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Federal Register / Vol. 86, No. 167 / Wednesday, September 1, 2021 / Rules and Regulations
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reimbursement rate, which is defined later in this rule.
Because defining qualified expense is fundamental to determining program eligibility and the MDRP and DDP
reference the same eligible dairy organization statutory definition, the qualified expense definition is also added to the MDRP regulation.
Additional terms necessary for administration of the program are defined in 1147.1. Program is defined as the Dairy Donation Program and Secretary is defined as the Secretary of the United States Department of Agriculture or a representative authorized to act in the Secretarys stead.
Commodity Specifications The DDP is intended to reimburse eligible dairy organizations for timely donations of eligible dairy products and minimize food waste. It is therefore reasonable for AMS to ensure that eligible dairy products donated under the DDP meet minimum food safety and quality standards and in package sizes desired by eligible distributors, consistent with the intent of the program to minimize food waste that might otherwise result. Section 1147.3
defines the commodity specifications that must be met. Eligible dairy organizations must comply with all applicable Federal, State, and local laws, executive orders, and rules and regulations related to its performance under this program. In addition, to qualify under the program eligible dairy products must:
1. Be made primarily from cows bovine milk produced in the United States;
2. Be packaged in consumer-sized packaging;
3. Meet the applicable provisions for dairy products in the Federal Food, Drug, and Cosmetic Act 21 U.S.C. 301
et seq., as amended. Grade A dairy products shall meet the applicable provisions of the current edition of the Pasteurized Milk ordinance; and 4. Have a sell-by, best-by, or use-by date no sooner than 12 days from the date the eligible dairy product is delivered to the eligible distributor.
Program provisions specify donated dairy products mut be in consumersized packaging. This provision should be interpreted by the eligible partnership as to whatever consumersized package format is agreeable to both entities. Examples of consumersized packaging include, but are not limited to, gallons of milk, 8-ounce blocks of cheese, single serve containers of yogurt, 1-pound packages of butter, or large bags of milk if the eligible
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distributor has the ability to dispense i.e., a soup kitchen. When submitting Plans for approval, the EDO is required to list what types of products it will be donating. AMS will check that information against distributor process provided by the eligible distributor to ensure it has the ability to distribute that types of products to be donated.
Program Eligibility and Participation Section 1147.100 provides that an eligible dairy organization must be a member of a partnership whose Plan has been approved by AMS to be eligible for reimbursements under the DDP.
Section 1147.102 outlines requirements for Plan submission in order to be considered for the program.
Plans submitted to AMS for program approval must include a signed affirmation regarding the type of product to be donated and the EDOs ability to process and transport eligible dairy products consistent with the requirements in the commodity specifications under 1147.3. Along with the Plan submission, eligible distributors are required to submit a signed Certification Form, which includes a description of the eligible distributors distribution process, contact information, and a tax identification number to ensure compliance with program provisions.
As specified in 1147.208, AMS will only collect information deemed necessary to determine whether an eligible partnerships Plan should be approved. All proprietary business information submitted will be used only for the purposes of the program and will be kept confidential by AMS.
Section 1147.104 specifies the process AMS will use to review program applications and determine whether to approve Plans submitted by eligible partnerships. Within 15 business days of application submission, AMS will review the Plan and Certification Form, determine whether to approve or disapprove, and notify the eligible partnership of the determination. Under 1147.104a1, AMS will review the information submitted by the partnership, including the signed confirmation that the partnership can meet the requirements related to proper processing, transport, storage, and distribution of eligible dairy products until they are distributed. Under 1147.104a2, AMS will consider the extent to which the Plan would advance the statutory purposes of the DDP, namely, whether the Plan would facilitate the timely donation of eligible dairy products and prevent and minimize food waste. See Sec. 762b of the CAA.

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Finally, section 762c2Bi of the CAA specifies that priority review will be given to submitted Plans where an emergency or disaster was a substantial factor, including a declared or renewed public health emergency under section 319 of the Public Health Service Act 42
U.S.C. 247d or a disaster designated by the Secretary. In reviewing a Plan, AMS will determine if an emergency or disaster was a substantial factor in the Plans submission. In this case, substantial factor means that a supply and/or demand disruption caused by the emergency or disaster event is a main reason for the partnership submitting the Plan. For example, the COVID19 public health emergency which caused a significant decrease in school and restaurant dairy demand, leading to large volumes of displaced milk and many people in need of food assistancecould be considered a justification for priority review. If an emergency or disaster is deemed a substantial factor, AMS will prioritize review of that Plan to facilitate donations and meet an immediate need.
Section 1147.104a3 incorporates those factors for Plan prioritization.
Once approved, Plans do not need to be resubmitted in subsequent fiscal years, unless changes are made. Eligible partnerships that received reimbursement from the MDRP will be automatically enrolled in the DDP to receive the supplemental reimbursement as defined in 1147.109.
Reimbursement and Reimbursement Price Section 762d of the statute requires the Secretary to reimburse EDOs with approved Plans. Section 1147.106a provides the process and describes the necessary information and documentation AMS will require to verify the EDOs donation and calculate its reimbursement. To receive reimbursement, the EDO must complete and submit a Reimbursement Claim Form Claim Form that includes: The type, volume, and manufactured date of the eligible dairy products donated; the entity type processor or eligible distributor; the locations of the plants that processed the eligible dairy products and where donated dairy products were distributed; the universal product codes UPCs for donated products; the sell-by, best-by, or use-by dates for donated products and the dates the donated dairy products were processed and shipped to the eligible distributor.
There is no requirement dictating the frequency of Claim Form submissions;
therefore, any time after its Plan is approved, the EDO can submit Claim
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