[Federal Register Volume 69, Number 171 (Friday, September 3, 2004)]
[Notices]
[Pages 53880-53882]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20108]


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 Notices
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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. 69, No. 171 / Friday, September 3, 2004 / 
Notices  

[[Page 53880]]



DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation


Notice of Funds Availability: Tebuthiuron Application Losses--
Additional Assistance for Producers in New Mexico

AGENCY: Commodity Credit Corporation, USDA.

ACTION: Notice.

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SUMMARY: The Commodity Credit Corporation (CCC) is issuing this notice 
to inform interested parties that additional payments are available 
under the 2003 New Mexico Tebuthiuron Program (NMTP). The Agricultural 
Assistance Act of 2003 (the 2003 Act) required the Secretary to 
reimburse certain agricultural producers on farms in New Mexico for 
losses claimed in relation to the application by the Federal Government 
of the herbicide Tebuthiuron on land on or near the farms of the 
producers during July 2002. A Notice was published on July 8, 2003 
announcing the terms of the program (68 FR 40619). This notice is to 
inform producers that remaining funds from this program are available 
to those producers who suffered crops losses in 2004 from the lingering 
residue of Tebuthiuron.

DATES: The Farm Service Agency (FSA) will accept applications from 
September 3, 2004, through October 4, 2004.

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 (Pub. L. 108-7) requires that this 
program be administered without regard to 44 U.S.C. 35, the Paperwork 
Reduction Act (PRA) and exempts this action from notice and comment 
requirements that might otherwise apply. 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 NMTP terms and conditions and informs affected 
parties that they may be eligible for additional benefits. Section 210 
of the 2003 Act, as amended by Public Law 108-11, provides that the 
Secretary shall use not more than $1,650,000 of Commodity Credit 
Corporation funds to reimburse agricultural producers on farms located 
in the vicinity of Malaga, New Mexico, for all losses to crops 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. An amount of $414,614 remains. The agency 
will disburse this remaining amount to eligible producers that suffered 
losses from Tebuthiuron during the 2004 crop year.
    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 2003 Act 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 New Mexico State 
University (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 $414,614, which are the funds remaining from the 2003 
Act. Each producer must file a claim on a form developed by FSA and 
provide supporting documentation for 2004 losses. Losses must have 
occurred prior to the filing of the application. They must not have 
been previously compensated under this program. Applications must be 
submitted by the program application deadline, which will be 30 days 
after the publication of this notice in the Federal Register, unless 
extended. 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). 
Should funds still remain after this new round is completed, producers 
who file in this round may, in the period September 1-10, 2005, 
petition the Deputy Administrator for additional payments.

New Mexico Tebuthiuron Program

I. How To Apply

    (A) Producers must submit the following to FSA:
    (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 2004 for the crop 
and farm, including, as applicable, commercial

[[Page 53881]]

receipts, settlement sheets, warehouse ledgers, load summaries, or 
appraisal information from a loss adjuster acceptable to CCC. 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 2004, a 
certification by a qualified crop 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. Late-filed acreage reports 
can be submitted according to 7 CFR 1480.16.
    (6) Other information needed to verify the amount of the claim, 
including but not limited to information relating to acres planted, 
actual yields, actual production history, replanting expenses, legal 
fees, livestock records and associated matters as determined necessary 
by 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 $414,614. In the event 
that amount 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 agricultural producers in 
the State of New Mexico who suffered an eligible loss in 2004 claimed 
in good faith to be a result of residue of the herbicide Tebuthiuron in 
the Black River watershed in July 2002 in the vicinity of Malaga, New 
Mexico. An eligible loss will be a loss that meets all the criteria in 
section IV of this notice, plus those set out elsewhere in this notice, 
and those contained in the program application or otherwise imposed by 
the Deputy Administrator.

IV. Eligibility Determinations

    Eligibility determinations will be made by the Deputy Administrator 
upon receipt of all of the necessary data and the report of eligible 
claims timely submitted. Subject to the continued availability of 
funds, eligible losses are only those (1) claimed as a direct result 
from the Federal Government's use of Tebuthiuron in the vicinity of 
Malaga, New Mexico; (2) incurred before the filing of the producer's 
application; and (3) not previously paid under the NMTP program 
provided for in the Federal Register notice published July 8, 2003. All 
three criteria must also be met. All other applicable criteria must 
also be met. Payments are subject to the availability of funds. Claims 
are subject to proration if the claims of all applicants filing in the 
2004 application period set out in this notice exceed the remaining 
available funding ($414,614) provided in this notice or any other level 
as restricted by law. Proration shall be on the basis described 
elsewhere in this notice. The Deputy Administrator shall determine the 
level of proof needed to substantiate a claim for purposes of payment.

V. Payment Calculations

    Subject to all the other conditions of this notice or conditions of 
the application, and subject to the availability of funds and 
proration, payment shall only be made to eligible producers for 
eligible losses and, to the extent practicable, shall be calculated in 
the following manner:
    (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. When 
calculating a payment for a unit loss:
    (1) An unharvested payment factor shall be applied to the crop 
acreage planted but not harvested;
    (2) A prevented planting factor shall be applied to any prevented 
planted acreage eligible for payment; and
    (B) NMTP payments for lost crops will be calculated using the 
``county expected yield'', as established by the Deputy Administrator, 
which will be the Olympic average (disregard the high and low yields) 
yield for base period 1999-2003. In lieu of county expected yields, as 
determined acceptable by the Deputy Administrator, payment may be based 
on the use of ``approved yields'' using provisions similar to those for 
developing an ``actual production history'' (APH) for producers under 
the provisions of the Noninsured Crop Disaster Assistance Program at 7 
CFR 1437, subpart B. Verifiable or reliable production evidence 
acceptable to the Deputy Administrator may be used to establish the 
farms APH.
    (C) NMTP payments to producers under this notice for losses to 
crops shall be based on an amount determined by multiplying the 
eligible loss of production for the farm by the applicable payment 
rate. The payment rate will be based on the 2004 established Risk 
Management Agency (RMA) price for local, applicable insured crops, or 
the 1999-2003 Olympic average for local, applicable noninsured crops, 
as determined by the Deputy Administrator. Prices will be established 
by the Deputy Administrator, using supporting data from RMA, NASS, or 
other available sources. Grazing losses will be based on the loss of 
forage value.
    (D) Attorney's fees may be claimed for representation resulting 
from eligible losses due to the application of Tebuthiuron if the 
attorney certifies in a manner acceptable to the Deputy Administrator 
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.

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, and to submit an application 
directly to FSA, affected producers should contact the Farm Service 
Agency at the address above or contact the Eddy County FSA Office in 
Carlsbad, New Mexico.
    (D) Payments are subject to administrative offset.

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

    FSA will collect the information from all claimants. Claimants must 
submit an application by the close of business on October 4, 2004. You 
must submit an

[[Page 53882]]

application for benefits at the Eddy County, New Mexico FSA office. 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 may request 
reconsideration, file an appeal, and enter into Alternative Dispute 
Resolution (ADR) according to the regulations found at 7 CFR part 780, 
Appeal Regulations, and 7 CFR part 11.
    If there are amounts in dispute, those amounts may be withheld from 
distribution to address those claims. If there is to be a pro-ration, 
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 USDA 
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. Upon the end of the 2004 application period 
referred to in this section, the Deputy Administrator shall decide 
whether, based on the total claims filed, a proration is appropriate or 
needed. If a proration is decided upon, payment calculations shall be 
adjusted accordingly.
    If after paying claims for the 2004 applications, funds remain from 
the $414, 614 referred to in section II of this notice, then, subject 
to conditions that will now be set out, those eligible producers who 
filed 2004 claims may file additional claims. The conditions are as 
follow. The claims must be filed in the period September 1-10, 2005. 
Payments on those claims may not exceed the funds remaining of the 
$414, 614 mentioned above. The losses must meet the same criteria, 
except as to the time of occurrence, as the 2004 claims. The claims may 
be prorated as needed to reflect the remaining funds. The Deputy 
Administrator may set additional conditions as deemed warranted by the 
Deputy Administrator.

    Signed at Washington, DC, August 24, 2004.
Michael W. Yost,
Acting Executive Vice President, Commodity Credit Corporation.
[FR Doc. 04-20108 Filed 9-2-04; 8:45 am]
BILLING CODE 0510-034-P