441 G St. N.W.

Washington, DC 20548

B-336159

April 15, 2024

The Honorable Debbie Stabenow

Chairwoman

The Honorable John Boozman

Ranking Member 

Committee on Agriculture, Nutrition, and Forestry

United States Senate

The Honorable Glenn Thompson

Chairman

The Honorable David Scott

Ranking Member

Committee on Agriculture

House of Representatives

Subject: U.S. Department of Agriculture, Farm Service Agency, Commodity Credit Corporation: 

Supplemental Dairy Margin Coverage Payment; Conservation Reserve Program; Dairy 

Indemnity Payment Program; Marketing Assistance Loans, Loan Deficiency Payments, 

and Sugar Loans; and Oriental Fruit Fly Program

Pursuant to section 801(a)(2)(A) of title 5, United States Code, this is our report on a major 

rule promulgated by the U.S. Department of Agriculture, Farm Service Agency, and Commodity 

Credit Corporation (collectively, the Agencies) titled “Supplemental Dairy Margin Coverage 

Payment; Conservation Reserve Program; Dairy Indemnity Payment Program; Marketing 

Assistance Loans, Loan Deficiency Payments, and Sugar Loans; and Oriental Fruit Fly 

Program” (RIN: 0560-AI59). We received the rule on March 19, 2024. It was published in the 

Federal Register as a final rule on December 13, 2021. 86 Fed. Reg. 70689. The effective date 

is December 13, 2021.

According to the Agencies, this final rule amends the regulations for Dairy Margin Coverage 

(DMC) to allow supplemental DMC payments to participating eligible dairy operations. The 

Agencies stated that DMC provides dairy producers with risk management coverage that pays 

producers when the difference between the price of milk and the cost of feed (the margin) falls 

below a certain level. The Agencies also stated that eligible dairy operations with less than 

5 million pounds of established production history may enroll supplemental pounds based upon 

a formula using 2019 actual milk marketings. The Agencies stated further that supplemental 

DMC coverage is applicable to calendar years 2021, 2022, and 2023, and that participating 

dairy operations with supplemental production may receive supplemental payments in addition 

to payments based on their established production history. 

In addition, the Agencies, noted that the rule amends the alfalfa hay calculation used in 

determining the average feed cost and actual dairy production margin. The Agencies also 
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explained, to end prolonged months of milk indemnity payments, the final rule amends the 

regulations for the Dairy Indemnity Payment Program to indemnify affected farmers for 

depopulating and permanently removing cows after discovery of chemical residues affecting the 

commercial marketing of milk for the applicable farm and likely affecting the marketability of 

cows for a lengthy duration. 

Finally, the Agencies stated that the final rule also implements a new Oriental Fruit Fly Program 

as authorized in the Consolidated Appropriations Act, 2019. See generally Pub. L. No. 116-6, 

133 Stat. 13 (Feb. 15, 2019). The Agencies also stated that the final rule updates the existing 

Marketing Assistance Loans and Loan Deficiency Payments loan rates to be consistent with the 

Agriculture Improvement Act of 2018 (2018 Farm Bill); the loan rates were already changed 

administratively because the loan rate changes were self-enacting. See generally 2018 Farm 

Bill, Pub. L. No. 115-334, 132 Stat. 4490 (Dec. 20, 2018). The Agencies stated further that the 

final rule also amends the Conservation Reserve Program regulations to remove two 

discretionary requirements.

The Congressional Review Act (CRA) requires a 60-day delay in the effective date of a major 

rule from the date of publication in the Federal Register or receipt of the rule by Congress, 

whichever is later. 5 U.S.C. § 801(a)(3)(A). The 60-day delay in effective date can be waived, 

however, if the agency finds for good cause that delay is impracticable, unnecessary, or 

contrary to the public interest, and the agency incorporates a statement of the findings and its 

reasons in the rule issued. 5 U.S.C. § 808(2). The Agencies stated that they are authorized to 

provide payments to the producers to comply with the Consolidated Appropriations Act, 2021, in 

providing the Supplemental DMC payments to dairy producers in the DMC Program. See 

generally Pub. L. No. 116-260, 134 Stat. 1182 (Dec. 27, 2020). The Agencies also stated that 

notice and public procedure are contrary to the public interest. Therefore, the Agencies 

asserted that even though this rule is a major rule for purposes of CRA, the Agencies are not 

required to delay the effective date for 60 days from the date of publication to allow for 

congressional review.1 

Enclosed is our assessment of the Agencies’ compliance with the procedural steps required by 

section 801(a)(1)(B)(i) through (iv) of title 5 with respect to the rule. If you have any questions 

about this report or wish to contact GAO officials responsible for the evaluation work relating to 

1 Although the Agencies waived CRA’s 60-day delay in effective date requirement, we note that 

the Agencies did not deliver the rule to Congress until April 5, 2024. We initially requested 

confirmation of receipt from the Agencies on March 22, 2024, but they sent us a receipt for a 

different rule not subject to this report. We informed the Agencies about the error. In response, 

they explained that they had to schedule this final rule for delivery to Congress. On April 9, 

2024, we received sufficient proof of delivery showing that this final rule was delivered to both 

Houses of Congress on April 5, 2024. See Email from Branch Chief Regulatory Analysis & PRA 

Requirements Branch, USDA, to Senior Staff Attorney, GAO, Subject: RE: CRA -- 

Supplemental Dairy Margin Coverage Payment; Conservation Reserve Program; Dairy 

Indemnity Payment Program; Marketing Assistance Loans, Loan Deficiency Payments; Sugar 

Loans; and Oriental Fruit Fly Program (RIN 0560-AI59) - December 13, 2021 (Apr. 9, 2024). 
Page 3 B-336159

the subject matter of the rule, please contact Shari Brewster, Assistant General Counsel, at 

(202) 512-6398.

Shirley A. Jones

Managing Associate General Counsel

Enclosure

cc: Mary A. Ball

FPAC-BC

U.S. Department of Agriculture
Page 4 B-336159

ENCLOSURE

REPORT UNDER 5 U.S.C. § 801(a)(2)(A) ON A MAJOR RULE

ISSUED BY THE

U.S. DEPARTMENT OF AGRICULTURE, 

FARM SERVICE AGENCY, 

COMMODITY CREDIT CORPORATION,

TITLED

“SUPPLEMENTAL DAIRY MARGIN COVERAGE PAYMENT; 

CONSERVATION RESERVE PROGRAM; DAIRY INDEMNITY PAYMENT PROGRAM; 

MARKETING ASSISTANCE LOANS, LOAN DEFICIENCY PAYMENTS, 

AND SUGAR LOANS; AND ORIENTAL FRUIT FLY PROGRAM” 

(RIN: 0560-AI59) 

(i) Cost-benefit analysis

The U.S. Department of Agriculture, Farm Service Agency, and Commodity Credit Corporation 

(collectively, the Agencies) prepared an analysis of the costs and benefits of this final rule. 

According to the Agencies, the final rule makes certain program changes and implements a new 

program that will benefit eligible program participants. The Agencies estimate the final rule will 

result in total outlays of $222.97, $405.25, and $359.23 million from fiscal years (FYs) 2021 

through 2023, respectively. The agencies stated that the estimate for FY 2023 includes outlays

from October through December of 2023. The Agencies also stated that the FY 2021 estimate 

does not include costs associated with the first quarter of FY 2021. 

(ii) Agency actions relevant to the Regulatory Flexibility Act (RFA), 5 U.S.C. §§ 603–605, 607, 

and 609

According to the Agencies, this rule is exempt from the requirements in 5 U.S.C. § 553, and, 

therefore, it is also exempt from the regulatory analysis requirements of RFA. The Agencies 

stated that the requirements for RFA in 5 U.S.C. §§ 603–604 are specifically tied to the agency 

being required to issue a proposed rule by section 553 or any other law; further, the definition of 

rule in 5 U.S.C. § 601 is tied to the publication of a proposed rule.

(iii) Agency actions relevant to sections 202–205 of the Unfunded Mandates Reform Act of 

1995, 2 U.S.C. §§ 1532–1535

The Agencies determined that this rule contains no federal mandates, as defined under the Act, 

for state, local and tribal governments, or the private sector. Therefore, the Agencies stated, 

this final rule is not subject to the requirements the Act. 

(iv) Agency actions relevant to the Administrative Pay-As-You-Go-Act of 2023, Pub. L. 

No. 118-5, div. B, title III, 137 Stat 31 (June 3, 2023)

Section 270 of the Administrative Pay-As-You-Go-Act of 2023 amended 5 U.S.C. § 801(a)(2)(A) 

to require GAO to assess agency compliance with the Act, which establishes requirements for 

administrative actions that affect direct spending, in GAO’s major rule reports. In guidance to 

Executive Branch agencies, issued on September 1, 2023, the Office of Management and 

Budget (OMB) instructed that agencies should include a statement explaining that either: “the 

Act does not apply to this rule because it does not increase direct spending; the Act does not 
Page 5 B-336159

apply to this rule because it meets one of the Act’s exemptions (and specifying the relevant 

exemption); the OMB Director granted a waiver of the Act’s requirements pursuant to 

section 265(a)(1) or (2) of the Act; or the agency has submitted a notice or written opinion to the 

OMB Director as required by section 263(a) or (b) of the Act” in their submissions of rules to 

GAO under the Congressional Review Act. OMB, Memorandum for the Heads of Executive 

Departments and Agencies, Subject: Guidance for Implementation of the Administrative 

Pay-As-You-Go Act of 2023, M-23-21 (Sept. 1, 2023), at 11–12. OMB also states that 

directives in the memorandum that supplement the requirements in the Act do not apply to 

proposed rules that have already been submitted to the Office of Information and Regulatory 

Affairs, however agencies must comply with any applicable requirements of the Act before 

finalizing such rules. 

In its submission to us, the Agencies indicated that the Act is not applicable to this final rule.

(v) Other relevant information or requirements under acts and executive orders

Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.

The Agencies stated that section 9091 of title 7, United States Code, exempts the regulations to 

implement the Dairy Margin Coverage Program, Dairy Indemnity Payment Program, and 

Marketing Assistance Loans and Loan Deficiency Payments Programs from notice and 

comment procedures under the Act. The Agencies also stated that section 3846 of title 16, 

United States Code, provides that the regulations to implement the Conservation Reserve 

Program are to be made as an interim rule effective on publication, with an opportunity for 

notice and comment. The Agencies stated that they published an interim final rule in the 

Federal Register on December 6, 2019. 84 Fed. Reg. 66813. The Agencies noted that the final 

rule contains changes in response to comments made in response to the interim final rule. The 

Agencies stated that they received 67 public comments in response to the interim final rule. 

The Agencies also stated that they are not responding to all comments, but only those regarding 

the two provisions being amended in this rule. The Agencies stated further that the comments 

not addressed in this rule will be addressed at a later date.

 

Paperwork Reduction Act (PRA), 44 U.S.C. §§ 3501–3520

According to the Agencies, the regulations to implement the Dairy Margin Coverage Program, 

Dairy Indemnity Payment Program, and the Marketing Assistance Loans and Loan Deficiency 

Payments Programs are exempt from PRA as specified under 7 U.S.C. § 9091 and the 

regulations to implement the Conservation Reserve Program are exempt from PRA as specified 

in 16 U.S.C. § 3846. Additionally, the Agencies stated that it submitted a new information 

collection to OMB for emergency approval. The new information collection request supports the 

Oriental Fruit Fly (OFF) Program (OMB Control Number 0560-New). The Agencies estimate the 

annual burden on respondents to be 522 hours.

Statutory authorization for the rule

The Agencies promulgated this final rule pursuant to sections 450j-1, 1359aa–1359jj, 1421, 

1441, 1531, 4501, 7231–7237, 7272, 7931–7936, 8110, 9011, 9031–9060, and 9071 of title 7; 

714b, 714c, and 714j of title 15, 3801 note, 3801–3847 of title 16; section 2497 of title 19, 

United States Code; title III of Public Law 109-234; title IX of Public Law 110-28; section 748 of

Public Law 111-80; title I of Public Law 115-123; title I of Public Law 116-20; division B, title VII

of Public Law 116-94, and section 778 of Public Law 116-6. 
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Executive Order No. 12866 (Regulatory Planning and Review)

The Agencies stated that OMB designated this rule as economically significant under the Order 

and that OMB has reviewed this rule.

Executive Order No. 13132 (Federalism)

In its submission to us, the Agencies indicated that it did not address the Order in this final rule.