
Summary of Economic Impacts
Program payments will provide
eligible producers funds to help pay
operating expenses and meet other
financial obligations. Program payments
are expected to total and increase both
Federal outlays and aggregate farm
revenue by $16 million. This assistance
will help dairy producers affected by
natural disasters to recover some lost
income and additional repair expenses
to aid in continuing their agricultural
production businesses.
VerDate Aug<31>2005
16:18 Mar 03, 2008
Jkt 214001
The States with the highest
percentages of dairies expected to make
claims are: Idaho (33 percent),
California (16 percent), New Mexico (13
percent), Indiana and Michigan (7–8
percent), Washington and Arizona (5
percent), and Wisconsin (3 percent).
Expected claims totaled 3.1 million
hundred weight (cwt).
If total eligible losses exceed available
funding, losses above 20 percent will be
paid at the maximum payment rates.
The average payment rate for losses
below 20 percent will be determined by
dividing remaining funding by the total
milk pounds below 20 percent eligible
for payment. The resulting payment rate
is projected to be $5.15 per cwt,
substantially below average mailbox
prices.1 The average mailbox price for
all Federal Orders in the United States
was $12.87 in 2006 and $11.28 in
California, which is outside the Federal
Order system. The lowest mailbox price
in the Federal Order system in 2006 was
$11.13 in New Mexico.
Producers who can demonstrate a loss
exceeding 20 percent of their
production will receive compensation
equal to the average mailbox price
prevailing in their region during the
period of the disaster. To the extent that
payments equal to the mailbox price are
made to some producers, the otherwiseaverage payment rate of $5.15 will be
reduced. In theory, it is possible that
enough producers could claim a 20percent-or-greater loss and receive
payments equal to the mailbox price,
that payments to the remaining
producers with lower losses could be
considerably less than $5.15. However,
FSA does not have sufficient data to
estimate how many producers might
have losses exceeding 20 percent of
their production, or how much milk
such losses might represent.
Payments are expected to increase
producer income and defray repair and
cattle replacement costs. Outlays will be
monitored to ensure that they do not
exceed the actual loss.
The $16 million is a small share of
federal farm assistance. For example,
Commodity Credit Corporation (CCC)
made $15.3 billion in direct cash
payments to farmers and ranchers in
fiscal 2005, excluding all payments
made for disasters, with the largest
category of payments being $8 billion
paid under the Direct and Counter
Cyclical Program. CCC direct cash
payments for fiscal 2005 through
1 The mailbox price is the net price producers
receive for their milk, after all marketing costs,
discounts, premiums are accounted for. The
Agricultural Marketing Service collects and
publishes monthly mailbox prices.
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
11521
estimated fiscal 2007 total $43.7 billion,
averaging $14.6 billion, annually.
Regulatory Flexibility Act
The Regulatory Flexibility Act does
not apply to this rule because FSA 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
FSA has determined that this rule
does not constitute a major State or
Federal action that would significantly
affect the human or natural environment
consistent with the National
Environmental Policy Act 40 CFR part
1502.4, Major Federal actions requiring
the preparation of Environmental
Impact Statements, and 7 CFR part 799:
Environmental Quality and Related
Environmental Concerns—Compliance
with NEPA implementing the
regulations of the Council on
Environmental Quality, 40 CFR parts
1500–1508. Therefore no environmental
assessment or environmental impact
statement will be prepared.
Executive Order 12988
This rule has been reviewed in
accordance with Executive Order 12998.
This 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
Although we published a proposed
rule, Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA) does not
apply to this rule because FSA 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
The Information Collection Packages
for the amendments to 7 CFR 786
contained in this final rule have been
submitted to the Office of Management
and Budget (OMB) for approval as a
revision to OMB Control Number 0560–
E:\FR\FM\04MRR1.SGM
04MRR1
11522
Federal Register / Vol. 73, No. 43 / Tuesday, March 4, 2008 / Rules and Regulations
0252. A proposed rule containing an
estimate of the burden impact of the
rule was published in the Federal
Register on November 26, 2007 (72 FR
65889–65897) with estimates of the
information collection burden required
to implement this program and a request
for comments on those requirements as
required by 5 CFR section 1320.8(d)(1).
No comments concerning the burden
estimate were received.
E-Government Act Compliance
FSA is committed to complying with
the E-Government Act, to promote the
use of the Internet and other
information technologies to provide
increased opportunities for citizen
access to Government information and
services, and for other purposes. The
forms, regulations, and other
information collection activities
required to be utilized by a person
subject to this rule are available at
https://www.fsa.usda.gov. Applications
may be submitted at the FSA county
offices.
List of Subjects in 7 CFR Part 786
Dairy products, Disaster assistance,
Fraud, Penalties, Price support
programs, Reporting and recordkeeping
requirements.
I For the reasons set out in the
preamble, 7 CFR part 786 is added to
read as follows:
PART 786—DAIRY DISASTER
ASSISTANCE PAYMENT PROGRAM
(DDAP–III)
Sec.
786.100 Applicability.
786.101 Administration.
786.102 Definitions.
786.103 Time and method of application.
786.104 Eligibility.
786.105 Proof of production.
786.106 Determination of losses incurred.
786.107 Rate of payment and limitations
on funding.
786.108 Availability of funds.
786.109 Appeals.
786.110 Misrepresentation, scheme, or
device.
786.111 Death, incompetence, or
disappearance.
786.112 Maintaining records.
786.113 Refunds; joint and several liability.
786.114 Miscellaneous provisions.
786.115 Termination of program.
rwilkins on PROD1PC63 with RULES
Authority: Sec. 9007, Pub. L. 110–28, 121
Stat. 112; and Sec. 743, Pub. L. 110–161.
PART 786—DAIRY DISASTER
ASSISTANCE PAYMENT PROGRAM III
(DDAP–III)
§ 786.100
Applicability.
(a) Subject to the availability of funds,
this part specifies the terms and
VerDate Aug<31>2005
16:18 Mar 03, 2008
Jkt 214001
conditions applicable to the Dairy
Disaster Assistance Payment Program
(DDAP–III) authorized by section 9007
of Public Law 110–28 (extended by Pub.
L. 110–161). Benefits are available to
eligible United States producers who
have suffered dairy production losses in
eligible counties as a result of a natural
disaster declared during the period
between January 1, 2005, and December
31, 2007, (that is, after January 1, 2005,
and before December 31, 2007).
(b) To be eligible for this program, a
producer must have been a milk
producer anytime during the period of
January 2, 2005, through December 30,
2007, in a county declared a natural
disaster by the Secretary of Agriculture,
declared a major disaster or emergency
designated by the President of the
United States. For a county for which
there was a timely Presidential
declaration, but the declaration did not
cover the loss, the county may still be
eligible if the county is one for which
an appropriate determination of a Farm
Service Agency (FSA) Administrator’s
Physical Loss Notice applies. Counties
contiguous to a county that is directly
eligible by way of a natural disaster
declaration are also eligible. Only losses
occurring in eligible counties are
eligible for payment in this program.
(c) Subject to the availability of funds,
FSA will provide benefits to eligible
dairy producers. Additional terms and
conditions may be specified in the
payment application that must be
completed and submitted by producers
to receive a disaster assistance payment
for dairy production losses.
(d) To be eligible for payments,
producers must meet the provisions of,
and their losses must meet the
conditions of, this part and any other
conditions imposed by FSA.
§ 786.101
Administration.
(a) DDAP–III will be administered
under the general supervision of the
Administrator, FSA, or a designee, and
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 part.
(c) The State committee will take any
action required by the regulations of this
part that has not been taken by the
county committee. The State committee
will also:
(1) Correct, or require the county
committee to correct, any action taken
by such county committee that is not in
PO 00000
Frm 00006
Fmt 4700
Sfmt 4700
accordance with the regulations of this
part; and
(2) Require a county committee to
withhold taking any action that is not in
accordance with the regulations of this
part.
(d) No provision of delegation in this
part to a State or county committee will
preclude the Administrator, FSA, 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, 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
DDAP–III and does not violate statutory
limitations of the program.
(f) Data furnished by the applicants is
used to determine eligibility for program
benefits. Although participation in
DDAP–III is voluntary, program benefits
will not be provided unless the
producer furnishes all requested data.
§ 786.102
Definitions.
The definitions in 7 CFR part 718
apply to this part except to the extent
they are inconsistent with the
provisions of this part. In addition, for
the purpose of this part, the following
definitions apply.
Administrator means the FSA
Administrator, or a designee.
Application means DDAP–III
application.
Application period means the time
period established by the Deputy
Administrator for producers to apply for
program benefits.
Base annual production means the
pounds of production determined by
multiplying the average annual
production per cow calculated from
base period information times the
average number of cows in the dairy
herd during each applicable disaster
year.
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 FSA, 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.
E:\FR\FM\04MRR1.SGM
04MRR1
rwilkins on PROD1PC63 with RULES
Federal Register / Vol. 73, No. 43 / Tuesday, March 4, 2008 / Rules and Regulations
Disaster claim period means the
calendar year(s) applicable to the
disaster declaration during the eligible
period in which the production losses
occurred.
Disaster county means a county
included in the geographic area covered
by a natural disaster declaration, and
any county contiguous to a county that
qualifies by a natural disaster
declaration.
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 sale
or delivery record of milk marketed for
commercial use.
Natural disaster declaration means a
natural disaster declaration issued by
the Secretary of Agriculture after
January 1, 2005, but before December
31, 2007, under section 321(a) of the
Consolidated Farm and Rural
Development Act (7 U.S.C. 1961(a)), a
major disaster or emergency designation
by the President of the United States in
that period under the Robert T. Stafford
Disaster Relief and Emergency
Assistance Act, or a determination of a
Farm Service Agency Administrator’s
Physical Loss Notice for a county
covered in an otherwise eligible
Presidential declaration.
Payment pounds means the pounds of
milk production from a dairy operation
for which the dairy producer is eligible
to be paid under this part.
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 a legal resident alien in,
the United States, and who directly or
indirectly, as determined by the
Secretary, have a share entitlement or
ownership interest in a commercial
dairy’s milk production and who share
in the risk of producing milk, and make
contributions (including land, labor,
management, equipment, or capital) to
the dairy farming operation of the
individual or entity.
Reliable production evidence means
records provided by the producer
subject to a determination of
acceptability by the county committee
that are used to substantiate the amount
of production reported when verifiable
records are not available; the records
may include copies of receipts, ledgers
of income, income statements of deposit
VerDate Aug<31>2005
16:18 Mar 03, 2008
Jkt 214001
slips, register tapes, and records to
verify production costs,
contemporaneous measurements, and
contemporaneous diaries.
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 FSA through an
independent source.
§ 786.103
Time and method of application.
(a) Dairy producers may obtain an
application, in person, by mail, by
telephone, or by facsimile from any FSA
county 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
part must be submitted on a completed
DDAP–III application. Applications and
any other supporting documentation
must 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 milk
production of the dairy operation and
risk of the 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 part must certify to
the accuracy and truthfulness of the
information provided in their
application and any supporting
documentation. Any information
entered on the application will be
considered information from the
applicant regardless of who entered the
information on the application. All
information provided is subject to
verification by FSA. Refusal to allow
FSA or any other agency of the
Department of Agriculture to verify any
information provided may 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.
§ 786.104
Eligibility.
(a) Producers in the United States will
be eligible to receive dairy disaster
benefits under this part only if they
have suffered dairy production losses,
PO 00000
Frm 00007
Fmt 4700
Sfmt 4700
11523
previously uncompensated by disaster
payments including any previous dairy
disaster payment program, during the
claim period applicable to a natural
disaster declaration in a disaster county.
To be eligible to receive payments under
this part, producers in a dairy operation
must:
(1) Have produced and commercially
marketed milk in the United States and
commercially marketed the milk
produced anytime during the period of
January 2, 2005 through December 30,
2007;
(2) Be a producer on a dairy farm
operation physically located in an
eligible county where dairy production
losses were incurred as a result of a
disaster for which an applicable natural
disaster declaration was issued between
January 1, 2005 and December 31, 2007,
and limit their claims to losses that
occurred in those counties, specific to
conditions resulting from the declared
disaster as described in the natural
disaster declaration;
(3) Provide adequate proof, to the
satisfaction of the FSA county
committee, of the average number of
cows in the dairy herd and annual milk
production commercially marketed by
all persons in the eligible dairy
operation during the years of the base
period (2003 and 2004 calendar years)
and applicable disaster year that
corresponds with the issuance date of
the applicable natural disaster
declaration, 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 satisfy the terms and
conditions of this part, instructions
issued by FSA, and instructions
contained in the application to be
eligible for benefits under this part.
(d) As a condition to receive benefits
under this part, a producer must have
E:\FR\FM\04MRR1.SGM
04MRR1
11524
Federal Register / Vol. 73, No. 43 / Tuesday, March 4, 2008 / Rules and Regulations
been in compliance with the Highly
Erodible Land Conservation and
Wetland Conservation provisions of 7
CFR part 12 for the calendar year
applicable to the natural disaster
declaration and loss claim period, and
must not otherwise be barred from
receiving benefits under 7 CFR part 12
or any other law or regulation.
(e) Payments are limited to losses in
eligible counties, in eligible disaster
years.
(f) All payments under this part are
subject to the availability of funds.
(g) Eligible losses are determined from
the applicable base annual production,
as defined in § 786.102, that
corresponds to the natural disaster
declaration and must have occurred
during that same period as follows:
(1) For disaster declarations for
disasters during a calendar year (2005,
2006, or 2007), the disaster claim period
is the full calendar year and
(2) For disaster declarations issued
during one calendar year that ends in
another calendar year, the producer will
be eligible for both disaster years.
(h) Deductions in eligibility will be
made for any disaster payments
previously received for the loss
including any made under a previous
dairy disaster assistance payment
program for 2005.
rwilkins on PROD1PC63 with RULES
§ 786.105
Proof of production.
(a) Evidence of production is required
to establish the commercial marketing
and production history of the dairy
operation so that dairy production
losses can be computed in accordance
with § 786.106.
(b) 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 dairy herd
inventory records available for the
operation, for the years of the base
period (2003 and 2004 calendar years)
and disaster claim period that
corresponds with the issuance date of
the applicable natural disaster
declaration.
(1) A producer must certify and
provide such proof as requested that
losses for which compensation is
claimed were related to the disaster
declaration issued and occurred in an
eligible county during the eligible claim
period.
(2) A producer must certify to the
average number of cows in the dairy
herd during the base period and
applicable disaster claim period when
there is insufficient documentation
available for verification.
(3) Additional supporting
documentation may be requested by
VerDate Aug<31>2005
16:18 Mar 03, 2008
Jkt 214001
FSA as necessary to verify production
losses to the satisfaction of FSA.
(c) Adequate proof of production
history of the dairy operation under
paragraph (b) 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 losses, or
any other documents available to
confirm or adjust the production history
losses incurred by the dairy operation.
All information provided is subject to
verification, spot check, and audit by
FSA.
(d) As specified in § 786.106, loss
calculations will be based on comparing
the expected base annual production
consistent with this part and the actual
production during the applicable
disaster claim year. Such calculations
are subject to adjustments as may be
appropriate such as a correction for
losses not due to the disaster. If
adequate proof of normally marketed
production and any other production for
relevant periods is not presented to the
satisfaction of FSA, the request for
benefits will be rejected. Special
adjustments for new producers may be
made as determined necessary by the
Administrator.
§ 786.106
incurred.
Determination of losses
(a) Eligible payable losses are
calculated on a dairy operation by dairy
operation basis and are limited to those
occurring during the applicable disaster
claim period, as provided by
§ 786.104(g), that corresponds with the
applicable natural disaster declaration.
Specifically, dairy production losses
incurred by producers under this part
are determined on the established
history of the dairy operation’s average
number of cows in the dairy herd and
actual commercial production marketed
during the base period and applicable
disaster claim period that corresponds
with the applicable natural disaster
declaration, as provided by the dairy
operation consistent with § 786.105.
Except as otherwise provided in this
part, the base annual production, as
defined in § 786.102 and established in
§ 786.104(g) is determined for each
applicable disaster year based on the
average annual production per cow
determined according to the following:
(1) The average of annual marketed
production during the base period
calendar years of 2003 and 2004,
divided by;
PO 00000
Frm 00008
Fmt 4700
Sfmt 4700
(2) The average number of cows in the
dairy operation’s herd during the base
period calendar years of 2003 and 2004.
(b) If relevant information to calculate
the average annual production per cow
for one or both of the base period
calendar years of 2003 and 2004, is not
available, an alternative method of
determining the average annual
production per cow may be established
by the FSA Administrator. For example,
for new dairies not in operation during
2003 and 2004, information from three
similar farms may be obtained by FSA
to estimate base annual production.
(c) The average annual production per
cow, as determined according to
paragraphs (a)(1) and (a)(2) of this
section, is multiplied by the average
number of cows in the dairy operation’s
herd during the applicable disaster year
(excluding cow losses resulting from the
disaster occurrence), to determine base
annual production for the dairy
operation for each applicable disaster
claim period year.
(d) The eligible dairy production
losses for a dairy operation for each of
the authorized disaster claim period
years will be:
(1) The relevant period’s base annual
production for the dairy operation
calculated under paragraph (c) of this
section less,
(2) For each such disaster claim
period for each dairy operation the
actual commercially-marketed
production relevant to that period.
(e) Spoiled or dumped milk, disposed
of for reasons unrelated to the disaster
occurrence, must be counted as
production for the relevant disaster
claim period. 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
disaster identified in the natural disaster
declaration or is determined by FSA not
to be related to the natural disaster
identified in the natural disaster
declaration. FSA county committees
will determine production losses that
are not caused by the disaster associated
with the natural disaster declaration.
The calculated production loss
determined in § 786.106(d) will be
adjusted to account for pounds of
production losses determined by the
FSA county committee to not have been
associated with the declared natural
disaster for an eligible disaster county.
The FSA county committee may convert
cow numbers to actual pounds of
production used in the adjustment, by
multiplying the average annual
production per cow determined from
base period information, by the
applicable number of cows determined
to be ineligible to generate claims for
E:\FR\FM\04MRR1.SGM
04MRR1
Federal Register / Vol. 73, No. 43 / Tuesday, March 4, 2008 / Rules and Regulations
benefits. Other appropriate adjustments
will be made on such basis as the
Deputy Administrator finds to be
consistent with the objectives of the
program.
(f) Actual production, as adjusted,
that exceeds the base annual production
will mean that the dairy operation
incurred no eligible production losses
for the corresponding claim period as a
result of the natural disaster.
(g) Eligible production losses as
otherwise determined under paragraphs
(a) through (f) of this section for each
authorized year of the program are
added together to determine total
eligible losses incurred by the dairy
operation under DDAP–III subject to all
other eligibility requirements as may be
included in this part or elsewhere,
including the deduction for previous
payments including those made under a
previous DDAP program.
(h) 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 dairy
operation’s eligible production loss
among the producers of the dairy
operation according to § 786.107(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, marketing cooperative, or any
other private party; however, produced
milk that was dumped or spoiled for
reasons unrelated to the disaster
occurrence will still count as
production.
rwilkins on PROD1PC63 with RULES
Alabama .......................................................................................................................................
Alaska ..........................................................................................................................................
Arizona .........................................................................................................................................
Arkansas ......................................................................................................................................
California ......................................................................................................................................
Colorado ......................................................................................................................................
Connecticut ..................................................................................................................................
Delaware ......................................................................................................................................
Florida ..........................................................................................................................................
Georgia ........................................................................................................................................
Hawaii ..........................................................................................................................................
Idaho ............................................................................................................................................
Illinois ...........................................................................................................................................
Indiana .........................................................................................................................................
Iowa .............................................................................................................................................
Kansas .........................................................................................................................................
Kentucky ......................................................................................................................................
Louisiana ......................................................................................................................................
Maine ...........................................................................................................................................
Maryland ......................................................................................................................................
Massachusetts .............................................................................................................................
Michigan .......................................................................................................................................
Minnesota ....................................................................................................................................
Mississippi ....................................................................................................................................
Missouri (Northern) ......................................................................................................................
Missouri (Southern) .....................................................................................................................
Montana .......................................................................................................................................
Nebraska ......................................................................................................................................
Nevada .........................................................................................................................................
New Hampshire ...........................................................................................................................
New Jersey ..................................................................................................................................
New Mexico .................................................................................................................................
New York .....................................................................................................................................
North Carolina ..............................................................................................................................
North Dakota ................................................................................................................................
Ohio .............................................................................................................................................
Oklahoma .....................................................................................................................................
Oregon .........................................................................................................................................
Pennsylvania (Eastern) ................................................................................................................
Pennsylvania (Western) ...............................................................................................................
Puerto Rico ..................................................................................................................................
Rhode Island ................................................................................................................................
South Carolina .............................................................................................................................
South Dakota ...............................................................................................................................
Tennessee ...................................................................................................................................
Texas ...........................................................................................................................................
Vermont .......................................................................................................................................
Virginia .........................................................................................................................................
VerDate Aug<31>2005
16:18 Mar 03, 2008
Jkt 214001
PO 00000
§ 786.107 Rate of payment and limitations
on funding.
(a) Subject to the availability of funds,
the payment rate for eligible production
losses determined according to
§ 786.106 is, depending on the State, the
annual average Mailbox milk price for
the Marketing Order, applicable to the
State where the eligible disaster county
is located, as reported by the
Agricultural Marketing Service during
the relevant period. States not regulated
under a Marketing Order will be
assigned a payment rate based on
contiguous or nearby State’s Mailbox
milk price. Maximum per pound
payment rates for eligible losses for
dairy operations located in specific
states during the relevant period are as
follows:
Mailbox price
2005
State
Frm 00009
Fmt 4700
Sfmt 4700
11525
0.1596
0.2040
0.1388
0.1596
0.1388
0.1403
0.1539
0.1539
0.1758
0.1596
0.2700
0.1402
0.1514
0.1503
0.1507
0.1403
0.1527
0.1596
0.1539
0.1539
0.1539
0.1478
0.1512
0.1596
0.1403
0.1467
0.1512
0.1403
0.1388
0.1539
0.1539
0.1323
0.1539
0.1527
0.1512
0.1506
0.1596
0.1402
0.1539
0.1539
0.2550
0.1539
0.1527
0.1512
0.1527
0.1405
0.1539
0.1527
E:\FR\FM\04MRR1.SGM
04MRR1
Mailbox price
2006
0.1443
0.2010
0.1128
0.1443
0.1128
0.1214
0.1344
0.1344
0.1603
0.1443
0.2600
0.1215
0.1283
0.1294
0.1285
0.1214
0.1349
0.1443
0.1344
0.1344
0.1344
0.1264
0.1277
0.1443
0.1214
0.1254
0.1277
0.1214
0.1128
0.1344
0.1344
0.1108
0.1303
0.1349
0.1277
0.1302
0.1443
0.1215
0.1340
0.1302
0.2570
0.1344
0.1349
0.1277
0.1349
0.1194
0.1344
0.1349
Mailbox price
2007 *
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
........................
11526
Federal Register / Vol. 73, No. 43 / Tuesday, March 4, 2008 / Rules and Regulations
Mailbox price
2005
State
Washington ..................................................................................................................................
West Virginia ................................................................................................................................
Wisconsin .....................................................................................................................................
Wyoming ......................................................................................................................................
Mailbox price
2006
0.1402
0.1506
0.1535
0.1403
0.1215
0.1302
0.1305
0.1214
Mailbox price
2007 *
........................
........................
........................
........................
rwilkins on PROD1PC63 with RULES
Note: Calculations are rounded to 7 decimal places.
* Payment rates for 2007 are currently unavailable, but will be based on the annual average Mailbox milk price for the Marketing Order, applicable to the State where the eligible disaster county is located, as reported by the Agricultural Marketing Service, consistent with payment rates
provided for 2005 and 2006.
(b) Subject to the availability of funds,
each eligible dairy operation’s payment
is calculated by multiplying the
applicable payment rate under
paragraph (a) of this section by the
operation’s total eligible losses as
adjusted pursuant to this part. Where
there are multiple producers in the
dairy operation, individual producers’
payments are 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
nationwide under paragraph (b) of this
section exceeds the $16 million
available for the DDAP–III, 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 each full disaster
claim period applicable to the disaster
declaration, are greater than 20 percent
of the total base annual production 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
months during the applicable disaster
claim period does not of itself qualify
for the maximum per-pound payment.
Rather, the priority level must be
reached as an average over the whole
disaster claim period for the relevant
calendar year. Total eligible losses for a
producer, as calculated under § 786.106,
of less than or equal to 20 percent
during the eligible claim period will
then be paid at a rate, not to exceed the
rate allowed in paragraph (a) of this
section, 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 will the payment
exceed the value determined by
multiplying the producer’s total eligible
loss times the average price received for
commercial milk production in the
producer’s area as defined in paragraph
(a) of this section.
(e) No participant will receive disaster
benefits under this part that in
combination with the value of
VerDate Aug<31>2005
16:18 Mar 03, 2008
Jkt 214001
production not lost would result in an
amount that exceeds 95 percent of the
value of the expected production for the
relevant period as estimated by the
Secretary. Unless otherwise program
funds would not be fully expended, the
sum of the value of the production not
lost, if any; and the disaster payment
received under this part, cannot exceed
95 percent of what the production’s
value would have been if there had been
no loss. In no case, however, may the
value of production and the payment
exceed the value the milk would have
without the loss.
(f) A reserve may be created to handle
pending or disputed claims, but claims
will not be payable once the available
funding is expended.
§ 786.108
Availability of funds.
The total available program funds are
$16 million as provided by section 9007
of Title IX of Public Law 110–28.
§ 786.109
Appeals.
Provisions of the appeal regulations
set forth at 7 CFR parts 11 and 780
apply to this part. Appeals of
determinations of ineligibility or
payment amounts are subject to the
limitations in §§ 786.107 and 786.108
and other limitations that may apply.
§ 786.110
device.
Misrepresentation, scheme, or
(a) In addition to other penalties,
sanctions, or remedies that may apply,
a dairy producer is ineligible to receive
assistance under this program if the
producer is determined by FSA to have:
(1) Adopted any scheme or device
that tends to defeat the purpose of this
program,
(2) Made any fraudulent
representation,
(3) Misrepresented any fact affecting a
program determination, or
(4) Violated 7 CFR 795.17 and thus be
ineligible for the year(s) of violation and
the subsequent year.
(b) Any funds disbursed pursuant to
this part to any person or dairy
operation engaged in a
misrepresentation, scheme, or device,
must be refunded with interest together
with such other sums as may become
PO 00000
Frm 00010
Fmt 4700
Sfmt 4700
due. Interest will run from the date of
the disbursement to the producer or
other recipient of the payment from
FSA. Any person or dairy operation
engaged in acts prohibited by this
section and any person or dairy
operation receiving payment under this
part is jointly and severally liable with
other persons or dairy operations
involved in such claim for benefits for
any refund due under this section and
for related charges. The remedies
provided in this part are in addition to
other civil, criminal, or administrative
remedies that may apply.
§ 786.111 Death, incompetence, or
disappearance.
In the case of death, incompetency,
disappearance, or dissolution of an
individual or entity that is eligible to
receive benefits in accordance with this
part, such alternate person or persons
specified in 7 CFR part 707 may receive
such benefits, as determined
appropriate by FSA.
§ 786.112
Maintaining records.
Persons applying for benefits under
this program must maintain records and
accounts to document all eligibility
requirements specified herein and must
keep such records and accounts for 3
years after the date of payment to their
dairy operations under this program.
Destruction of the records after such
date is at the risk of the party required,
by this part, to keep the records.
§ 786.113
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
meet any requirement or condition for
payment under the application or this
part, must be refunded to FSA.
(b) A refund required under this
section is due with interest determined
in accordance with paragraph (d) of this
section and late payment charges as
provided in 7 CFR part 792.
Notwithstanding any other regulation,
interest will be due from the date of the
disbursement to the producer or other
recipient of the funds.
E:\FR\FM\04MRR1.SGM
04MRR1
Federal Register / Vol. 73, No. 43 / Tuesday, March 4, 2008 / Rules and Regulations
(c) Persons signing a dairy operation’s
application as having an interest in the
operation will be jointly and severally
liable for any refund and related charges
found to be due under this section.
(d) In the event FSA determines a
participant owes a refund under this
part, FSA will charge program interest
from the date of disbursement of the
erroneous payment. Such interest will
accrue at the rate that the United States
Department of the Treasury charges FSA
for funds plus additional charges as
deemed appropriate by the
Administrator or provided for by
regulation or statute.
(e) The debt collection provisions of
part 792 of this chapter applies to this
part except as is otherwise provided in
this part.
§ 786.114
Miscellaneous provisions.
(a) Payments or any portion thereof
due under this part must 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.
(b) Any producer entitled to any
payment under this part may assign any
payments in accordance with the
provisions of 7 CFR part 1404.
§ 786.115
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
§ 786.104. All eligibility determinations
will be final except as otherwise
determined by the Deputy
Administrator. Any claim for payment
may be denied once the allowed funds
are expended, irrespective of any other
provision of this part.
Signed at Washington, DC, on February 20,
2008.
Thomas B. Hofeller,
Acting Administrator, Farm Service Agency.
[FR Doc. E8–4141 Filed 3–3–08; 8:45 am]
rwilkins on PROD1PC63 with RULES
BILLING CODE 3410–05–P
VerDate Aug<31>2005
16:18 Mar 03, 2008
Jkt 214001
11527
DEPARTMENT OF TRANSPORTATION
1200 New Jersey Avenue, SE.,
Washington, DC 20590.
Federal Aviation Administration
FOR FURTHER INFORMATION CONTACT:
Wayne Lockett, Aerospace Engineer,
Airframe Branch, ANM–120S, FAA,
Seattle Aircraft Certification Office,
1601 Lind Avenue, SW., Renton,
Washington 98057–3356; telephone
(425) 917–6447; fax (425) 917–6590.
SUPPLEMENTARY INFORMATION:
14 CFR Part 39
[Docket No. FAA–2007–0202; Directorate
Identifier 2007–NM–185–AD; Amendment
39–15399; AD 2008–05–05]
RIN 2120–AA64
Airworthiness Directives; Boeing
Model 737–600, 737–700, 737–700C,
737–800, and 737–900 Series Airplanes
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule.
AGENCY:
SUMMARY: We are adopting a new
airworthiness directive (AD) for certain
Boeing Model 737–600, 737–700, 737–
700C, 737–800, and 737–900 series
airplanes. This AD requires an
inspection of the vertical fin lugs, skin,
and skin edges for discrepancies; an
inspection of the flight control cables,
fittings, and pulleys in section 48 for
signs of corrosion; an inspection of the
horizontal stabilizer jackscrew, ball nut,
and gimbal pins for signs of corrosion;
and corrective actions if necessary. This
AD results from reports indicating that
moisture was found within the section
48 cavity. We are issuing this AD to
ensure that the correct amount of
sealant was applied around the vertical
fin lugs, skin and the skin edges.
Missing sealant could result in icing of
the elevator cables, which could cause
a system jam and corrosion of structural
and flight control parts, resulting in
reduced controllability of the airplane.
DATES: This AD is effective April 8,
2008.
The Director of the Federal Register
approved the incorporation by reference
of a certain publication listed in this AD
as of April 8, 2008.
ADDRESSES: For service information
identified in this AD, contact Boeing
Commercial Airplanes, P.O. Box 3707,
Seattle, Washington 98124–2207.
Examining the AD Docket
You may examine the AD docket on
the Internet at https://
www.regulations.gov; or in person at the
Docket Management Facility between 9
a.m. and 5 p.m., Monday through
Friday, except Federal holidays. The AD
docket contains this AD, the regulatory
evaluation, any comments received, and
other information. The address for the
Docket Office (telephone 800–647–5527)
is the Document Management Facility,
U.S. Department of Transportation,
Docket Operations, M–30, West
Building Ground Floor, Room W12–140,
PO 00000
Frm 00011
Fmt 4700
Sfmt 4700
Discussion
We issued a notice of proposed
rulemaking (NPRM) to amend 14 CFR
part 39 to include an airworthiness
directive (AD) that would apply to
certain Boeing Model 737–600, 737–
700, 737–700C, 737–800, and 737–900
series airplanes. That NPRM was
published in the Federal Register on
November 19, 2007 (72 FR 64955). That
NPRM proposed to require an
inspection of the vertical fin lugs, skin,
and skin edges for discrepancies; an
inspection of the flight control cables,
fittings, and pulleys in section 48 for
signs of corrosion; an inspection of the
horizontal stabilizer jackscrew, ball nut,
and gimbal pins for signs of corrosion;
and corrective actions if necessary.
Comments
We gave the public the opportunity to
participate in developing this AD. We
considered the comment received.
Boeing, the single commenter, supports
the NPRM.
Conclusion
We reviewed the relevant data,
considered the comment received, and
determined that air safety and the
public interest require adopting the AD
as proposed.
Costs of Compliance
There are 829 airplanes of the affected
design in the worldwide fleet. This AD
affects about 372 airplanes of U.S.
registry. The required actions take about
1 work hour per airplane, at an average
labor rate of $80 per work hour. Based
on these figures, the estimated cost of
this AD for U.S. operators is $29,760, or
$80 per airplane.
Authority for This Rulemaking
Title 49 of the United States Code
specifies the FAA’s authority to issue
rules on aviation safety. Subtitle I,
section 106, describes the authority of
the FAA Administrator. ‘‘Subtitle VII:
Aviation Programs,’’ describes in more
detail the scope of the Agency’s
authority.
We are issuing this rulemaking under
the authority described in ‘‘Subtitle VII,
Part A, Subpart III, Section 44701:
General Requirements.’’ Under that
E:\FR\FM\04MRR1.SGM
04MRR1
]]>Agencies
[Federal Register Volume 73, Number 43 (Tuesday, March 4, 2008)]
[Rules and Regulations]
[Pages 11519-11527]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-4141]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Farm Service Agency
7 CFR Part 786
RIN 0560-AH74
Dairy Disaster Assistance Payment Program III
AGENCY: Farm Service Agency, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule establishes a new program, the Dairy Disaster
Assistance Payment Program III, as authorized by the U.S. Troop
Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability
Appropriations Act, 2007. The program will provide $16 million in
assistance for producers in counties designated as a major disaster or
emergency area by the President, or those declared a natural disaster
area by the Secretary of Agriculture. Counties declared disasters by
the President may be eligible, even though agricultural loss was not
covered by the declaration, if there has been a Farm Service Agency
Administrator's Physical Loss Notice covering such losses. The natural
disaster declarations by the Secretary or the President must have been
issued between January 1, 2005 and December 31, 2007, that is, after
January 1, 2005, and before December 31, 2007. Counties
[[Page 11520]]
contiguous to such counties will also be eligible. This program is
designed to provide financial assistance to producers who suffered
dairy production losses due to natural disasters in the eligible
counties.
DATES: This rule is effective on March 4, 2008.
FOR FURTHER INFORMATION CONTACT: Danielle Cooke, telephone: (202) 720-
1919; e-mail: Danielle.Cooke@wdc.usda.gov.
SUPPLEMENTARY INFORMATION:
Background
This rule establishes regulations based on the proposed rule
published in the Federal Register on November 26, 2007 (72 FR 65889-
65897). The 30-day comment period for the proposed rule closed on
December 26, 2007; 16 comments were submitted. The issues raised in the
comments and the resulting changes to the rule are discussed later in
this final rule.
The proposed rule provided that the DDAP-III program would be based
on disaster related dairy production losses suffered during the period
of January 2, 2005, and February 27, 2007, in counties declared or
designated a natural disaster by the President or Secretary of
Agriculture. For timely Presidential declarations that do not cover
agricultural loss, the subject counties may still be covered if the
county was the subject of a Farm Service Agency (FSA) Administrator's
Loss Notice. Counties contiguous to such declared counties are also
eligible. The program will end at the conclusion of the application
period and disbursement of allotted funds. The DDAP-III program will
operate under regulations codified in 7 CFR part 786.
The proposed rule specified that dairy producers would disclose the
number of cows in the operation's dairy herd for each month of the
calendar year in which a disaster declaration was issued to determine
the average number of cows in the dairy herd for the operation per
applicable year and calculate the qualifying production loss for the
operation. The proposed rule also provided that spoiled or dumped milk
would be counted as production for the relevant claim period. In
addition, the proposed rule provided that qualifying production losses
would be calculated from a set base amount determined from data
obtained from the National Agricultural Statistics Service (NASS). The
proposed rule provided that if the limited program funds were not
sufficient to pay all claims for lost production, then priority would
be given in making payments to those persons whose losses for each
applicable disaster year were greater than 20 percent. The proposed
rule also specified that the prices at which payments would be made
would be amounts set out in the rule which were derived from a series
of reported ``mailbox'' prices.
Comments and Changes to the Final Rule
During the 30-day comment period the Agency received public
comments from a dairy cooperative, five associations, a Farm Bureau,
and eight private citizens. In general, the comments supported the
proposed rule, however, each of the comments raised one or more issues
addressing a specific aspect of implementing DDAP-III and several
comments raised the same issues. As explained below, minor changes to
the regulations based on the comments will slightly modify the
provisions specified in the proposed rule.
Two comments opposed the program, one indicated that assistance
should only be provided to small dairy operations and the other
objected to anyone other than the President making disaster
declarations. One of those comments also indicated that assistance
provided by this program is a misuse of taxpayer dollars and that it
was misleading for Congress to insert a statute for agriculture in a
non-related military spending bill. No changes have been made in the
rule based on these comments. The Agency is charged with implementing
the statutory provisions and has done so in this final rule.
One comment requested clarification regarding spoiled or dumped
milk being counted as production during the relevant claim period.
Specifically, to ensure that milk production that spoiled or was dumped
for a disaster related reason would be included in the qualifying
production losses for the dairy operation. The provision in the rule
that requires spoiled or dumped milk being counted as production is
intended to account for milk that spoiled or was dumped due to non-
disaster related reasons and must be counted as production. The Agency
clarified this point in the rule by revising section 786.106,
paragraphs (e) and (h), which were proposed as paragraphs (c) and (f),
respectively.
Comments were received on the method of payment at two levels in
the event of inadequate funds for all eligible losses and the
appropriate loss level percentage. Two respondents opposed the use of
the 20 percent threshold because its use over a full calendar year for
an initial round of disaster benefits may not recognize the economic
reality of significantly higher input costs on dairy farms and the
devastating effect of short term disasters. With funding limitations,
the proposed threshold percentage provides fair compensation and is
consistent with other disaster programs administered by the Agency.
Therefore, no change was made in response to these comments.
One comment suggested making dairy operations outside of eligible
disaster counties eligible when milk was dumped as a result of the
market outlet being located in a disaster affected county. The
statutory provisions did not provide for counties outside of disaster
declared counties to be eligible. Therefore, no change was made in
response to this comment.
One comment requested clarification of the phrase ``legal resident
alien'' and believed that holders of E12 Visas should be permitted to
participate in the program. Provisions for foreign persons used for FSA
programs are provided in 7 CFR part 1400, subpart F, and apply to this
program. A definition for a lawful alien is also provided in 1400.3.
Therefore, no change was made in response to this comment.
Most comments received disagreed with how the base production for
the dairy operation was determined. Twelve respondents opposed the use
of NASS State averages to determine base production because of the
great disparity between operations with minor breeds or poor herd
management practices that produce significantly less than the NASS
average and those dairy operations with higher inputs that are more
efficient and produce well above the NASS average. Additionally, one
comment received opposed the use of the calendar year of the disaster
to determine base production and believed a period of weeks, months or
the year prior to the disaster would be more representative of base
period production for comparison. Further, the comment disagreed with
the use of cow averages during the year of the disaster to determine
base production because cow losses would factor into a decreased base
production for the dairy operation. These comments supported an
alternative method of determining base production for the dairy
operation that was not based on the year of the disaster and did not
include the use of NASS State averages based on cow averages during the
applicable disaster year.
After careful consideration of the recommendations proposed in the
comments, the Agency will change the determination of base annual
production for the dairy operation to use the average of the total
[[Page 11521]]
commercially marketed production during both calendar years 2003 and
2004 prior to the eligible period, divided by the average number of
cows in the dairy herd during both calendar years 2003 and 2004 prior
to the eligible period, to establish the average annual production per
cow. To calculate the base annual production for the dairy operation,
the average annual production per cow determined from the base year
information obtained from the producer, will be multiplied by the
average number of cows (not including cow losses resulting from the
disaster occurrence) in the dairy herd during the applicable year of
the disaster. Dairy operations without the required information from
the 2003 and 2004 base years will use an alternative method to estimate
the average annual production per cow that will be determined by the
FSA Administrator. For example, for new dairies not in operation during
2003 and 2004, FSA may obtain information from three similar farms to
estimate the base annual production for the operation. These changes
were made throughout the regulations with revised definitions, sections
786.104 through 786.106.
Miscellaneous Changes
Payment rates for the four States of Colorado, Hawaii, Oklahoma,
and Wyoming were inadvertently left out of the table in section 786.107
in the proposed rule and are incorporated in this final rule.
The Consolidated Appropriations Act of 2008 (Pub. L. 110-161),
extended the eligible period for the program from February 27, 2007 to
December 30, 2007. Changes are incorporated throughout to modify the
date to reflect the extension.
Executive Order 12866
This rule has been determined to be not 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 the contact information above.
Summary of Economic Impacts
Program payments will provide eligible producers funds to help pay
operating expenses and meet other financial obligations. Program
payments are expected to total and increase both Federal outlays and
aggregate farm revenue by $16 million. This assistance will help dairy
producers affected by natural disasters to recover some lost income and
additional repair expenses to aid in continuing their agricultural
production businesses.
The States with the highest percentages of dairies expected to make
claims are: Idaho (33 percent), California (16 percent), New Mexico (13
percent), Indiana and Michigan (7-8 percent), Washington and Arizona (5
percent), and Wisconsin (3 percent). Expected claims totaled 3.1
million hundred weight (cwt).
If total eligible losses exceed available funding, losses above 20
percent will be paid at the maximum payment rates. The average payment
rate for losses below 20 percent will be determined by dividing
remaining funding by the total milk pounds below 20 percent eligible
for payment. The resulting payment rate is projected to be $5.15 per
cwt, substantially below average mailbox prices.\1\ The average mailbox
price for all Federal Orders in the United States was $12.87 in 2006
and $11.28 in California, which is outside the Federal Order system.
The lowest mailbox price in the Federal Order system in 2006 was $11.13
in New Mexico.
---------------------------------------------------------------------------
\1\ The mailbox price is the net price producers receive for
their milk, after all marketing costs, discounts, premiums are
accounted for. The Agricultural Marketing Service collects and
publishes monthly mailbox prices.
---------------------------------------------------------------------------
Producers who can demonstrate a loss exceeding 20 percent of their
production will receive compensation equal to the average mailbox price
prevailing in their region during the period of the disaster. To the
extent that payments equal to the mailbox price are made to some
producers, the otherwise-average payment rate of $5.15 will be reduced.
In theory, it is possible that enough producers could claim a 20-
percent-or-greater loss and receive payments equal to the mailbox
price, that payments to the remaining producers with lower losses could
be considerably less than $5.15. However, FSA does not have sufficient
data to estimate how many producers might have losses exceeding 20
percent of their production, or how much milk such losses might
represent.
Payments are expected to increase producer income and defray repair
and cattle replacement costs. Outlays will be monitored to ensure that
they do not exceed the actual loss.
The $16 million is a small share of federal farm assistance. For
example, Commodity Credit Corporation (CCC) made $15.3 billion in
direct cash payments to farmers and ranchers in fiscal 2005, excluding
all payments made for disasters, with the largest category of payments
being $8 billion paid under the Direct and Counter Cyclical Program.
CCC direct cash payments for fiscal 2005 through estimated fiscal 2007
total $43.7 billion, averaging $14.6 billion, annually.
Regulatory Flexibility Act
The Regulatory Flexibility Act does not apply to this rule because
FSA 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
FSA has determined that this rule does not constitute a major State
or Federal action that would significantly affect the human or natural
environment consistent with the National Environmental Policy Act 40
CFR part 1502.4, Major Federal actions requiring the preparation of
Environmental Impact Statements, and 7 CFR part 799: Environmental
Quality and Related Environmental Concerns--Compliance with NEPA
implementing the regulations of the Council on Environmental Quality,
40 CFR parts 1500-1508. Therefore no environmental assessment or
environmental impact statement will be prepared.
Executive Order 12988
This rule has been reviewed in accordance with Executive Order
12998. This 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
Although we published a proposed rule, Title II of the Unfunded
Mandates Reform Act of 1995 (UMRA) does not apply to this rule because
FSA 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
The Information Collection Packages for the amendments to 7 CFR 786
contained in this final rule have been submitted to the Office of
Management and Budget (OMB) for approval as a revision to OMB Control
Number 0560-
[[Page 11522]]
0252. A proposed rule containing an estimate of the burden impact of
the rule was published in the Federal Register on November 26, 2007 (72
FR 65889-65897) with estimates of the information collection burden
required to implement this program and a request for comments on those
requirements as required by 5 CFR section 1320.8(d)(1). No comments
concerning the burden estimate were received.
E-Government Act Compliance
FSA is committed to complying with the E-Government Act, to promote
the use of the Internet and other information technologies to provide
increased opportunities for citizen access to Government information
and services, and for other purposes. The forms, regulations, and other
information collection activities required to be utilized by a person
subject to this rule are available at https://www.fsa.usda.gov.
Applications may be submitted at the FSA county offices.
List of Subjects in 7 CFR Part 786
Dairy products, Disaster assistance, Fraud, Penalties, Price
support programs, Reporting and recordkeeping requirements.
0
For the reasons set out in the preamble, 7 CFR part 786 is added to
read as follows:
PART 786--DAIRY DISASTER ASSISTANCE PAYMENT PROGRAM (DDAP-III)
Sec.
786.100 Applicability.
786.101 Administration.
786.102 Definitions.
786.103 Time and method of application.
786.104 Eligibility.
786.105 Proof of production.
786.106 Determination of losses incurred.
786.107 Rate of payment and limitations on funding.
786.108 Availability of funds.
786.109 Appeals.
786.110 Misrepresentation, scheme, or device.
786.111 Death, incompetence, or disappearance.
786.112 Maintaining records.
786.113 Refunds; joint and several liability.
786.114 Miscellaneous provisions.
786.115 Termination of program.
Authority: Sec. 9007, Pub. L. 110-28, 121 Stat. 112; and Sec.
743, Pub. L. 110-161.
PART 786--DAIRY DISASTER ASSISTANCE PAYMENT PROGRAM III (DDAP-III)
Sec. 786.100 Applicability.
(a) Subject to the availability of funds, this part specifies the
terms and conditions applicable to the Dairy Disaster Assistance
Payment Program (DDAP-III) authorized by section 9007 of Public Law
110-28 (extended by Pub. L. 110-161). Benefits are available to
eligible United States producers who have suffered dairy production
losses in eligible counties as a result of a natural disaster declared
during the period between January 1, 2005, and December 31, 2007, (that
is, after January 1, 2005, and before December 31, 2007).
(b) To be eligible for this program, a producer must have been a
milk producer anytime during the period of January 2, 2005, through
December 30, 2007, in a county declared a natural disaster by the
Secretary of Agriculture, declared a major disaster or emergency
designated by the President of the United States. For a county for
which there was a timely Presidential declaration, but the declaration
did not cover the loss, the county may still be eligible if the county
is one for which an appropriate determination of a Farm Service Agency
(FSA) Administrator's Physical Loss Notice applies. Counties contiguous
to a county that is directly eligible by way of a natural disaster
declaration are also eligible. Only losses occurring in eligible
counties are eligible for payment in this program.
(c) Subject to the availability of funds, FSA will provide benefits
to eligible dairy producers. Additional terms and conditions may be
specified in the payment application that must be completed and
submitted by producers to receive a disaster assistance payment for
dairy production losses.
(d) To be eligible for payments, producers must meet the provisions
of, and their losses must meet the conditions of, this part and any
other conditions imposed by FSA.
Sec. 786.101 Administration.
(a) DDAP-III will be administered under the general supervision of
the Administrator, FSA, or a designee, and 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 part.
(c) The State committee will take any action required by the
regulations of this part that has not been taken by the county
committee. The State committee will 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 part; and
(2) Require a county committee to withhold taking any action that
is not in accordance with the regulations of this part.
(d) No provision of delegation in this part to a State or county
committee will preclude the Administrator, FSA, 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, 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 DDAP-III and does not violate statutory
limitations of the program.
(f) Data furnished by the applicants is used to determine
eligibility for program benefits. Although participation in DDAP-III is
voluntary, program benefits will not be provided unless the producer
furnishes all requested data.
Sec. 786.102 Definitions.
The definitions in 7 CFR part 718 apply to this part except to the
extent they are inconsistent with the provisions of this part. In
addition, for the purpose of this part, the following definitions
apply.
Administrator means the FSA Administrator, or a designee.
Application means DDAP-III application.
Application period means the time period established by the Deputy
Administrator for producers to apply for program benefits.
Base annual production means the pounds of production determined by
multiplying the average annual production per cow calculated from base
period information times the average number of cows in the dairy herd
during each applicable disaster year.
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 FSA, 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.
[[Page 11523]]
Disaster claim period means the calendar year(s) applicable to the
disaster declaration during the eligible period in which the production
losses occurred.
Disaster county means a county included in the geographic area
covered by a natural disaster declaration, and any county contiguous to
a county that qualifies by a natural disaster declaration.
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 sale or delivery record of milk marketed for commercial use.
Natural disaster declaration means a natural disaster declaration
issued by the Secretary of Agriculture after January 1, 2005, but
before December 31, 2007, under section 321(a) of the Consolidated Farm
and Rural Development Act (7 U.S.C. 1961(a)), a major disaster or
emergency designation by the President of the United States in that
period under the Robert T. Stafford Disaster Relief and Emergency
Assistance Act, or a determination of a Farm Service Agency
Administrator's Physical Loss Notice for a county covered in an
otherwise eligible Presidential declaration.
Payment pounds means the pounds of milk production from a dairy
operation for which the dairy producer is eligible to be paid under
this part.
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 a legal resident alien in, the United States, and who
directly or indirectly, as determined by the Secretary, have a share
entitlement or ownership interest in a commercial dairy's milk
production and who share in the risk of producing milk, and make
contributions (including land, labor, management, equipment, or
capital) to the dairy farming operation of the individual or entity.
Reliable production evidence means records provided by the producer
subject to a determination of acceptability by the county committee
that are used to substantiate the amount of production reported when
verifiable records are not available; the records may include copies of
receipts, ledgers of income, income statements of deposit slips,
register tapes, and records to verify production costs, contemporaneous
measurements, and contemporaneous diaries.
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 FSA through an independent
source.
Sec. 786.103 Time and method of application.
(a) Dairy producers may obtain an application, in person, by mail,
by telephone, or by facsimile from any FSA county 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 part must be submitted on a
completed DDAP-III application. Applications and any other supporting
documentation must 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 milk production of the dairy
operation and risk of the 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 part must
certify to the accuracy and truthfulness of the information provided in
their application and any supporting documentation. Any information
entered on the application will be considered information from the
applicant regardless of who entered the information on the application.
All information provided is subject to verification by FSA. Refusal to
allow FSA or any other agency of the Department of Agriculture to
verify any information provided may 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. 786.104 Eligibility.
(a) Producers in the United States will be eligible to receive
dairy disaster benefits under this part only if they have suffered
dairy production losses, previously uncompensated by disaster payments
including any previous dairy disaster payment program, during the claim
period applicable to a natural disaster declaration in a disaster
county. To be eligible to receive payments under this part, producers
in a dairy operation must:
(1) Have produced and commercially marketed milk in the United
States and commercially marketed the milk produced anytime during the
period of January 2, 2005 through December 30, 2007;
(2) Be a producer on a dairy farm operation physically located in
an eligible county where dairy production losses were incurred as a
result of a disaster for which an applicable natural disaster
declaration was issued between January 1, 2005 and December 31, 2007,
and limit their claims to losses that occurred in those counties,
specific to conditions resulting from the declared disaster as
described in the natural disaster declaration;
(3) Provide adequate proof, to the satisfaction of the FSA county
committee, of the average number of cows in the dairy herd and annual
milk production commercially marketed by all persons in the eligible
dairy operation during the years of the base period (2003 and 2004
calendar years) and applicable disaster year that corresponds with the
issuance date of the applicable natural disaster declaration, 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 satisfy the terms and conditions of this part,
instructions issued by FSA, and instructions contained in the
application to be eligible for benefits under this part.
(d) As a condition to receive benefits under this part, a producer
must have
[[Page 11524]]
been in compliance with the Highly Erodible Land Conservation and
Wetland Conservation provisions of 7 CFR part 12 for the calendar year
applicable to the natural disaster declaration and loss claim period,
and must not otherwise be barred from receiving benefits under 7 CFR
part 12 or any other law or regulation.
(e) Payments are limited to losses in eligible counties, in
eligible disaster years.
(f) All payments under this part are subject to the availability of
funds.
(g) Eligible losses are determined from the applicable base annual
production, as defined in Sec. 786.102, that corresponds to the
natural disaster declaration and must have occurred during that same
period as follows:
(1) For disaster declarations for disasters during a calendar year
(2005, 2006, or 2007), the disaster claim period is the full calendar
year and
(2) For disaster declarations issued during one calendar year that
ends in another calendar year, the producer will be eligible for both
disaster years.
(h) Deductions in eligibility will be made for any disaster
payments previously received for the loss including any made under a
previous dairy disaster assistance payment program for 2005.
Sec. 786.105 Proof of production.
(a) Evidence of production is required to establish the commercial
marketing and production history of the dairy operation so that dairy
production losses can be computed in accordance with Sec. 786.106.
(b) 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 dairy herd inventory records
available for the operation, for the years of the base period (2003 and
2004 calendar years) and disaster claim period that corresponds with
the issuance date of the applicable natural disaster declaration.
(1) A producer must certify and provide such proof as requested
that losses for which compensation is claimed were related to the
disaster declaration issued and occurred in an eligible county during
the eligible claim period.
(2) A producer must certify to the average number of cows in the
dairy herd during the base period and applicable disaster claim period
when there is insufficient documentation available for verification.
(3) Additional supporting documentation may be requested by FSA as
necessary to verify production losses to the satisfaction of FSA.
(c) Adequate proof of production history of the dairy operation
under paragraph (b) 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
losses, or any other documents available to confirm or adjust the
production history losses incurred by the dairy operation. All
information provided is subject to verification, spot check, and audit
by FSA.
(d) As specified in Sec. 786.106, loss calculations will be based
on comparing the expected base annual production consistent with this
part and the actual production during the applicable disaster claim
year. Such calculations are subject to adjustments as may be
appropriate such as a correction for losses not due to the disaster. If
adequate proof of normally marketed production and any other production
for relevant periods is not presented to the satisfaction of FSA, the
request for benefits will be rejected. Special adjustments for new
producers may be made as determined necessary by the Administrator.
Sec. 786.106 Determination of losses incurred.
(a) Eligible payable losses are calculated on a dairy operation by
dairy operation basis and are limited to those occurring during the
applicable disaster claim period, as provided by Sec. 786.104(g), that
corresponds with the applicable natural disaster declaration.
Specifically, dairy production losses incurred by producers under this
part are determined on the established history of the dairy operation's
average number of cows in the dairy herd and actual commercial
production marketed during the base period and applicable disaster
claim period that corresponds with the applicable natural disaster
declaration, as provided by the dairy operation consistent with Sec.
786.105. Except as otherwise provided in this part, the base annual
production, as defined in Sec. 786.102 and established in Sec.
786.104(g) is determined for each applicable disaster year based on the
average annual production per cow determined according to the
following:
(1) The average of annual marketed production during the base
period calendar years of 2003 and 2004, divided by;
(2) The average number of cows in the dairy operation's herd during
the base period calendar years of 2003 and 2004.
(b) If relevant information to calculate the average annual
production per cow for one or both of the base period calendar years of
2003 and 2004, is not available, an alternative method of determining
the average annual production per cow may be established by the FSA
Administrator. For example, for new dairies not in operation during
2003 and 2004, information from three similar farms may be obtained by
FSA to estimate base annual production.
(c) The average annual production per cow, as determined according
to paragraphs (a)(1) and (a)(2) of this section, is multiplied by the
average number of cows in the dairy operation's herd during the
applicable disaster year (excluding cow losses resulting from the
disaster occurrence), to determine base annual production for the dairy
operation for each applicable disaster claim period year.
(d) The eligible dairy production losses for a dairy operation for
each of the authorized disaster claim period years will be:
(1) The relevant period's base annual production for the dairy
operation calculated under paragraph (c) of this section less,
(2) For each such disaster claim period for each dairy operation
the actual commercially-marketed production relevant to that period.
(e) Spoiled or dumped milk, disposed of for reasons unrelated to
the disaster occurrence, must be counted as production for the relevant
disaster claim period. 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 disaster identified in the natural disaster
declaration or is determined by FSA not to be related to the natural
disaster identified in the natural disaster declaration. FSA county
committees will determine production losses that are not caused by the
disaster associated with the natural disaster declaration. The
calculated production loss determined in Sec. 786.106(d) will be
adjusted to account for pounds of production losses determined by the
FSA county committee to not have been associated with the declared
natural disaster for an eligible disaster county. The FSA county
committee may convert cow numbers to actual pounds of production used
in the adjustment, by multiplying the average annual production per cow
determined from base period information, by the applicable number of
cows determined to be ineligible to generate claims for
[[Page 11525]]
benefits. Other appropriate adjustments will be made on such basis as
the Deputy Administrator finds to be consistent with the objectives of
the program.
(f) Actual production, as adjusted, that exceeds the base annual
production will mean that the dairy operation incurred no eligible
production losses for the corresponding claim period as a result of the
natural disaster.
(g) Eligible production losses as otherwise determined under
paragraphs (a) through (f) of this section for each authorized year of
the program are added together to determine total eligible losses
incurred by the dairy operation under DDAP-III subject to all other
eligibility requirements as may be included in this part or elsewhere,
including the deduction for previous payments including those made
under a previous DDAP program.
(h) 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 dairy operation's eligible
production loss among the producers of the dairy operation according to
Sec. 786.107(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, marketing cooperative, or any other
private party; however, produced milk that was dumped or spoiled for
reasons unrelated to the disaster occurrence will still count as
production.
Sec. 786.107 Rate of payment and limitations on funding.
(a) Subject to the availability of funds, the payment rate for
eligible production losses determined according to Sec. 786.106 is,
depending on the State, the annual average Mailbox milk price for the
Marketing Order, applicable to the State where the eligible disaster
county is located, as reported by the Agricultural Marketing Service
during the relevant period. States not regulated under a Marketing
Order will be assigned a payment rate based on contiguous or nearby
State's Mailbox milk price. Maximum per pound payment rates for
eligible losses for dairy operations located in specific states during
the relevant period are as follows:
----------------------------------------------------------------------------------------------------------------
Mailbox price Mailbox price Mailbox price
State 2005 2006 2007 *
--------------------------------------------------------------------------------------------------
Alabama........................................... 0.1596 0.1443 ..............
Alaska............................................ 0.2040 0.2010 ..............
Arizona........................................... 0.1388 0.1128 ..............
Arkansas.......................................... 0.1596 0.1443 ..............
California........................................ 0.1388 0.1128 ..............
Colorado.......................................... 0.1403 0.1214 ..............
Connecticut....................................... 0.1539 0.1344 ..............
Delaware.......................................... 0.1539 0.1344 ..............
Florida........................................... 0.1758 0.1603 ..............
Georgia........................................... 0.1596 0.1443 ..............
Hawaii............................................ 0.2700 0.2600 ..............
Idaho............................................. 0.1402 0.1215 ..............
Illinois.......................................... 0.1514 0.1283 ..............
Indiana........................................... 0.1503 0.1294 ..............
Iowa.............................................. 0.1507 0.1285 ..............
Kansas............................................ 0.1403 0.1214 ..............
Kentucky.......................................... 0.1527 0.1349 ..............
Louisiana......................................... 0.1596 0.1443 ..............
Maine............................................. 0.1539 0.1344 ..............
Maryland.......................................... 0.1539 0.1344 ..............
Massachusetts..................................... 0.1539 0.1344 ..............
Michigan.......................................... 0.1478 0.1264 ..............
Minnesota......................................... 0.1512 0.1277 ..............
Mississippi....................................... 0.1596 0.1443 ..............
Missouri (Northern)............................... 0.1403 0.1214 ..............
Missouri (Southern)............................... 0.1467 0.1254 ..............
Montana........................................... 0.1512 0.1277 ..............
Nebraska.......................................... 0.1403 0.1214 ..............
Nevada............................................ 0.1388 0.1128 ..............
New Hampshire..................................... 0.1539 0.1344 ..............
New Jersey........................................ 0.1539 0.1344 ..............
New Mexico........................................ 0.1323 0.1108 ..............
New York.......................................... 0.1539 0.1303 ..............
North Carolina.................................... 0.1527 0.1349 ..............
North Dakota...................................... 0.1512 0.1277 ..............
Ohio.............................................. 0.1506 0.1302 ..............
Oklahoma.......................................... 0.1596 0.1443 ..............
Oregon............................................ 0.1402 0.1215 ..............
Pennsylvania (Eastern)............................ 0.1539 0.1340 ..............
Pennsylvania (Western)............................ 0.1539 0.1302 ..............
Puerto Rico....................................... 0.2550 0.2570 ..............
Rhode Island...................................... 0.1539 0.1344 ..............
South Carolina.................................... 0.1527 0.1349 ..............
South Dakota...................................... 0.1512 0.1277 ..............
Tennessee......................................... 0.1527 0.1349 ..............
Texas............................................. 0.1405 0.1194 ..............
Vermont........................................... 0.1539 0.1344 ..............
Virginia.......................................... 0.1527 0.1349 ..............
[[Page 11526]]
Washington........................................ 0.1402 0.1215 ..............
West Virginia..................................... 0.1506 0.1302 ..............
Wisconsin......................................... 0.1535 0.1305 ..............
Wyoming........................................... 0.1403 0.1214 ..............
----------------------------------------------------------------------------------------------------------------
Note: Calculations are rounded to 7 decimal places.
* Payment rates for 2007 are currently unavailable, but will be based on the annual average Mailbox milk price
for the Marketing Order, applicable to the State where the eligible disaster county is located, as reported by
the Agricultural Marketing Service, consistent with payment rates provided for 2005 and 2006.
(b) Subject to the availability of funds, each eligible dairy
operation's payment is calculated by multiplying the applicable payment
rate under paragraph (a) of this section by the operation's total
eligible losses as adjusted pursuant to this part. Where there are
multiple producers in the dairy operation, individual producers'
payments are 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 nationwide under paragraph
(b) of this section exceeds the $16 million available for the DDAP-III,
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 each full disaster claim period
applicable to the disaster declaration, are greater than 20 percent of
the total base annual production 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 months during the applicable
disaster claim period does not of itself qualify for the maximum per-
pound payment. Rather, the priority level must be reached as an average
over the whole disaster claim period for the relevant calendar year.
Total eligible losses for a producer, as calculated under Sec.
786.106, of less than or equal to 20 percent during the eligible claim
period will then be paid at a rate, not to exceed the rate allowed in
paragraph (a) of this section, 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 will the payment exceed the value determined by
multiplying the producer's total eligible loss times the average price
received for commercial milk production in the producer's area as
defined in paragraph (a) of this section.
(e) No participant will receive disaster benefits under this part
that in combination with the value of production not lost would result
in an amount that exceeds 95 percent of the value of the expected
production for the relevant period as estimated by the Secretary.
Unless otherwise program funds would not be fully expended, the sum of
the value of the production not lost, if any; and the disaster payment
received under this part, cannot exceed 95 percent of what the
production's value would have been if there had been no loss. In no
case, however, may the value of production and the payment exceed the
value the milk would have without the loss.
(f) A reserve may be created to handle pending or disputed claims,
but claims will not be payable once the available funding is expended.
Sec. 786.108 Availability of funds.
The total available program funds are $16 million as provided by
section 9007 of Title IX of Public Law 110-28.
Sec. 786.109 Appeals.
Provisions of the appeal regulations set forth at 7 CFR parts 11
and 780 apply to this part. Appeals of determinations of ineligibility
or payment amounts are subject to the limitations in Sec. Sec. 786.107
and 786.108 and other limitations that may apply.
Sec. 786.110 Misrepresentation, scheme, or device.
(a) In addition to other penalties, sanctions, or remedies that may
apply, a dairy producer is ineligible to receive assistance under this
program if the producer is determined by FSA to have:
(1) Adopted any scheme or device that tends to defeat the purpose
of this program,
(2) Made any fraudulent representation,
(3) Misrepresented any fact affecting a program determination, or
(4) Violated 7 CFR 795.17 and thus be ineligible for the year(s) of
violation and the subsequent year.
(b) Any funds disbursed pursuant to this part to any person or
dairy operation engaged in a misrepresentation, scheme, or device, must
be refunded with interest together with such other sums as may become
due. Interest will run from the date of the disbursement to the
producer or other recipient of the payment from FSA. Any person or
dairy operation engaged in acts prohibited by this section and any
person or dairy operation receiving payment under this part is jointly
and severally liable with other persons or dairy operations involved in
such claim for benefits for any refund due under this section and for
related charges. The remedies provided in this part are in addition to
other civil, criminal, or administrative remedies that may apply.
Sec. 786.111 Death, incompetence, or disappearance.
In the case of death, incompetency, disappearance, or dissolution
of an individual or entity that is eligible to receive benefits in
accordance with this part, such alternate person or persons specified
in 7 CFR part 707 may receive such benefits, as determined appropriate
by FSA.
Sec. 786.112 Maintaining records.
Persons applying for benefits under this program must maintain
records and accounts to document all eligibility requirements specified
herein and must keep such records and accounts for 3 years after the
date of payment to their dairy operations under this program.
Destruction of the records after such date is at the risk of the party
required, by this part, to keep the records.
Sec. 786.113 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 meet any requirement or condition for payment under the
application or this part, must be refunded to FSA.
(b) A refund required under this section is due with interest
determined in accordance with paragraph (d) of this section and late
payment charges as provided in 7 CFR part 792. Notwithstanding any
other regulation, interest will be due from the date of the
disbursement to the producer or other recipient of the funds.
[[Page 11527]]
(c) Persons signing a dairy operation's application as having an
interest in the operation will be jointly and severally liable for any
refund and related charges found to be due under this section.
(d) In the event FSA determines a participant owes a refund under
this part, FSA will charge program interest from the date of
disbursement of the erroneous payment. Such interest will accrue at the
rate that the United States Department of the Treasury charges FSA for
funds plus additional charges as deemed appropriate by the
Administrator or provided for by regulation or statute.
(e) The debt collection provisions of part 792 of this chapter
applies to this part except as is otherwise provided in this part.
Sec. 786.114 Miscellaneous provisions.
(a) Payments or any portion thereof due under this part must 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.
(b) Any producer entitled to any payment under this part may assign
any payments in accordance with the provisions of 7 CFR part 1404.
Sec. 786.115 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. 786.104. All eligibility determinations
will be final except as otherwise determined by the Deputy
Administrator. Any claim for payment may be denied once the allowed
funds are expended, irrespective of any other provision of this part.
Signed at Washington, DC, on February 20, 2008.
Thomas B. Hofeller,
Acting Administrator, Farm Service Agency.
[FR Doc. E8-4141 Filed 3-3-08; 8:45 am]
BILLING CODE 3410-05-P
