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MARKETING WERE PRECLUDED WHEN THERE HAD BEEN NO CROPS PLANTED. THE TEST USED BY THE STATE TO INTERPRET "SUBSTANTIAL SERVICE ON THE FARM" MAY NOT HAVE BEEN APPROPRIATE. WOULD RAISE NO OBJECTION TO ALLOWING DISASTER UNEMPLOYMENT ASSISTANCE PAYMENTS TO SELF-EMPLOYED FARMERS (OTHERWISE ENTITLED) WHO HAVE NOT YET RECEIVED SUCH PAYMENTS. SECTION 12 WAS REENACTED AS SECTION 240 OF THE DISASTER RELIEF ACT OF 1970. THE PRESIDENT IS AUTHORIZED TO PROVIDE TO ANY INDIVIDUAL UNEMPLOYED AS A RESULT OF A MAJOR DISASTER. SUCH ASSISTANCE AS HE DEEMS APPROPRIATE WHILE SUCH INDIVIDUAL IS UNEMPLOYED. THE LEGISLATIVE HISTORY OF THE DISASTER RELIEF ACT OF 1969 INDICATES THAT SECTION 12 HAD AS ITS ORIGIN A CONCERN FOR MIGRATORY FARM WORKERS NOT COVERED BY UNEMPLOYMENT INSURANCE WHOSE HARDSHIPS AND PLIGHT AFTER MAJOR DISASTERS WERE NOT COVERED IN EARLIER DISASTER RELIEF EFFORTS.

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B-171934, APR 2, 1971

DISASTER RELIEF ACT COMPENSATION - SELF-EMPLOYED FARMERS CONCERNING THE UNEMPLOYMENT REQUIREMENT WITH REFERENCE TO SELF EMPLOYED FARMERS SEEKING RELIEF UNDER THE DISASTER RELIEF ACT OF 1969, PUBLIC LAW 91-79 DUE TO RAINS AND FLOODING CREATING A DISASTER IN THE STATE OF MINNESOTA IN MAY 1970. INASMUCH AS THE FARMERS COULD NOT GET TO THEIR FIELDS IN THE SPRING TO PLANT, DUE TO THE DISASTER, THE UNEMPLOYMENT COMPENSATION CONTINUED FOR THE ENTIRE SEASON AS THE ORDINARY, AGRICULTURAL EMPLOYMENTS OF CULTIVATION, HARVEST, AND MARKETING WERE PRECLUDED WHEN THERE HAD BEEN NO CROPS PLANTED. WHILE, IN THE CASE OF SELF-EMPLOYED FARMERS, THE TEST USED BY THE STATE TO INTERPRET "SUBSTANTIAL SERVICE ON THE FARM" MAY NOT HAVE BEEN APPROPRIATE, THE AMBIGUITY OF THE REGULATIONS PRECLUDES A FINDING OF INCONSISTENCY. THEREFORE, THE COMP. GEN. WOULD RAISE NO OBJECTION TO ALLOWING DISASTER UNEMPLOYMENT ASSISTANCE PAYMENTS TO SELF-EMPLOYED FARMERS (OTHERWISE ENTITLED) WHO HAVE NOT YET RECEIVED SUCH PAYMENTS.

TO MR. SECRETARY:

BY LETTER DATED FEBRUARY 12, 1971, THE ASSISTANT SECRETARY FOR MANPOWER TOGETHER WITH THE DIRECTOR OF THE OFFICE OF EMERGENCY PREPAREDNESS REQUESTED OUR DECISION ON CERTAIN MATTERS ARISING UNDER SECTION 12 OF THE DISASTER RELIEF ACT OF 1969, PUBLIC LAW 91-79, APPROVED OCTOBER 1, 1969, 83 STAT. 129. SECTION 12 WAS REENACTED AS SECTION 240 OF THE DISASTER RELIEF ACT OF 1970, PUBLIC LAW 91-606, APPROVED DECEMBER 31, 1970, 84 STAT. 1755.

SECTION 12 READS AS FOLLOWS:

"SEC. 12. THE PRESIDENT IS AUTHORIZED TO PROVIDE TO ANY INDIVIDUAL UNEMPLOYED AS A RESULT OF A MAJOR DISASTER, SUCH ASSISTANCE AS HE DEEMS APPROPRIATE WHILE SUCH INDIVIDUAL IS UNEMPLOYED. SUCH ASSISTANCE AS THE PRESIDENT SHALL PROVIDE SHALL NOT EXCEED THE MAXIMUM AMOUNT AND THE MAXIMUM DURATION OF PAYMENTS UNDER THE UNEMPLOYMENT COMPENSATION PROGRAM OF THE STATE IN WHICH THE DISASTER OCCURRED AND THE AMOUNT OF ASSISTANCE UNDER THIS SECTION TO ANY SUCH INDIVIDUAL SHALL BE REDUCED BY ANY AMOUNT OF UNEMPLOYMENT COMPENSATION OR OF PRIVATE INCOME PROTECTION INSURANCE AVAILABLE TO SUCH INDIVIDUAL FOR SUCH PERIOD OF UNEMPLOYMENT."

THE LEGISLATIVE HISTORY OF THE DISASTER RELIEF ACT OF 1969 INDICATES THAT SECTION 12 HAD AS ITS ORIGIN A CONCERN FOR MIGRATORY FARM WORKERS NOT COVERED BY UNEMPLOYMENT INSURANCE WHOSE HARDSHIPS AND PLIGHT AFTER MAJOR DISASTERS WERE NOT COVERED IN EARLIER DISASTER RELIEF EFFORTS. HOWEVER, THE LANGUAGE OF SECTION 12 IS VERY BROAD AND WE FOUND IN ITS LEGISLATIVE HISTORY NO AFFIRMATIVE INDICATION OF AN INTENT TO EXCLUDE SELF-EMPLOYED FARMERS OR OTHERS WHO MIGHT FALL WITHIN THE SCOPE OF THE LANGUAGE USED THEREIN. ACCORDINGLY, WE CAN ACCEPT YOUR DEFINITION OF "WAGES," I.E., "EARNINGS FOR SERVICES FOR ANOTHER OR IN SELF EMPLOYMENT" AS SUFFICIENTLY BROAD TO BRING IN SELF-EMPLOYED FARMERS UNDER THE COVERAGE OF SECTION 12.

INITIALLY, THE AUTHORITY FOR THE ADMINISTRATION OF SECTION 12 WAS PLACED IN THE OFFICE OF EMERGENCY PREPAREDNESS (OEP) BY EXECUTIVE ORDER NO. 11495, NOVEMBER 18, 1969, PRESIDENTIAL DOCUMENTS 1969, VOLUME 5, PAGE 1625; 34 FED. REG. 18477. IN MAKING THIS DELEGATION THE PRESIDENT GRANTED AUTHORITY TO PRESCRIBE NEEDFUL RULES AND REGULATIONS. SUBSEQUENTLY, ADMINISTRATION OF SECTION 12 - INCLUDING THE AUTHORITY TO PRESCRIBE RULES AND REGULATIONS - WAS DELEGATED BY OEP TO THE DEPARTMENT OF LABOR. THIS DELEGATION TOOK PLACE ON DECEMBER 11, 1969.

YOUR MODE OF OPERATION IN ADMINISTERING THIS PROGRAM WAS TO ENTER INTO AGREEMENTS WITH THE SEVERAL STATES WHEREBY STATE AGENCIES THAT ADMINISTER STATE UNEMPLOYMENT INSURANCE PROGRAMS UNDERTOOK TO ACT AS YOUR AGENTS FOR THE PURPOSE OF MAKING PAYMENTS OF DISASTER UNEMPLOYMENT ASSISTANCE UNDER SECTION 12. THE STATES, AS YOUR AGENTS, WERE TO PERFORM THE FUNCTIONS AND DUTIES REQUIRED PURSUANT TO RULES AND REGULATIONS ADOPTED BY YOU TO EFFECTUATE SECTION 12. THE PRINCIPAL RULES AND REGULATIONS CONSISTED OF THOSE PROMULGATED ON DECEMBER 11, 1969, WHICH APPEARED AT 34 FED. REG. 19656, 20 CFR 625.1 ET SEQ., AND A HANDBOOK ON THE DISASTER UNEMPLOYMENT ASSISTANCE PROGRAM WHICH WAS FINALIZED IN JUNE OF 1970. MORE DEFINITIVE RULES, INSTRUCTIONS, AND DIRECTIONS ON PARTICULAR PROBLEM AREAS WERE FURNISHED TO STATE AGENCIES BY WAY OF PROGRAM LETTERS AND DIRECT OFFICIAL CORRESPONDENCE.

THE FACTS GIVING RISE TO THE SITUATION THAT PROMPTED THE REQUEST FOR DECISION ARE AS FOLLOWS.

ON JULY 22, 1970, THE PRESIDENT DECLARED A MAJOR DISASTER IN NORTHWESTERN MINNESOTA BECAUSE OF RAINS AND FLOODING WHICH BEGAN ON MAY 15, 1970. THIS DECLARATION WAS FOLLOWED UP WITH AN OFFICIAL PRONOUNCEMENT OF THE DISASTER BY THE GOVERNOR OF MINNESOTA ON AUGUST 12. THE WHITE HOUSE ANNOUNCEMENT ON THE JULY 22 PRESIDENTIAL DECLARATION STATED IN PART:

"ANOTHER ACTIVITY TRIGGERED BY THE PRESIDENT'S DECLARATION IS UNEMPLOYMENT COMPENSATION FOR THOSE OUT OF WORK BECAUSE OF THE DISASTER. ABOUT 9,000 MIGRANT WORKERS AND FARMERS IN THE AFFECTED AREAS MAY BE ELIGIBLE FOR THIS ASSISTANCE FINANCED BY MONEY FROM THE PRESIDENT'S DISASTER FUND AND ADMINISTERED BY THE DEPARTMENT OF LABOR." SEE WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, MONDAY JULY 27, 1970, VOLUME 6, NUMBER 30, PAGE 971.

MANY OF THE APPLICANTS FOR ASSISTANCE WERE SELF-EMPLOYED FARMERS. THE MINNESOTA AGENCY FOUND THAT THE FARMERS WERE KEPT FROM DOING WORK IN THEIR FIELDS FOR THE WEEK BEGINNING MAY 17, 1970; THAT THEY WERE THEREFORE UNEMPLOYED; SUCH UNEMPLOYMENT WAS CAUSED BY THE DECLARED DISASTER; AND THAT THE FARMERS WERE ENTITLED TO DISASTER UNEMPLOYMENT ASSISTANCE UNDER SECTION 12.

SECTION 440 OF YOUR DEPARTMENT'S HANDBOOK PROVIDES THAT A "WEEK OF UNEMPLOYMENT" IS FOR DETERMINATION UNDER THE APPROPRIATE STATE LAW. SUBDIVISION 23 OF SECTION 268.04 OF THE MINNESOTA LAW PROVIDES THAT AN INDIVIDUAL SHALL BE DEEMED UNEMPLOYED IN ANY WEEK DURING WHICH HE PERFORMS NO SERVICE AND WITH RESPECT TO WHICH NO WAGES ARE PAYABLE TO HIM, OR IN ANY WEEK OF LESS THAN FULL-TIME WORK IF THE WAGES PAYABLE IN SUCH WEEK ARE LESS THAN HIS WEEKLY UNEMPLOYMENT BENEFIT AMOUNT. A MAXIMUM OF 26 WEEKS OF UNEMPLOYMENT PAYMENTS ARE ALLOWED UNDER SUBDIVISION 2(2) OF SECTION 268.07 OF THE MINNESOTA LAW.

YOUR REGULATION AT 20 CFR 625.7(B) PROVIDES THAT IF THE UNEMPLOYMENT OF AN APPLICANT HAS BEEN FOUND TO BE THE RESULT OF THE MAJOR DISASTER, SUCH UNEMPLOYMENT WILL BE DEEMED TO CONTINUE FOR EACH WEEK OF THE DISASTER ASSISTANCE PERIOD "UNLESS THE STATE AGENCY FINDS ON THE BASIS OF NEW FACTS THAT THE INDIVIDUALS UNEMPLOYMENT FOR A WEEK IS NOT THE RESULT OF THE DISASTER." RELYING ON THIS REGULATION, THE MINNESOTA STATE AGENCY DETERMINED THAT A FARMER'S UNEMPLOYMENT WAS DEEMED TO CONTINUE TO BE DUE TO THE DISASTER IN SUBSEQUENT WEEKS BECAUSE IT CONSIDERED THAT THERE WERE NO NEW FACTS UPON WHICH IT COULD DETERMINE THAT THE INDIVIDUAL'S UNEMPLOYMENT WAS NOT THE RESULT OF THE DISASTER. WHILE NOT SPELLED OUT IN YOUR DEPARTMENT'S SUBMISSION, IT IS IMPLICIT IN THE STATE AGENCY DETERMINATION THAT THE "UNEMPLOYMENT" OF THESE FARMERS CONTINUED FOR THE ENTIRE CROP SEASON. SPECIFICALLY, INASMUCH AS THE FARMERS COULD NOT GET TO THEIR FIELDS IN THE SPRING TO PLANT, THE UNEMPLOYMENT CONTINUED FOR THE ENTIRE SEASON AS THE ORDINARY AGRICULTURAL EMPLOYMENTS OF CULTIVATION, LAY BY, HARVEST AND MARKETING WERE PRECLUDED WHEN THERE HAD BEEN NO CROP PLANTED.

ON SEPTEMBER 23, 1970, THE DEPARTMENT ISSUED ITS UNEMPLOYMENT INSURANCE PROGRAM LETTER (UIPL) NO. 1080 WHICH CONCERNED THE PAYMENT OF DISASTER UNEMPLOYMENT ASSISTANCE TO SELF-EMPLOYED INDIVIDUALS. THAT LETTER RECOGNIZED THE DIFFICULTIES OF DETERMINATIONS INVOLVING THE SELF EMPLOYED WHO DERIVE A RETURN FROM THEIR INVESTMENT OR OWNERSHIP OF PROPERTY AND AT THE SAME TIME PERFORM SERVICES IN CONNECTION WITH THE OPERATION OF SUCH PROPERTY.

SPECIFICALLY, THAT LETTER STATED THAT DISASTER UNEMPLOYMENT ASSISTANCE APPLICATIONS FILED BY SELF-EMPLOYED FARMERS REQUIRE SPECIAL FACTFINDING AND THAT, AS A GENERAL GUIDE, THE LOSS OF SELF-EMPLOYMENT AS THE RESULT OF A DISASTER MAY PROVIDE THE BASIS FOR ENTITLEMENT IF THE DISASTER IS PREVENTING THEM FROM PERFORMING SUBSTANTIAL SERVICES ON THE FARM, INCLUDING SERVICE TO RESTORE OR IMPROVE THE VALUE OF THE PROPERTY. THE LETTER GOES ON TO STATE THAT PERSONS WHOSE OPERATIONS MEET THE ABOVE- STATED CRITERIA AND OTHER CRITERIA HERE NOT AT ISSUE "WOULD NOT BE CONSIDERED UNEMPLOYED IN WEEKS WHEN THEY ARE PERFORMING SERVICES TO RESTORE OR IMPROVE THE VALUE OR PRODUCTIVITY OF THE PROPERTY, EVEN THOUGH THESE WERE NOT THE SERVICES THEY MIGHT HAVE PERFORMED HAD THE DISASTER NOT OCCURRED."

AFTER RECEIPT OF THE UIPL NO. 1080, THE STATE OFFICIALS CONCLUDED THAT AN INDIVIDUAL WAS EMPLOYED IN A WEEK ONLY IF HE PERFORMED SUBSTANTIAL SERVICES, I.E., IF HE WORKED MORE THAN 20 HOURS IN SUCH WEEK. IN DERIVING THIS TEST THE STATE OFFICIALS APPLIED THE CRITERIA MENTIONED ABOVE FROM UIPL NO. 1080 AND THE PROVISION OF 20 CFR 625.8(C)(4) THAT "ONE HALF OF ANY WAGES PAID IN THE WEEK FOR SERVICES PERFORMED IN EXCESS OF 20 HOURS" IS TO BE DEDUCTED FROM THE WEEKLY AMOUNT OF ASSISTANCE PAYABLE. THIS WAS THE BASIS UPON WHICH THE STATE AGENCY DETERMINED THE FARMERS' ENTITLEMENT AND PAID THEM UNTIL NOVEMBER 2, 1970, WHEN IT RECEIVED INSTRUCTIONS TO SUSPEND ALL PAYMENTS UNTIL FURTHER INSTRUCTIONS WERE RECEIVED FROM THE DEPARTMENT. BY THIS TIME 1,483 FARMERS HAD BEEN PAID AND APPROXIMATELY 4,700 CLAIMS WERE PENDING.

THE PROCEDURE FOR TAKING APPLICATIONS IS REPORTED AS FOLLOWS:

"AN APPLICANT FOR DISASTER UNEMPLOYMENT ASSISTANCE CAME TO A LOCAL OFFICE OF THE MINNESOTA AGENCY AND COMPLETED HIS APPLICATION OR GAVE NECESSARY INFORMATION TO A REPRESENTATIVE OF THE AGENCY (LOCAL OFFICE INTERVIEWER) WHO COMPLETED THE APPLICATION FOR HIM. TO SIMPLIFY PROCEDURES AND TO ASSURE THE PROMPT PAYMENT OF ASSISTANCE THE STATE AGENCY'S DETERMINATION OF AN APPLICANT'S ENTITLEMENT IS MADE ON THE SAME FORM AS HIS APPLICATION (HANDBOOK, PAGE 9), AND IS COMPLETED BY THE LOCAL OFFICE INTERVIEWER IN THE PRESENCE OF THE APPLICANT. THEREAFTER THE APPLICANT SIGNS HIS APPLICATION. THE DEPARTMENT IS INFORMED THAT EACH APPLICANT SAW AN AGENT OF THE STATE AGENCY MAKE OUT AND SIGN HIS DISASTER UNEMPLOYMENT ASSISTANCE DETERMINATION INCLUDING THE POTENTIAL AMOUNT OF HIS ENTITLEMENT, AND THAT THE APPLICANT WAS TOLD THAT A COPY OF THE DETERMINATION, AFTER REVIEW IN THE CENTRAL OFFICE, WOULD BE SENT TO HIM WITH A CHECK. *** "

YOU STATE IN YOUR SUBMISSION AND WE HAVE BEEN OTHERWISE ADVISED THAT APPLICANTS UNDERSTOOD THAT THEY WOULD RECEIVE A CHECK FOR THE AMOUNT MADE KNOWN TO THEM IN THE LOCAL STATE OFFICE AND SOME APPLICANTS MADE FINANCIAL COMMITMENTS IN THE EXPECTATION OF RECEIVING SUCH AMOUNT.

ON NOVEMBER 20, 1970, THE DEPARTMENT, BY LETTER, ADVISED THE MINNESOTA COMMISSION OF MANPOWER SERVICES AS FOLLOWS:

" *** WHEN THE FARMERS WERE AGAIN ABLE TO GET ON THE LAND TO SEED, LAY FALLOW, PLOW, CLEAR, OR PERFORM OTHER FARM WORK, THEY RESUMED THEIR SELF- EMPLOYED STATUS AND WERE NO LONGER UNEMPLOYED DUE TO THE DISASTER.

"APPARENTLY, FEW IF ANY FARMERS REMAINED INACCESSIBLE AFTER JULY 4, 1970. IN VIEW OF THIS, WE CONSIDER THAT IT IS INCONSISTENT WITH THE FEDERAL LAWS, REGULATIONS, AND PROCEDURES TO ALLOW PAYMENT OF ALLOWANCES FOR WEEKS AFTER JULY 4, 1970, EXCEPT WHERE UNUSUAL CIRCUMSTANCES, SUCH AS DESTRUCTION OF A FARM'S OPERATING CAPABILITY, HAVE PREVENTED RESUMPTION OF ANY FARMING ACTIVITIES AFTER THAT DATE.

"WE REQUEST, THEREFORE, THAT THE CLAIMS OF ANY INDIVIDUALS WHO DO NOT FALL WITHIN AN EXCEPTION AND WHO HAVE NOT YET BEEN PAID, BE ALLOWED ONLY FOR WEEKS WITHIN THE PERIOD BEGINNING MAY 17, 1970, AND UNTIL THEY WERE AGAIN ABLE TO GET ON THE LAND TO SEED, LAY FALLOW, PLOW, CLEAR, OR PERFORM OTHER WORK AND FOR NO WEEK LATER THAN THE WEEK ENDING JULY 4, 1970.

"FOR THOSE INDIVIDUALS IN THE TYPICAL CIRCUMSTANCE WHO HAVE BEEN PAID, AN OVERPAYMENT IS CREATED. TO THE EXTENT THAT THOSE OVERPAYMENTS WERE NOT THE RESULT OF FAULT BY THE FARMERS, THEY MAY BE WAIVED."

WE ARE ADVISED THAT THE DEPARTMENT INTENDED THAT DISASTER UNEMPLOYMENT ASSISTANCE WAS NO LONGER TO BE PAYABLE TO SELF-EMPLOYED FARMERS AFTER THEIR LAND AGAIN BECAME FARMABLE OR OPERABLE, BECAUSE ANY UNEMPLOYMENT THEREAFTER WAS NOT DUE TO THE DISASTER. THE CHANGE IN THE CONDITION OF THE LAND WAS CONSIDERED TO BE A NEW FACT ON THE BASIS OF WHICH IT SHOULD HAVE BEEN FOUND THAT THE INDIVIDUAL'S SUBSEQUENT UNEMPLOYMENT WAS NOT THE RESULT OF THE DISASTER. THE DEPARTMENT BELIEVES THAT THIS WAS MADE CLEAR BY COMMUNICATIONS TO THE STATE AGENCY EVEN PRIOR TO THE LETTER DATED NOVEMBER 20TH AND BY UIPL NO. 1080. THE STATE AGENCY DID NOT SO APPLY SUCH COMMUNICATIONS OR THE UIPL. MOREOVER, NONE OF SUCH COMMUNICATIONS NOR THE UIPL WERE PUBLISHED AND THE ONLY INFORMATION AVAILABLE TO AN APPLICANT TO ASCERTAIN HIS RIGHTS WAS IN THE PUBLISHED REGULATIONS. THEY DO NOT CONTAIN ANY SPECIFIC PROVISIONS DIRECTED TO THE RIGHTS OF SELF- EMPLOYED FARMERS NOR - ACCORDING TO THE ASSISTANT SECRETARY - ARE THEY CLEAR ENOUGH FOR SUCH FARMERS TO UNDERSTAND THE APPLICATION TO THEM OF THE SPECIFIED LIMITATIONS ON ENTITLEMENT. IN THESE CIRCUMSTANCES THE DEPARTMENT CONTENDS THAT IT WAS NOT UNREASONABLE FOR THE APPLICANT TO RELY ON THE CONTENTS OF THE DETERMINATION MADE KNOWN TO HIM IN THE LOCAL OFFICE OF THE STATE AGENCY.

ACCORDINGLY, IT IS PROPOSED BY THE DEPARTMENT THAT THE MINNESOTA AGENCY BE INSTRUCTED TO REDETERMINE THE ENTITLEMENT OF APPLICANTS WHOSE DISASTER UNEMPLOYMENT ASSISTANCE WAS REDUCED AFTER RECEIPT OF THE NOVEMBER 20TH LETTER, AND ALLOW THEM ASSISTANCE ON THE SAME BASES THAT WERE APPLIED TO FARMERS WHOSE APPLICATIONS HAD BEEN ACTED ON BEFORE NOVEMBER 2, AND THAT FEDERAL FUNDS BE MADE AVAILABLE TO THE STATE AGENCY TO COVER ADDITIONAL COSTS OF THE PROPOSAL.

INSOFAR AS THE REGULATION PROVIDING FOR WAIVER OF OVERPAYMENTS IS CONCERNED, YOUR DEPARTMENT IS WITHOUT AUTHORITY TO SO PROVIDE BY REGULATION OR OTHERWISE. ARTICLE 4, SECTION 3, CLAUSE 2 OF THE CONSTITUTION OF THE UNITED STATES RESERVES TO THE CONGRESS THE POWER TO DISPOSE OF PUBLIC PROPERTY. AN OVERPAYMENT IS A DEBT DUE THE UNITED STATES AND IT IS WELL SETTLED THAT NO OFFICIAL OF THE GOVERNMENT IS AUTHORIZED TO GIVE AWAY THE MONEY, PROPERTY, OR ANY CLAIM OF THE GOVERNMENT. SEE 41 COMP. GEN. 134 (1961) AND 19 ID. 48 (1939). HOWEVER, IN LIGHT OF WHAT IS HEREINAFTER SET FORTH, THE QUESTION OF WAIVER IS NOT AT ISSUE IN THE INSTANT CASE. WHILE IT MAY BE THAT YOUR DEPARTMENT INTENDED THAT DISASTER UNEMPLOYMENT ASSISTANCE WAS NO LONGER TO BE PAYABLE TO SELF-EMPLOYED FARMERS AFTER THEIR LAND BECAME FARMABLE OR OPERABLE, IT WAS NOT UNTIL YOUR DEPARTMENT'S LETTER OF NOVEMBER 20, 1970, TO THE STATE AGENCY THAT YOUR DEPARTMENT'S INTENTIONS WERE MADE COMPLETELY CLEAR TO THE STATE. AT LEAST, IT WAS NOT UNTIL THE LETTER OF NOVEMBER 20 THAT YOUR DEPARTMENT MADE COMPLETELY CLEAR TO THE STATE OFFICIALS WHAT IT MEANT BY LAND BECOMING "FARMABLE OR OPERABLE."

NEITHER YOUR DEPARTMENT'S HANDBOOK NOR UIPL 1080 WAS SUFFICIENTLY UNAMBIGUOUS TO REQUIRE THE CONCLUSION THAT DISASTER UNEMPLOYMENT ASSISTANCE PAYMENTS MADE UP TO NOVEMBER 2, 1970, WERE NECESSARILY INCONSISTENT WITH OR CLEARLY IN VIOLATION OF THE HANDBOOK PROVISIONS OR THE INSTRUCTIONS IN UIPL NO. 1080. IN THIS CONNECTION, WE MIGHT STATE THAT IT IS NOT COMPLETELY CLEAR TO US WHETHER UNDER THE CIRCUMSTANCES INVOLVED HERE A FARM MAY BE SAID TO BE FARMABLE OR OPERABLE AS A FARM - INSOFAR AS DISASTER UNEMPLOYMENT ASSISTANCE IS CONCERNED - UNTIL THE NEXT SPRING PLANTING SEASON, INASMUCH AS WE UNDERSTAND IT, IN THE INSTANT CASE THE ORDINARY AGRICULTURAL EMPLOYMENTS OF CULTIVATION, LAY BY, HARVEST, AND MARKETING WERE PRECLUDED SINCE, BECAUSE OF THE DISASTER, NO CROP HAD BEEN PLANTED OR IF PLANTED HAD BEEN DESTROYED.

AS INDICATED ABOVE PARAGRAPH NUMBERED "4" ON PAGE 3 OF UIPL NO. 1080 PROVIDES THAT THE LOSS OF SELF-EMPLOYMENT AS THE RESULT OF A DISASTER MAY PROVIDE THE BASIS FOR DISASTER UNEMPLOYMENT ASSISTANCE IF, AMONG OTHER CONDITIONS -

"4. THE DISASTER IS PREVENTING HIM FROM PERFORMING SUBSTANTIAL SERVICE ON THE FARM, INCLUDING SERVICE TO RESTORE OR IMPROVE THE VALUE OF THE PROPERTY, OR BECAUSE OF THE DISASTER, HE NO LONGER HAS A PLACE IN WHICH TO ENGAGE IN HIS FARMING BUSINESS OR HE CANNOT GET TO IT, OR HE IS UNABLE TO WORK OR OTHERWISE UNAVAILABLE FOR WORK DUE TO THE DISASTER." IT APPEARS THAT IN ATTEMPTING TO CONSTRUE OR INTERPRET THE WORDS "SUBSTANTIAL SERVICE" AS USED IN THE ABOVE-QUOTED PARAGRAPH THE STATE AGENCY TURNED TO THE DEDUCTION PROVISION (20 CFR 625.8) IN YOUR DEPARTMENT'S REGULATION GOVERNING DISASTER UNEMPLOYMENT ASSISTANCE AND CONCLUDED THAT SUBSECTION (C) OF 20 CFR 625.8 WOULD BE CONTROLLING IN DETERMINING THE FARMER'S ENTITLEMENT TO A DISASTER UNEMPLOYMENT ASSISTANCE PAYMENT. THAT IS TO SAY THE STATE AGENCY CONCLUDED THAT A FARMER WAS EMPLOYED ONLY IF HE PERFORMED "SUBSTANTIAL SERVICE," I.E., WORKED MORE THAN 20 HOURS IN THE WEEK INVOLVED RESTORING OR IMPROVING THE VALUE OR PRODUCTIVITY OF HIS FARM, AND UNEMPLOYED IF HE WORKED LESS THAN 20 HOURS IN SUCH WEEK PERFORMING SUCH SERVICES. FROM THE RECORD BEFORE US WE CANNOT SAY THAT THE BASIS WHICH THE STATE AGENCY DETERMINED THE FARMER'S ENTITLEMENT WAS INCONSISTENT WITH THE CONTROLLING REGULATIONS OR INSTRUCTIONS OR CLEARLY IN VIOLATION THEREOF. WHILE WE AGREE THAT IN THE CASE OF SELF-EMPLOYED FARMERS THE TEST USED BY THE STATE MAY NOT HAVE BEEN APPROPRIATE, MANY OF THE PROVISIONS OF THE HANDBOOK WOULD APPEAR TO US TO BE EQUALLY DIFFICULT TO APPLY IN THE CASE OF SELF-EMPLOYED FARMERS.

SINCE STEPS HAVE BEEN TAKEN TO AVOID A MISUNDERSTANDING OF THIS TYPE IN THE FUTURE AND CONSIDERING THAT THE PURPOSE OF SECTION 12 OF THE DISASTER RELIEF ACT IS TO PROVIDE ASSISTANCE TO PERSONS "UNEMPLOYED AS A RESULT OF A MAJOR DISASTER;" THAT THE REGULATIONS MAKE SELF-EMPLOYED PERSONS ELIGIBLE FOR SUCH ASSISTANCE; THAT THE REGULATIONS ARE TO BE LIBERALLY CONSTRUED (20 CFR 625.1); THAT THE FARMERS - AS WE UNDERSTAND IT - LOST THEIR CROPS FOR THE CROP YEAR INVOLVED AND, HENCE, PRESUMABLY THEIR INCOME, AS WELL AS ALL THE OTHER FACTS AND CIRCUMSTANCES, WE WOULD RAISE NO OBJECTION IN THE INSTANT CASE TO ALLOWING DISASTER UNEMPLOYMENT ASSISTANCE PAYMENTS TO THOSE FARMERS (OTHERWISE ENTITLED TO SUCH PAYMENTS) WHO HAVE NOT RECEIVED SUCH PAYMENTS ON THE SAME BASIS THAT WAS APPLIED TO THE FARMERS WHO HAD BEEN PAID DURING THE PERIOD SEPTEMBER 23 THROUGH NOVEMBER 2, 1970.

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