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Federal Register / Vol. 86, No. 167 / Wednesday, September 1, 2021 / Rules and Regulations
Forms within 15 business days of receipt. Reimbursements claims, along with supporting documentation, can be filed any time after the Plan is approved and the donation is made. AMS will use the supporting documentation to verify program requirements were met. Plans only need to be submitted once for approval. The DDP does not require annual Plan renewal.
How will AMS handle both the DDP and MDRP?
Although program funds for the DDP
and MDRP are statutorily prohibited from being consolidated, the two programs will operate as one from a stakeholder standpoint. EDOs making Class I fluid milk product donations which are covered by both programs will be reimbursed through MDRP funds at the difference between the Class I and lowest classified price and receive a supplemental reimbursement of the lowest classified price plus the manufacturing and transportation cost reimbursement through DDP funds.
Total combined reimbursement will be capped at the Class I price in Dade County, Florida.
EDOs already enrolled in MDRP will automatically be enrolled in the DDP
and qualify to receive supplementary payments for fluid milk products donated under their currently approved MDRP Plans. To lessen the burden on applicants and gain administrative efficiencies, new Plan and Claim Forms will be used for both the DDP and MDRP. AMS will ensure program funds are paid according to the provisions of both programs. Finally, this interim final rule simultaneously amends the MDRP regulations, where applicable, reflecting the new Plan, Certification Form, Report of Receipts and Utilization, and Claim Forms that will be used to administer the program.

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Will there be a retroactive period for reimbursement?
Section 762h of the CAA requires supplementary payments be made to EDOs participating in the MDRP for donations made on or after January 1, 2020. Since the statute allows for retroactive reimbursement to those participating in DDP, a retroactive date of January 1, 2020, also applies to the DDP to better streamline administration of the two programs. To ensure adequate availability of funds for donations made before enactment of the CAA, total program expenditures for eligible dairy product donations made from January 1, 2020 to December 27, 2020, will be
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limited to no more than $50 million.7
An EDO seeking retroactive reimbursement must include in its Plan information on the volume of these donations from January 1, 2020, through December 27, 2020. A deadline for requesting retroactive reimbursement will be posted on the AMS web page for DDP. If total reimbursement requests exceed $50 million, reimbursements will be prorated.
Program Provisions The following details the DDP
provisions and amendments to the MDRP, where applicable.
Definitions The statute includes definitions for terms used. Section 1147.1 provides definitions of those terms as they are used in the new program. Key terms are eligible dairy organization, eligible dairy product, eligible distributor, eligible partnership, and qualified expense.
Eligible dairy organization. As explained in the Background section, section 762a1 of the CAA adopts the same EDO definition contained in the statute establishing the MDRP. See Sec.
1431a and b of the Agricultural Act of 2014 7 U.S.C. 9071a. The regulatory definition matches the statutory definition, which specifies that a dairy organization eligible to participate in the program is a dairy farmer, either individually or as part of a cooperative, or a dairy processor that:
1 Accounts to a FMMO marketwide pool; and 2 incurs qualified expenses.
See id.
Eligible dairy product. Section 762a2 of the CAA specifies that only dairy products primarily made from cows milk, including fluid milk, that are produced and processed in the United States are eligible for donation and reimbursement under the DDP.
Accordingly, 1147.1 defines eligible dairy product as a dairy product meeting the commodity specifications referenced in 1147.3. Currently, other than cows milk, there is not a surplus of milk or any other form of milk being dumped at the farm. Given that the program is designed to prevent surplus milk from being dumped at the farm, it is the Secretarys discretion to limit to cows milk.
Eligible distributor. Section 762a3
of the CAA defines eligible distributor 7 As indicated in the Economic Analysis, USDA
expects the DDP to expend $68 million annually.
In determining funds available for this retroactive period, USDA is limiting expenditures to approximately 80 percent $50 million, consistent with other USDA COVID19 recovery programs 7
CFR part 9Coronavirus Food Assistance Program.

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as a public or private nonprofit organization that distributes donated eligible dairy products to recipient individuals and families. Section 1147.1 likewise defines eligible distributor as a public or private nonprofit feeding organization that distributes, or coordinates the distribution of, donated eligible dairy products to recipient individuals and families. Eligible distributors such as food banks, shelters, kitchens, and other food distribution organizations would be eligible so long as they are a nonprofit entity. Under this new program, participating eligible distributors will fill out an Eligible Distributor Certification Form to verify their non-profit status and affirm they have appropriate facilities and processes for distributing donated dairy products to recipient individuals and families.
Eligible partnership. Section 762c of the CAA requires that an EDO and eligible distributor form a partnership to participate in the DDP. Each partnership is required to submit a Plan and a Certification Form, to AMS containing information about their respective roles.
Requiring the parties to apply as a partnership ensures that all program provisions will be met and an agreedupon structure will be in place when eligible dairy products are available for donation and distribution. Section 762a4 of the CAA defines eligible partnership as a partnership between an eligible dairy organization and an eligible distributor and this rule adopts the same definition.
AMS recognizes some EDOs may have processing plants in multiple locations that may report to different FMMOs.
Similarly, eligible distributors may have multiple distribution sites; for example, several food pantries are operated by one umbrella organization. Thus, under 1147.102a, the eligible partnership can submit one Plan to cover multiple plants and/or distribution points as long as only one EDO and one eligible distributor are represented. Individual EDOs and eligible distributors can also form other partnerships, but they are required to submit separate Plans for each partnership.
Qualified expense. The statute does not define qualified expense, but does specify that one needs to be incurred to be eligible for program participation.
Section 1147.1 defines qualified expense as the cost incurred to purchase fresh fluid milk for processing into eligible dairy products or the cost incurred to purchase bulk dairy commodity products for further processing into eligible dairy products.
Qualified expense is different than the
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