[Federal Register Volume 64, Number 168 (Tuesday, August 31, 1999)]
[Rules and Regulations]
[Pages 47358-47361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-22626]


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DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1439

RIN 0560-AF57


Flood Compensation Program

AGENCY: Commodity Credit Corporation, USDA.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule provides relief for a special Flood Compensation 
Program for farmers in certain counties affected by long-term flooding. 
Twelve million dollars have been made available from proceeds from a 
disaster reserve under section 813 of the Agricultural Act of 1970. 
Another thirty million dollars have been made available using funds 
under section 1102(c) of the Agriculture, Rural Development, Food and 
Drug Administration, and Related Appropriations Act, 1999 (1999 Act). 
Farmers can, subject to certain payment limits, receive payment for the 
loss of the use of cropland or pastureland in eligible counties during 
the period from October 1, 1997 through September 30, 1998. The county 
must have been declared a disaster area under a Presidential 
Declaration or Secretarial Designation during a period specified in the 
rules and land on at least one farm in the county must be cropland or 
pasture land that was flooded sometime after October 1, 1992. Other 
limitations also apply. Applicants for assistance must own or have a 
binding cash lease on the property and have owned it or leased it 
continuously since October 1, 1997. These rules are designed to address 
circumstances where changes in bodies of water may have produced 
widespread losses that might not otherwise generate assistance under 
other programs. At least $12 million of the total $42 million will be 
reserved for livestock producers because of the special needs of such 
producers.

DATES: Effective August 26, 1999. Comments on this rule must be 
received by September 27, 1999 in order to be assured of consideration. 
Comments on the information collection must be received by October 25, 
1999 in order to be assured of consideration.

ADDRESSES: Comments should be mailed to Diane Sharp, Director, 
Production, Emergencies, and Compliance Division, Farm Service Agency, 
United States Department of Agriculture, STOP 0517, 1400 Independence 
Avenue, SW, Washington, DC 20250-0517, telephone (202) 720-7641, e-mail 
Diane__S[email protected]. Comments may be inspected in the Office 
of the Director, PECD, Farm Service Agency (FSA), USDA, Room 4752 South 
Building, Washington, DC, between 7:30 a.m. and 4:30 p.m., Monday 
through Friday, except holidays.

FOR FURTHER INFORMATION CONTACT: Helen Smith, at the above address, 
(202) 720-6601.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    This interim rule is issued 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 (OMB).

Regulatory Flexibility Act

    It has been determined that the Regulatory Flexibility Act is not 
applicable to this rule because the Farm Service Agency (FSA) and the 
Commodity Credit Corporation (CCC) are 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 
environment nor an adverse effect on human health on any population. 
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 
judicial action may be brought concerning provisions of this rule, 
administrative remedies 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 3015, subpart V, 
published at 48 FR 29115 (June 24, 1983).

Unfunded Mandates Reform Act of 1995

    This rule contains no Federal mandates under 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 UMRA.

Paperwork Reduction Act

    Information will be collected for the program provided for in this 
notice. The information collected will be used to operate the Flood 
Compensation Program. In accordance with the Paperwork Reduction Act, 
the Commodity Credit Corporation will submit an emergency information 
collections request to OMB for approval of the Flood Compensation 
Program reports as necessary for the proper functioning of the program.
    Title: Flood Compensation Program.
    OMB Control Number: 0560--New.
    Type of Request: Request for approval of a New Information 
Collection.
    Abstract: Producers must have land in counties declared a disaster 
area by a Presidential Declaration or Secretarial Designation during 
the period January 1, 1997, through August 1, 1998, as a result of 
damage due to severe flooding or excess moisture in order to be 
eligible

[[Page 47359]]

for benefits. Approval for benefits is contingent upon a determination 
that due to flooding or excess moisture the land was unfit for crop 
production, haying, grazing, or other agricultural production at all 
times during FY 1998. Producers will be required to certify the fields 
and acres that were unfit for crop production, haying, grazing, or 
other agricultural production at times during FY 1998 due to the 
flooding or excess moisture. The information collection will be used to 
determine the eligibility and amount of assistance. The information 
collection is essential to eligibility and assistance determinations.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 1 hour per response.
    Respondents: Producers.
    Estimated Number of Respondents: 6,500.
    Estimated Number of Responses per Respondent: 1.
    Estimated Total Annual Burden on Respondents: 6,500 hours.
    Proposed topics for comment include: (a) Whether the collection of 
information is necessary for the proper performance of the function of 
the agency, including whether the information will have practical 
utility; (b) the accuracy of the agency's estimate of burden including 
the validity of the methodology and assumptions used; (c) ways to 
enhance the quality, utility, and clarity of the information collected; 
and (d) ways to minimize the burden of the collection of the 
information on those who are to respond, including through the use of 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology. 
Comments should be sent to the Desk Officer for Agriculture, Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
Washington, DC 20503 and to Diane Sharp, Director, Production, 
Emergencies, and Compliance Division, Farm Service Agency, United 
States Department of Agriculture, STOP 0517, 1400 Independence Avenue 
SW, Washington, DC 20250-0517, telephone (202) 720-7641.

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.
    Section 1133 of the 1999 Act exempts implementation of section 1102 
from public rule-making. Although this rule is based on another 
authority as well (section 813 of the Agricultural Act of 1970 (7 
U.S.C. 1427a)), in order to be consistent with the 1999 Act, to allow 
immediate acceptance of applications, and to assure that relief is made 
available promptly, this rule is made effective immediately with a 30-
day comment period. Further delay would, for the reasons given, be 
contrary to the public interest. Likewise, to the extent that any 
statute requires Congressional review prior to implementation, it is 
determined that delay for such review would be contrary to the public 
interest.

Background

    This interim rule sets forth the terms and conditions of the Flood 
Compensation Program (FCP) established by the Secretary of Agriculture 
to be carried out through the Commodity Credit Corporation (CCC) by the 
Farm Service Agency (FSA) of the Department of Agriculture (USDA). On 
June 12, 1996, Congress passed a Concurrent Resolution (S. Con. Res. 
63), which addresses the Secretary's authority to dispose of 
commodities held in the disaster reserve established under section 813 
of the Agricultural Act of 1970 (7 U.S.C. 1427a). The Concurrent 
Resolution suggests that the proceeds of the reserve be used for the 
benefit of livestock producers whose ability to maintain livestock is 
adversely affected by disaster conditions, such as prolonged drought or 
flooding. Accordingly, the Secretary designated $12 million received 
from the sale of commodities previously held in the disaster reserve to 
compensate livestock producers whose flooded land was previously used 
in the production of feed or grazing for livestock.
    In addition, section 1102(c) of the Agriculture, Rural Development, 
Food and Drug Administration, and Related Agencies Appropriations Act, 
1999 (Pub. L. 105-277) (1999 Act) appropriated funds to the Secretary 
``to make assistance available to producers on a farm who have incurred 
multiyear losses (as defined by the Secretary) in the 1998 and 
preceding crops of a commodity due to disasters.'' Of that 
appropriation, the Secretary has designated $30 million for the FCP 
established by this subpart. Accordingly, a total of $42 million is 
made available to carry out the FCP.
    The rule is designed to focus on counties with generalized flooding 
problems since 1992, due to, for example, the expansion of the 
boundaries of natural bodies of water such as Devil's Lake in North 
Dakota and Day County and surrounding counties in South Dakota. Such 
flooding can change the basic character of the land and render the land 
ineligible for other benefits or for enrollment in programs like the 
Conservation Reserve Program (CRP). Generalized conditions of that sort 
can produce tertiary effects in the local community and accordingly, 
problems such as those in Devil's Lake have been the source of 
considerable attention and concern with respect to the exercise of 
discretionary authorities that may be available to the Secretary of 
Agriculture. The rule is addressed to those situations and is designed 
to focus on recent losses caused by flooding that may have occurred in 
the recent past, much as in the generalized disaster program provided 
for in section 1102 of the 1999 Act. Hence, the regulations set out in 
this notice would provide compensation to eligible producers whose land 
was not usable in the period from October 1, 1997 through September 30, 
1998. To assure severe enough general conditions to accord with the 
intent of this program, the rules provide further that a county will be 
eligible for the program only if the county was declared a disaster 
area during the period January 1, 1997 through August 1, 1998 due to 
losses caused by flooding or excess moisture. Also, the county must 
have been experiencing such losses since 1992 in order to identify 
places where the problem is a long-term problem, but one that involves 
increasing losses due to increased flooding.
    General Rules for programs of this type are provided in part 1439, 
which was revised in total by a rule published on March 19, 1999 (64 FR 
13497). In the new program, no person, as defined in the applicable 
regulations, may receive over $40,000, and no person may receive any 
payment if that person's gross revenue for 1998, as determined in 
conformity with the rules, exceeded $2.5 million. The applicant must be 
the owner or lessee under a binding lease of cropland or pastureland 
that was engulfed after 1992, must have owned or leased the land 
continuously since October 1, 1997 and must still be the owner or 
lessee of the land. Other restrictions apply as well.
    Also, this rule modifies the March 19, 1999 rule that, in addition 
to providing the general provisions for part 1439, set out specific 
rules for a general Livestock Assistance Program (LAP). The LAP rule 
indicated that LAP payments would be in addition to other payments 
received under other programs. That rule has

[[Page 47360]]

been changed in this rule to avoid the possibility of over-compensation 
for the same losses. Specifically, 1439.101(c) is amended so that, 
unless otherwise specified in some other authority, there will not be 
such double payment unless specifically approved for reasons of equity 
by the agency.
    Because livestock producers don't generally have access to the same 
programs as other producers and because of the concern expressed in the 
1996 resolution, at least $12 million of the total $42 million provided 
in the new program set out in this rule will be reserved for persons 
who, during the time set in the regulations, were livestock producers, 
even if it becomes necessary to prorate benefits due to claims in 
excess of available funds. Unadjusted payment rates will be based on 
the average local rental rates for crop land and pasture land, using, 
where possible, National Agricultural Statistical Service data.

List of Subjects in 7 CFR Part 1439

    Animal feed, Disaster assistance, Flooded land, Livestock programs, 
Reporting and recordkeeping requirements.
    Accordingly, 7 CFR part 1439 is amended as follows:

PART 1439--EMERGENCY LIVESTOCK ASSISTANCE

    1. The authority citation for 7 CFR part 1439 is revised to read as 
follows:

    Authority: 7 U.S.C. 1427a; 15 U.S.C. 714b and 714c; Sec. 1102, 
Pub. L. 105-277, 122 Stat. 2681.


Sec. 1439.101  [Amended].

    2. Section 7 CFR 1439.101(c) is revised by removing the word 
``eligible'' and adding the phrase ``not eligible'' in its place.
    3. Part 1439 is amended by adding a new subpart entitled 
``Subpart--1998 Flood Compensation Program (FCP)'', to read as follows:

Subpart--1998 Flood Compensation Program

Sec.
1439.201  Applicability.
1439.202  Administration.
1439.203  Definitions.
1439.204  Application process.
1439.205  County committee determinations of general applicability.
1439.206  Eligible producers, eligible land and loss criteria.
1439.207  Producer eligibility.
1439.208  Calculation of assistance.
1439.209  Availability of funds.

Subpart--1998 FLood Compensation Progam


Sec. 1439.201  Applicability.

    This subpart sets forth the terms and conditions applicable to the 
1998 Flood Compensation Program (FCP). Benefits will be provided to 
eligible livestock and non-livestock producers in the United States but 
only in counties where long term flooding occurred, and that were 
subsequently approved by the Deputy Administrator for Farm Programs as 
eligible counties.


Sec. 1439.202  Administration.

    This subpart shall be administered as set forth in Sec. 1439.2 of 
this part.


Sec. 1439.203  Definitions.

    Terms in this part shall have the same meanings as are assigned by 
those defined in Sec. 1439.3 and Sec. 718.2 of this title. In addition, 
for purposes of this part and notwithstanding any contrary definitions 
in this part or part 718:
    Application means Form CCC-454, Flood Compensation Program 
Application. Form CCC-454 is available at county FSA offices.
    FCP means the Flood Compensation Program provided for in this part.
    FY 1998 means the period from October 1, 1997 through September 30, 
1998.
    Livestock means beef and dairy cattle, buffalo and beefalo (when 
maintained in the same manner as beef cattle), sheep, goats, swine, 
poultry, and equine animals used commercially for human food or kept 
for the production of food or fiber on the owner's farm.
    NASS means The National Agricultural Statistics Service.


Sec. 1439.204  Application process.

    (a) Producers must submit a completed application prior to the 
close of business on July 2, 1999, or other such date as established by 
the Deputy Administrator. The application and any supporting 
documentation shall be submitted to the county office with 
administrative authority over a producer's eligible flooded land or to 
the county office that maintains the farm records for the producer.
    (b) Producers shall certify as to the accuracy of all the 
information contained in the application, and provide any other 
information to CCC that the County Office or Committee deems necessary 
to determine the producer's eligibility.


Sec. 1439.205  County committee determinations of general 
applicability.

    (a)(1) County Committees in counties declared or designated a 
disaster area by a Presidential Declaration or Secretarial Designation 
during the period January 1, 1997, through August 1, 1998, because of 
severe flooding or excessive moisture shall determine whether that 
county has at least one farm with land used for the production of 
crops, feed, seed, or other agricultural use prior to October 1, 1992, 
on which both of the following apply:
    (i) Land on the farm that otherwise would have been used for crops 
or for pasture was inaccessible or incapable of production at all times 
during FY 1998 due to flooding; and
    (ii) Land on the farm has been subject to continuous flooding that 
began any time during FY 1993 and continued through FY 1998.
    (2) In making this determination, the County committee shall use 
what it considers to be the best information available, including but 
not limited to: Extension Service, Natural Resources Conservation 
Service, aerial photography, rainfall data, and general knowledge of 
losses due to flooding
    (b) Having made an affirmative determination under paragraph (a), 
the county committee shall, if it is also determined that cropland or 
pastureland in the county was incapable of crop production during FY 
1998 because of new or increased continuous flooding that occurred 
since FY 1992, submit to the Deputy Administrator for Farm Programs, 
with State Committee concurrence, a memorandum of request for 
affirmance of the county as an eligible county for purposes of this 
part. That request shall be accompanied by a copy of applicable 
notification of disaster declaration or designation, and copies of 
certification maps and acreage reports from one farm in the county that 
indicate continuous flooding occurred on the farm that began no later 
than October 1, 1993. Upon affirmance by the Deputy Administrator or 
designee after review, the county shall be considered to be an 
``eligible county'' for purposes of this part.
    (c) With respect to each eligible county, the county committee for 
that county shall establish separate payment rates for cropland and 
pasture land. These rates shall be reviewed by the State Committee and 
shall be equal to the estimated five-year average for all land of each 
type in the county. The State Committee may take into account rates 
established for the Conservation Reserve Program operated under 7 CFR 
part 1410 and ensure, subject to paragraph (d), that the rates are 
comparable. The Deputy Administrator shall review and may adjust the 
rates for reasonableness and consistency.
    (d) Except as provided by the Deputy Administrator, payment rates 
shall be established based on NASS data in the

[[Page 47361]]

States for which NASS has established rental rates on a county-by-
county basis for 1998.


Sec. 1439.206  Eligible producers, eligible land, and loss criteria.

    (a) The flooded land for which a producer requests benefits must be 
within the physical boundary of an eligible county. Producers in 
unapproved counties contiguous to an eligible county may not receive 
benefits under this subpart.
    (b) To be eligible for benefits under this subpart, a producer in 
an eligible county must have a tract of land that meets all the 
following criteria:
    (1) The land is cropland or pasture land used for the production of 
feed for livestock (haying, grazing, or feed grain production) or other 
agricultural use in one or more years during the period beginning 
October 1, 1991, through September 30, 1997;
    (2) The land was inaccessible or unfit for crop production, 
grazing, or haying because of flooding or excess moisture during all of 
the period beginning October 1, 1997, through September 30, 1998;
    (3) The land has been owned or leased under a binding cash lease by 
the producer continuously since October 1, 1997;
    (4) The land is a contiguous parcel of land with an area equal to 
one acre or more;
    (5) The land was not, except as determined by the Deputy 
Administrator, the subject of, nor will be the subject of, any other 
Federal payment for activities or lack of activity during the period 
October 1, 1997, through September 30, 1998, whether or not disaster-
related, with the exception of the production flexibility contract 
(PFC) program payments received under part 1412 of this chapter. This 
prohibition includes but is not limited to other payments under this 
part; the Conservation Reserve Program, part 1410 of this chapter; the 
Wetlands Reserve Program, part 1467 of this chapter; or any Emergency 
Watershed Protection Program or Federal Easement Program that prohibits 
crop production or grazing.
    (c) On Form CCC-454 producers shall be required to certify on each 
farm the number of flooded cropland and non-cropland acres for the farm 
in 1998 and the number of flooded cropland and non-cropland acres in 
1992. To establish the acreage eligible for payment, flooded land 
certified for 1992 shall be subtracted from the flooded land certified 
for 1998 for each applicable type. The difference will be the acreages 
of cropland and non-cropland subject to flooding and eligible for FCP 
payment, except that the difference may be adjusted as needed to 
ensure, to the extent practicable, an accurate estimate of the net 
increased flooding on the farm after October 1, 1993.
    (d) All determinations as to the amount of land eligible for 
enrollment and compensation under this subpart are subject to approval 
by the county committee.
    (e) The county committee may use any available documentation to 
make the determinations under paragraphs (b) and (c) of this section, 
including but not limited to: maps, slides, precipitation data, water 
table levels and disaster reports.


Sec. 1439.207  Producer eligibility.

    (a) At least $12 million in payments under this part shall be 
reserved for livestock producers. For this purpose, a livestock 
producer is a person who, on the applicable farm, meets the definition 
of livestock producer set out in Sec. 1439.3 during the period 
beginning January 1, 1993 and ending with the ending date of the 
Presidential disaster designation that qualified the county for this 
program.
    (b) Payments under this subpart shall be subject to the provisions 
of Sec. 1439.1 through Sec. 1439.12, and their successor regulations, 
except as otherwise provided in this subpart.
    (c) No person (as defined and determined under part 1400 of this 
chapter) may receive more than $40,000 under this subpart.
    (d) No person (as defined and determined under part 1400 of this 
chapter) will be eligible for payment under this subpart if that 
person's annual gross receipts for the most recent tax year preceding 
the crop year for which benefits are requested were in excess of $2.5 
million. That determination shall be made in the manner provided for in 
Sec. 1439.11.
    (e) The following entities are not eligible for benefits under this 
subpart:
    (1) State or local governments or subdivisions thereof; or
    (2) Any individual or entity who is a foreign person as determined 
in accordance with the provisions of Sec. 1400.501 and Sec. 1400.502 of 
this chapter.


Sec. 1439.208  Calculation of Assistance.

    (a) The unadjusted value of FCP assistance determined with respect 
to the flooded land in an eligible county for each producer may not 
exceed the amount obtained by adding paragraphs (b) and (c) of this 
section.
    (b) For each eligible producer with respect to the applicable 
qualifying cropland, the established local payment rate for cropland 
will be multiplied by the number of qualifying acres, as determined by 
the County Committee in accordance with instructions from the Deputy 
Administrator.
    (c) For each eligible producer with respect to the applicable 
qualifying non-cropland, the established local payment rate for non-
cropland will be multiplied by the number of qualifying acres, as 
determined by the County Committee in accordance with instructions from 
the Deputy Administrator.


Sec. 1439.209  Availability of Funds.

    In the event that the total amount of claims submitted under this 
subpart exceeds the $42 million appropriated for FCP, each payment 
shall be reduced by a uniform national percentage except as needed to 
assure sufficient payment to livestock producers as provided for in 
this part. Such payment reductions shall be after the imposition of 
applicable payment limitation provisions.

    Signed in Washington, DC, on August 26, 1999.
Parks Shackelford,
Executive Vice President, Commodity Credit Corporation.
[FR Doc. 99-22626 Filed 8-26-99; 4:24 pm]
BILLING CODE 3410-05-P