CFAP (Coronavirus Food Assistance Program) Details Announced

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(Washington, DC) USDA and White House make CFAP (Coronavirus Food Assistance Program) Announcements at a news conference this morning
Highlights:
  • Trump suggests that officials look into terminating trade deals involving cattle imports
  • FSA Offices begin accepting applications on May 26
  • Final Rule – Read in its entirety at this link (40 pages) (you may also download the document or or print the pdf if you prefer hard copies)
    • Pages 1-24: Administrative Rules with Payment Limits, application to Gross Income, other limitations and interactions
    • Pages 25-40: Payment amounts by Commodity
    • General website for CFAP:  farmers.gov/cfap
    • Cost-Benefit Analysis found here:  25 page pdf
Today, May 19th, 2020, shortly after 11:30 am, the White House held a news conference to announce the highly anticipated CFAP program details have been published.
FSA offices across the country will be accepting applications beginning Tuesday, May 26.  In the meantime, it is highly suggested to thoroughly review the linked documents above and get your pencils ready.
Below is the official USDA News Release:
USDA Announces Details of Direct Assistance to Farmers through the Coronavirus Food Assistance Program
Farmers and Ranchers to Receive Direct Support for Losses Related to COVID-19
(Washington, D.C., May 19, 2020) – U.S. Secretary of Agriculture Sonny Perdue today announced details of the Coronavirus Food Assistance Program (CFAP), which will provide up to $16 billion in direct payments to deliver relief to America’s farmers and ranchers impacted by the coronavirus pandemic. In addition to this direct support to farmers and ranchers, USDA’s Farmers to Families Food Box program is partnering with regional and local distributors, whose workforces have been significantly impacted by the closure of many restaurants, hotels, and other food service entities, to purchase $3 billion in fresh produce, dairy, and meat and deliver boxes to Americans in need.
“America’s farming community is facing an unprecedented situation as our nation tackles the coronavirus. President Trump has authorized USDA to ensure our patriotic farmers, ranchers, and producers are supported and we are moving quickly to open applications to get payments out the door and into the pockets of farmers,” said Secretary Perdue. “These payments will help keep farmers afloat while market demand returns as our nation reopens and recovers. America’s farmers are resilient and will get through this challenge just like they always do with faith, hard work, and determination.”
Beginning May 26, the U.S. Department of Agriculture (USDA), through the Farm Service Agency (FSA), will be accepting applications from agricultural producers who have suffered losses.
Background:
CFAP provides vital financial assistance to producers of agricultural commodities who have suffered a five-percent-or-greater price decline due to COVID-19 and face additional significant marketing costs as a result of lower demand, surplus production, and disruptions to shipping patterns and the orderly marketing of commodities.
Farmers and ranchers will receive direct support, drawn from two possible funding sources. The first source of funding is $9.5 billion in appropriated funding provided in the Coronavirus Aid, Relief, and Economic Stability (CARES) Act to compensate farmers for losses due to price declines that occurred between mid-January 2020, and mid-April 2020 and provides support for specialty crops for product that had been shipped from the farm between the same time period but subsequently spoiled due to loss of marketing channels. The second funding source uses the Commodity Credit Corporation Charter Act to compensate producers for $6.5 billion in losses due to on-going market disruptions.
Non-Specialty Crops and Wool
Non-specialty crops eligible for CFAP payments include malting barley, canola, corn, upland cotton, millet, oats, soybeans, sorghum, sunflowers, durum wheat, and hard red spring wheat. Wool is also eligible. Producers will be paid based on inventory subject to price risk held as of January 15, 2020. A payment will be made based 50 percent of a producer’s 2019 total production or the 2019 inventory as of January 15, 2020, whichever is smaller, multiplied by the commodity’s applicable payment rates.
Livestock
Livestock eligible for CFAP include cattle, lambs, yearlings and hogs. The total payment will be calculated using the sum of the producer’s number of livestock sold between January 15 and April 15, 2020, multiplied by the payment rates per head, and the highest inventory number of livestock between April 16 and May 14, 2020, multiplied by the payment rate per head.
Dairy
For dairy, the total payment will be calculated based on a producer’s certification of milk production for the first quarter of calendar year 2020 multiplied by a national price decline during the same quarter. The second part of the payment is based a national adjustment to each producer’s production in the first quarter.
Specialty Crops
For eligible specialty crops, the total payment will be based on the volume of production sold between January 15 and April 15, 2020; the volume of production shipped, but unpaid; and the number of acres for which harvested production did not leave the farm or mature product destroyed or not harvested during that same time period, and which have not and will not be sold. Specialty crops include, but are not limited to, almonds, beans, broccoli, sweet corn, lemons, iceberg lettuce, spinach, squash, strawberries and tomatoes. A full list of eligible crops can be found on farmers.gov/cfap. Additional crops may be deemed eligible at a later date.
Eligibility
There is a payment limitation of $250,000 per person or entity for all commodities combined. Applicants who are corporations, limited liability companies or limited partnerships may qualify for additional payment limits where members actively provide personal labor or personal management for the farming operation. Producers will also have to certify they meet the Adjusted Gross Income limitation of $900,000 unless at least 75 percent or more of their income is derived from farming, ranching or forestry-related activities. Producers must also be in compliance with Highly Erodible Land and Wetland Conservation provisions.
Applying for Assistance
Producers can apply for assistance beginning on May 26, 2020. Additional information and application forms can be found at farmers.gov/cfap. Producers of all eligible commodities will apply through their local FSA office. Documentation to support the producer’s application and certification may be requested. FSA has streamlined the signup process to not require an acreage report at the time of application and a USDA farm number may not be immediately needed. Applications will be accepted through August 28, 2020.
Payment Structure
To ensure the availability of funding throughout the application period, producers will receive 80 percent of their maximum total payment upon approval of the application. The remaining portion of the payment, not to exceed the payment limit, will be paid at a later date as funds remain available.
USDA Service Centers are open for business by phone appointment only, and field work will continue with appropriate social distancing. While program delivery staff will continue to come into the office, they will be working with producers by phone and using online tools whenever possible. All Service Center visitors wishing to conduct business with the FSA, Natural Resources Conservation Service, or any other Service Center agency are required to call their Service Center to schedule a phone appointment. More information can be found at farmers.gov/coronavirus.

Dean Foods (Estate) Fails to Pay FMMO Producer Settlement Funds in Florida, Southeast, and Appalachian Orders

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Payments to Farmers Late at Best, in Question for the Future

A May 13, 2020 memorandum from USDA-Agricultural Marketing Service, Appalachian Order, reads as follows:

TO:  Regulated Handlers

FROM: Harold H. Friedly, Jr., Market Administrator, F.O. 5

SUBJECT: Producer Settlement Fund Non Payment

On May 12, 2020, Dean Foods, DIP (debtor-in-possession), a regulated handler on the Appalachian Order, did not pay its obligation to the Producer Settlement Fund (PSF) as required by Federal Milk Marketing Order regulations. USDA recognizes the significance of this non-payment and is continuing to work with the Department of Justice to attempt to recover these monies as part of the Dean Foods, DIP, estate.

When payment is not made to the PSF, Federal Milk Marketing Order regulations prescribe procedure for how the remaining marketwide pool monies should be distributed to handlers (1005.72).  When PSF monies are not sufficient to make full payments to handlers, the Market Administrator shall reduce uniformly such payments to handlers due a payment from the PSF.

Accordingly, for milk pooled on Order 5 during April 2020, payments to handlers from the PSF have been reduced pro rata.  Should the PSF payments be recovered from Dean Foods, DIP, Estate at a later time, full payments will be distributed.  In the meantime, Federal Milk Marketing Order regulations provide for reduced payments to producers from regulated handlers who did not receive full payment from the PSF (1005.73(c)). Consequently, the enforced minimum payments to producers will be at the pro rata amount.

USDA will continue to monitor the situation and work to assist the dairy industry. Additional information will be provided as it becomes available to all market participants. Please feel free to contact Jason Nierman, via nierman@malouisville.com, or (502) 499-0040, ext. 222, if you have any questions.

The memorandum also had this addendum included:

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This schematic explains workings of a Producer Settlement Fund:

14_FMM0_5_Dean_Non_Payment_Producer_Settlement_Diagram

News could not have come at a worse time:

From an industry viewpoint, this non-payment could not come at a worse time for the farmers themselves.

When monies are received by the Producer Settlement Fund, they in turn are paid back out to handlers (co-ops or agents), who then distribute the money to farmers, paying them for milk sold (see the diagram above).  This process is highly regulated by FMMO rules, and has proven to be predictable, and reliable for decades.

Farmers then use their money to pay bills to any number of agribusiness and service firms with whom they do business.   Since this process has been so reliable, most farmers have set-up automatic withdrawals to pay supply companies.  Farmers will now be dealing with any issues related to those automatic withdrawals and any repercussions due to lack of funds. Agribusinesses will lose money as well, and incur any number of extra costs.

Ravaged by a myriad of challenges due to Covid-19, farmers are facing financial stress of an untold magnitude, and many multi-generational farms with long histories of serving consumers are at risk of being lost. The mental health and fortitude of those farmers is a prime concern across the country, due to the stresses which were already in place. Many fear that this news could catalyze additional health issues in farm communities.

An industry insider, who asked not to be identified, said this Dean Foods payment to the PSF could normally be in a range from $160-$250 million, affecting dairy co-ops, individual farms and the communities they serve in many states.  (Note – this figure will be verified and updated if needed – Covid 19 has changed almost everything.)

 

PERPLEXING:  WHY did this happen given Chapter 11 processes?

This payment, which is a regular course of business in both a predictable amount and timing in getting farms and co-ops paid for milk,  had regularly been made by Dean Foods during the course of the Chapter 11 proceedings.

Therefore, it stands to reason that attorneys, accountants, and consultants representing Dean Foods should have budgeted and accounted for these payments as Dean Foods books were closed out over the course of the next few months. In the last months of the process, fluid milk sales were up substantially according to many sources, which should also have added to Dean Foods income.   (An email inquiry to an attorney representing Dean Foods in the proceedings has not received a response as of this posting.)

This gets even more perplexing since farmers were named as critical vendors in the early days of the Chapter 11 process.  Dean Foods officials filed motions, which were granted by the Court, to ensure that those payments were indeed accomplished. It was believed those financial obligations to farmers for products delivered would have been honored until the last payment was due.

Impact on an individual farm:  During this payment cycle, any single farm would be due payments from thousands of dollars to even hundreds of thousands of dollars, depending on the size of the herd.

POSSIBLE SOLUTIONS OR HOPE AHEAD?

At this time, this is a profound question with unknown answers.  Some of those answers might be:

  • Payment to Settlement Funds in all FMM Orders might come at one of the later dates in this payment cycle, being only a few days late
  • Payment to the Producer Settlement Fund might come later, as accounts receivable from product and property sales come into the Dean Estate
  • Payment to farmers might not come at all, which is a bitter pill to swallow at this juncture in history.

Whatever the answer is, farmer co-ops and individual farmers deserve that answer, and deserve it quickly.  Perhaps a projected payment schedule could be stated by the Dean Foods Estate officials.  Even if it’s a worst case answer, to know what that answer is will honor the dignity of earnest farmers who deserve an answer so they can make some possibly excruciating decisions,  instead of ‘the system’ tap dancing around farm families like performers on a Broadway stage.

According to the Dean Foods / Southern Foods Group, LLC Chapter 11 website, two additional Omnibus Hearings are scheduled for May 20 and June 24. 

One dairyman has often said “The dairy industry at the grass roots level is a dairy community full of really good, decent people who want to earn an honest living and contribute to their communities. However, those good people often have to endure some very wicked events.”

Dean Foods has historically paid its ‘independent producers’ well, which is much appreciated.  It is sincerely hoped that Dean Foods closes its chapter on a better note than this non-payment, and quickly rectifies this payment shortfall to farmers.  For the sake of the mental and physical health of many farmers and their families, lets hope they do just that.

 

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Dean Foods Sells Majority of Assets to Dairy Farmers of America (DFA) & Prairie Farms

 

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DALLAS  – May 1, 2020  – Dean Foods Company (“Dean Foods” or the “Company”) today announced that is has completed the previously announced sales of substantially all of its assets, including the sale of the assets, rights, interests, and properties relating to 44 of the Company’s fluid and frozen facilities to subsidiaries of Dairy Farmers of America (“DFA”).

Dean Foods also announced that it has completed the sale of the assets, rights, interests and properties relating to eight facilities, two distribution branches and certain other assets to Prairie Farms Dairy. The Company also completed the sale of its facility in Reno, Nevada and its “Berkeley Farms” trademark and related intellectual property to Producers Dairy Foods.

These transactions follow a Chapter 11  process which began with a filing under the official name of Southern Foods Group, LLC, on November 12, 2019 in the US Federal Bankruptcy Court, Southern District of Texas, Houston. As early as the day the Chapter 11 was announced, DFA was named as the leading contender to purchase the company.  The Honorable Judge David Jones has served as  the presiding judge.

At the current time, three additional hearing dates are posted on the Epiq website which has been housing the dockets and filings of the proceeding.

  • May 11, 2020: Governmental Bar Date
  • May 20, 2020: An Omnibus Hearing
  • June 24, 2020: An Omnibus Hearing

The process has taken place during a time of monumental chaos in agriculture and dairy created by shifts in consumer behavior exacerbated by the Covid-10 Pandemic.  As consumers followed “Shelter At Home” guidance issued across the country, fluid milk sales rose astronomically for 2 months.  Although they have leveled off a bit, fluid sales are still at much higher levels than in recent years.

The stage seems to be set for  the new owners to capitalize on consumer sentiment to reinvigorate fluid sales of the Dean brands, which have risen considerably during the past two months.  It is not known if  the new owners will maintain,  consolidate, or alter brands as they assume the reins.

“We are pleased to complete these transactions which maximize value for our stakeholders and will enable substantially all of our businesses to continue operating and serving customers across the country,” said Eric Beringause, President and Chief Executive Officer of Dean Foods.

“Our team has put in considerable work over the last several months to find the right partners for our assets that would enable them to continue to succeed while preserving the most jobs possible and to ensure a smooth transition for our customers and partners.

The completion of these sales is a testament to our employees’ efforts. I also want to thank our entire team for their commitment and dedication to Dean Foods not only over the last several months, but over the past several years.  Their hard work has helped Dean Foods build and grow brands and products that customers love, and I feel fortunate to have had the chance to work side-by-side with this extraordinary group.”

The Company also announced that as part of the US Department of Justice’s (“DOJ”) approval of Dean Foods’ transaction with DFA,  DFA has entered into a Consent Decree with the DOJ under which DFA has committed to hold separate and ultimately divest the dairy processing plants located in DePere,WI, Franklin, MA, and Harvard, IL together with certain assets related to the operations at each plant.

Upon closing of these sales, Mr. Beringause has stepped down from his role as President and CEO.

As previously announced on April 4, 2020, the U.S. Bankruptcy Court for the Southern District of Texas (the “Court”) also approved the sale of Dean Foods facility in Miami, Florida to Mana Saves McArthur, LLC, for $16.5 million. The company anticipates completing the transaction early next week.

As previously announced on April 30, 2020, Dean Foods completed the sales of the Company’s Uncle Matt’s business to Harmoni, Inc., and of its Hilo facility and related distribution branches on the Big Island, Kauai and Maui, as well as a license to the Meadow Gold Hawaii brand name and related intellectual property, to MGD Acquisition, LLC.

Additional information is available on the restructuring page of the Company’s website, DeanFoodsRestructuring.com.

In addition, Court filings and other information related to the proceedings are available on a separate website administered by the Company’s claims agent, Epiq Bankruptcy Solutions LLC, at https://dm.epiq11.com/case/southernfoods/dockets, or by calling Epiq representatives toll-free at 1-833-935-1362 or 1-503-597-7660 for calls originating outside of the U.S.

Davis Polk & Wardwell LLP and Norton Rose Fulbright are serving as legal advisors to the Company, Evercore is serving as its investment banker and Alvarez & Marsal is serving as its financial advisor.For Court filings and documents:

To read more about the Department of Justice report – a posted news release:

1 May 2020:   Justice Department Requires Divestitures as Dean Foods Sells Fluid Milk Processing Plants to DFA out of Bankruptcy  – Department Also Closes Investigation into Acquisition of Other Dean Plants by Prairie Farms.

The DOJ news release closes with these words:

As required by the Tunney Act, the proposed settlement, along with a competitive impact statement, will be published in the Federal Register.  Any person may submit written comments concerning the proposed settlement during a 60-day comment period to Eric Welsh, Acting Chief, Healthcare and Consumer Products Section, Antitrust Division, U.S. Department of Justice, 450 Fifth Street NW, Suite 4100, Washington, DC 20530.  At the conclusion of the 60-day comment period, the U.S. District Court for the Northern District of Illinois may enter the final judgment upon finding it is in the public interest.

Sources: Business Wire, News Releases, and Industry Reports