[Federal Register Volume 68, Number 130 (Tuesday, July 8, 2003)]
[Notices]
[Pages 40619-40620]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17201]


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 Notices
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains documents other than rules 
 or proposed rules that are applicable to the public. Notices of hearings 
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  Federal Register / Vol. 68, No. 130 / Tuesday, July 8, 2003 / 
Notices  

[[Page 40619]]



DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation


Assistance for Producers in New Mexico for Tebuthiuron 
Application Losses

AGENCY: Commodity Credit Corporation, USDA.

ACTION: Notice.

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SUMMARY: The Commodity Credit Corporation (CCC) is issuing this notice 
to inform all interested parties of the 2003 New Mexico Tebuthiuron 
Program (NMTP). The NMTP was authorized by the Agricultural Assistance 
Act of 2003 (the 2003 Act), which requires the Secretary to reimburse 
certain agricultural producers on farms in New Mexico for losses 
related to the application by the Federal Government of the herbicide 
Tebuthiuron on land on or near the farms of the producers during July 
2002.

DATES: (1) The Farm Service Agency (FSA), through New Mexico State 
University (NMSU) will begin accepting applications on July 8, 2003.
    (2) The application deadline is July 23, 2003.

FOR FURTHER INFORMATION CONTACT: Eloise Taylor, Chief, Compliance 
Branch, FSA/PECD, 1400 Independence Ave., SW., Washington, DC 20250-
0517, (202) 720-9882, or e-mail at: [email protected]. 
Persons with disabilities who require alternative means of 
communication (Braille, large print, audiotape, etc.) should contact 
USDA's TARGET Center at (202) 720-2600 (voice and TDD).

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

    Section 217 of the 2003 Act requires that this program be 
administered without regard to 44 U.S.C. 35, the Paperwork Reduction 
Act (PRA). This means the information to be collected from the public 
to implement this program and the burden, in time and money, the 
collection of the information would have on the public does not need to 
be approved by the Office of Management and Budget nor is it subject to 
the 60-day public comment period required by the PRA.

Background

    This notice provides 2003 NMTP terms and conditions and informs 
affected parties that they may be eligible for benefits. Section 210 of 
the 2003 Act provides that the Secretary shall use not more than 
$1,650,000 of funds of the Commodity Credit Corporation to reimburse 
agricultural producers on farms located in the vicinity of Malaga, New 
Mexico, for all losses to crops, livestock, and trees, and interest and 
lost income, and related expenses incurred as the result of the 
application by the Federal Government of Tebuthiuron on land on or near 
the farms of the producers during July 2002.
    Tebuthiuron is a commercially available herbicide that is used to 
control broadleaf weeds, grasses, and brush. It can be toxic to many 
plants and can kill trees, shrubs and other desirable plants with roots 
extending into treated areas.
    Tebuthiuron has been used in the past by Federal agencies, such as 
the Forest Service and Natural Resources Conservation Service (NRCS) of 
USDA, and the Bureau of Land Management (BLM) of the Department of 
Interior, in drug crop eradication efforts and to control brush and 
weeds on public lands. Producers have claimed that Tebuthiuron use by 
the Federal Government and by a private landowner on July 8, 10, and 
12, 2002, caused water drawn from the Black River to be tainted, 
causing losses to crops and livestock in the vicinity of Malaga, New 
Mexico. The statute provided funds to address those claims. The program 
is limited to farmers in that area and for their losses and related 
expenses due to the July, 2002, applications. No other claims will be 
allowed. Allowance of claims is not intended to be, and is not, an 
admission of fact or liability on the part of anyone, but is intended 
to carry out the program as required by the 2003 Act, based on the 
claims of the producers and the assessment of NMSU, which will help 
collect and assess the information. Assistance will be provided to 
affected producers in proportion to the losses incurred. No claims will 
be paid except upon the making of a proper application during the 
application period as announced in this notice. All claims are subject 
to the availability of funds. Funding is limited to the $1,650,000 
provided by the 2003 Act and will remain available until expended. Each 
producer must file a claim on a form developed by FSA and NMSU, and 
provide supporting documentation for 2002 losses or losses in 
subsequent years. Once the money is expended, all other claims must be 
rejected. The final determinations in this matter will be made by the 
FSA Deputy Administrator for Farm Programs (Deputy Administrator).

2003 New Mexico Tebuthiuron Program

I. How to Apply

    (A) Producers must submit the following to FSA directly or through 
NMSU:
    (1) Application for benefits;
    (2) Certification from a qualified crop consultant or New Mexico 
Department of Agriculture soil test, that supports the producer's 
contention that the acreage claimed to have been damaged was caused by 
the July, 2002, Tebuthiuron applications; and
    (3) Verifiable or reliable production records for the 2002 and 2003 
crop and farm, including, as applicable, commercial receipts, 
settlement sheets, warehouse ledgers, load summaries, or appraisal 
information from a loss adjuster acceptable to CCC. If the damaged crop 
was farm-stored, fed to livestock, or disposed of by means other than 
commercial channels, acceptable production records may include truck 
scale tickets, appraisals from loss adjusters acceptable to CCC, 
contemporaneous diaries, or other documents, such as contemporaneous 
measurements. In the absence of such records, CCC may assign 
production.
    (4) Records for any production of a crop that is grown with an 
arrangement or contract for guaranteed payment. Failure to report any 
applicable guaranteed contract or similar agreement shall be considered 
as providing false information to CCC, will render producers ineligible 
for NMTP payments, and may lead to other civil or criminal sanctions.
    (5) For applicable prevented planting claims for 2003 or subsequent 
years, a certification by a qualified crop

[[Page 40620]]

consultant that supports the producer's claim that a crop could not be 
taken to maturity because of the presence of Tebuthiuron. Prevented 
planted acreage shall be limited to the acres of the crop planted in 
2002.
    (6) Other information needed to verify the amount of the claim, 
including but not limited to information relating to acres planted, 
expected 1996 through 2000 actual yields, actual production, replanting 
expenses, legal fees, livestock records and associated matters as 
determined necessary by NMSU or CCC or as offered by the producer in 
support of the claim.

II. References and Payment Limitations

    (A) ``Deputy Administrator'' in this notice means the Farm Service 
Agency (FSA) Deputy Administrator for Farm Programs.
    (B) Funding for the program is limited to $1,650,000. In the event 
that the $1,650,000 is insufficient to pay all approved claims, CCC 
will reduce payments of all eligible and timely submitted claims on a 
pro rata basis or other method deemed appropriate by CCC.
    (C) Total NMTP payments are not subject to a per person payment 
limitation as defined in 7 CFR part 1400.
    (D) NMTP payments shall be made without regard to crop liens or 
title under State law, but may be assigned.

III. Who is Eligible

    Eligible producers for NMTP payments are producers in the State of 
New Mexico who suffered loss in 2002 and subsequent years as a result 
of the use of the herbicide Tebuthiuron in the Black River watershed in 
July 2002 in the vicinity of Malaga, New Mexico.

IV. Eligibility Determinations

    Eligibility determinations will be made by the Deputy Administrator 
upon receipt of all of the necessary data and the NMSU report of 
eligible claims timely submitted. Subject to the continued availability 
of funds, eligible losses are those claimed as a direct result from the 
Federal Government's use of Tebuthiuron in the vicinity of Malaga, New 
Mexico. The Deputy Administrator shall determine the level of proof 
needed to substantiate a claim for purposes of payment.

V. Payment Calculations

    (A) NMTP payments for crop losses shall be based on the producer's 
share of the crop lost, or, if no crop was produced, the share the 
producer would have received if the crop had been produced.
    (B) NMTP payments for lost crops will be calculated using the same 
or similar payment rates and county average yields established for the 
2002 Crop Year Disaster Program as provided in 7 CFR part 1480, as 
determined by CCC. In lieu of county average yields, producers may use 
verifiable or reliable production evidence acceptable to CCC to 
establish the producers expected yield using the producer's 1996-2000 
yields.
    (C) NMTP payments to producers under this notice for losses to 
crops shall be made in an amount determined by multiplying the eligible 
loss of production for the farm by the applicable payment rate. Grazing 
losses will be based on the loss of forage value.
    (D) Producers may be paid interest for 1 year for crop losses at 
such rate as determined by the Deputy Administrator, which may be the 
rate paid by the producer on outstanding loans, but not to exceed 
7.44%.
    (E) Attorney's fees may be claimed for representation resulting 
from losses due to the application of Tebuthiuron if the attorney 
certifies that representation was provided to a farmer. A written 
agreement of the terms and conditions must be provided along with the 
amount (by formula or dollar amount) as certified by the producer and 
attorney for which the producer is currently obligated or will be 
obligated to the attorney upon receipt of the NMTP payments.
    (F) For replanting of alfalfa or pecan trees the producer must have 
certification from a qualified crop consultant that supports the 
producer's claim that a replanting is necessary due to the presence of 
Tebuthiuron.
    (G) Miscellaneous expenses may be paid, provided that expenses are 
itemized and proper documentation is submitted that clearly identifies 
the nature of the expenses.

VI. General

    (A) The NMTP shall be under the supervision of the Deputy 
Administrator, who shall have the authority to modify terms and 
conditions of the NMTP, and to impose additional terms and conditions, 
in order to achieve the purposes of the program.
    (B) The producer, to receive payment, must meet all conditions set 
out in these regulations, the program application, or otherwise imposed 
by the Deputy Administrator.
    (C) For additional information, or to submit an application 
directly to FSA, affected producers should contact the Farm Service 
Agency at the address above.
    (D) Payments are subject to administrative offset.

VIII. Procedure, Application Deadline, Appeals, and Appeals Resolutions

    NMSU will collect the information from all claimants. Any function 
NMSU declines to carry out shall be performed by the Deputy 
Administrator. Claimants must submit an application to NMSU or directly 
to the Deputy Administrator by the close of business on July 23, 2003. 
NMSU will submit the applications to CCC for consideration before 
August 4, 2003. CCC will accept or reject each application in whole or 
in part and will notify each producer in writing of such determination. 
If a producer disagrees with the determination, the producer must 
submit objections to CCC by writing to the Deputy Administrator, 1400 
Independence Avenue, Room 3612, STOP 0510, Washington DC 20250-0510. 
Objections must be received within 10 days of notification of the 
determination.
    If there are amounts in dispute, those amounts may be withheld from 
distribution to address those claims. If there is to be a proration 
such a withholding can affect all claimants. Alternatively, CCC may 
resolve the matter based upon the information at hand and make a full 
distribution, in which case there may not be sufficient funds to allow 
an appeal. The Deputy Administrator shall make the final 
determinations. All determinations on all claims shall be final except 
to the extent a withholding is made to allow for appeal to the 
Department's National Appeals Division. Notwithstanding any provision 
of this notice, the Deputy Administrator can adjust claims in any 
manner deemed appropriate to accomplish the goals of the program, may 
allow waivers of requirements as appropriate, and may prorate or 
withhold funds as needed to resolve claims under this program within 
the funding limit. The purpose of this notice is to inform producers of 
the availability of the program and to establish the basis on which 
program determinations can be made.

    Signed at Washington, DC June 27, 2003.
James R. Little,
Executive Vice President, Commodity Credit Corporation.
[FR Doc. 03-17201 Filed 7-7-03; 8:45 am]
BILLING CODE 3410-05-P