[Federal Register Volume 64, Number 89 (Monday, May 10, 1999)]
[Rules and Regulations]
[Pages 24933-24936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11596]


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DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1430

RIN 0560-AF67


Dairy Market Loss Assistance Program

AGENCY: Commodity Credit Corporation, USDA.

ACTION: Final rule.

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SUMMARY: This final rule sets forth the regulations for the Dairy 
Market Loss Assistance Program as authorized by the Agriculture, Rural 
Development, Food and Drug Administration, and Related Agencies 
Appropriations Act, 1999 (``the 1999 Act''). Eligible dairy producers 
may receive a direct payment on the first 26,000 hundredweight (cwt) of 
milk marketed commercially during the 1997 or 1998 calendar year. The 
payment per cwt will depend upon the amount of the eligible milk 
production under the program. This action is designed to provide 
immediate financial assistance to producers of dairy operations who 
recently experienced a severe decline in the price received for their 
milk.

DATES: Effective May 7, 1999.

FOR FURTHER INFORMATION CONTACT: Raellen Erickson, Program Specialist, 
Farm Service Agency (FSA), USDA, STOP 0512, 1400 Independence Avenue, 
SW, Washington, D.C. 20250-0512; telephone: (202) 720-7320.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    This final rule is in conformance with Executive Order 12866 and 
has been determined to be significant and therefore has been reviewed 
by the Office of Management and Budget.

Regulatory Flexibility Act

    It has been determined that the Regulatory Flexibility Act is not 
applicable to this rule because the Commodity Credit Corporation (CCC) 
is not required by 5 U.S.C. 553 or any other provision of law to 
publish a notice of proposed rulemaking with respect to the subject 
matter of this rule.

Environmental Evaluation

    It has been determined by an environmental evaluation that this 
action will have no significant impact on the quality of the human 
environment. Therefore, neither an environmental assessment nor an 
Environmental Impact Statement is needed.

Executive Order 12988

    This rule has been reviewed in accordance with Executive Order 
12988. The provisions of this rule preempt State laws to the extent 
such laws are inconsistent with the provisions of this rule. Before any 
legal action may be brought regarding determinations of this rule, the 
administrative appeal provisions set forth at 7 CFR part 780 must be 
exhausted.

Executive Order 12372

    This program is not subject to the provisions of Executive Order 
12372, which require intergovernmental consultation with State and 
local officials. See the notice related to 7 CFR part 3014, subpart V, 
published at 48 FR 29115 (June 24, 1983).

Unfunded Mandates Reform Act of 1995

    This rule contains no Federal mandates subject to the regulatory 
provisions of Title II of the Unfunded Mandates Reform Act of 1995 
(UMRA) for State, local, and tribal governments or the private sector. 
Thus, this rule is not subject to the requirements of sections 202 and 
205 of the UMRA.

Paperwork Reduction Act and Notice and Comment

    Section 1133 of the 1999 Act exempts this rulemaking from notice 
and comment, from the Paperwork Reduction Act, and provides that the 
provisions of 5 U.S.C. 808 which allow exemption from layovers for 
Congressional review shall be applied. Accordingly this rule and its 
information collection requirements are made effective immediately in 
accordance with these provisions. Because of the foregoing provisions 
and because this rule provides needed time-sensitive relief, delay in 
completing this rule would be contrary to the public interest.

Executive Order 12612

    It has been determined that this rule does not have sufficient 
Federalism implications to warrant the preparation of a Federalism 
Assessment. The provisions contained in this rule will not have a 
substantial direct effect on States or their political subdivisions, or 
on the distribution of power and responsibilities among the various 
levels of government.

Background

    Section 1111, Market Loss Assistance, of the 1999 Act (Pub. L. 105-
277, 112 Stat. 2681) directs the Secretary of Agriculture to provide 
$200 million in assistance to dairy producers. Section 1131 of the 1999 
Act provides that the Secretary shall use the funds, facilities, and 
authorities of the Commodity Credit Corporation (CCC) to carry out the 
program. The program will be administered by the Farm Service Agency 
(FSA).
    The estimated 116,000 dairy operations in the United States account 
for about $22.86 billion in milk production annually. The Basic Formula 
Price (BFP), which is the price that the Federal Milk Marketing Order 
system sets for milk used in manufacturing and is the price mover for 
fluid milk, exceeded previous record highs in July, August, October, 
November, and December 1998. The 1998 BFP averaged

[[Page 24934]]

$14.20 per cwt, compared with the previous record of $13.39 per cwt in 
1996.
    Milk prices were high because dairy product supplies were low 
relative to demand. Milk production per cow was relatively weak in the 
summer months of 1998 due to poor forage quality in the Northern States 
and relatively high temperatures in the Western States. The high milk 
prices and low feed costs, along with low cow cull prices have 
encouraged dairy farmers to increase production. Milk production in the 
October through December 1998 period increased 2.4 percent above the 
same period in 1997. This increase is significantly above the past 5-
year average increase of 0.15 percent for the October through December 
1998 period. The January 1999 milk production increased by 3.7 percent 
over January 1998 milk production.
    Cow productivity is expected to increase by 2.0 percent, and cow 
numbers are expected to decline less than half the trend of the past 
decade. The increase in milk production is expected to cause the BFP to 
decline.
    Payments under this program will be limited to dairy operations 
which produced and marketed milk commercially during the fourth quarter 
of 1998. Eligible dairy operations can receive payments with respect to 
the first 26,000 cwt of milk marketed commercially in either calendar 
year 1997 or 1998 but not both. Changes in dairy operations or producer 
status from the fourth quarter of 1998 to the date of application will 
not affect the Dairy Market Loss Assistance payment. The Dairy Market 
Loss Assistance payment is limited to: (1) The dairy operation that was 
in existence during the fourth quarter of 1998; and (2) the person(s) 
involved in such dairy operation during the fourth quarter of 1998.
    The per cwt payment rate will be the $200 million available for the 
Dairy Market Loss Assistance Program divided by the eligible production 
of milk (limited to 26,000 cwt per dairy operation) marketed 
commercially during the base period. Persons representing dairy 
operations making application for the benefits under this part shall 
self-certify with respect to either 1997 or 1998 calendar year milk 
production for the dairy operation. This includes any milk marketed 
from any person who is involved in marketed milk from the dairy 
operation which marketed milk during the selected marketing period. The 
calendar year milk marketings selected for the base period by the dairy 
operation cannot be combined with or changed to any milk marketings 
from another calendar year, as certified on the application, Form CCC-
1040.
    Eligible dairy operations must also: (1) Have produced and marketed 
milk commercially anytime during the fourth quarter of 1998; and (2) 
apply for cash payments during the application period. Persons 
representing dairy operations shall self-certify that they meet all 
eligibility requirements.
    Persons representing dairy operations may apply in person at county 
FSA offices during regular business hours and at that time complete the 
Dairy Market Loss Assistance Program Payment application on Form CCC-
1040. Alternatively, dairy operations may request the Dairy Market Loss 
Assistance Program Payment application by mail, telephone, facsimile 
from their designated county FSA office or obtain the application via 
the internet. The internet website is located at www.fsa.usda.gov/dafp/
psd/. The completed application, Form CCC-1040, must be received by a 
dairy operation's local county FSA office by the due date as specified 
in the program regulations and can be returned in person, by mail, or 
by facsimile.
    This rule is being made effective immediately. Because of the 
negative impact the rapid decline in the price of milk has on dairy 
operations, particularly small dairy operations, a delay in making this 
assistance available would be contrary to the public interest and the 
purpose of the authorizing statute.

List of Subjects in 7 CFR Part 1430

    Dairy products, Price support programs, Reporting and recordkeeping 
requirements.

    Accordingly, 7 CFR Part 1430 is amended by adding Subpart D--Dairy 
Market Loss Assistance Program to read as follows:

PART 1430--DAIRY PRODUCTS

    1. Subpart D--Dairy Market Loss Assistance Program is added to read 
as follows:

Subpart D--Dairy Market Loss Assistance Program

Sec.
1430.500  Applicability.
1430.501  Administration.
1430.502  Definitions.
1430.503  Time and method for application.
1430.504  Eligibility.
1430.505  Proof of production.
1430.506  Payment rate and dairy operation payment.
1430.507  Misrepresentation and scheme or device.
1430.508  Maintaining records.
1430.509  Refunds; joint and several liability.

    Authority: Pub. L. 105-227, 112 Stat. 2681.


Sec. 1430.500  Applicability.

    This subpart establishes the Dairy Market Loss Assistance Program. 
The purpose of this program is to provide benefits to dairy operations 
under Pub. L. 105-277, 112 Stat. 2681, in order to provide financial 
assistance to dairy operations in connection with normal milk 
production that is sold on the commercial market.


Sec. 1430.501  Administration.

    (a) The provisions of Secs. 1430.351, 1430.352, 1430.354, 1430.355, 
and 1430.360 shall be applied to this subpart in the same manner as 
they are applied to the subpart in which they are located.
    (b) The provisions of Secs. 1430.1 through 1430.349, 1430.353, 
1430.356 through 1430.359, 1430.361 through 1430.362, and 1430.400 
through 1430.410 are not applicable to this subpart.
    (c) This subpart shall be administered by the Farm Service Agency 
(FSA) under the general direction and supervision of the Executive Vice 
President, CCC or designee. The program shall be carried out in the 
field by State and county FSA committees under the general direction 
and supervision of the State and county FSA committees.
    (d) 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 in this subpart.
    (e) The State committee shall take any action required by this 
subpart which has not been taken by the county committee. The State 
committee shall also:
    (1) Correct, or require a county committee to correct, any action 
taken by such county committee which is not in accordance with the 
regulations of this subpart; or
    (2) Require a county committee to withhold taking any action which 
is not in accordance with the regulations of this subpart.
    (f) No delegation in this subpart to a State or county committee 
shall preclude the Executive Vice President, CCC, or a designee, from 
determining any question arising under the program or from reversing or 
modifying any determination made by a State or county committee.
    (g) The Deputy Administrator for Farm Programs, FSA, may authorize 
State and county committees to waive or modify deadlines and other 
program requirements in cases where timeliness or failure to meet such 
other requirements does not adversely affect the operation of the 
program.

[[Page 24935]]

Sec. 1430.502  Definitions.

    The definitions set forth in this section shall be applicable for 
all purposes of administering the Dairy Market Loss Assistance Program 
established by this subpart.
    Application means the Dairy Market Loss Assistance Program Payment 
application, CCC-1040.
    Application period means April 12, 1999 through May 21, 1999.
    Base period means the calendar year, either 1997 or 1998, as 
selected by the dairy operation, during which milk was produced and 
marketed.
    Commodity Credit Corporation means the Commodity Credit 
Corporation.
    Dairy operation means any person or group of persons who as a 
single unit as determined by CCC, produce and market milk commercially 
produced from cows and whose production and facilities are located in 
the United States.
    Department means the United States Department of Agriculture.
    Deputy Administrator means the Deputy Administrator for Farm 
Programs (DAFP), Farm Service Agency (FSA) or a designee.
    Eligible production means milk that had been produced by cows in 
the United States and marketed commercially in the United States 
anytime during the 1997 and or 1998 calendar year, subject to a maximum 
of 26,000 cwt per dairy operation.
    Farm Service Agency or FSA means the Farm Service Agency of the 
Department.
    Fourth quarter of 1998 means the period from October 1, 1998 
through December 31, 1998.
    Marketed commercially means sold to the market to which the dairy 
operation normally delivers whole milk and receives a monetary amount.
    Milk handler means the marketing agency to or through which the 
producer commercially markets whole milk.
    Milk marketing means a marketing of milk for which there is a 
verifiable sales or delivery record of milk marketed for commercial 
use.
    Person 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 or citizens of, or legal resident alien or aliens in the United 
States.
    Secretary means the Secretary of the United States Department of 
Agriculture or any other officer or employee of the Department who has 
been delegated the authority to act in the Secretary's stead with 
respect to the program established in this part.
    United States means the 50 States of the United States of America, 
the District of Columbia, and the Commonwealth of Puerto Rico.


Sec. 1430.503  Time and method for application.

    (a) Dairy operations may obtain an application, Form CCC-1040 
(Dairy Market Loss Assistance Program Payment Application), in person, 
by mail, by telephone, or by facsimile from any county FSA office. In 
addition, applicants may download a copy of the CCC-1040 at http://
www.fsa.usda.gov/dafp/psd/.
    (b) A request for benefits under this subpart must be submitted on 
a completed Form CCC-1040. The Form CCC-1040 should be submitted to the 
county FSA office serving the county where the dairy operation is 
located but, in any case, must be received by the county FSA office by 
the close of business on May 21, 1999. Applications not received by the 
close of business on May 21, 1999, will be disapproved as not having 
been timely filed and the dairy operation will not be eligible for 
benefits under this program.
    (c) All persons who share in the milk production of a dairy 
operation that marketed milk during the fourth quarter of 1998 must 
certify on the same CCC-1040 in order to obtain the total milk 
production of the dairy operation before the application is complete.
    (d) The dairy operation requesting benefits under this subpart must 
certify with respect to the accuracy and truthfulness of the 
information provided in their application for benefits. All information 
provided is subject to verification and spot checks by CCC. Refusal to 
allow CCC or any other agency of the Department of Agriculture to 
verify any information provided will result in a determination of 
ineligibility. Data furnished by the applicant will be used to 
determine eligibility for program benefits. Furnishing the data is 
voluntary; however, without it program benefits will not be approved. 
Providing a false certification to the Government is punishable by 
imprisonment, fines and other penalties.


Sec. 1430.504  Eligibility.

    (a) To be eligible to receive cash payments under this subpart, a 
dairy operation must:
    (1) Have produced and marketed milk commercially in the United 
States anytime during the fourth quarter of 1998;
    (2) Indicate all milk commercially marketed by all persons in the 
dairy operation during calendar year 1997 and 1998 to establish the 
base period for determining the total pounds of milk that will be 
converted to hundredweight (cwt) used for payment; and
    (3) Apply for payments during the application period.
    (b) A dairy operation must submit a timely application and comply 
with all other terms and conditions of this subpart and those that are 
otherwise contained in the application to be eligible for benefits 
under this subpart.


Sec. 1439.505  Proof of production.

    (a) Dairy operations selected for spotchecks by CCC must, in 
accordance with instructions issued by the Deputy Administrator, 
provide adequate proof that the dairy operation was commercially 
marketing milk anytime during the fourth quarter of 1998. The dairy 
operation must also provide proof of production for the 1997 or 1998 
calendar year to verify the base period. The documentary evidence of 
milk production claimed for payment shall be reported to CCC together 
with any supporting documentation under paragraph (b) of this section. 
The pounds of 1997 or 1998 calendar year milk production must be 
documented using actual records.
    (b) All persons involved in such dairy operation marketing milk 
during the fourth quarter of 1998 shall provide any available 
supporting documents to assist the county FSA office in verifying that 
the dairy operation produced and marketed milk commercially during the 
fourth quarter of 1998 and the base period milk marketings indicated on 
Form CCC-1040. Examples of supporting documentation include, but are 
not limited to: tank records, milk handler records, milk marketing 
payment stubs, daily milk marketings, copies of any payments received 
as compensation from other sources, or any other documents available to 
confirm the production and production history of the dairy operation. 
In the event that supporting documentation is not presented to the 
county FSA office requesting the information, dairy operations will be 
determined ineligible for benefits.


Sec. 1430.506  Payment rate and dairy operation payment.

    (a) Payments under this subpart may be made to dairy operations 
only on the first 26,000 cwt of milk produced by them from cows in the 
United States actually marketed in the United States during the base 
period. A payment rate will be determined after the conclusion of the 
application period, and shall be calculated by:
    (1) Converting whole pounds of milk to cwt;

[[Page 24936]]

    (2) Totaling the eligible cwt (not to exceed 26,000 cwt) of milk 
marketed commercially during the base period from all approved 
applications; and
    (3) Dividing the amount available for Dairy Market Loss Assistance 
Program by the total eligible cwt submitted and approved for payment.
    (b) Each dairy operation payment will be calculated by multiplying 
the payment rate determined in paragraph (a) (3) of this section by the 
dairy operation's eligible production.
    (c) In the event that approval of all eligible applications would 
result in expenditures in excess of the amount available, CCC shall 
reduce the payment rate in such manner as CCC, in its sole discretion, 
finds fair and reasonable.


Sec. 1430.507  Misrepresentation and scheme or device.

    (a) A dairy operation shall be ineligible to receive assistance 
under this program if it is determined by the State committee or the 
county committee to have:
    (1) Adopted any scheme or device which tends to defeat the purpose 
of this program;
    (2) Made any fraudulent representation; or
    (3) Misrepresented any fact affecting a program determination.
    (b) Any funds disbursed pursuant to this part to a dairy operation 
engaged in a misrepresentation, scheme, or device, or to any other 
person as a result of the dairy operation's actions, shall be refunded 
with interest together with such other sums as may become due. Any 
dairy operation or person engaged in acts prohibited by this section 
and any dairy operation or person receiving payment under this subpart 
shall be jointly and severally liable for any refund due under this 
section and for related charges. The remedies provided in this subpart 
shall be in addition to other civil, criminal, or administrative 
remedies which may apply.


Sec. 1430.508  Maintaining records.

    Dairy operations making application for benefits under this program 
must maintain accurate records and accounts that will document that 
they meet all eligibility requirements specified in this subpart and 
the pounds of milk marketed commercially during the fourth quarter of 
1998 and the base period. Such records and accounts must be retained 
for at least three years after the date of the cash payment to dairy 
operations under this program.


Sec. 1430.509  Refunds; joint and several liability.

    (a) In the event there is a failure to comply with any term, 
requirement, or condition for payment arising under the application, or 
this subpart, and if any refund of a payment to CCC shall otherwise 
become due in connection with the application, or this subpart, all 
payments made under this subpart to any dairy operation shall be 
refunded to CCC together with interest as determined in accordance with 
paragraph (c) of this section and late-payment charges as provided for 
in part 1403 of this chapter.
    (b) All persons listed on a dairy operation's application shall be 
jointly and severally liable for any refund, including related charges, 
which is determined to be due for any reason under the terms and 
conditions of the application or this subpart.
    (c) Interest shall be applicable to refunds required of the dairy 
operation if CCC determines that payments or other assistance were 
provided to the producer was not eligible for such assistance. Such 
interest shall be charged at the rate of interest which the United 
States Treasury charges CCC for funds, as of the date CCC made such 
benefits available. Such interest shall accrue from the date such 
benefits were made available to the date of repayment or the date 
interest increases as determined in accordance with applicable 
regulations. CCC may waive the accrual of interest if CCC determines 
that the cause of the erroneous determination was not due to any action 
of the dairy operation.
    (d) Interest determined in accordance with paragraph (c) of this 
section may be waived by CCC with respect to refunds required of the 
dairy operation because of unintentional misaction on the part of the 
dairy operation, as determined by CCC.
    (e) Late payment interest shall be assessed on all refunds in 
accordance with the provisions of, and subject to the rates prescribed 
in 7 CFR part 1403.
    (f) Dairy operations must refund to CCC any excess payments made by 
CCC with respect to such application.
    (g) In the event that a benefit under this subpart was provided as 
the result of erroneous information provided by any person, the benefit 
must be repaid with any applicable interest.

    Signed at Washington, D.C., on April 30, 1999.
Keith Kelly,
Executive Vice President, Commodity Credit Corporation.
[FR Doc. 99-11596 Filed 5-7-99; 8:45 am]
BILLING CODE 3410-05-P