[Federal Register Volume 70, Number 61 (Thursday, March 31, 2005)]
[Rules and Regulations]
[Pages 16392-16397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6336]


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DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1439

RIN 0560-AH25


2003 and 2004 Livestock Assistance Program

AGENCY: Commodity Credit Corporation, USDA.

ACTION: Final rule.

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SUMMARY: This rule sets forth the terms and conditions of the 2003/2004 
Livestock Assistance Program (LAP) as provided for by the Military 
Construction Appropriations and Emergency Hurricane Supplemental 
Appropriations Act, 2005. Under LAP, assistance will be available to 
livestock producers for either 2003 or 2004 grazing losses in a county 
that was designated as a primary disaster county by the President or 
the Secretary of Agriculture after January 1, 2003, for certain losses 
occurring through December 31, 2004. Assistance will be made available 
in the same manner as was provided under the 2002 LAP.

[[Page 16393]]


DATES: Effective Date: March 30, 2005.

FOR FURTHER INFORMATION CONTACT: Dolores Painter, Emergency 
Preparedness and Program Branch, Production, Emergencies, and 
Compliance Division, Farm Service Agency (FSA), United States 
Department of Agriculture, STOP 0517, 1400 Independence Avenue, SW., 
Washington, DC 20250-0517; telephone (202) 720-6602; e-mail 
[email protected].
    Persons with disabilities who require alternative means for 
communication (Braille, large print, audio tape, etc.) should contact 
the USDA Target Center at (202) 720-2600 (voice and TDD).

SUPPLEMENTARY INFORMATION:

Background

    Section 101 of Division B of the Military Construction 
Appropriations and Emergency Hurricane Supplemental Appropriations Act 
(Pub. L. 108-324, 118 Stat. 1220, October 13, 2004) (the 2004 Act), 
requires the Secretary of Agriculture to use such sums as are necessary 
from funds of the Commodity Credit Corporation to make and administer 
payments to livestock producers for either 2003 or 2004 grazing losses 
in a county that has received an emergency designation as a primary 
county by the President or the Secretary after January 1, 2003, for 
losses occurring through December 31, 2004. The designated county must 
have suffered a 40 percent or greater grazing loss for 3 consecutive 
months during the selected calendar year as a result of damage due to a 
natural disaster. The eligible producer must elect whether they want 
payments for 2003 or 2004, but payments may not be received for both 
years.
    By statute, assistance shall be made available in the same manner 
as provided under section 806 of the Agriculture, Rural Development, 
Food and Drug Administration, and Related Agencies Appropriations Act, 
2001 (Pub. L. 106-387; 114 Stat. 1549A-51, October 6, 2000), (see 66 FR 
15542, March 21, 2001, for losses occurring in calendar year 2000 (the 
2000 program)). However, by statute, for the 2003/2004 LAP eligibility 
and payment amounts, a producer may not be penalized for actions 
(recognizing disaster conditions) that reduced the average number of 
livestock the producer owned for grazing in an eligible county during 
the production year for which assistance is being provided. Also, this 
rule includes elk, bison, and reindeer as eligible livestock for LAP, 
as authorized by section 785 of Division A of the Agriculture, Rural 
Development, Food and Drug Administration, and Related Agencies 
Appropriations Act, 2005, of the Consolidated Appropriations Act, 2005 
(Pub. L. 108-447, December 8, 2004).
    As with the 2000 program, other limitations on the 2003/2004 LAP 
include the following:
     Producers in counties contiguous to an approved county are 
not eligible.
     Producers in an approved county must have suffered at 
least a 40-percent loss of normal grazing for their eligible livestock 
for a minimum of 3 consecutive months.
     Losses will be calculated for up to 80 percent of the 
total grazing available.
     A producer's loss may not exceed the county maximum set by 
the local FSA county committee.
     Maximum assistance shall not exceed 50 percent of the 
calculated loss.
     Payments will be made according to a formula developed by 
CCC.
     Payments will be subject to a $2.5 million gross revenue 
limitation and $40,000 per person payment limitation.

Cost/Benefit Assessment

    The 2003/2004 LAP is intended to relieve financial stress to 
eligible livestock producers when natural disasters cause significant 
losses in livestock feed production. As of January 18, 2005, a total of 
944 counties in 34 states had been designated as primary natural 
disaster areas by the Secretary of Agriculture due to production losses 
from all causes during 2004.
    The 2004 Act provided no limit for total 2003/2004 LAP outlays. FSA 
estimates the 2003/2004 LAP will make payments totaling approximately 
$500 million. Actual outlays could range from around $475 million to 
$584 million. If total FSA payments to farmers and ranchers for all 
programs for fiscal 2005 reach $20 billion, as expected, 2003/2004 LAP 
expenditures would represent about 2.5 percent of program payments 
made.
    Based on the most recent data, estimated expenditures represent 
about 0.7 percent of the value of all cattle and calves in the United 
States and about 1.22 percent of the gross receipts from the sale of 
cattle and calves.
    Payments under the 2003/2004 LAP should provide significant 
benefits to producers who actually suffered losses in 2003 and 2004 and 
for those communities where livestock operations predominately depend 
on grazing. These would include regions characterized by cow-calf and 
stocker operations. For example, FSA estimates that over 37 percent of 
2003/2004 LAP payments, approximately $190 million, will be paid to 
producers in the states of Montana, North Dakota, South Dakota, and 
Wyoming. Nearly all cattle sold in these states are raised on pasture 
and the total sales of cattle and calves in these states was nearly 
$4.0 billion in 2002. Thus, estimated 2003/2004 LAP disbursements to 
these states would total nearly 5 percent of total livestock sales in 
these states.
    Impacts of 2003/2004 LAP disbursements on U.S. feed grain markets 
are not likely to be measurable. While the 2003/2004 LAP payments 
compensate for past losses, it is possible that some of the payments 
will be used to purchase supplemental feed grains in the near future. 
However, estimated expenditures are only about 2 percent of the total 
$23.6 billion value of the 11.8 billion bushel U.S. corn crop, assuming 
an average price of $2.00 per bushel.
    In conclusion, payments under the 2003/2004 LAP are not expected to 
significantly affect national U.S. agricultural markets, but are 
expected to provide significant benefits to producers in specific 
regions who suffered losses from drought in 2003 and 2004.

Notice and Comment

    Section 101(g) of Division B of the 2004 Act requires that these 
regulations be promulgated without regard to the notice and comment 
provisions of 5 U.S.C. 553 or the Statement of Policy of the Secretary 
of Agriculture effective July 24, 1971 (36 FR 13804), relating to 
notice and comment rulemaking and public participation in rulemaking. 
These regulations are thus issued as final.

Executive Order 12866

    This rule has been determined to be economically significant under 
Executive Order 12866 and has been reviewed by the Office of Management 
and Budget (OMB). A cost/benefit assessment was prepared and is 
summarized in the Preamble.

Federal Assistance Programs

    The title and number of the Federal assistance program, as found in 
the Catalog of Federal Domestic Assistance, to which this final rule 
applies are: 10.066, Livestock Assistance Program.

Regulatory Flexibility Act

    The Regulatory Flexibility Act is not applicable to this rule 
because neither the Secretary of Agriculture nor CCC are required by 5 
U.S.C. 553 or any other law to publish a notice of proposed rulemaking 
for the subject matter of this rule.

[[Page 16394]]

Environmental Review

    Due to the weather-related disasters requiring the Agency to 
provide rapid relief, sufficient time was not available to complete an 
environmental review prior to implementing this program. Therefore, an 
environmental assessment is being completed to consider the potential 
impacts of this proposed action on the human environment consistent 
with the provisions of the National Environmental Policy Act of 1969 
(NEPA), 42 U.S.C. 4321, et seq., the regulations of the Council on 
Environmental Quality (40 CFR parts 1500-1508), and FSA's regulations 
for compliance with NEPA at 7 CFR part 799. A copy of the draft 
environmental assessment will be available after completion for review 
upon request.

Executive Order 12778

    The final rule has been reviewed in accordance with Executive Order 
12778. This final rule preempts State laws that are inconsistent with 
its provisions, but the rule is not retroactive. Before any judicial 
action may be brought concerning this rule, all administrative remedies 
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

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) does 
not apply to this rule because neither the Secretary of Agriculture nor 
CCC are required by 5 U.S.C. 553 or any other law to publish a notice 
of proposed rulemaking for the subject matter of this rule. Also, the 
rule imposes no mandates as defined in UMRA.

Small Business Regulatory Enforcement Fairness Act of 1996

    Section 101(g) of the 2004 Act requires that the Secretary use the 
authority in section 808 of the Small Business Regulatory Enforcement 
Fairness Act of 1996, Pub. L. 104-121 (SBREFA), which allows an agency 
to forgo SBREFA's usual 60-day Congressional Review delay of the 
effective date of a major regulation if the agency finds that there is 
a good cause to do so. Accordingly, this rule is effective upon the 
date of filing for public inspection by the Office of the Federal 
Register.

Paperwork Reduction Act

    Section 101(g) of Division B of the 2004 Act requires that these 
regulations be promulgated and the activities under this rule be 
administered without regard to the Paperwork Reduction Act. This means 
that the information to be collected from the public to implement these 
provisions and the burden in time and money the collection of the 
information would have on the public does not have to be approved by 
the Office of Management and Budget or be subject to the normal 
requirement for a 60-day public comment period.

Government Paperwork Elimination Act

    CCC is committed to compliance with the Government Paperwork 
Elimination Act (GPEA) and the Freedom to E-File Act, which require 
Government agencies in general, and the FSA in particular, to provide 
the public the option of submitting information or transacting business 
electronically to the maximum extent possible. The forms and other 
information collection activities required to be utilized by a person 
subject to this rule are implemented in a way that would allow the 
public to conduct business with CCC electronically. Accordingly, at 
this time, forms required to be submitted under this rule may be 
submitted to CCC in person, by mail, FAX, or electronically.

Executive Order 12612

    This rule has no Federalism implications warranting a Federalism 
Assessment. This rule will not affect States, or their political 
subdivisions, or the distribution of power and responsibilities among 
levels of government.

List of Subjects in 7 CFR 1439

    Agricultural commodities, Disaster assistance, Indian tribes, 
Livestock, Livestock feed.

0
Accordingly, 7 CFR part 1439 is amended as follows:

PART 1439--EMERGENCY LIVESTOCK ASSISTANCE

0
1. The authority citation for part 1439 is revised to read as follows:

    Authority: 7 U.S.C. 1427a; 15 U.S.C. 714 et seq.; Sec 1103 Pub. 
L. 105-277, 112 Stat. 2681-42-44; Pub. L. 106-31, 113 Stat. 57; Pub. 
L. 106-78, 113 Stat. 1135; Pub. L. 106-113, 113 Stat. 1501; Sec. 257 
Pub. L. 106-224, 114. Stat. 358; Sec's. 802, 806, & 813 Pub. L. 106-
387, 114 Stat. 1549; Pub. L. 108-7, 117 Stat. 11; Sec 101 of 
Division B, Pub. L. 108-324, 118 Stat. 1220; Sec. 785 of Division A, 
Pub. L. 108-447, 118 Stat. 2809.

Subpart B--Livestock Assistance Program

0
3. Revise Subpart B to read as follows:

Subpart B--2003-2004 Livestock Assistance Program

Sec.
1439.100 Administration.
1439.101 Applicability.
1439.102 Definitions.
1439.103 Eligible loss.
1439.104 Application process.
1439.105 County committee determinations of general applicability.
1439.106 Livestock producer eligibility.
1439.107 Calculation of assistance.
1439.108 Availability of funds.
1439.109 Additional limitations on payments.
1439.110 Appeals.
1439.111 Refunds to CCC; joint and several liability.
1439.112 Miscellaneous.


Sec.  1439.100  Administration.

    (a) The regulations in this subpart provide for what will be 
referred to as the 2003/2004 Livestock Assistance Program (LAP) which 
will be administered under the general supervision and direction of the 
Executive Vice President, Commodity Credit Corporation (CCC), and the 
Deputy Administrator for Farm Programs, Farm Service Agency (FSA). In 
the field, the regulations in this part will be administered by FSA 
State and county committees.
    (b) The FSA State executive directors, county executive directors, 
and State and county committees do not have the authority to modify or 
waive any of the provisions in this part unless specifically authorized 
by the Deputy Administrator.
    (c) The FSA State committee may take any action authorized or 
required by this part to be taken by the FSA county committee that has 
not been taken by such committee, such as:
    (1) Correct or require a FSA county committee to correct any action 
taken by such committee that is not in accordance with this part; or
    (2) Require an FSA county committee to withhold taking any action 
that is not in accordance with this part.
    (d) No delegation herein to an FSA State or county committee shall 
preclude the Executive Vice President, CCC, or a designee, or the 
Deputy Administrator from determining any question arising under this 
part or from reversing or modifying any determination made by an FSA 
State or county committee.
    (e) Data furnished by the applicants will be used to determine 
eligibility for program benefits. Although

[[Page 16395]]

participation in the 2003/2004 LAP is voluntary, program benefits will 
not be provided unless the participant furnishes all requested data.


Sec.  1439.101  Applicability.

    (a) Subject to the availability of funds, this subpart sets forth 
the terms and conditions applicable to the 2003/2004 LAP authorized by 
Public Law 108-324. Program regulations for prior livestock assistance 
programs can be found at 7 CFR 1439 as it was published on January 1, 
2001, January 1, 2002, and January 1, 2004. Benefits will be provided 
to eligible livestock producers in the United States under this subpart 
in declared disaster counties that were subsequently approved for 
relief under this part by the Deputy Administrator.
    (b) Unless otherwise determined by the Deputy Administrator, a 
livestock producer is not eligible to receive payments for the same 
loss under both this subpart and another Federal program.


Sec.  1439.102  Definitions.

    The definitions set forth in this section shall be applicable for 
all purposes of administering this subpart. The definitions in Sec.  
1439.3 shall also be applicable, except where those definitions 
conflict with the definitions set forth in this subpart, in which case 
the definitions in this section will apply.
    Application means the Livestock Assistance Program Application. The 
Application is available at FSA county offices.
    Disaster county means a county included in the geographic area 
covered by a qualifying natural disaster declaration approved in 
calendar year 2003 or calendar year 2004, with respect to losses which 
occurred no earlier than January 1, 2003, and no later than December 
31, 2004. The eligible disaster county is only the primary county where 
the disaster occurred and does not include a contiguous county which is 
not itself a disaster county.
    Livestock means beef and dairy cattle, elk, reindeer, bison and 
beefalo (when maintained on the same basis as beef cattle), sheep, 
goats, swine, and equine animals where such equine animals are used 
commercially for human food or kept for the production of food or fiber 
on the owner's farm.
    Production year means calendar year.
    Qualifying natural disaster declaration means:
    (1) A natural disaster declared by the Secretary under section 
321(a) of the Consolidated Farm and Rural Development Act (7 U.S.C. 
1961(a)); or
    (2) A major disaster or emergency designated by the President under 
the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 
U.S.C. 5121 et seq.).


Sec.  1439.103  Eligible loss.

    (a) To be eligible for 2003/2004 LAP, for losses during the 2003 or 
2004 calendar years, a producer must have owned or leased grazing land 
within the physical boundary of a disaster county that was approved as 
a primary county under a Secretarial disaster designation or 
Presidential disaster declaration in 2003 or 2004, or approved as a 
primary county after December 31, 2004, for qualifying losses that 
occurred prior to January 1, 2005 (That is, losses in 2003 and 2004).
    (b) To be eligible for benefits under this subpart, a livestock 
producer in an eligible county must have suffered a loss of grazing 
production in an eligible county equivalent to at least a 40-percent 
loss of normal carrying capacity for a minimum of 3 consecutive months 
during the 2003 or 2004 production year as defined in Sec.  1439.102.
    (c)(1) Producers in counties contiguous to an eligible county that 
were not designated as a disaster county in their own right will not 
receive benefits under this subpart.
    (2) Grazing losses must have occurred on native and improved 
pasture with permanent vegetative cover and other crops planted 
specifically for the sole purpose of providing grazing for livestock, 
but such losses do not include losses on, or with respect to, land 
seeded to small grain forage crops.
    (d) The percentage of loss eligible for compensation shall not 
exceed the maximum percentage of grazing loss for the county as 
determined by the FSA county committee and not be greater than 80 
percent; and
    (e) The FSA county committee shall determine the producer's grazing 
loss and shall consider the amount of available grazing production 
during the LAP normal grazing period, whether more than the normal 
acreage of grazing land was required to support livestock during the 
LAP normal grazing period, and whether supplemental feeding of 
livestock began earlier or later than normal. The FSA county committee 
shall request the producer to provide proof of loss of grazing 
production if the FSA county committee determines the producer's 
certified loss exceeds other similarly situated livestock producers.
    (f) The percentage of loss claimed by a livestock producer shall 
not exceed the maximum allowable percentage of grazing loss for the 
county as determined by the FSA county committee in accordance with 
Sec.  1439.105(a). Livestock producers will not receive benefits under 
this subpart for any portion of their loss that exceeds 80 percent of 
normal carrying capacity.


Sec.  1439.104  Application process.

    (a) Livestock producers must submit a completed application prior 
to the close of business on the date established and announced by the 
Deputy Administrator. The application and any other supporting 
documentation shall be submitted to the FSA county office with 
administrative authority over a producer's eligible grazing land or to 
the FSA county office that maintains the farm records for the livestock 
producer. A producer may submit an application for both 2003 and 2004 
losses, as applicable; however, LAP assistance to the producer under 
this subpart shall be provided only for one of the years 2003 or 2004.
    (b) A producer shall specify each type of pasture and percentage of 
loss suffered by each type within the approved county on the 
application. In establishing the percentage of grazing loss, producers 
shall consider the amount of available grazing production during the 
LAP normal grazing period, whether more than the normal acreage of 
grazing land was required to support livestock during the LAP normal 
grazing period, and whether supplemental feeding of livestock began 
earlier or later than normal.
    (c) Livestock producers shall certify as to the accuracy of all the 
information contained in the application, and provide any other 
information that CCC determines to be necessary to determine the 
livestock producer's eligibility.


Sec.  1439.105  County committee determinations of general 
applicability.

    (a) FSA county committees shall determine whether due to natural 
disasters their county has suffered a 40-percent loss affecting pasture 
and normal grazing crops for at least 3 consecutive months during LAP 
crop year during calendar year 2003 for 2003 eligibility and during 
calendar year 2004 for 2004 eligibility. In making this determination, 
FSA county committees, using the best information available from 
sources including but not limited to: The Extension Service, the 
Natural Resources Conservation Service; the Drought Monitor; the Palmer 
Drought Index; and general knowledge of local rainfall data, pasture 
losses, grazing livestock movement out of county, abnormal supplemental 
feeding practices for livestock on pasture and liquidation of grazing 
livestock, shall determine the percentage of grazing

[[Page 16396]]

losses for pastures on a county-wide basis. The FSA county committee 
shall submit rainfall data, percentage of grazing losses for each 
general type of pasture, and the weighted average percentage of grazing 
loss for the county, to the FSA State committee for concurrence. The 
maximum grazing losses the FSA county committees shall submit is 80 
percent. These determinations shall be subject to review by the Deputy 
Administrator. For purposes of this subpart, such counties are called 
``eligible counties.''
    (b) In each eligible county, the FSA county committee shall 
determine a LAP normal grazing period. The LAP normal grazing period 
shall be that period of time in a calendar year that begins with the 
date grazing of new growth pasture normally begins and ends on the date 
grazing without supplemental feeding normally ends in the county.
    (c) For each eligible county, the FSA county committee shall 
determine normal carrying capacities for each type of grazing or 
pasture during the LAP normal grazing period. The normal carrying 
capacity for the LAP normal grazing period shall be the normal carrying 
capacity the county committee determines could be expected from pasture 
and normal grazing crops for livestock for the LAP normal grazing 
period if a natural disaster had not diminished the production of these 
grazing crops.
    (d) For each eligible county, the FSA county committee shall 
determine the payment period for the county. The payment period for the 
county shall be the period of time during the county's LAP crop year 
where for 3 consecutive months, as applicable, during 2003 or 2004, the 
carrying capacity for grazing land or pasture was reduced by 40 percent 
or more from the normal carrying capacity.
    (e) Conservation Reserve Program acres released for haying or 
grazing and seeded small grain forage crops shall not be used to 
calculate losses under this subpart.


Sec.  1439.106  Livestock producer eligibility.

    (a) Only one livestock producer will be eligible for benefits under 
this subpart with respect to an individual animal.
    (b) Only owners, cash or share lessees, or contractors of livestock 
who themselves provide the pasture or grazing land, including cash-
leased pasture or grazing land, for the livestock may be considered as 
livestock producers eligible to apply for benefits under this subpart.
    (c) An owner, or cash or share lessee, or contractor of livestock 
who uses another person to provide pasture or grazing land on a rate-
of-gain basis is not considered to be a livestock producer eligible to 
apply for benefits under this subpart.
    (d) An owner who pledges livestock as security for a loan shall be 
considered as the person eligible to apply for benefits under this 
subpart if all other requirements of this part are met. Livestock 
leased or being purchased under a contractual agreement that has been 
in effect at least 3 months and establishes an interest for the lessee 
in such livestock shall be considered as being owned by the lessee.
    (e) Livestock must have been owned or leased by the producer for at 
least 3 months before becoming eligible for generating a payment.
    (f) 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. Sec.  1400.501 and 1400.502 
of this chapter.
    (g) Livestock sold due to disaster conditions by an eligible 
producer shall be considered as eligible to generate assistance and may 
be included in making the calculations in Sec.  1439.107(a).


Sec.  1439.107  Calculation of assistance.

    (a) The gross value of LAP assistance determined with respect to a 
livestock producer for each type and weight class of livestock owned, 
leased, contracted, or sold according to Sec.  1439.106 by such 
producer shall be the lesser of the amount calculated under paragraph 
(b) of this section (the total value of lost feed needs for eligible 
livestock) or calculated under paragraph (c) of this section (the total 
value of lost eligible pasture).
    (b) The total value of lost feed needs shall be the amount obtained 
by multiplying:
    (1) The number of days in the payment period the livestock are 
owned or, in the case of purchased livestock, meet the 3-month 
ownership requirement; by
    (2) The number of pounds of corn-equivalent per day, as established 
by CCC, that is determined necessary to provide the energy requirements 
established for the weight class and type of livestock; by
    (3) The 5-year national average market price for corn, ($0.0369642 
per pound for 2003, or $0.0344642 for 2004); by
    (4) The number of eligible animals of each type and weight range of 
livestock owned or leased by the person; by
    (5) The percent of the producer's grazing loss during the relevant 
period as certified by the producer and approved by the FSA county 
committee in accordance with Sec.  1439.105.
    (c) The total value of lost eligible pasture shall be the amounts 
for each type of pasture calculated by:
    (1) Dividing the number of acres of each pasture type by the 
carrying capacity established for the pasture; and multiplying:
    (2) The result of paragraph (c)(1) of this section for each pasture 
type; by $0.5803379 for 2003 ($0.0369642 x 15.7) or $0.54108797 for 
2004 ($0.0344642 x 15.7) by:
    (3) The applicable number of days in the LAP payment period; by
    (4) The percent of the producer's grazing loss during the relevant 
period as certified by the producer and approved by the FSA county 
committee in accordance with Sec.  1439.105.
    (d) The final payment shall not exceed 50 percent of the smaller 
amount calculated under paragraphs (b) or (c) of this section.
    (e) If the livestock owner is eligible for the LAP program and the 
American Indian Livestock Feed Program (AILFP) with respect to the same 
natural disaster, the livestock owner may elect to receive payment only 
for the same year for both programs, either 2003 or 2004. Payments for 
both programs cannot be issued for different years to the same 
producer.
    (f) Land seeded to small grain forage crops shall not be counted as 
grazing land under paragraph (c) of this section with respect to 
supporting eligible livestock.
    (g) The number of equine animals that are used to calculate 
benefits under this subpart and in paragraph (a) of this section are 
limited to the number actually needed to produce food and fiber on the 
producer's farm or breed horses and mules used to produce food and 
fiber on the owner's farm, and shall not include animals that are used 
for recreational purposes or other non-covered purposes are running 
wild or uncontrolled on land owned or leased by the owner.


Sec.  1439.108  Availability of funds.

    Subject to the availability of funds, the Secretary shall use such 
sums as are necessary of funds of the Commodity Credit Corporation to 
make and administer payments to livestock producers for 2003 or 2004 
grazing losses. Such payment shall be made

[[Page 16397]]

after the imposition of applicable payment limitation provisions.


Sec.  1439.109  Additional limitations on payments.

    (a) Sections 1439.10 and 1439.11 as in effect at the time of 
publication of this subpart shall apply to the 2003/2004 LAP and shall 
limit payments accordingly.
    (b) Any person who received payments from section 32 of the Act of 
August 25, 1935, with respect to 2004 hurricane losses is not eligible 
for payments under this subpart.


Sec.  1439.110  Appeals.

    Determinations made under this subpart are subject to 
reconsideration or appeal in accordance with parts 780 and 11 of this 
title.


Sec.  1439.111  Refunds to CCC; joint and several liability.

    (a) In the event there is a failure to comply with any term, 
requirement, or condition for payment or assistance arising under this 
part, and if any refund of a payment to CCC shall otherwise become due 
in connection with this part, all payments made in regard to such 
matter shall be refunded to CCC, together with interest as determined 
in accordance with paragraph (b) of this section and late-payment 
charges as provided for in part 1403 of this chapter.
    (b) All signatories on a LAP application with a financial interest 
in the operation or in an application for payment shall be jointly and 
severally liable for any refund including related charges that is 
determined to be due CCC for any reason under this part.
    (c) Interest shall be applicable to refunds required of the 
livestock owner or other party receiving assistance or a payment if CCC 
determines that payments or other assistance were provided to the owner 
and the owner was not eligible for such assistance. Such interest shall 
be charged at the rate of interest that the United States Treasury 
charges CCC for funds, as of the date CCC made such benefits. Such 
interest that is determined to be due CCC shall accrue from the date 
such benefits were made available by CCC to the date of repayment or 
the date interest increases in accordance with part 1403 of this 
chapter. 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 livestock owner or other individual or entity receiving benefits.
    (d) Interest otherwise determined due in accordance with paragraph 
(c) of this section may be waived with respect to refunds required of 
the owner or other program recipient because of unintentional action on 
the part of the owner or other individual or entity, 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 part 1403 of this chapter.
    (f) Individuals or entities who are a party to any program operated 
under this part must refund to CCC any excess payments made by CCC with 
respect to such program.
    (g) In the event that any request for assistance or payment under 
this part was established as a result of erroneous information or a 
miscalculation, the assistance or payment shall be re-computed and any 
excess refunded with applicable interest.


Sec.  1439.112  Miscellaneous.

    (a) Any remedies permitted CCC under this part shall be in addition 
to any other remedy, including, but not limited to criminal remedies, 
or actions for damages in favor of CCC, or the United States, as may be 
permitted by law.
    (b) Absent a scheme or device to defeat the purpose of the program, 
CCC may waive a demand that could otherwise be made for refunds.
    (c) Payments under this subpart are subject to provisions contained 
in Subpart A of this part including, but not limited to, provisions 
concerning misrepresentations, payment limitations, and refunds to CCC, 
liens, assignment of payments, and appeals, and maintenance of books 
and records. In addition, other parts of this chapter and of chapter 
VII of this title relating to payments in event of death, the handling 
of claims, and other matters may apply, as may other provisions of law 
and regulation.
    (d) Any payments not earned that have been paid must be returned 
with interest subject to such other remedies as may be allowed by law.
    (e) No interest will be paid or accrue on benefits under this 
subpart that are delayed or otherwise not timely issued unless 
otherwise mandated by law.
    (f) Nothing in this subpart shall require a commitment of funds in 
excess of that determined to be appropriate by the Deputy Administrator 
or CCC.
    (g) Payments under this subpart shall 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 of the U.S. Government.
    (h) Any producer entitled to any payment may assign any payments in 
accordance with regulations governing assignment of payment found at 
part 1404 of this chapter.
    (i) In those instances in which, prior to the issuance of this 
regulation, a producer has signed a power of attorney for a person or 
entity indicating that such power shall extend to ``all above 
programs'', without limitation, such power will be considered to extend 
to this program unless by April 14, 2005, the person granting the power 
notifies the local FSA office for the control county that the grantee 
of the power is not authorized to handle transactions for this program 
for the grantor.
    (j) Livestock producers or any other individual or entity seeking 
or receiving assistance under this part shall maintain and retain 
records that will permit verification of livestock and grazing for at 
least 3 years following the end of the calendar year in which payment 
was made, or for such additional period as CCC may request. An 
examination of such records by a duly authorized representative of the 
United States Government shall be permitted at any time during business 
hours.
    (k) A person shall be ineligible to receive assistance under 2003/
2004 LAP and be subject to such other remedies as may be allowed by 
law, if, with respect to the 2003/2004 LAP, it is determined by the FSA 
State or county committee or an official of FSA that such person has:
    (1) Adopted any scheme or other device that tends to defeat the 
purpose of a program operated under this part;
    (2) Made any fraudulent representation with respect to such 
program; or
    (3) Misrepresented any fact affecting a program determination.

    Signed in Washington, DC, March 25, 2005.
Thomas B. Hofeller,
Acting Executive Vice President, Commodity Credit Corporation.
[FR Doc. 05-6336 Filed 3-30-05; 8:45 am]
BILLING CODE 3410-05-P