Rule2023-19479
Milk Loss Program and Emergency Relief Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 11, 2023
Effective
September 11, 2023
Issuing agencies
Agriculture DepartmentFarm Service Agency
Abstract
This rule establishes provisions for providing agricultural disaster assistance as authorized by the Extending Government Funding and Delivering Emergency Assistance Act of 2021 and the Disaster Relief Supplemental Appropriations Act, 2023. The assistance will be for 2020, 2021, and 2022 milk losses. The Milk Loss Program will provide payments to eligible dairy operations for milk that was dumped or removed without compensation from the commercial milk market due to disaster events including droughts, wildfires, hurricanes, floods, derechos, excessive heat, winter storms, freeze (including a polar vortex), and smoke exposure that occurred in the 2020, 2021, and 2022 calendar years. Additionally, the Disaster Relief Supplemental Appropriations Act, 2023, also authorizes assistance for eligible milk losses due to tornadoes that occurred in 2022. This rule specifies the administrative provisions, eligibility requirements, application procedures, and payment calculations for the Milk Loss Program. This rule also makes corrections to Phase 2 of the Emergency Relief Program (ERP).
Full Text
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<title>Federal Register, Volume 88 Issue 174 (Monday, September 11, 2023)</title>
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[Federal Register Volume 88, Number 174 (Monday, September 11, 2023)]
[Rules and Regulations]
[Pages 62285-62292]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-19479]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 88, No. 174 / Monday, September 11, 2023 /
Rules and Regulations
[[Page 62285]]
DEPARTMENT OF AGRICULTURE
Farm Service Agency
7 CFR Part 760
[Docket ID: FSA-2022-0016]
RIN 0560-AI64
Milk Loss Program and Emergency Relief Program
AGENCY: Farm Service Agency, USDA.
ACTION: Final rule.
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SUMMARY: This rule establishes provisions for providing agricultural
disaster assistance as authorized by the Extending Government Funding
and Delivering Emergency Assistance Act of 2021 and the Disaster Relief
Supplemental Appropriations Act, 2023. The assistance will be for 2020,
2021, and 2022 milk losses. The Milk Loss Program will provide payments
to eligible dairy operations for milk that was dumped or removed
without compensation from the commercial milk market due to disaster
events including droughts, wildfires, hurricanes, floods, derechos,
excessive heat, winter storms, freeze (including a polar vortex), and
smoke exposure that occurred in the 2020, 2021, and 2022 calendar
years. Additionally, the Disaster Relief Supplemental Appropriations
Act, 2023, also authorizes assistance for eligible milk losses due to
tornadoes that occurred in 2022. This rule specifies the administrative
provisions, eligibility requirements, application procedures, and
payment calculations for the Milk Loss Program. This rule also makes
corrections to Phase 2 of the Emergency Relief Program (ERP).
DATES:
Effective date: September 11, 2023.
Comment date: We will consider comments on the information
collection requirements under the Paperwork Reduction Act that we
receive by: November 13, 2023.
Milk Loss Program application deadline: October 16, 2023.
ADDRESSES: We invite you to submit comments on the information
collection requirements. You may submit comments by any of the
following methods:
<bullet> Federal eRulemaking Portal: Go to: <a href="http://www.regulations.gov">www.regulations.gov</a> and
search for docket ID FSA-2022-0016. Follow the instructions for
submitting comments.
<bullet> Mail: Director, PSD, FSA, USDA, 1400 Independence Avenue
SW, Stop 0512, Washington, DC 20250-0522.
Comments will be available for viewing online at
<a href="http://www.regulations.gov">www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: For the Milk Loss Program: Douglas E.
Kilgore; telephone: (202) 720-9011; or email:
<a href="/cdn-cgi/l/email-protection#96f2f9e3f1faf7e5b8f3b8fdfffaf1f9e4f3d6e3e5f2f7b8f1f9e0"><span class="__cf_email__" data-cfemail="05616a70626964762b602b6e6c69626a776045707661642b626a73">[email protected]</span></a>. For ERP: Kathy Sayers; telephone: (202)
720-7649; or email: <a href="/cdn-cgi/l/email-protection#442f25302c3d6a37253d21363704313720256a232b32"><span class="__cf_email__" data-cfemail="660d07120e1f4815071f031415261315020748010910">[email protected]</span></a>. Persons with disabilities
who require alternative means for communication should contact the U.S.
Department of Agriculture (USDA) Target Center at (202) 720-2600 (voice
and text telephone (TTY)) or dial 711 for Telecommunications Relay
service (both voice and text telephone users can initiate this call
from any telephone).
SUPPLEMENTARY INFORMATION:
Background
This rule establishes the Milk Loss Program to provide disaster
assistance for certain milk losses. The Extending Government Funding
and Delivering Emergency Assistance Act of 2021 (Pub. L. 117-43)
provides $10 billion for crop losses, including milk losses, that
occurred in calendar years 2020 and 2021 due to qualifying disaster
events. The Disaster Relief Supplemental Appropriations Act, 2023,
Division N of the Consolidated Appropriations Act, 2023 (Pub. L. 117-
328) provides approximately $3.7 billion for disaster assistance for
similar crop losses that occurred in calendar year 2022. The disaster
assistance outlined in both laws is for necessary expenses related to
losses of crops, including milk and on-farm stored commodities, as a
consequence of droughts, wildfires, hurricanes, floods, derechos,
excessive heat, winter storms, freeze (including a polar vortex), and
smoke exposure. In addition, the Disaster Relief Supplemental
Appropriations Act, 2023 authorized assistance for losses as a
consequence of tornadoes occurring in 2022.
This rule establishes the Milk Loss Program to provide assistance
for qualifying milk losses.
The Milk Loss Program allows eligible dairy operations to receive
payments for milk that was dumped or removed without compensation from
the commercial milk market due to qualifying weather events that
inhibited the delivery of milk or the storage of milk due to weather-
related issues, such as power outages or impassable roads, for the
2020, 2021, and 2022 calendar years.
This rule also makes minor corrections to the ERP Phase 2 payment
calculation and the producer eligibility requirements.
Milk Loss Program
The Milk Loss Program will provide payments to dairy operations for
milk that was dumped or removed without compensation from the
commercial milk market due to qualifying disaster events.
The milk loss base period is the first full month of milk
production before the dumping or removal of milk first occurred due to
a qualifying disaster event. The base period milk production is used to
determine the average daily milk production from the cows in the dairy
operation. The average daily milk production calculation includes the
number of cows, the pounds of milk marketed for the month, and the
number of days in the month.
The claim period for milk loss is each calendar month that milk was
dumped or removed from the commercial market due to a qualifying
disaster event. Each milk loss application covers the loss in a single
calendar month. Milk loss that occurs in more than one calendar month
due to the same qualifying disaster event requires a separate
application for each month. The days that are eligible for
indemnification begin on the date the milk was removed or dumped and
continue for the concurrent days milk was removed or dumped. Once the
dairy operation returns to the normal marketing of milk, the dairy
operation is no longer eligible for assistance for milk removed or
dumped due to that qualifying disaster unless after restarting
commercial marketing of milk, additional milk is removed or dumped due
to the same qualifying disaster even. The dairy operation will provide
the milk marketing statement for the
[[Page 62286]]
month prior to the month milk was removed or dumped and for the month
that the milk dumping occurred and will verify the days the dairy
operation did not commercially market milk. For the Milk Loss Program,
the duration of yearly claims is limited to 30 days per year for 2020,
2021, and 2022.
The fair market value of removed or dumped milk represents the
dollar value the dairy operation would have received if it had
commercially marketed such milk for that month. The dairy operation's
milk marketing statement from the claim period will be used to verify
the days milk was not marketed.
The Milk Loss Program payment calculation is as follows:
(Base period per cow average daily milk production x number of
milking cows in claim period x number of days milk was removed or
dumped in claim period) / 100 \1\) x per hundredweight pay price.
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\1\ Divided by 100 to convert to hundredweight.
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The per hundredweight pay price is calculated as follows:
Gross pay price from claim period milk marketing statement - the
hauling rate - $0.15 promotion fee = per hundredweight pay price.
The final Milk Loss Program payment is determined by factoring the
Milk Loss Program payment calculation by a:
<bullet> 90 percent payment factor for affected farmers who meet
the definition of beginning farmer or rancher, limited resource farmer
or rancher, socially disadvantaged farmer or rancher, or veteran farmer
or rancher; \2\ or
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\2\ FSA calculates payments based on a higher payment factor for
underserved farmers and ranchers (or specific groups included in
that term) in several programs, such as the Emergency Conservation
Program; the Emergency Assistance for Livestock, Honeybees, and
Farm-raised Fish Program; and the Tree Assistance Program. FSA has
also used higher payment factors for these producers in several
recently announced programs: the Food Safety Certification for
Specialty Crops Program, the Organic and Transitional Education and
Certification Program, the Pandemic Assistance Revenue Program, the
Emergency Livestock Relief Program, and the Emergency Relief
Program. In addition, the Noninsured Crop Disaster Assistance
Program provides a reduced service fee and premium for underserved
farmers and ranchers. This approach supports the equitable
administration of FSA programs, as underserved farmers and ranchers
are more likely to lack financial reserves and access to capital
that would allow them to cope with losses due to unexpected events
outside of their control.
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<bullet> 75 percent payment factor for all other affected farmers.
Dairy operations that apply for the Milk Loss Program will provide,
at the time of application, the milk marketing statement for the month
prior to the month that the milk was removed or dumped, the milk
marketing statement for the affected month and a detailed written
statement of the circumstances of the milk removal, including the type
and geographic scope of the weather event, what transportation
limitations occurred, and any information on what was done with the
removed milk production. Any other pertinent information that further
describes the reason why milk was removed or dumped should be included
to provide FSA the necessary information to determine eligibility for
the Milk Loss Program, as well as all other information required to be
furnished in the regulation. FSA county offices can assist dairy
operations in completing the Milk Loss Program application.
Payments for the Milk Loss Program will be issued to eligible
applicants as applications are received and approved. The deadline to
apply for the Milk Loss Program will be October 16, 2023.
Milk Loss Program Application Process
USDA will accept Milk Loss Program applications beginning September
11, 2023.
To apply for the Milk Loss Program, affected farmers must submit a
complete FSA-376, Milk Loss Program Application with applicable milk
marketing statements, as well as all other information required to be
furnished under the regulation at time of application, in person, by
mail, email, facsimile, or other method announced by FSA to any FSA
county office by the application deadline.
Applicants must also submit all of the following items within 60
days of the Milk Loss Program application deadline, if not previously
filed with FSA:
(1) Form AD-2047, Customer Data Worksheet, for new customers or
existing customers who need to update their customer profile;
(2) Form CCC-860, Socially Disadvantaged, Limited Resource,
Beginning and Veteran Farmer or Rancher Certification, applicable for
the program year or years for which the affected farmer is applying for
the Milk Loss Program, if the applicant is an underserved farmer or
rancher;
(3) Form CCC-901, Member Information for Legal Entities, if
applicable;
(4) Form CCC-902, Farm Operating Plan for an individual or legal
entity as provided in 7 CFR part 1400;
(5) Form FSA-510, Request for an Exception to the $125,000 Payment
Limitation for Certain Programs, accompanied by a certification from a
certified public accountant or attorney as to that person or legal
entity's certification, for a legal entity and all members of that
entity, for each applicable program year, including the legal entity's
members, partners, or shareholders, as provided in 7 CFR part 1400; and
(6) Form AD-1026, Highly Erodible Land Conservation (HELC) and
Wetland Conservation (WC) Certification, for the Milk Loss Program
applicant and applicable affiliates as provided in 7 CFR part 12.
If requested by FSA, the affected farmer must provide additional
documentation that establishes the affected farmer's eligibility for
the Milk Loss Program. If supporting documentation is requested, the
documentation must be submitted to FSA within 60 calendar days from the
request or the application will be disapproved by FSA.
ERP Phase 2
FSA announced ERP Phase 2 in the final rule published on January
11, 2023 (88 FR 1862-1892). This document corrects an error in the ERP
Phase 2 payment calculation in 7 CFR 760.1905(b)(3), which should
specify that a producer's gross (not net) calculated ERP Phase 1
payments will be subtracted from the difference in a producer's
benchmark year allowable gross revenue and disaster year allowable
gross revenue.\3\ The ERP Phase 2 payment uses a producer's gross ERP
Phase 1 payment in order to prevent paying a producer for the same loss
under both phases of the program or applying different payment
limitations to the same loss (for example, a 2022 crop year loss paid
under ERP Phase 1 that also resulted in a reduction in allowable gross
revenue for the 2021 disaster year under ERP Phase 2). A producer who
received an ERP Phase 1 payment has already been paid the maximum
amount they are eligible to receive for the loss for which the gross
ERP Phase 1 payment amount was calculated.
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\3\ The gross ERP Phase 1 calculated payment is the calculated
payment amount prior to any payment reductions for reasons
including, but not limited to, sequestration and payment limitation.
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This document also corrects the ERP Phase 2 producer eligibility
requirements in Sec. 760.1902(b)(3) and (4). ERP is a single program,
and FSA's intent is to apply consistent producer eligibility
requirements to both phases. As indicated in the ERP Phase 1
notification of funding availability (87 FR 30164-30172), partnerships,
corporations, limited liability companies, and other organizational
structures organized under State law must consist solely of citizens of
the United States or resident aliens to be eligible for ERP. FSA is
correcting the
[[Page 62287]]
ERP Phase 2 eligibility requirements to add that criteria, which was
inadvertently omitted from the regulation.
These changes are consistent with how FSA has implemented ERP Phase
2 and do not affect any payments that have been issued; they are being
corrected in this document to reflect how ERP Phase 2 has been
administered.
Notice and Comment, Effective Date, and Exemptions
The Administrative Procedure Act (5 U.S.C. 553) provides that the
notice and comment and 30-day delay in the effective date provisions do
not apply when the rule involves a matter relating to agency management
or personnel or to public property, loans, grants, benefits, or
contracts. This rule involves a program for payments to certain
agricultural commodity producers and thus falls within the exemption
for rules related to benefits.
This rule is exempt from the regulatory analysis requirements of
the Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the
Small Business Regulatory Enforcement Fairness Act of 1996.
For major rules, the Congressional Review Act requires a delay in
the effective date for 60 days from the date of publication to allow
for Congressional review. This rule is not a major rule under the
Congressional Review Act, as defined by 5 U.S.C. 804(2). Therefore,
this rule is effective upon publication in the Federal Register.
Executive Orders 12866 and 13563
Executive Order 12866, ``Regulatory Planning and Review,'' and
Executive Order 13563, ``Improving Regulation and Regulatory Review,''
direct agencies to assess all costs and benefits of available
regulatory alternatives and, if regulation is necessary, to select
regulatory approaches that maximize net benefits (including potential
economic, environmental, public health and safety effects, distributive
impacts, and equity). Executive Order 13563 emphasized the importance
of quantifying both costs and benefits, of reducing costs, of
harmonizing rules, and of promoting flexibility.
The Office of Management and Budget (OMB) designated this rule as
not significant under Executive Order 12866, ``Regulatory Planning and
Review,'' and therefore, OMB has not reviewed this rule.
Environmental Review
The environmental impacts of this final rule have been considered
in a manner consistent with the provisions of the National
Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations
of the Council on Environmental Quality (40 CFR parts 1500-1508), and
the FSA regulation for compliance with NEPA (7 CFR part 799). The Milk
Loss Program is mandated by Extending Government Funding and Delivering
Emergency Assistance Act and the Consolidated Appropriations Act, 2023.
The Milk Loss Program provides payments to eligible dairy operations
for milk that was dumped or removed without compensation from the
commercial milk market.
The intent of the Milk Loss Program is to compensate affected
farmers who have suffered post- or pre-production market losses due to
qualifying disaster events. Compensation is for actions that do not
have ground disturbing impacts below the level of previous disturbance
nor negative impacts to any other protected natural or cultural
resource. The limited discretionary aspects of the programs (for
example, determining AGI and payment limitations) were designed to be
consistent with established FSA disaster programs. As such, the FSA
categorical exclusions found in 7 CFR 799.31 apply, specifically 7 CFR
799.31(b)(6)(iii) and (iv). See Sec. 799.31(b)(6)(iii) (``Financial
assistance to supplement income, manage the supply of agricultural
commodities, or influence the cost or supply of such commodities or
programs of a similar nature or intent (that is, price support
programs)''); and Sec. 799.31(b)(6)(iv) (``Individual farm
participation in FSA programs where no ground disturbance or change in
land use occurs as a result of the proposed action or participation'').
Through this review, FSA has determined that the implementation of
the program and the participation in the program does not constitute
major Federal actions that would significantly affect the quality of
the human environment, individually or cumulatively. Therefore, FSA
will not prepare an environmental assessment or environmental impact
statement for this rule; this rule serves as documentation of the
programmatic environmental compliance decision for this Federal action.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, ``Civil
Justice Reform.'' This rule will not preempt State or local laws,
regulations, or policies unless they represent an irreconcilable
conflict with this rule. The rule will not have retroactive effect.
Before any judicial action may be brought regarding the provisions of
this rule, the administrative appeal provisions of 7 CFR parts 11 and
780 must be exhausted.
Executive Order 13175
This rule has been reviewed in accordance with the requirements of
Executive Order 13175, ``Consultation and Coordination with Indian
Tribal Governments.'' Executive Order 13175 requires Federal agencies
to consult and coordinate with Tribes on a government-to-government
basis on policies that have Tribal implications, including regulations,
legislative comments or proposed legislation, and other policy
statements or actions that have substantial direct effects on one or
more Indian Tribes, on the relationship between the Federal Government
and Indian Tribes, or on the distribution of power and responsibilities
between the Federal government and Indian Tribes.
FSA has assessed the impact of this rule on Indian Tribes and
determined that this rule does not, to our knowledge, have significant
Tribal implications that require ongoing adherence to Executive Order
13175 at this time. If a Tribe requests consultation, the USDA Office
of Tribal Relations will ensure meaningful consultation is provided
where changes, additions, and modifications are not expressly mandated
by law. Outside of Tribal consultation, USDA is working with Tribes to
provide information about pandemic assistance, agricultural disaster
assistance, and other issues.
The Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L.
104-4) requires Federal agencies to assess the effects of their
regulatory actions on State local, and Tribal governments or the
private sector. Agencies generally must prepare a written statement,
including a cost benefit analysis, for proposed and final rules with
Federal mandates that may result in expenditures of $100 million or
more in any 1 year for State, local, or Tribal governments, in the
aggregate, or to the private sector. UMRA generally requires agencies
to consider alternatives and adopt the more cost effective or least
burdensome alternative that achieves the objectives of the rule. This
rule contains no Federal mandates, as defined in Title II of UMRA, for
State, local, and Tribal governments, or the
[[Page 62288]]
private sector. Therefore, this rule is not subject to the requirements
of sections 202 and 205 of UMRA.
Federal Assistance Programs
The titles and numbers of the Federal assistance programs, as found
in the Assistance Listing \4\ to which this rule applies are No.
10.965--Milk Loss Program, and 10.964--Emergency Relief Program.
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\4\ See <a href="https://sam.gov/content/assistance-listings">https://sam.gov/content/assistance-listings</a>.
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Paperwork Reduction Act
In compliance with the provisions of the Paperwork Reduction Act
(44 U.S.C. chapter 35), the information collection request has been
approved by OMB under the control number of 0503-0028. FSA will collect
the information from the dairy operations for milk to qualify for the
payment. FSA provides one-time federal financial assistance program (or
payment) to the dairy operations for milk as described in this
document. Also, there are no changes to the burden hours for the ERP
Phase 2 under the OMB control number of 0560-0312.
USDA Non-Discrimination Policy
In accordance with Federal civil rights law and U.S. Department of
Agriculture (USDA) civil rights regulations and policies, USDA, its
Agencies, offices, and employees, and institutions participating in or
administering USDA programs are prohibited from discriminating based on
race, color, national origin, religion, sex, gender identity (including
gender expression), sexual orientation, disability, age, marital
status, family or parental status, income derived from a public
assistance program, political beliefs, or reprisal or retaliation for
prior civil rights activity, in any program or activity conducted or
funded by USDA (not all bases apply to all programs). Remedies and
complaint filing deadlines vary by program or incident.
Persons with disabilities who require alternative means of
communication for program information (for example, braille, large
print, audiotape, American Sign Language, etc.) should contact the
responsible Agency or USDA TARGET Center at (202) 720-2600 or (844)
433-2774 (toll-free nationwide). Additionally, program information may
be made available in languages other than English.
To file a program discrimination complaint, complete the USDA
Program Discrimination Complaint Form, AD-3027, found online at <a href="https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint">https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint</a> and
at any USDA office or write a letter addressed to USDA and provide in
the letter all the information requested in the form. To request a copy
of the complaint form, call (866) 632-9992. Submit your completed form
or letter to USDA by mail to: U.S. Department of Agriculture, Office of
the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW,
Washington, DC 20250-9410 or email: <a href="/cdn-cgi/l/email-protection#531c121013262037327d343c25"><span class="__cf_email__" data-cfemail="1a555b595a6f697e7b347d756c">[email protected]</span></a>.
USDA is an equal opportunity provider, employer, and lender.
List of Subjects in 7 CFR Part 760
Acreage allotments, Dairy products, Indemnity payments, Pesticides
and pests, Reporting and recordkeeping requirements.
For the reasons discussed above FSA amends 7 CFR part 760 as
follows:
PART 760--INDEMNITY PAYMENT PROGRAMS
0
1. The authority citation for part 760 is revised to read as follows:
Authority: 7 U.S.C. 4501 and 1531; 16 U.S.C. 3801, note; 19
U.S.C. 2497; Title III, Pub. L. 109-234, 120 Stat. 474; Title IX,
Pub. L. 110-28, 121 Stat. 211; Sec. 748, Pub. L. 111-80, 123 Stat.
2131; Title I, Pub. L. 115-123, 132 Stat. 65; Title I, Pub. L. 116-
20, 133 Stat. 871; Division B, Title VII, Pub. L. 116-94, 133 Stat.
2658; Title I, Pub. L. 117-43, 135 Stat. 356; and Division N, Title
I, Pub. L. 117-328.
Subpart Q--Milk Loss Program
0
2. Revise Sec. 760.1700 to read as follows:
Sec. 760.1700 Applicability.
This subpart specifies the terms and conditions for the Milk Loss
Program. The Milk Loss Program will provide payments to eligible dairy
operations for milk that was dumped or removed without compensation
from the commercial milk market due to the results of droughts,
wildfires, hurricanes, floods, derechos, excessive heat, winter storms,
freeze (including polar vortex), and smoke exposure that occurred in
the 2020, 2021, and 2022 calendar year. The Milk Loss Program will also
provide payments to eligible dairy operations for milk that was dumped
or removed without compensation from the commercial milk market due to
the results of tornadoes that occurred in the 2022 calendar year.
0
3. Amend Sec. 760.1702 as follows:
0
a. Revise the definitions of ``Affected farmer'' and ``Application
period'';
0
b. Add the definitions of ``Average adjusted gross farm income'' and
``Average adjusted gross income'' in alphabetical order;
0
c. Revise the definition of ``Base period'';
0
d. Add the definition of ``Beginning farmer or rancher'' in
alphabetical order;
0
e. Revise the definition of ``Commercial market'';
0
f. Add the definitions of ``Income derived from farming, ranching, and
forestry operations'' and ``Limited resource farmer or rancher'' in
alphabetical order;
0
g. Remove the definition of ``Milk handler'';
0
h. Add the definitions of ``Milk marketing organization'' and
``Ownership interest'' in alphabetical order;
0
i. Amend the definition of ``Pay period'' in paragraph (1) by removing
the words ``his whole'' both times it appears, and removing the word
``handler'' and adding ``marketing organization'' in its place both
times they appear;
0
j. Amend the definition of ``Payment subject to a refund'' by removing
the word ``handler'' and adding ``marketing organization'' in its place
both times it appears;
0
k. Revise the definition of ``Qualifying disaster event'';
0
l. Amend the definition of ``Removed from the commercial market'' in
paragraph (2) by removing the word ``handler'' and ``milk marketing
organization'' in its place, and removing the parenthetical phrase
``(such as separating whole milk, destroying the fat, and drying the
skim milk)'';
0
m. Add definitions of ``Socially disadvantaged farmer or rancher'',
``Underserved farmer or rancher'', and ``Veteran farmer or rancher'' in
alphabetical order; and
0
n. Remove the definition of ``Whole milk''.
The additions and revisions read as follows:
Sec. 760.1702 Definitions.
* * * * *
Affected farmer means an individual person or legal entity who
produces milk which is removed from the commercial market any time or
who produces but was unable to deliver milk to a commercial market as a
result of a qualifying event, which is limited to either a:
(1) Weather-related event preventing transportation of the milk; or
(2) Weather-related event causing a power outage or structural
damage causing milk to be unmerchantable.
Application period means any period during calendar year 2020,
2021, and 2022 which an affected farmer's milk is dumped or removed
without compensation from the commercial
[[Page 62289]]
market due to a qualifying disaster event for which application for
payment is made.
Average adjusted gross farm income means the average of the person
or legal entity's adjusted gross income derived from farming, ranching,
and forestry operations for the 3 taxable years preceding the most
immediately preceding complete taxable year.
(1) If the resulting average adjusted gross farm income derived
from items 1 through 12 of the definition of ``income derived from
farming, ranching, and forestry operations'' is at least 66.66 percent
of the average adjusted gross income of the person or legal entity,
then the average adjusted gross farm income may also take into
consideration income or benefits derived from the following:
(i) The sale of equipment to conduct farm, ranch, or forestry
operations; and
(ii) The provision of production inputs and services to farmers,
ranchers, foresters, and farm operations.
(2) The relevant tax years are:
(i) For the 2020 program year, 2016, 2017, and 2018; and
(ii) For the 2021 program year, 2017, 2018, and 2019; and
(iii) For the 2022 program year, 2018, 2019, and 2020.
Average adjusted gross income means the average of the adjusted
gross income as defined under 26 U.S.C. 62 or comparable measure of the
person or legal entity. The relevant tax years are:
(1) For the 2020 program year, 2016, 2017, and 2018;
(2) For the 2021 program year, 2017, 2018, and 2019; and
(3) For the 2022 program year, 2018, 2019, and 2020.
Base period means the first full calendar month prior to the claim
period in which no qualifying disaster event occurred. If the claim
period is multiple consecutive months, the base period remains the same
calendar month preceding the start of the claim period.
Beginning farmer or rancher means a farmer or rancher who has not
operated a farm or ranch for more than 10 years and who materially and
substantially participates in the operation. For a legal entity to be
considered a beginning farmer or rancher, at least 50 percent of the
interest must be beginning farmers or ranchers.
* * * * *
Commercial market means the market to which the affected farmer
normally delivers milk and from which it was removed.
* * * * *
Income derived from farming, ranching, and forestry operations
means income of an individual or entity derived from:
(1) Production of crops, specialty crops, and unfinished raw
forestry products;
(2) Production of livestock, aquaculture products used for food,
honeybees, and products derived from livestock;
(3) Production of farm-based renewable energy;
(4) Selling (including the sale of easements and development
rights) of farm, ranch, and forestry land, water or hunting rights, or
environmental benefits;
(5) Rental or lease of land or equipment used for farming,
ranching, or forestry operations, including water or hunting rights;
(6) Processing, packing, storing, and transportation of farm,
ranch, forestry commodities including renewable energy;
(7) Feeding, rearing, or finishing of livestock;
(8) Payments of benefits, including benefits from risk management
practices, crop insurance indemnities, and catastrophic risk protection
plans;
(9) Sale of land that has been used for agricultural purposes;
(10) Payments and benefits authorized under any program made
available and applicable to payment eligibility and payment limitation
rules;
(11) Income reported on Internal Revenue Service (IRS) Schedule F
or other schedule used by the person or legal entity to report income
from such operations to the IRS;
(12) Wages or dividends received from a closely held corporation,
and IC-DISC or legal entity comprised entirely of family members when
more than 50 percent of the legal entity's gross receipts for each tax
year are derived from farming, ranching, or forestry activities as
defined in this subpart; and
(13) Any other activity related to farming, ranching, and forestry,
as determined by the Deputy Administrator for Farm Programs.
Limited resource farmer or rancher means a farmer or rancher:
(1) Who is a person whose:
(i) Direct or indirect gross farm sales did not exceed:
(A) $180,300 in each calendar year for 2017 and 2018 (the relevant
years for the 2020 program year); or
(B) $179,000 in each of the 2018 and 2019 calendar years for the
2021 program year;
(C) $189,200 in each of the 2019 and 2020 calendar years for the
2022 program year; and,
(ii) Total household income was at or below the national poverty
level for a family of four in each of the same two previous years
referenced in paragraph (1)(i) of this definition; \1\ or
---------------------------------------------------------------------------
\1\ Limited resource farmer or rancher status can be determined
using a website available through the Limited Resource Farmer and
Rancher Online Self Determination Tool through Natural Resources
Conservation Service at <a href="https://lrftool.sc.egov.usda.gov">https://lrftool.sc.egov.usda.gov</a>.
---------------------------------------------------------------------------
(2) That is an entity and all members who hold an ownership
interest in the entity meet the criteria in paragraph (1) of this
definition.
Milk marketing organization means the marketing agency to or
through which the affected dairy farmer marketed milk at the time the
milk was either dumped or unable to be delivered to the commercial
market due to a qualifying weather related event.
Ownership interest means to have either a legal ownership interest
or a beneficial ownership interest in a legal entity. For the purposes
of administering this subpart, a person or legal entity that owns a
share or stock in a legal entity that is a corporation, limited
liability company, limited partnership, or similar type entity where
members hold a legal ownership interest and shares in the profits or
losses of such entity is considered to have an ownership interest in
such legal entity. A person or legal entity that is a beneficiary of a
trust or heir of an estate who benefits from the profits or losses of
such entity is considered to have a beneficial ownership interest in
such legal entity.
* * * * *
Qualifying disaster event means droughts, wildfires, hurricanes,
floods, derechos, excessive heat, winter storms, freeze (including a
polar vortex), and smoke exposure, occurring in the 2020, 2021, and
2022 calendar years. Qualifying disaster event also includes tornadoes
occurring in the 2022 calendar year. Losses due to drought are only
eligible if any area within the county in which the loss occurs was
rated by the U.S. Drought Monitor as having a D2 (Severe Drought) for
eight consecutive weeks or a D3 (Extreme Drought) or higher level of
drought intensity during the applicable calendar years.
* * * * *
Socially disadvantaged farmer or rancher means a farmer or rancher
who is a member of a group whose members have been subjected to racial,
ethnic, or gender prejudice because of their identity as members of a
group without regard to their individual qualities. For entities, at
least 50 percent of the ownership interest must be held by individuals
who are members of such a
[[Page 62290]]
group. Socially disadvantaged groups include the following and no
others unless approved in writing by the FSA Deputy Administrator for
Farm Programs (Deputy Administrator):
(1) American Indians or Alaskan Natives;
(2) Asians or Asian-Americans;
(3) Blacks or African Americans;
(4) Hispanics or Hispanic Americans;
(5) Native Hawaiians or other Pacific Islanders; and
(6) Women.
* * * * *
Underserved farmer or rancher means a beginning farmer or rancher,
limited resource farmer or rancher, socially disadvantaged farmer or
rancher, or veteran farmer or rancher.
Veteran farmer or rancher means a farmer or rancher:
(1) Who has served in the Armed Forces (as defined in 38 U.S.C.
101(10) \2\) and:
---------------------------------------------------------------------------
\2\ The term ``Armed Forces'' means the United States Army,
Navy, Marine Corps, Air Force, Space Force, and Coast Guard,
including the reserve components.
---------------------------------------------------------------------------
(i) Has not operated a farm or ranch for more than 10 years; or
(ii) Has obtained status as a veteran (as defined in 38 U.S.C.
101(2) \3\) during the most recent 10-year period; or
---------------------------------------------------------------------------
\3\ The term ``veteran'' means a person who served in the active
military, naval, air, or space service, and who was discharged or
released under conditions other than dishonorable.
---------------------------------------------------------------------------
(2) That is an entity, and at least 50 percent of the ownership
interest is held by members who meet the criteria in paragraph (1) of
this definition.
* * * * *
Sec. Sec. 760.1709 through 760.1718 [Redesignated as Sec. Sec.
760.1711 through 760.1720].
0
4. Redesignate Sec. Sec. 760.1709 through 760.1718 as Sec. Sec.
760.1711 through 760.1720
Sec. Sec. 760.1703 through 760.1708 [Redesignated as Sec. Sec.
760.1704 through 760.1709]
0
5. Redesignate Sec. Sec. 760.1703 through 760.1708 as Sec. Sec.
760.1704 through 760.1709.
0
6. Add new Sec. 760.1703 to read as follows:
Sec. 760.1703 Eligible affected farmers.
(a) To be eligible, an affected farmer, the farmer must be a:
(1) Citizen of the United States;
(2) Resident alien, which for purposes of this subpart means
``lawful alien'' as defined in 7 CFR 1400.3;
(3) Partnership organized under state law consisting solely of
citizens of the United States or resident aliens;
(4) Corporation, limited liability company, or other organizational
structure organized under State law consisting solely of citizens of
the United States or resident aliens; or
(5) Indian Tribe or Tribal organization, as defined in section 4(b)
of the Indian Self-Determination and Education Assistance Act (25
U.S.C. 5304).
(b) In addition to the requirements in paragraph (a) of this
section, to be eligible, an affected farmer must comply with all
provisions of this subpart and, as applicable:
(1) 7 CFR part 12--Highly Erodible Land and Wetland Conservation;
(2) 7 CFR part 707--Payments Due Persons Who Have Died,
Disappeared, or Have Been Declared Incompetent;
(3) 7 CFR part 718--Provisions Applicable to Multiple Programs; and
(4) 7 CFR part 1403--Debt Settlement Policies and Procedures.
0
7. Revise newly redesignated Sec. 760.1704 to read as follows:
Sec. 760.1704 Payments to dairy farmers for milk.
(a) A milk loss payment will be made to an affected farmer who is
determined by the FSA county committee to be in compliance with all the
terms and conditions of this subpart in the amount equal to 90 percent
for affected farmers who meet the definition of underserved farmer or
rancher or 75 percent for all other affected farmers of the fair market
value of the farmer's normal marketings for the application period,
less:
(1) Any amount the affected farmer received for milk marketed
during the application period; and
(2) Any payment not subject to refund that the affected farmer
received from a milk handler with respect to milk removed from the
commercial market during the application period.
(b) [Reserved]
0
8. Amend newly redesignated Sec. 760.1705 by:
0
a. In paragraph (a):
0
i. Removing ``dumped milk normal marketings'' and adding its place
``normal marketings of milk'';
0
ii. Removing the word ``his'' and adding ``the affected farmer's'' in
its place;
0
iii. Removing the word ``whole'' both times it appears; and
0
b. Add paragraph (e).
The addition reads as follows:
Sec. 760.1705 Normal marketings of milk.
* * * * *
(e) The days eligible for indemnification begin on the date milk
was removed or dumped and continue for the concurrent days milk was
removed or dumped. Once the dairy operation returns to the normal
marketing of milk, the dairy operation is no longer eligible for
assistance for milk removed or dumped due to that qualifying disaster
event unless after restarting commercial marketing of milk, additional
milk is removed or dumped due to the same qualifying disaster event.
0
9. Amend newly redesignated Sec. 760.1706 by:
0
a. In paragraph (a):
0
i. Removing the words ``milk normal marketings'' and adding ``milk'' in
its place;
0
ii. Removing the word ``his''; and
0
b. Revising paragraphs (b) and (c).
The revisions read as follows:
Sec. 760.1706 Fair market value of milk.
* * * * *
(b) The base period per cow average daily milk production is
determined by dividing the full month of milk marketings by the average
number of cows in milk production for that month and the number of days
in that month. To determine the milk loss payment, the base period per
cow average daily milk production is multiplied by the number of
milking cows in production for the claim period and by the number of
days milk was removed or dumped in the claim period with the result
divided by 100 to determine the applicable hundredweight and then
multiplied by the hundredweight pay price.
(c) To determine the hundredweight pay price for milk, the FSA
county committee will deduct from the gross pay price from the claim
period milk marketing statement the per hundredweight hauling rate for
the applicable month and the per hundredweight $0.15 promotion fee
which it determines are normally incurred by the affected farmer but
which were not incurred because of the removal of the farmer's milk
from the commercial market.
0
10. Revise newly redesignated Sec. 760.1707 to read as follows:
Sec. 760.1707 Information to be furnished.
(a) The affected farmer must furnish to the FSA county committee
complete and accurate information sufficient to enable the FSA county
committee or the Deputy Administrator to make the determinations
required in this subpart. Such information must include, but is not
limited to:
(1) A copy of the notice from, or other evidence of action by, the
public agency which resulted in the dumping or removal of the affected
farmer's milk from the commercial market.
[[Page 62291]]
(2) The specific weather or disaster event and its results on milk
marketing for the claim period.
(3) The quantity and butterfat test of milk produced and marketed
during the base period. This information must be a certified statement
from the affected farmer's milk marketing organization or any other
evidence the FSA county committee accepts as an accurate record of milk
production and butterfat tests during the base period.
(4) The average number of dry cows, bred heifers, and cows milked
during the base period and during each pay period in the application.
(5) The affected farmer will provide two milk marketing statements,
one for the base period and one for the claim period.
(6) On the milk marketing statement the per hundredweight hauling
rate and the per hundredweight $0.15 promotion fee, which are normally
incurred by affected farmers who market through the milk marketing
organization, that the affected farmer did not incur because of the
dumping or removal of the milk from the commercial market, then the
average price stated by the milk marketing organization will be the
average gross price paid less these costs. If the milk marketing
organization does not have this information, the affected farmer will
furnish a statement specifying these costs, if any.
(7) The amount of proceeds, if any, received by the affected farmer
from the marketing of milk produced during the application period.
(8) The amount of any payments not subject to refund made to the
affected farmer by the milk marketing organization with respect to the
milk produced during the application period and removed from the
commercial market.
(9) A detailed written statement from the affected farmer regarding
the circumstances of the milk removal or dumping, the type and
geographic scope of the weather event, what transportation limitations
occurred in addition to how and where the removed or dumped milk was
discarded.
(b) If requested by FSA, the affected farmer must provide
additional documentation that establishes the affected farmer's
eligibility for a Milk Loss Program payment.
0
11. Revise newly redesignated Sec. 760.1708 to read as follows.
Sec. 760.1708 Application for payments for milk loss.
The affected farmer or the affected farmer's legal representative
must sign and file an application for payment on a form which is
approved for that purpose by the Deputy Administrator. The form must be
filed with the county FSA office for the county where the farm
headquarters are located no later than close of business of the
designated deadline announced by the Secretary for 2020, 2021, and 2022
losses.
0
12. Revise newly redesignated Sec. 760.1709 to read as follows.
Sec. 760.1709 Payment limitation and AGI.
(a) Per calendar year, a person or legal entity, other than a joint
venture or general partnership, is eligible to receive, directly or
indirectly payments of not more than $125,000 according to the
provisions in Sec. 760.1507(b)(1); or not more than $250,000 according
to the provisions in Sec. 760.1507(b)(2) if at least 75 percent of the
person's or legal entity's average adjusted gross income is average
adjusted gross farm income and the applicant provides the required
certification(s) and documentation. Payments made to a joint venture or
general partnership cannot exceed an amount determined by multiplying
the maximum payment limitation by the number of persons and legal
entities that comprise the first-level ownership of the joint venture
or general partnership.
(b) To certify the average adjusted gross farm income, a person or
legal entity, including all members with an ownership interest in a
legal entity, general partnership, or joint venture, must provide the
following:
(1) A certification in the manner prescribed by FSA from the person
or legal entity that the average adjusted gross farm income of the
person or legal entity is at least 75 percent of the average adjusted
gross income; and
(2) A certification in the manner prescribed by FSA from a licensed
certified public accountant or attorney that the average adjusted gross
farm income of the person or legal entity is at least 75 percent of the
average adjusted gross income.
(c) A new legal entity will have its adjusted gross farm income
averaged only for those years for which it was in business; however, a
new legal entity will not be considered ``new'' to the extent it takes
over an existing operation and has any elements of common ownership
interest and land with the preceding person or legal entity, or with
persons or legal entities with an interest in the ``old'' legal entity.
When there is such commonality, income of the previous person or legal
entity will be averaged with that of the ``new'' legal entity for the
base period.
(d) For a person filing a joint federal tax return, the
certification of average adjusted gross farm income will be reported as
if the person had filed a separate federal tax return and the
calculation is consistent with the information supporting the filed
joint return.
(e) All persons and legal entities are subject to an audit by FSA
of any information submitted for the purpose of increasing the
program's payment limitation. As a part of this audit, income tax
returns may be requested, and if requested, must be supplied by all
related persons and legal entities. In addition to any other
requirement under any Federal statute, relevant Federal income tax
returns and documentation must be retained a minimum of 2 years after
the end of the calendar year corresponding to the year for which
payments or benefits are requested. Failure to provide necessary and
accurate information to verify compliance will result in ineligibility
for Milk Loss Program benefits.
(f) The direct attribution provisions in Sec. 760.1507 apply for
both payment limitation as well as in determining average adjusted
gross farm income as defined and used in this subpart.
0
13. Add new Sec. 760.1710 to read as follows.
Sec. 760.1710 Time and method of application.
(a) A completed FSA-376, Milk Loss Program Application, must be
submitted at the time of application along with the information listed
in Sec. 760.1707 to the affected farmer's recording county office by
the close of business on the Milk Loss Program application deadline.
Applications may be submitted in person or by mail, email, facsimile,
or other methods announced by FSA. The Deputy Administrator has the
discretion and authority to waive or modify deadlines and other
requirements or program provisions in cases where the Deputy
Administrator determines it is equitable to do so and where the Deputy
Administrator finds that the lateness or failure to meet such other
requirements or program provisions do not adversely affect Milk Loss
Program operation.
(b) Failure of an individual, entity, or a member of an entity to
submit the following payment limitation and payment eligibility forms
within 60 days from the date of the Milk Loss Program application
deadline, may result in no payment or a reduced payment:
(1) Form AD-2047, Customer Data Worksheet, for new customers or
existing customers who need to update their customer profile;
(2) Form CCC-860, Socially Disadvantaged, Limited Resource,
[[Page 62292]]
Beginning and Veteran Farmer or Rancher Certification, if applicable
for the program year or years for which the affected farmer is applying
for the Milk Loss Program and if the affected farmer chooses to provide
that certification;
(3) Form CCC-901, Member Information for Legal Entities, if
applicable;
(4) Form CCC-902, Farm Operating Plan for an individual or legal
entity as provided in 7 CFR part 1400;
(5) Form FSA-510, Request for an Exception to the $125,000 Payment
Limitation for Certain Programs, accompanied by a certification from a
certified public accountant or attorney as to that person or legal
entity's certification, for a legal entity and all members of that
entity, for each applicable program year, including the legal entity's
members, partners, or shareholders, as provided in 7 CFR part 1400; and
(6) Form AD-1026, Highly Erodible Land Conservation (HELC) and
Wetland Conservation (WC) Certification, for the Milk Loss Program and
applicable affiliates as provided in 7 CFR part 12.
(c) If supporting documentation is requested under Sec.
760.1707(b), the documentation must be submitted to FSA within 60
calendar days from the request or the application will be disapproved
by FSA.
(d) Milk Loss Program payments are limited to 30 days per year for
each of 2020, 2021, and 2022.
(e) Each Milk Loss Program application is limited to the milk loss
for one calendar month due to a qualifying disaster event or multiple
qualifying disaster events. Milk loss that occurs in a subsequent month
for the same qualifying disaster event will require a separate
application.
Sec. 760.1711 [Amended]
0
14. In newly redesignated Sec. 760.1711, amend paragraph (c) by
removing the word ``his''.
0
15. Revise newly redesignated Sec. 760.1712 to read as follows:
Sec. 760.1712 Estates and trusts; minors.
(a) A receiver of an insolvent debtor's estate and the trustee of a
trust estate will, for the purpose of this subpart, be considered to
represent an insolvent affected farmer and the beneficiaries of a
trust, respectively, and the production of the receiver or trustee will
be considered to be the production of the represented person. Program
documents executed by any such person will be accepted only if they are
legally valid and such person has the authority to sign the applicable
documents.
(b) An affected dairy farmer who is a minor will be eligible for
milk loss payments only if at least one of the following requirements
is true:
(1) The right of majority has been conferred on him by court
proceedings or by law;
(2) A guardian has been appointed to manage the property and the
applicable program documents are signed by the guardian; or
(3) A bond is furnished under which the surety guarantees any loss
incurred for which the minor would be liable had the person been an
adult.
Sec. 760.1713 [Amended]
0
16. Amend newly redesignated Sec. 760.1713 by:
0
a. In paragraph (a) removing the words ``or manufacturer''; and
0
b. In paragraph (b) removing the words ``he would otherwise have'' and
adding ``that would otherwise be available'' in their place.
Sec. 760.1714 [Amended]
0
17. Amend newly redesignated Sec. 760.1714 by removing the words ``or
manufacturer''.
Sec. 760.1716 [Amended]
0
18. Amend newly redesignated Sec. 760.1716 as follows:
0
a. In paragraph (a), remove the words ``as well as his milk handler
and'' and add ``milk marketing organization, and'' in their place.
0
b. In paragraph (b) remove the words ``his milk handler'' and add
``milk marketing organization'' in their place.
0
19. Amend newly redesignated Sec. 760.1720 by:
0
a. In paragraph (a)(2), removing the word ``whole'' and;
0
b. In paragraph (a)(3), removing the word ``handler'' and adding in its
place ``marketing organization'' and removing the word ``whole''; and
0
c. Revise paragraph (a)(4).
The revision reads as follows:
Sec. 760.1720 Calculating payments for milk losses.
(a) * * *
(4) Multiplied by a program factor of 90 percent for underserved
farmers or ranchers, or 75 percent for all other farmers or ranchers.
* * * * *
Subpart S--Emergency Relief Program
Sec. 760.1902 [Amended]
0
20. Amend Sec. 760.1902 as follows:
0
a. In paragraph (b)(3), remove the word ``Law'' and add ``law
consisting solely of citizens of the United States or resident
aliens''; and
0
b. In paragraph (b)(4), remove the word ``law'' and add ``law
consisting solely of citizens of the United States or resident
aliens''.
Sec. 760.1905 [Amended]
0
21. In Sec. 760.1905, in paragraph (b)(3) remove the word ``net'' and
add ``gross'' in its place.
John Berge,
Acting Administrator, Farm Service Agency.
[FR Doc. 2023-19479 Filed 9-6-23; 4:15 pm]
BILLING CODE 3411-E2-P
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</html>Indexed from Federal Register on September 11, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.