UNITED STATES DEPARTMENT OF AGRICULTURE

OFFICE OF THE SECRETARY

NATIONAL APPEALS DIVISION

DIRECTOR REVIEW DETERMINATION

 

 

 

In the Matter of

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XXXXX

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     Appellant

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)   Case No. 2017S000468

and

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)

FARM SERVICE AGENCY

)

   Agency

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Introduction

 

This appeal involves a dispute between XXXXX (or Appellant) and the Farm Service Agency (or FSA) over whether FSA properly denied Appellant’s applications for benefits under the Livestock Indemnity Program (or LIP).  FSA determined that Appellant did not provide adequate, verifiable proof that its poultry losses were due to avian predation.  Appellant filed an appeal with the National Appeals Division (or NAD), and after conducting a hearing, a NAD Administrative Judge issued a determination finding that FSA’s decision was erroneous.  FSA then filed this request for Director review contesting the Administrative Judge’s determination.  Based on my review of the entire record, I uphold the Administrative Judge’s determination that FSA’s decision was erroneous.

 

Issue to be Determined

 

The issue in this Director review is whether FSA properly denied Appellant’s applications for LIP program payments for its 2015 and 2016 poultry losses.

 

Background

 

The LIP program provides benefits to producers for eligible livestock deaths in excess of normal mortality that were a direct result of attacks by animals protected by Federal law, including wolves and avian predators.  See 7 C.F.R. § 1416.301(b).  The producer must submit a notice of loss to FSA, a completed application for payment, and supporting documents, including evidence of loss and documentation to substantiate eligible animal attacks by animals or avian predators showing confirmation of the eligible animal or avian attack.  See 7 C.F.R. § 1416.305(b)–(c). 

 

Appellant owns and operates a 2,500-acre farm in XXXXX, XXXXX.  For over 150 years, Appellant operated a conventional, large-scale cattle operation.  After taking over the farm, XXXXX (or Owner), the fourth-generation owner of Appellant, switched the focus of the business to raising free-range, organic livestock, including cattle, hogs, goats, geese, ducks, sheep, and rabbits.  In 2010, Appellant expanded its business to include pasture-raised, organic chickens.  By 2012, Appellant had approximately 100,000 chickens, turkeys, guinea hens, and ducks in open pastures on the farm.  Appellant rotated the chickens every few days onto areas that its cattle and other livestock had recently grazed. 

 

Soon after Appellant began raising chickens, bald eagles arrived on the farm.  Each year, the number of eagles increased, and by the fall of 2015 nearly 80 bald eagles were roosting in the trees on the farm and preying on Appellant’s chickens and turkeys.  The eagles either carried off or killed hundreds of chickens per day, although the eagles often did not eat the chickens they killed.[1]  Between April 2015 and November 2015, Appellant estimates it lost more than 83,000 chickens to eagle predation, resulting in financial losses that exceeded $1,400,000.[2]  See Appellant Exhibits GG, TTT, WWW at 165-172.

 

In December 2015, the Owner met with an FSA representative on Appellant’s farm.  The FSA representative advised the Owner that if Appellant intended to apply for LIP program benefits, it should provide documentation of the poultry delivered to the farm, brooder mortality records, and the poultry slaughtered to support its LIP program application.  The FSA representative advised the Owner that FSA’s procedure for determining poultry losses due to eagle attacks would be based on the number of chicks that arrived at the farm, less brooder losses, less the normal mortality rate for free-range chickens and turkeys, less the number of chickens and turkeys slaughtered.  FSA would establish the normal mortality rate for pastured chickens and turkeys.  See Appellant Exhibits Z, QQQ at 3.

Appellant then filed a LIP program application claiming losses of 2,963 chickens due to avian attacks between August 2015 and October 2015.  An FSA county office representative informed the Owner that, to support its LIP program application, Appellant must submit documentation of its beginning poultry inventory and ending inventory.  Appellant then provided chick delivery records, field mortality records, and certificates showing the number of poultry slaughtered.[3]  See Agency Record at 908-980; Appellant Exhibit WWW at 460.

On December 30, 2015, the FSA county executive director (or CED) sent Appellant an email stating that the information Appellant had provided with its LIP program application “looks perfect.”  Appellant Exhibits AA at 2, BB, CC, QQQ at 2, YYY at 1, WWW at 326–331, 550–559.

After Appellant submitted its application for LIP program benefits, the CED visited Appellant’s farm, where he learned that eagles continued to prey on Appellant’s chickens.  The CED advised Appellant to contact USDA’s Animal Plant Health Inspection Service (or APHIS) or the XXXXX Department of Natural Resources (or DNR) to obtain confirmation that the poultry losses were due to avian predation.  Two DNR biologists then visited Appellant’s farm, where they observed 50 to 60 eagles preying on Appellant’s chickens.  The biologists observed that the eagles killed more chickens than they consumed because they dropped chickens during fights with other eagles or when the chickens were too heavy to carry.  The biologists could not confirm the number of chickens the eagles killed due to the size of Appellant’s operation.  See Agency Record at 1008–1009; Appellant Exhibits QQQ at 2, WWW at 97–99, 156–159, 475–482, 486.

 

Appellant then consulted with the FSA county office, APHIS, U.S. Fish and Wildlife Service (or FWS), DNR, and other experts to develop strategies to drive away the eagles or deter them from preying on the chickens.  DNR biologists recommended that Appellant install cameras to document any mammalian predators such as raccoons, coyotes, bobcats, or foxes, that may be preying on the chickens.  See Agency Record at 1008-1009; Appellant Exhibits GG at 2, WWW at 97–99, 475– 482.

 

In February 2016, an FSA state office representative informed Appellant that it must preserve the carcasses of the poultry that died from eagle predation so that the FSA county office could inspect the carcasses.  The FSA representative explained that, without verifiable documentation from the FSA county office, FSA could not grant Appellant’s LIP program applications because Appellant had no independently verifiable inventory records.  See Appellant Exhibit WWW at 24.

 

In March 2016, FWS granted Appellant a “take permit” that allowed Appellant to harass the eagles to drive them away from the farm.[4]  Appellant was not allowed to take measures to deter the eagles before it received the permit from FWS.  After receiving the permit, Appellant began using deterrent measures daily.  See Hearing Audio Track 1 at 1:01:51–1:08:30.

 

Appellant used sound-blasting cannons, firecrackers, whistles, sirens, smoke, sky dancers, and other recommended methods, none of which deterred the eagles from preying on the poultry.[5]  Appellant’s staff tied a tarp over one of the areas where the chickens fed to protect them from eagles that swooped down to prey on them.  This did not deter the eagles as they would simply land on the ground, walk under the tarp, and then fly off with a chicken or consume it on the ground.  Appellant also installed cameras near wildlife trails at the perimeters of the farm, but they did not record any mammalian predators.[6]  See Hearing Audio Track 1 at 54:20–1:08:30; Agency Record at 867–881; Appellant Exhibits VVV and AAAA.

 

In June 2016, Appellant applied for LIP program benefits for its losses of 34,726 chickens and 1,731 turkeys to avian predation between November 4, 2015, and December 31, 2015.  The next day, Appellant applied for LIP program benefits for its losses of 37,709 chickens due to avian predation between January 11, 2016, and March 29, 2016.  Appellant provided spreadsheets, purchase receipts for the chicks and poultry condemnation certificates to show its beginning and ending inventories during this time.  On a quarterly basis, Appellant also submitted letters from DNR biologists attesting that the eagles continued to prey on Appellant’s chickens, although they could not confirm the number of chickens killed by the eagles.  See Agency Record at 7–10, 34–37, 1021–1022, 1027–1031, 1034–1190; Appellant Exhibits SSS at 1, WWW at 49–52, 97–99, 167-168, 534–537, 545–549.

 

The FSA county committee approved Appellant’s June 2016 LIP program applications.  An FSA state office representative then estimated that Appellant would receive a total of $152,642 in LIP program payments for its poultry losses from November 2015 through March 2016.  See Appellant Exhibits QQQ at 4, SSS at 1, WWW at 173, 209–222, 525–527. 

 

On June 24, 2016, the FSA state committee determined that the normal mortality rate for free-range, pasture-raised chickens was 18 percent and the normal mortality rate for pasture-raised turkeys was 23 percent.  See Appellant Exhibits X at 5, EEE, WWW at 166.

 

In November 2016, the FSA state executive director (or SED) sent Appellant a letter informing Appellant that it must provide documentation to confirm that eagle predation was the cause of its poultry losses.  See Appellant Exhibits G, J, SSS at 2, WWW at 453-455.

 

In January 2017, Appellant provided a flash drive to the FSA state office containing photos that showed remnants of chickens and bald eagles feeding, photos and a video that showed the techniques Appellant used to deter the eagles from attacking the chickens, a magazine article that discussed the eagle predation on Appellant’s farm, and photographs from the cameras Appellant installed on the farm.  The flash drive also contained field mortality records that Appellant’s employees prepared twice daily.  The mortality records did not include the poultry that the eagles carried off or completely consumed.  See Agency Record at 7–10, 34–37, 40–42; Appellant Exhibits E, F, WWW at 444–445.

 

In March 2017, the FSA state committee reviewed the information Appellant had provided on the flash drive.  The state committee determined that Appellant needed to provide additional information to document and confirm the number of chicken kills due to eagle predation.  The state committee also decided to defer its decision on Appellant’s 2015 and 2016 LIP program applications to allow Appellant time to provide the requested documentation.  See Appellant Exhibits SSS at 2, WWW at 515–521.

 

In May 2017, the FSA state committee reconsidered Appellant’s 2015 and 2016 LIP program applications.  After consulting with the Deputy Administrator for Farm Programs, the state committee determined that Appellant had not provided “adequate documentation showing the number of confirmed chicken kills by eagles.”  For this reason, the state committee denied Appellant’s 2015 and 2016 LIP program applications.  Agency Record at 1–6.

 

Appellant appealed FSA’s decision to NAD.  After conducting a hearing, a NAD Administrative Judge issued a determination finding that FSA erred when it denied Appellant’s 2015 and 2016 applications for LIP program benefits.  FSA then filed this request for Director review.  Appellant filed a response to FSA’s request for Director review requesting that I uphold the Administrative Judge’s determination and seeking equitable relief.

 

Legal Authorities and Standard of Review

 

The key legal authorities at issue in this appeal are the regulations governing the LIP program, which are codified at 7 C.F.R. pt. 1416 subpt. D.  Pursuant to those regulations, eligible livestock owners will be compensated for eligible livestock deaths in excess of normal mortality as a direct result of eligible adverse weather events or attacks by animals reintroduced into the wild by the Federal Government or protected by Federal law, including wolves and avian predators.  7 C.F.R. § 1416.301(a).  To qualify for LIP benefits, a producer “must provide adequate proof that the death of the eligible livestock occurred as a direct result” of attacks by the avian predators.  7 C.F.R. § 1416.305(d).  If adequate proof of death “is not available, the participant may provide reliable records, in conjunction with verifiable beginning and ending inventory records, as proof of death.”  7 C.F.R. § 1416.305(e).

 

In response to a request for Director review, I conduct a review of the Administrative Judge’s determination using the entire case record to determine if the decision is supported by substantial evidence.  See 7 C.F.R. § 11.9(d)(1).  The Supreme Court has described substantial evidence as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”  Dickinson v. Zurko, 527 U.S. 150, 162 (1999) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).  Based on my review, I issue a final determination notice that upholds, reverses, or modifies the Administrative Judge’s determination.  See 7 C.F.R. § 11.9(d)(1).  In making a determination on the appeal, I endeavor to ensure that the adverse decision is consistent with the laws and regulations of the agency, and with the generally applicable interpretations of such laws and regulations.  See 7 C.F.R. § 11.10(b).

 

I may grant equitable relief in cases involving covered programs administered by the Secretary of Agriculture in the same manner and to the same extent as provided to the Secretary.  See 7 U.S.C. §§ 6998(d) and 7996(b).  The LFP program is a covered program for equitable relief purposes.  See 7 U.S.C. § 7996(a)(2)(A)(i).  Equitable relief may be appropriate if a participant, despite failing to comply fully with the requirements of a covered program, either detrimentally relied on the action or advice of an authorized agency representative or made a good faith effort to comply fully with the requirements of the program.  See 7 U.S.C. § 7996(b)(1) and (2).

 

Analysis

 

There is no dispute in this appeal that Appellant is an eligible livestock owner, that Appellant’s losses involve eligible livestock, and that the eagles that predated Appellant’s livestock qualify as avian predators within the meaning of the LIP program regulations.  Thus, the only issue to be resolved in this appeal is whether FSA properly determined that Appellant failed to meet its burden of proving that its livestock losses occurred as a direct result of avian attacks.

 

There are high stakes at issue in this appeal because Appellant claims to have lost an extraordinary number of livestock.  Overall, Appellant claims to have lost over 77,000 chickens and turkeys to avian predators in eight months.  FSA questions the validity of such massive losses by including a table in its Request for Director Review that purports to show the number of chickens and turkeys that the eagles would have had to kill each day in order for Appellant’s overall claim to be valid.  For example, from January 1, 2016, to February 2, 2016, FSA’s table reveals that over 18,000 livestock deaths were claimed to be lost to avian predation, which averages out to a loss of more than 753 chickens and turkeys per day.  According to FSA, “There is no proof, justifiable or otherwise, that avian predators killed over 77,000 of Appellant’s missing chickens and turkeys.”  Request for Director Review at 2.

 

And yet, based on the evidence adduced in the record, there can be no doubt that avian predators have preyed upon Appellant’s livestock, at times at a frenzied pace.  Thus, my task in this appeal is to determine whether FSA properly decided that Appellant failed to satisfy FSA’s proof of death requirements when it submitted its applications for LIP program benefits.  To make this determination, I must evaluate whether FSA properly applied the requirements of the LIP program regulations. 

 

The key legal authorities at issue in this appeal are the regulations setting forth the requirements for participants proving that their livestock losses occurred as a direct result of adverse weather events or animal attacks.  The regulatory scheme begins by setting forth this basic standard: “The participant must provide adequate proof that the death of the eligible livestock occurred as a direct result of an eligible adverse weather event or attacks by animals . . . .”  7 C.F.R. § 1416.305(d) (emphasis added).[7]  However, if adequate verifiable proof of death documentation is not available, “the participant may provide reliable records, in conjunction with verifiable beginning and ending inventory record, as proof of death.”  7 C.F.R. § 1416.305(e) (emphasis added).  Yet another avenue of proof exists in the event that a producer can provide neither adequate proof nor reliable records of death: “Certification of livestock deaths by third parties may be accepted . . . only if verifiable proof of death records or reliable proof of death records . . . are not available . . . .”  7 C.F.R. § 1416.305(f).  Thus, the regulations establish three avenues for a participant to satisfy its burden of proving that its livestock died as a result of adverse weather or animal attacks:  The participant may provide “adequate proof” using “verifiable documents” pursuant to 7 C.F.R. § 1416.305(d).  Alternatively, in the absence of adequate verifiable proof, a participant may provide “reliable records” pursuant to 7 C.F.R. § 1416.305(e).  Finally, if neither adequate proof nor reliable records are available, a producer may provide a third-party certification of livestock deaths pursuant to 7 C.F.R. § 1416.305(f).

 

In this case, it is undisputed that Appellant did not opt to use third-party certification to substantiate it claims for LIP program benefits.  Thus, based on the regulatory framework, the question presented in this appeal is whether FSA properly determined that Appellant failed to provide either “adequate proof” within the meaning of 7 C.F.R. § 1416.305(d), or “reliable records” within the meaning of 7 C.F.R. § 1416.305(e), to substantiate its claims of livestock deaths due to avian attacks.

 

According to FSA, Appellant entirely failed to meet any acceptable standard of proof under the regulations.  “Appellant provided beginning and ending inventory records, but it did not provide verifiable or reliable proof of death, nor did Appellant provide a third party certification for proof of death as required.”  Request for Director Review at 3.  FSA asserts that Appellant inferred the number of avian-inflicted losses from its beginning and ending inventories, which FSA argues is insufficient to satisfy the requirement for proving an eligible loss: “Verifiable beginning and ending inventories by themselves do not meet the requirement for proof of livestock death because of eligible attacks.”  Id.  Instead, according to FSA, if Appellant had submitted “third party certification witnessing the actual livestock the predators killed, that would meet the requirement for an eligible loss.”  Id. (citing 7 C.F.R. § 1416.305(d)). 

 

There are several problems with FSA’s analysis.  First, as noted above, the regulatory framework provides three separate avenues for a participant to satisfy its burden of proving livestock loss due to animal attacks.  Thus, FSA’s suggestion that Appellant could have met its burden in this case only by submitting a third-party certification ignores the first two avenues of proof provided in the regulations, which allows a producer to submit either verifiable documentation pursuant to 7 C.F.R. § 1416.305(d) or reliable records pursuant to 7 C.F.R. § 1416.305(f). 

 

Second, FSA’s argument that Appellant relied solely on beginning and ending inventories to support its applications for LIP program benefits is belied by the record in this case.  According to findings of fact made by the Administrative Judge, Appellant responded to ever changing demands for information, and ultimately supplied FSA with photographs and date-stamped videos of eagles predating on its livestock, daily mortality records, records of brooder mortality, field mortality records, and documentation of the eagle deterrents it employed.  See Appeal Determination at 8.  Upon FSA’s request, Appellant also supplied a letter from DNR confirming that eagle depredation was an “ongoing problem” for Appellant.  Id. at 5. 

 

FSA contends that Appellant’s supporting documentation is inadequate to satisfy the proof of death requirements of the LIP program.  According to FSA, “of the hundreds of pictures Appellant submitted, very few actually showed confirmed dead chickens that were killed by eagles, and those contained no date or time stamp.”  Request for Director Review at 4.   FSA also contends that, “Appellant would need to provide, in addition to the inventories, the exact number of deaths caused by predation, from either APHIS, XXXXX DNR, or a third party certification, which Appellant has admittedly not done.”  Id.

 

Finally, FSA points to its 1-LDAP Handbook, which provides LIP program implementation guidance to FSA field offices.  The version of the Handbook that was in effect at the time of the events of this appeal provided that LIP program compensates livestock producers for losses due to “confirmed kills only.  LIP does not compensate livestock producers for probable animal attack or avian kills.”  FSA Handbook, 1-LDAP (Rev. 1), Para. 73K. (7-8-14).[8]

 

FSA appears to interpret its regulations to limit compensation for livestock deaths due to animal attacks and avian predation to situations in which each and every death can be specifically and individually documented.  Thus, in this case, absent a third-party verification in which every kill was observed, FSA would require Appellant to provide specific evidence of each of the 77,000 claimed livestock deaths to meet the LIP program standards of proof.  Presumably, Appellant could satisfy this standard by presenting 77,000 dead carcasses or dated photos of 77,000 separate attacks, or some combination of these forms of proof. 

 

However, this interpretation is not consistent with the regulatory scheme of the LIP program, which makes clear that producers may also satisfy the program’s proof requirements by providing reliable records, such as contemporaneous producer records, brand inspection records, vaccination records, and dated pictures, among other things.  7 C.F.R. § 1416.305(e).  Moreover, a producer relying on reliable records must submit them “in conjunction with verifiable beginning and ending inventory records, as proof of death.”  Id.  There would be no need for any producer to provide verifiable beginning and ending inventory records if a producer could only satisfy the proof requirements by directly confirming each and every animal death.  In other words, contrary to the interpretation urged by FSA, the regulations seem to accept the use of inference at least to some degree in order to substantiate the death of livestock when “adequate verifiable proof of death is not available.”  7 C.F.R. § 1416.305(e).  Indeed, the provisions of 7 C.F.R. § 1416.305(e) would be rendered completely superfluous if the only adequate proof of livestock death by animal attacks were confirmed dead carcasses or dated photos documenting every attack and every death.  Such verifiable proof would clearly satisfy the provisions of 7 C.F.R. § 1416.305(d), and therefore there would be no need for the alternative forms of proof contemplated by 7 C.F.R. § 1416.305(e) and (f). 

 

To be sure, pure inference will not suffice to prove a LIP program claim based on animal attacks.  Thus, FSA is correct when it states that verifiable beginning and ending inventories by themselves do not meet the proof of death requirements of the LIP program.  However, the regulations suggest that once other forms of proof, such as dated photographs and contemporaneous producer records, are combined with inventory records, the requirement to provide reliable records may be satisfied.  See 7 C.F.R. § 1416.305(e).[9]  As noted above, Appellant provided hundreds of photographs, dated videos, field mortality records, and other mortality records in support of its claims for LIP program benefits.  Surely, some of these records, taken in conjunction with the beginning and ending inventories produced by Appellant, are sufficiently reliable to confirm that eagles predated a significant number of Appellant’s eligible livestock.

 

Thus, I find that FSA acted improperly when it denied Appellant’s LIP program applications in their entirety.  Moreover, I find that FSA’s interpretation as articulated in this proceeding that only verifiable proof of each and every animal kill, such as dead carcasses, can satisfy the requisite standard of proof for avian attacks is inconsistent with LIP program regulations because it ignores the provisions of 7 C.F.R. § 1416.305(e), which allows a producer to satisfy its burden of proof by providing reliable records in the absence of verifiable proof of death.[10]  Accordingly, FSA must reexamine the totality of the evidence to determine whether Appellant has provided reliable records with respect to at least some portion of its claimed losses.  This is not to suggest that FSA must approve Appellant’s applications in their entirety.  Rather, FSA must reexamine the record in view of this decision and determine whether at least some portion of Appellant’s claims meets the standard of proof articulated in 7 C.F.R. § 1416.305(e).  In the course of this reexamination, I encourage the parties to work collaboratively with each other, as they have done at other times during this process, to explore whether additional evidence may be brought to bear on this challenging situation.  Of course, any new decision issued by FSA will be subject to review and appeal if the parties do not reach a mutually satisfactory resolution of Appellant’s claims.

 

Finally, because I find that FSA erred when it denied Appellant’s applications for LIP program benefits in their entirety, I decline to address at this time Appellant’s request for equitable relief.

 

Conclusion

 

Based on the foregoing discussion, I uphold the Administrative Judge’s determination that FSA’s decision to deny Appellant’s applications for LIP program benefits was erroneous.  FSA should reexamine the record in view of my findings and issue a new decision on Appellant’s applications. 

 

 

 

/S/

 

08/20/2018

Steven C. Silverman

 

Date

Director

 

 

 

 


[1] Appellant estimates that each eagle killed 6–7 chickens per day, although they often dropped the chickens while fighting with other eagles or because the chickens were too heavy.  Appellant Exhibit WWW at 98.

[2] Appellant slaughters the chickens onsite when they are about 12 weeks old.  Appellant sells the chickens for $14.69 each at farmer’s markets and to grocery stores.  See Appellant Exhibit HH.  Appellant estimates that its financial losses due to the eagle predation were $638,629 in 2015 and $775,900 in 2016.  Appellant Exhibit TTT.

[3] Appellant purchases one-day old chicks from a hatchery and then places them in a brooder facility until they are 3–4 weeks old.  Appellant’s employees keep daily records of the chicks that die in the brooding facilities, and the number of chickens sent from the brooder out to pasture.  Appellant’s employees also keep daily mortality records for the pastured chickens.  When the chickens are about 12 weeks old, they are slaughtered.  A USDA Food Safety Inspection Service representative tracks the numbers of chickens that Appellant’s employees slaughter each day, as well as the chickens that are unsuitable for processing.  Hearing Audio Track 1 at 54:20–1:01:51, 1:11:12–1:15:15, Track 2 at 10:07–26:15; Agency Record at 35, 856–866. 883–892, 908–996, 1091–1190; Appellant Exhibits AAA at 2, QQQ at 1, WWW at 460.

[4] Under FWS regulations, the term “take” means to “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, destroy, molest, or disturb” bald eagles and golden eagles.  See 50 C.F.R. §§ 22.1–22.3.  FWS granted Appellant’s request for a take permit to harass the bald eagles in part because most of the eagles were too young to be involved in nesting activities.

[5] A sky dancer is an inflatable, human-shaped balloon powered by an electric fan that causes it to move in a dancing or flailing motion.

[6] Appellant also has 17 large dogs on the farm to deter mammalian predators.  Hearing Audio Track 2 at 00:13–10:07.

[7] The regulations enumerate myriad ways a producer can document the quantity and kind of livestock lost as a result of adverse weather events.  For example, producers can document their losses by providing purchase records, veterinarian records, bank or other loan papers, rendering plant truck receipts, Federal Emergency Management Agency records, National Guard records, written contracts, production records, IRS records, property tax records, private insurance documents, and other similar verifiable records as determined by FSA.  Id.  Notably, this enumeration of acceptable documents explicitly applies only to claims based on adverse weather events; the regulation provides no similar enumeration of specific records for showing verifiable proof of death with respect to animal attacks.

[8] FSA has revised the Handbook several times in recent years.  All citations in this decision refer to the version of the Handbook that was in effect at the time the events covered in this appeal occurred. 

[9] I note that the FSA Handbook also included a provision stating that a producer could provide reliable records in the absence of adequate verifiable proof of livestock deaths, but only if the producer provided verifiable beginning and inventory records and third-party certification.  See FSA Handbook, 1-LDAP (Rev. 1), Para. 73K.  FSA has not cited this provision in support of its decision to deny Appellant’s applications for LIP program benefits; however, to the extent it seeks to rely on this part of the Handbook in any future decision, the agency must explain how it is consistent with the regulatory scheme set forth in 7 C.F.R. § 1416.305(f).  That regulation makes clear that a third-party certification may be accepted “only if verifiable proof of death records or reliable proof of death records” are not available.  Id.  Thus, as noted above, the regulatory scheme suggests that a third-party certification is to be used as a separate and independent means of satisfying the burden of proving loss due to avian attacks, not as a required component of proving loss through the use of reliable records pursuant to 7 C.F.R. § 1416.305(f).  Moreover, the plain language contained in 7 C.F.R. § 1416.305(e) makes clear that reliable records may be used “in conjunction with verifiable beginning and ending inventory records, as proof of death.”  Nowhere do the regulations state that reliable records must also be accompanied by a third-party certification. 

[10] By definition, an eagle that takes away and consumes a chicken leaves behind no carcass as proof of its predation.  Moreover, it may not be reasonable or feasible to assume that a producer or third-party certifier can photograph or otherwise record every single predation under circumstances similar to those presented in this appeal.  It is precisely for this reason that 7 C.F.R. § 1416.305(e) allows a producer to provide “reliable records” as proof of death as an alternative to the “verifiable proof” that the agency argues is necessary to support a claim for losses due to avian attacks.