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Federal Register / Vol. 86, No. 167 / Wednesday, September 1, 2021 / Rules and Regulations dairy organization the difference between the reimbursement it received under MDRP and the reimbursement it is eligible to receive for the same product under DDP, calculated in 1147.108. New applicants to the DDP
that donate fluid milk products will be automatically enrolled in MDRP. Upon approval, AMS will make reimbursements under the MDRP
provisions and then supplemental reimbursements under the DDP
provisions.

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Administrative Provisions Section 762g of the CAA requires AMS to publish donation activity for the program. Accordingly, 1147.200
provides that AMS will periodically report on its publicly accessible website the aggregated donation activity under this program. Such information will include types and volume of product donated, as well as remaining available funds. AMS also will post on its publicly accessible website the Plan and Claim Form templates to be submitted for program participation.
Section 762e of the CAA prohibits the sale of eligible dairy products donated under the DDP back into commercial markets and specifies that eligible distributors who violate that prohibition will not be eligible for future participation in the DDP. Section 1147.204 implements the statutory prohibition and penalty for violation. In addition, the program prohibits reimbursement for donated eligible dairy products made in conjunction with marketing or promotional events.
Section 762f of the CAA directs the Secretary to conduct appropriate reviews or audits to ensure the integrity of the DDP. Under section 762d3B
of the CAA, the Secretary is further authorized to verify the accuracy of submitted documentation through spot checks and audits. Section 1147.206
provides that AMS will verify the proper delivery of and payment for donated eligible dairy products.
Specifically, AMS will ensure the donated eligible dairy products were delivered to the eligible distributor and the accuracy of the reimbursed value paid to the EDO. The section further provides for the review, audit, and spot checks of information submitted.
As mentioned in the above discussions, 1147.208 requires AMS to maintain confidentiality regarding information collected to administer the program and to use the information only for program purposes.
A books and records provision is included in 1147.209 to ensure the EDO maintains necessary records to be
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made available to AMS upon request in conjunction with an audit.
Section 1147.210 specifies that dairy products sold or donated under any other USDA commodity purchase or donation program, other than the MDRP, are not eligible for reimbursement under the DDP. From time to time, USDA may purchase dairy products for use in nutrition assistance programs or other uses, but vendors are compensated for those purchases through funding under those program provisions. One of the main purposes of the DDP is to reduce food waste by encouraging the donation of additional dairy products through eligible distributors. Thus, eligible dairy organizations who have received compensation for dairy product purchases under other USDA programs may not receive reimbursements for the same dairy products under the DDP.
Exemption From Notice and Comment Rules relating to public property, loans, grants, benefits, or contracts are not subject to the rulemaking requirement of the Administrative Procedure Act at 5 U.S.C. 553. See 5
U.S.C. 553a2. Thus, AMS is publishing this interim final rule without previously publishing a proposed rule because this rule relates to a benefit. Additionally, AMS finds it has good cause to do so because providing prior notice and an opportunity for comment are impracticable, unnecessary, or contrary to the public interest under 5 U.S.C.
553bB.
In determining whether a program is a benefits program, courts consider whether benefits are clearly and directly involved in the agency action.
Humana of South Carolina, Inc. v.
Califano, 590 F.2d 1070 at 108384
D.C. Cir. 1978. The purpose of the DDP
is to facilitate timely donation of eligible dairy products and to prevent and minimize food waste by enabling dairy organizations to partner with public or private non-profit organizations. The overall purpose of the DDP is similar to other federal programs that provide food and nutrition assistance to individuals and families in need. Furthermore, the DDP fulfills two needs: 1 The donated dairy products can provide food and nutrition to eligible recipients, as determined by eligible distributors public or private non-profit organizations; and 2 the eligible dairy organizations are able to participate in a program where they can receive reimbursement for donating dairy products to those determined to be in need. In addition, under the DDP, the public or private non-profit organization
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determines whether the recipients qualify for the donated dairy products based on their established criteria. As such, individuals and families in need of dairy products are able to receive these dairy products through donation.
AMS is issuing regulations to establish and administer the DDP, a program that is clearly and directly involved in the disbursement of benefits, and thus is exempt under section 553a2 from the notice and comment requirements of the APA.
Furthermore, the APA provides that an agency is not required to conduct notice-and-comment rulemaking when the agency, for good cause, finds that notice and comment is impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553bB. As part of the governments pandemic response, USDA began the Farmers to Families Food Box Program as an emergency relief effort to respond to severe market disruptions and increased food insecurity caused by the pandemic. The program lasted from May 15, 2020, through May 31, 2021, during which time it distributed dairy products equivalent to more than 2.5 billion pounds of milk to those in need. The end of the Food Box program means there is an unmet demand for dairy products in feeding organizations previously met by government purchases through the Food Box Program. The DDP is designed to encourage the donation of dairy products to meet that demand through private partnerships between EDOs and Eligible Distributors. Due to the recent end of the Food Box program, there is an immediate need to implement the DDP so that donations can begin and meet that demand.
In addition, Section 762 of the statute provides for emergencies or disaster declarations to be considered as a substantial factor in donation Plan submissions. As the 2021 hurricane and wildfire season has already begun, the DDP could facilitate donations in the possible event of upcoming emergencies or natural disasters that could create an immediate need to provide food assistance to impacted individuals and families.
Additionally, Congress mandated that the Secretary establish and administer the DDP no later than 60 days after enactment of the CAA. In light of this mandated time frame and the importance of distributing donated dairy products as quickly as possible to individuals and families, the normal rulemaking process would be impracticable unnecessary, and contrary to the public interest. Therefore, AMS
finds there is good cause to forgo the
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