[Federal Register Volume 75, Number 136 (Friday, July 16, 2010)]
[Proposed Rules]
[Pages 41397-41404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-17407]
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DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR Part 1429
RIN 0560-AI02
Asparagus Revenue Market Loss Assistance Payment Program
AGENCY: Commodity Credit Corporation and Farm Service Agency, USDA.
ACTION: Proposed rule.
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SUMMARY: The Commodity Credit Corporation (CCC) proposes regulations to
implement the new Asparagus Revenue Market Loss Assistance Payment
(ALAP) Program authorized by the Food, Conservation, and Energy Act of
2008 (the 2008 Farm Bill). The purpose of the program is to compensate
domestic asparagus producers for marketing losses resulting from
imports during the 2004 through 2007 crop years. Payments will be
calculated based on 2003 crop production. Through the ALAP Program, CCC
is authorized to provide up to $15 million in direct payments to
asparagus producers. This rule proposes eligibility requirements,
payment application procedures, and the method for calculating
individual payments. This rule also proposes new information collection
for the payment application.
DATES: We will consider comments that we receive by September 14, 2010.
ADDRESSES: We invite you to submit comments on this proposed rule and
on the information collection. In your comment, include the volume,
date, and page number of this issue of the Federal Register. You may
submit comments by any of the following methods:
E-mail: [email protected].
Fax: (202) 690-1536.
Mail: Director, Price Support Division, Farm Service
Agency (FSA), U.S. Department of Agriculture (USDA), Mail Stop 0512,
Rm. 4095-S, 1400
[[Page 41398]]
Independence Ave., SW., Washington, DC 20250-0512.
Hand Delivery or Courier: Deliver comments to the above
address.
Federal Rulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
All written comments will be available for public inspection at the
above address during business hours from 8 a.m. to 5 p.m., Monday
through Friday. A copy of this proposed rule is available through the
FSA home page at http://www.fsa.usda.gov/.
FOR FURTHER INFORMATION CONTACT: Gene Rosera, Program Manager, FSA,
USDA, Mail Stop 0512, 1400 Independence Ave., SW., Washington, DC
20250-0512; telephone (202) 720-8481; fax (202) 690-1536; e-mail:
[email protected]. Persons with disabilities who require
alternative means for communications (Braille, large print, audio tape,
etc.) should contact the USDA Target Center at (202) 720-2600 (voice
and TDD).
SUPPLEMENTARY INFORMATION:
Background
Section 10404 of the 2008 Farm Bill (Pub. L. 110-246) directs the
Secretary of Agriculture to ``make payments to producers of the 2007
crop of asparagus for market loss resulting from imports during the
2004 through 2007 crop years.'' The 2008 Farm Bill provides that the
payment rate will be based on the reduction in asparagus farm revenue
for the 2004 through 2007 crop years. The payment quantity will be the
quantity of the 2003 crop of asparagus produced on a farm, which is
used as the ``baseline'' production amount before the losses in 2004
through 2007 occurred. The ALAP Program specified in this rule would
provide a one-time payment for the losses.
Asparagus is produced on an estimated 2,600 farms throughout the
United States. A substantial increase in asparagus imports over the
last several years resulted in reduced revenue for U.S. asparagus
producers. The increased supply of imported asparagus resulted in
reduced domestic production, reduced U.S. market share of domestic
producers, and reduced market prices for both fresh and processed
asparagus in the United States. The ALAP Program is intended to
compensate producers for the losses associated with those reductions.
This rule proposes to add 7 CFR part 1429 to specify the
eligibility requirements, payment rates, and other provisions for the
ALAP Program. The ALAP Program is a CCC program that will be
administered by FSA.
Proposed Eligibility Requirements
The eligibility requirements in this proposed rule are based on
provisions in the 2008 Farm Bill. To be eligible for ALAP as proposed
in this rule, producers must:
(1) Have produced asparagus in the United States during both crop
years 2003 and 2007;
(2) Certify production of fresh or processed asparagus or both for
the 2003 and 2007 crop years; and
(3) Apply for payment during the application period that will be
announced by the FSA Deputy Administrator for Farm Programs.
Payments to asparagus producers would be calculated for each
asparagus farm operation, based on their 2003 production quantity. Each
applicant would be paid based on the applicant's share of specific
asparagus production in the base period.
Payment eligibility for the ALAP Program will not be subject to
adjusted gross income (AGI) and farm income limitations as currently
specified in 7 CFR part 1400, because the payment is for the 2007 crop.
However, to insure a fair distribution of funds where the need is
greatest in the event of an oversubscription (a situation where the
value of the applications would exceed available funding), an AGI limit
of $2.5 million and a $100,000 cap on payments is proposed. This
program is not expected, with respect to the authorized funding, to be
sufficient to pay all eligible claims at the maximum payment rates.
Without the cap, all or most of the funds would go, in terms of
substantial amounts, to large producers only. The figure of $100,000
was chosen because it provides a substantial level of benefits to those
who might otherwise have larger claims. However, in the unlikely event
that this program is not oversubscribed, the AGI and pay limits will
not apply.
Asparagus producers must have been in compliance with the
regulations in 7 CFR part 12, ``Highly Erodible Land and Wetland
Conservation,'' during the years for which the person is requesting
benefits. Those regulations provide for a denial of benefits for
failing to comply with general requirements regarding the handling of
highly erodible cropland and wetlands.
Growers producing asparagus under contract for crop owners are not
considered asparagus producers for the purposes of the ALAP Program and
will not be eligible for payments unless the grower has an ownership
share of the crop and risk of loss in the crop itself, meaning that the
producer will not be paid if the crop is not actually harvested. The
crop owner, which is to say the person or entity with the risk of loss
in the crop, will be eligible for payment if all other requirements are
met.
Proposed Payment Calculation
As proposed in this rule, asparagus producers who produced
asparagus in 2003 and 2007 would receive a payment based on their 2003
crop production (referred to as the ``base period''). The rule requires
that the producer must have been a 2007 producer to be eligible for
payment on asparagus produced in the base period and have produced
asparagus for the commercial market in commercial quantities in 2007.
The quantity used in the payment calculation would be the actual 2003
production amount marketed by the asparagus producer as either fresh or
processed asparagus and included in the application.
Section 10404 of the 2008 Farm Bill requires that the payment
quantity for asparagus for which asparagus producers on a farm are
eligible for payments will ``be equal to the average quantity of the
2003 crop of asparagus produced by producers on the farm.'' ``Average
quantity'' is not defined in the 2008 Farm Bill and use of national or
State averages would not appear to be logical or consistent with the
language of the 2008 Farm Bill. In this rule it is proposed instead
that producers would simply receive their actual production on the farm
and this would mean use of an ``average'' in the sense that operations
with multiple producers would have individual producers receive their
share of the production rather than duplicating base period quantities.
This appears to make the most sense in the context of the 2008 Farm
Bill. Using national or State average production rates would not
reflect the relative amount of any individual producer's loss and would
not accurately reflect the reference to the ``farm'' in the language in
section 10404. As for the payment, the 2008 Farm Bill specifies that
the rate, within the funding limits, will be based on ``the reduction
in revenue received by asparagus producers associated with imports
during the 2004 through 2007 crop years.'' The 2008 Farm Bill does not
specify how CCC should determine revenue losses, but by an economic
analysis CCC has calculated the amount of relevant loss per pound, as
an average, for the 2004 to 2007 crop years as compared to the 2003
crop year. However, it is expected that this calculation would not
result in the actual payment rate because it would produce payments
that would aggregate to more than the funding
[[Page 41399]]
limit. CCC plans to prorate the claims by dividing the eligible pounds
claimed into the funding to achieve a per pound effective rate, with a
certain reserve. As specified in the 2008 Farm Bill, the available
funding is $7.5 million for payments for fresh asparagus and $7.5
million for payments for processed asparagus. CCC has estimated that
the reduced revenue associated with imports of asparagus during the
2004 through 2007 crop years was $141.6 million for fresh-market
asparagus and $73.3 million for processed-market asparagus. These
revenue losses include both the loss by domestic producers of U.S.
market share for the 2004 through 2007 crops, and the reductions in
domestic prices directly attributable to imports.
CCC has determined that the total domestic production of asparagus
for the 2003 crop was 133.4 million pounds marketed as fresh, and 68.0
million pounds marketed as processed. Based on analysis of both reduced
production and reduced prices due to imports for the 2004 through 2007
crop years, the estimated revenue loss was $1.06 per pound of fresh
asparagus and $1.08 per pound of processed asparagus; therefore, these
would be considered the maximum payment rates, if funds were adequate
to cover all applications. The maximum payment rates are different for
fresh and processed asparagus because the differences in production and
demand elasticities by marketing category result in different revenue
effects from imports. Fresh asparagus accounted for approximately 66
percent of total 2003 asparagus production and 75 percent of the total
estimated monetary loss over the 2004-2007 crops.
As explained below, it is unlikely that there will be funds
available to compensate producers at the maximum payment rates, unless
very few producers apply for the ALAP Program. Therefore, the amounts
identified as maximum payment rates are over estimates. The 2008 Farm
Bill allocates exactly one half of the $15 million available for the
ALAP Program to each marketing category (fresh and processed). The rate
determination process we propose in this rule would be implemented as
follows:
Step 1: At the close of the announced application period, the total
payment quantity from all eligible producers would be determined.
Potential maximum payments to eligible producers would be calculated by
separately multiplying the total eligible payment quantity in pounds by
the maximum payment rates for fresh asparagus and processed asparagus.
Step 2: If the total amount of available funding allocated for each
marketing category of asparagus is insufficient to compensate eligible
producers for their eligible payment quantity at the maximum payment
rates, then CCC would recalculate the payment rates determined by
dividing the funds available, less a $300,000 reserve for disputed
claims, by total nationwide payment quantities for fresh and processed
asparagus.
Step 3: CCC would pay producers using the applicable payment rate
multiplied by their individual share in the actual 2003 production
quantity, by marketing category, subject to the $100,000 cap if there
is an oversubscription of the program.
CCC estimates that if payment applications were submitted for 90
percent of the total quantity of the 2003 crop, the total value of
requested payments would substantially exceed the level of funds
available for payments. Multiplying 90 percent of the estimated 2003
crop production quantities by the estimated revenue loss per pound
would result in the following estimated total payment amounts:
Potential Requested Fresh Market Payments:
[cir] 133,400,000 lbs x 90 percent x $1.06/lb. = $127,263,600,
[cir] $119,763,600 over the allocated funding level, and
Potential Requested Processed Market Payments:
[cir] 68,000,000 lbs x 90 percent x $1.08/lb. = $66,096,000,
[cir] $58,576,000 over the allocated funding level.
Based on the 90 percent examples, the estimated payment rate for
fresh-market payments would be 6.12 cents per pound and the processed
market payment rate would be 12.00 cents per pound. This would result
in the following payments, leaving $300,000 in reserve funds:
Fresh Market Payments: 120,060,000 lbs x 6.12 cents/lb. =
$7,347,672
Processed Market Payments: 61,200,000 lbs x 12.00 cents/
lb. = $7,344,000.
Proposed Application Process
CCC proposes to establish and announce a 30-day period for
submitting payment applications for the ALAP Program. The application
deadline will be announced in the final rule that will be published in
the Federal Register. During the application period, asparagus
producers may apply in person at FSA county offices during regular
business hours. Applications may also be submitted to FSA by mail or
fax. The ALAP Program applications may be obtained in person, by mail,
telephone, and fax from any FSA county office or via the Internet at
http://www.sc.egov.usda.gov. The application is for an asparagus farm
operation, including all producers who have a share in that operation,
but only the producers in an operation who sign the application will be
eligible to receive payment. Producers may receive payment from shares
in multiple operations if they sign an application for each operation,
subject to the $100,000 cap.
Any applications not received by FSA by the last day of the
application period would not receive consideration and producers on a
late application would be ineligible for payment. A deadline for
applications is necessary because CCC needs to know the total value of
requested payments in order to calculate the payment rates to stay
within available funding. The ALAP Program provides a one-time payment
for asparagus market losses; the 2008 Farm Bill does not authorize
annual appropriations for the ALAP Program. Therefore, there will be
one application period for the ALAP Program.
CCC proposes to hold in reserve $300,000 for errors and appeals;
however, these reserve funds are only intended for corrections and
payments for disapproved applications that are successfully appealed.
Although CCC has discretion to grant relief and accept a late-filed
application as timely filed, the late-filed application so approved
would only be paid if there are available non-reserve funds. CCC does
not expect that there will be any non-reserve funds available because
the total expected applications are anticipated to use all available
funds.
The 2008 Farm Bill ties the payments to 2003 production quantities.
The application would require a producer to submit a certification of
2003 asparagus production and a certification that the same producer
was also a producer of asparagus on a farm in 2007. Asparagus producers
would need to provide acceptable production records for 2003 asparagus
production, if requested. Applicants would not be required to submit
2007 production records because 2007 production would not be used in
the calculation of payment quantity or rate. However, at the discretion
of CCC, certifications of producer eligibility, including, but not
limited to, certification of an interest in 2007 asparagus production
on a farm, are subject to spot check and verification by CCC. The
producer's place of production does not have to be the same in 2007 as
it was in 2003. Production
[[Page 41400]]
beyond 2007 is not specifically required by the 2008 Farm Bill though
the general reference to ``producers'' in the statute might arguably be
construed to mean a continuing status as a producer. The rule as
proposed does not require a continuing status as a producer beyond
2007, but it is as an area for comment.
Information provided on applications and supporting documentation
will be subject to verification by CCC; however, CCC is under no
obligation to perform spot checks within any specific time frame and
applicants are responsible for producing documents substantiating their
application when requested by CCC.
In the event that CCC finds that a payment was issued based on
inaccurate information on a certification submitted by an applicant,
CCC may require a refund of all payments.
Asparagus producers determined to have made any false
certifications or adopted any misrepresentation, scheme, or device that
defeats the program's purpose will be required to refund any payments
issued through the ALAP Program with interest, and may be subject to
other civil, criminal, or administrative remedies.
Asparagus producers who apply for payment will receive payment only
for their share of asparagus production in asparagus operations that
operated in the 2003 base period. If every asparagus producer with a
share in the asparagus farm operation does not sign the application;
payments will not be calculated for the entire production of the
asparagus farm operation, but will be calculated only for the share of
the asparagus producers who signed the application. Similarly, if every
producer with a share in the operation does not meet the eligibility
requirements including the AGI limit, payments will not be calculated
for the entire production of the operation, but will be calculated only
for the share of the producers who meet the AGI and all other
eligibility requirements.
Notice and Comment
The Administrative Procedures Act (5 U.S.C. 553) provides generally
that before rules are issued by Government agencies, a proposed rule
must be published in the Federal Register, and interested persons must
be given an opportunity to participate in the rulemaking through
submission of data, views, or arguments. The law exempts from this
requirement rules, such as this one, relating to public property,
loans, grants, benefits, and contracts. However, the Secretary of
Agriculture published in the Federal Register on July 24, 1971 (36 FR
13804), a Statement of Policy that USDA would publish a notice of
proposed rulemaking for such rules. USDA is committed to providing the
public reasonable opportunity to participate in rulemaking.
Executive Order 12866
This proposed rule has been determined to be significant under E.O.
12866 and has been reviewed by the Office of Management and Budget. A
summary of economic impacts is provided below, and the cost-benefit
analysis is available from the contact information listed above.
Summary of Economic Impacts
The 2008 Farm Bill authorizes $15 million in payments to asparagus
producers for losses that asparagus producers sustained due to imports.
The estimated U.S. asparagus revenue losses due to crop year 2004
through 2007 imports in the fresh market totaled $141.6 million, and in
the processed market, $73.3 million, for a total of $214.9 million in
losses. Therefore, we expect to receive applications that exceed the
available funding. The payment rates would be calculated so as not to
exceed the available funding. The expected benefit to producers is $15
million, which is all of the available funding. Since producers are
being paid for past losses on past production, this program is not
expected to increase production of asparagus or to change the price
that consumers pay for asparagus.
Alternative methods for calculating payment quantities and rates
would result in a different distribution of payment amounts among
producers, but would not reduce the costs or benefits of this program
to below $15 million.
Regulatory Flexibility Act
According to the 2007 Census of Agriculture, there are 2,605
asparagus farms, with 1,408 of those farms harvesting 1 acre or less.
Those farms harvesting 100 acres or more account for 5 percent of farms
harvesting asparagus and 74 percent of all asparagus production. Most
of the payments as specified in this rule would go to the larger farms
that accounted for most of the production, rather than the smaller
farms. CCC is proposing to calculate and disburse payments based on the
actual 2003 crop production quantities for fresh and processed
marketing. Both small and large farms would receive payment in
proportion to their production, subject to the $100,000 cap that will
impact only the largest farms. Direct and indirect costs of applying
for these one-time payments would likely to be very small as a
percentage of the resulting payment. The minimal regulatory
requirements would impact large and small businesses equally, and the
program's benefits should slightly improve cash flow and liquidity for
farmers participating in the program. Therefore, in accordance with the
Regulatory Flexibility Act (5 U.S.C. 601), CCC is certifying that there
would not be a significant economic impact on a substantial number of
small entities. Due to the limited amount of funding available,
payments are unlikely to have a substantial economic impact on entities
of any size.
Environmental Review
The environmental impacts of this rule have been considered in a
manner consistent with the provisions of the National Environmental
Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council
on Environmental Quality (40 CFR parts 1500-1508), and FSA regulations
for compliance with NEPA (7 CFR part 799). The implementation and
administration of ALAP Program required by the 2008 Farm Bill that is
identified in this rule is non-discretionary in nature, solely
providing financial assistance. Therefore, FSA has determined that NEPA
does not require that an environmental assessment or environmental
impact statement be prepared and neither will be prepared.
Executive Order 12372
For reasons set forth in the Notice to 7 CFR part 3015, subpart V
(48 FR 29115, June 24, 1983), the programs and activities within this
rule are excluded from the scope of Executive Order 12372, which
requires intergovernmental consultation with State and local officials.
Executive Order 12988
This rule has been reviewed under Executive Order 12988. The
provisions of this proposed rule will not have preemptive effect with
respect to any State or local laws, regulations, or policies that
conflict with such provision or which otherwise impede their full
implementation. The rule will not have retroactive effect. Before any
judicial action may be brought regarding this rule, all administrative
remedies must be exhausted.
Executive Order 13132
The policies contained in this rule would not have any substantial
direct effect on States, the relationship between the Federal
Government and the States, or the distribution of power and
responsibilities among the various levels of government. Nor would this
[[Page 41401]]
proposed rule impose substantial direct compliance costs on State and
local governments. Therefore, consultation with the States is not
required.
Executive Order 13175
The policies contained in this rule do not impose substantial
unreimbursed direct compliance costs on Indian tribal governments or
have tribal implications that preempt tribal law.
Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L.
104-4) requires Federal agencies to assess the effects of their
regulatory actions on State, local, and tribal governments or the
private sector. Agencies generally must prepare a written statement,
including a cost benefit analysis, for proposed and final rules with
Federal mandates that may result in expenditures of $100 million or
more in any 1 year for State, local, or tribal governments, in the
aggregate, or to the private sector. UMRA generally requires agencies
to consider alternatives and adopt the more cost effective or least
burdensome alternative that achieves the objectives of the rule. This
proposed rule contains no Federal mandates, as defined under title II
of the UMRA, for State, local, and tribal governments or the private
sector. Thus, this proposed rule is not subject to the requirements of
sections 202 and 205 of UMRA.
Federal Assistance Programs
The title and number of the Federal assistance program in the
Catalog of Domestic Federal Assistance to which this rule will apply is
10.098--Asparagus Revenue Market Loss Assistance Program.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35), CCC is requesting comments from all interested individuals
and organizations on new information collection activities associated
with the ALAP Program. The information collection is necessary to
implement the new program. CCC is making payments to eligible domestic
asparagus producers for marketing losses due to imports during the 2004
through 2007 crop years.
Title: Asparagus Revenue Market Loss Assistance Payment Program.
OMB Number: 0560-NEW.
Type of Request: New information collection.
Abstract: This information collection is needed for CCC to identify
eligible asparagus producers and to make payments to those producers
through the ALAP Program. CCC requires producers to submit an
application on a form specified by CCC to the FSA County Office for the
farms where they produced 2003 and 2007 crop asparagus.
For an application to be accepted and approved, the producer will
be required to provide the following information: producer name,
address, and taxpayer identification number; the name and location of
the farm where 2003 crop asparagus was produced, the amount of
asparagus produced in 2003, and a certification of interest in a farm
where 2007 crop asparagus was produced; the applicant signature; the
applicant's percentage share of 2003 crop asparagus production on the
farm; the quantities expressed in pounds or hundredweight of 2003 crop
asparagus marketed as fresh and marketed as processed, and the total of
those two amounts.
Also, about 700 applicants are expected to complete a direct
deposit application form, and all producers, if not submitting
electronically, will travel an average of one hour to submit their
application to the FSA county office. The average travel time is
included in the estimated burden.
The following estimated burden is based on the 2007 Census of
Agriculture that reports 2007 crop asparagus was produced on 2,605
farms in 48 States reporting harvested acreage of 43,010 acres. The
major producing states were California (20,211 harvested acres);
Michigan (12,127 harvested acres); and Washington (7,007 harvested
acres). That Census reports that 11 States had 10 acres or less
harvested that year. Based on information provided by the asparagus
industry, there are about 1.1 producers per asparagus farm, or
approximately 2,800 producers each having a crop share. These data
serve as basis for the following estimates.
Respondents: Producers of 2007 crop asparagus who also produced
2003 crop asparagus.
Estimated Annual Number of Applicants: 2,800.
Estimated Annual Number of Forms per Applicant: 1.25.
Estimated Average Time to Respond: 83 minutes.
Estimated Total Annual Burden Hours: 3,850 hours.
We are requesting comments on all aspects of the information
collection to help us to:
(1) Evaluate whether the collection of information is necessary for
the proper administration of FSA, including whether the information
will have practical utility;
(2) Evaluate the accuracy of FSA's estimate of burden, including
the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who will respond, including the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms or information collection.
All comments received in response to this rule, including names and
addresses when provided, will be a matter of public record and will be
available for review at the above address. Comments, including any
comments that are received on the information collection, will be
summarized in the submission for the Office of Management and Budget
approval and included as supplemental information when the final rule
is published in the Federal Register.
E-Government Act Compliance
CCC is committed to complying with the E-Government Act, to promote
the use of the Internet and other information technologies to provide
increased opportunities for citizen access to Government Information
and services, and for other purposes.
List of Subjects in 7 CFR Part 1429
Asparagus, Reporting and record keeping requirements.
For the reasons discussed in the preamble, the Commodity Credit
Corporation (USDA) proposes to add 7 CFR part 1429 to read as follows:
Part 1429--ASPARAGUS REVENUE MARKET LOSS ASSISTANCE PAYMENT PROGRAM
Sec.
1429.101 Applicability.
1429.102 Administration.
1429.103 Definitions.
1429.104 Application requirements.
1429.105 Producer eligibility requirements.
1429.106 Proof of production.
1429.107 Maximum and final payment rates.
1429.108 Calculation of individual payments.
1429.109 Availability of funds.
1429.111 Misrepresentation and scheme or device.
1429.112 Death, incompetence, or disappearance.
1429.113 Maintaining records.
1429.114 Refunds; joint and several liability.
1429.115 Miscellaneous provisions and appeals.
Authority: 15 U.S.C. 714b and 714c, and Sec. 10404, Pub. L. 110-
246, 122 Stat. 2111.
[[Page 41402]]
Sec. 1429.101 Applicability.
(a) The regulations in this part are applicable to program
applicants who produced both 2003- and 2007-crop asparagus. Asparagus
producers may apply to the Commodity Credit Corporation (CCC) for a
payment based on the actual quantity of their 2003 asparagus production
and their share of that production.
(b) Total payments made through the Asparagus Revenue Marketing
Loss Assistance Payment Program will not exceed $15 million, allocated
as $7.5 million for fresh asparagus and $7.5 million for processed
asparagus, less any reserve allocated for disputed claims.
Sec. 1429.102 Administration.
(a) The Asparagus Revenue Market Loss Assistance Payment Program
will be administered under the general supervision of the Executive
Vice President, CCC (Administrator, Farm Service Administration (FSA)),
or a designee, and will be carried out in the field by FSA State and
county committees and FSA employees.
(b) FSA State and county committees, and representatives and
employees of those committees, do not have the authority to modify or
waive any of the provisions of this part, except as provided in
paragraph (e) of this section.
(c) The FSA State committee will take any action required by this
part that has not been taken by the FSA county committee. The FSA State
committee will also:
(1) Correct or require correction of an action taken by an FSA
county committee that is not in compliance with this part; and
(2) Require an FSA county committee to not take an action or
implement a decision that is not in compliance with the regulations of
this part.
(d) No delegation in this part to an FSA State or county committee
will preclude the Executive Vice President, CCC, or a designee, from
determining any question for the Asparagus Revenue Marketing Loss
Assistance Payment Program, or from reversing or modifying any
determination made by a State or county committee.
(e) The Deputy Administrator for Farm Programs, FSA, may authorize
FSA State and county committees to waive or modify program requirements
that are not statutory in cases where failure to meet such requirements
does not adversely affect the operation of the Asparagus Revenue Market
Loss Assistance Payment Program.
Sec. 1429.103 Definitions.
The following definitions apply to this part. The definitions in
parts 718 and 1400 of this title also apply, except where they conflict
with the definitions in this section.
Application means the Asparagus Revenue Market Loss Assistance
Payment Program application form approved for use in this program by
CCC and any required accompanying information or documentation.
Application period means the 30-day period established by the
Deputy Administrator for producers to apply for the Asparagus Revenue
Marketing Loss Assistance Payment Program.
Asparagus producer means any individual, group of individuals,
partnership, corporation, estate, trust, association, cooperative, or
other business enterprise or other legal entity, as defined in Sec.
1400.3 of this chapter, who is an owner, operator, landlord, tenant, or
sharecropper, who directly or indirectly, as determined by the
Secretary, shares in the risk of producing asparagus and who is
entitled to ownership share in the asparagus crop available for
marketing from the farm operation. Growers producing asparagus under
contract for crop owners are not considered asparagus producers unless
the grower can be determined to have an ownership share of the crop.
Base period means the 2003 crop year of asparagus.
County office means the FSA office responsible for administering
CCC programs located in a specific area in a State.
Crop year means the marketing season or year as defined by the
National Agricultural Statistics Service (NASS).
Department or USDA means the U.S. Department of Agriculture.
Determined production means, with respect to the base period, the
total amount of fresh and processed asparagus specified on the
application for payment verified by CCC as having been produced and
marketed by the producer in the base period.
Farm Service Agency or FSA means the Farm Service Agency of the
U.S. Department of Agriculture.
Fresh asparagus means domestically-produced asparagus that,
regardless of intended use, was marketed as a fresh product without any
processing other than cleaning, grading, sorting, trimming, drying,
cooling, and packing.
Hundredweight or cwt. means 100 pounds.
Processed asparagus means domestically-produced asparagus that,
regardless of intended use, was marketed as frozen, canned, pickled, or
otherwise treated or handled in such fashion that the buyer would not
consider the asparagus to be consumed as fresh, as determined by CCC.
Reliable production records means evidence provided by the producer
to the FSA county office that FSA determines is adequate to
substantiate the amount of production reported when verifiable records
are not available, including copies of receipts, ledgers of income,
income statements, deposit slips, register tapes, invoices for custom
harvesting, records to verify production costs, contemporaneous
measurements, truck scale tickets, and contemporaneous diaries. When
the term ``acceptable production records'' is used in this rule, it may
be either reliable or verifiable production records, as defined in this
section.
Reported production means the total amount of fresh and processed
asparagus produced and marketed by a producer, as specified by a
producer on the application for payment.
Verifiable production records mean evidence that is used to
substantiate the amount of production reported and that can be verified
by FSA through an independent source.
United States means the 50 States of the United States, the
District of Columbia, and Puerto Rico.
Sec. 1429.104 Application requirements.
(a) To be eligible for payment, asparagus producers must submit a
completed application for payment and meet other eligibility
requirements as specified in this part. Asparagus producers may obtain
an application in person, by mail, by telephone, or by facsimile from
any FSA county office. In addition, applicants may download a copy of
the application from http://www.sc.egov.usda.gov.
(b) An application for payment must be submitted on a completed
application form. Applications and any other supporting documentation
must be submitted to the FSA county office serving the county in which
the producer produced asparagus in 2003 unless the producer now resides
in a different county than the county in which asparagus was produced
in the base period.
(c) Asparagus producers who apply for payment must certify the
information on the application before the application will be
considered complete. Applications may be accompanied by acceptable
production records for all fresh and processed asparagus produced and
marketed from the farm in the 2003 crop year. Producers must certify
they had a share interest in both 2003 and 2007 crop
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asparagus. To be eligible for payment on asparagus produced in the base
period, the producer must have produced asparagus in 2007 for the
commercial market in commercial quantities as determined for this
purpose by the Deputy Administrator. At any time CCC deems appropriate,
either before or after payment issuance, CCC may, at its discretion,
require a producer to provide documentation to support:
(1) Reported production of 2003 crop fresh or processed asparagus
production or both entered on the application accompanied by acceptable
production record,
(2) Share percentage of 2003 crop production by marketing category
for each producer in the asparagus farm operation, or
(3) Any other eligibility requirement specified in this part
including commercial quantities of 2007 production to meet the 2007
production requirement.
(d) Each asparagus producer who signs the application must certify
the accuracy and truthfulness of the information in the application and
any supporting documentation. All information provided is subject to
verification by CCC. Refusal to allow CCC or any other agency of USDA
to verify any information provided will result in a denial of
eligibility. Furnishing the information is voluntary; however, without
it program payments will not be approved. Providing a false
certification may be punishable by imprisonment, fines, and other
penalties or sanctions.
(e) Data furnished by the applicants will be used to determine
eligibility for program payments. Although participation in the
Asparagus Revenue Market Loss Assistance Payment Program is voluntary,
program payments will not be provided unless the participant furnishes
a complete application by the end of the application period with all
requested data.
(f) Individuals or entities who submit applications after the
application period are not entitled to any payment consideration or
determination of eligibility. Regardless of the reason why an
application is not submitted to or received by the FSA county office,
any late application will be considered as not having been timely filed
and the applicants on that application will not be eligible for the
Asparagus Revenue Marketing Loss Assistance Payment Program.
Sec. 1429.105 Producer eligibility requirements.
(a) To be eligible to receive the Asparagus Revenue Marketing Loss
Assistance Payment Program payments, asparagus producers must submit an
application during the application period and must:
(1) Have produced and marketed asparagus in commercial quantities
in commercial markets in the United States during both of the 2003 and
2007 crop years;
(2) Be an asparagus producer, as defined in Sec. 1429.103, for the
2003 and 2007 crop years;
(3) Certify their shares and the pounds of fresh and processed
asparagus produced and marketed from the farm operation during the 2003
crop year as reflected on the application;
(4) If the total value of payments claimed exceeds the available
funding, have an average adjusted gross income (AGI) of less than $2.5
million for the three taxable years of 2004-2006; and
(5) Be in compliance with the requirements in 7 CFR part 12
regarding highly erodible cropland and wetlands and meet any general
farm program eligibility requirements that apply under 7 CFR part 1400
or other regulations as applicable.
(b) Asparagus producers must sign an application to be considered
for payment eligibility. Asparagus producers who do not sign an
application will not receive payment or a determination of eligibility,
even if other producers in the asparagus farm operation sign an
application and receive payment.
(c) Each applicant determined by spot check or other information to
not have an interest as an asparagus producer in 2003 and 2007 who
meets the other qualifications of this part will be ineligible for
payment and such applicant's claimed share shown on the application
will not be paid.
Sec. 1429.106 Proof of production.
(a) Producers selected for spot check by CCC must, in accordance
with instructions issued by the Deputy Administrator or his designee,
provide adequate proof of the fresh and processed asparagus produced
and marketed during the 2003 and 2007 crop years.
(b) If adequate proof of marketed production and supporting
documentation in support of any application for payment is not
presented to the satisfaction of CCC or the FSA county office
requesting information, the application and the producers on that
application will be determined ineligible for payment.
Sec. 1429.107 Maximum and final payment rates.
(a) Subject to the funding limits that may apply to the program,
the estimated maximum per pound payment rates for fresh market
asparagus and for processed market asparagus are:
(1) $1.06 per pound ($106.00 per hundredweight) for 2003 crop
quantities of asparagus marketed to fresh markets; and
(2) $1.08 per pound ($108.00 per hundredweight) for 2003 crop
quantities of asparagus marketed for processing.
(b) This program will be administered to assure that total payments
do not exceed the available funding. If the total value of payments
claimed calculated using the maximum payment rates specified in
paragraph (a) of this section exceeds the funding available for each
marketing category, less any reserve that may be created as specified
in paragraph (e) of this section, the payment quantities will be paid
at a lower rate determined by dividing the funds available in each
marketing category of asparagus, by the payment quantity from
applications received by the end of the application period in each
marketing category.
(c) In no event will the payment rate exceed the maximum payment
rate for each marketing category of asparagus determined in paragraph
(a) of this section.
Sec. 1429.108 Calculation of individual payments.
(a) Producers will be eligible for payment for both fresh and
processed asparagus. CCC will calculate the payment quantity of 2003
fresh and processed asparagus for an asparagus farm operation based on
the lower of:
(1) Reported production reflected on the application, or
(2) If applicable, determined production.
(b) The payment quantity will be multiplied by the following:
(1) Each asparagus producer's share, and
(2) The payment rate for the fresh or processed asparagus
determined as specified in Sec. 1429.107.
(c) If the total value of payments claimed exceeds the available
funding, payments to producers are subject to a $100,000 cap per
asparagus producer as defined in this part, not per ``person'' or
``legal entity'' as those terms might be defined in part 1400 of this
title.
Sec. 1429.109 Availability of funds.
(a) Payments specified in this part are subject to the availability
of funds. The total available program funds will be $15,000,000 as
provided by section 10404 of Pub. L. 110-246.
[[Page 41404]]
(b) Of the available funds, $7,500,000 are allocated for fresh
market asparagus production and $7,500,000 are allocated to processed
market asparagus.
(c) CCC will prorate the available funds by a national factor to
ensure that payments do not exceed $15,000,000. CCC will prorate the
payments in such manner as it, in its sole discretion, finds fair and
reasonable.
(d) A reserve will be created to handle appeals and errors. Claims
will not be payable once the available funding is expended. Any amount
of funds reserved for such purposes that are not disbursed for the
purpose of correcting errors or omissions, or for the payment of
appeals, will not otherwise be distributed to any payment applicants
and will be refunded to the U.S. Department of Treasury.
Sec. 1429.111 Misrepresentation and scheme or device.
(a) In addition to other penalties, sanctions, or remedies as may
apply, an asparagus producer will be ineligible to receive assistance
through the Asparagus Revenue Market Loss Assistance Payment Program if
the asparagus producer is determined by CCC to have:
(1) Adopted any scheme or device that tends to defeat the purpose
of this program;
(2) Made any fraudulent representation; or
(3) Misrepresented any fact affecting a program determination.
(b) Any funds disbursed pursuant to this part to any person or
operation engaged in a misrepresentation, scheme, or device, must be
refunded with interest together with such other sums as may become due
and all charges including interest will run from the date of the
disbursement of the CCC funds. Any asparagus farm operation, asparagus
producer, or person engaged in acts prohibited by this section and any
asparagus farm operation, asparagus producer, or person receiving
payment as specified in this part will be jointly and severally liable
with other persons or operations involved in such claim for payment for
any refund due as specified in this section and for related charges.
The remedies provided in this part will be in addition to other civil,
criminal, or administrative remedies that may apply.
Sec. 1429.112 Death, incompetence, or disappearance.
(a) In the case of death, incompetency, disappearance, or
dissolution of a person or an entity that is eligible to receive
payment as specified in this part, an alternate person or persons as
specified in part 707 of this title may receive such payment, as
determined appropriate by CCC.
(b) Payment may be made for asparagus market losses suffered by an
otherwise eligible asparagus producer who is now deceased or is a
dissolved entity if a representative who currently has authority to
enter into an application for the producer or the producer's estate
signs the application for payment. Proof of authority to sign for the
deceased producer's estate or a dissolved entity must be provided. If
an asparagus producer is now a dissolved general partnership or joint
venture, all members of the general partnership or joint venture at the
time of dissolution or their duly-authorized representatives must sign
the application for payment.
Sec. 1429.113 Maintaining records.
Producers applying for payment through the Asparagus Revenue Market
Loss Assistance Payment Program must maintain records and accounts to
document all eligibility requirements specified in this part. Such
records and accounts must be retained for 3 years after the date of
payment.
Sec. 1429.114 Refunds; joint and several liability.
(a) Excess payments, payments provided as the result of erroneous
information provided by any person, or payments resulting from a
failure to comply with any requirement or condition for payment in the
application or this part, must be refunded to CCC.
(b) A refund required as specified in this section will be due with
interest from the date of CCC disbursement and determined in accordance
with paragraph (d) of this section and late payment charges as provided
in part 1403 of this chapter.
(c) Persons signing an asparagus farm operation's application as
having an interest in the asparagus farm operation will be jointly and
severally liable for any refund and related charges found to be due as
specified in this section.
(d) Interest will be applicable to any refunds required as
specified in parts 792 and 1403 of this title. Such interest will be
charged at the rate that the U.S. Department of the Treasury charges
CCC for funds, and will accrue from the date CCC made the erroneous
payment to the date of repayment.
(e) CCC may waive the accrual of interest if it determines that the
cause of the erroneous determination was not due to any action of the
person, or was beyond the control of the person committing the
violation. Any waiver is at the discretion of CCC alone.
Sec. 1429.115 Miscellaneous provisions and appeals.
(a) Offset. CCC may offset or withhold any amount due CCC as
specified in this part in accordance with the provisions of part 1403
of this chapter.
(b) Claims. Claims or debts will be settled in accordance with the
provisions of part 1403 of this chapter.
(c) Other interests. Payments or any portion thereof due under this
part will be made without regard to questions of title under State law
and without regard to any claim or lien against the asparagus crop, or
proceeds thereof, in favor of the owner or any other creditor except
agencies and instrumentalities of the U.S. Government.
(d) Assignments. Any asparagus producer entitled to any payment as
specified in this part may assign any payment in accordance with the
provisions of part 1404 of this chapter.
(e) Appeals. Appeals will be handled as specified in parts 11 and
780 of this title.
Signed in Washington, DC on July 12, 2010.
Jonathan W. Coppess,
Executive Vice President, Commodity Credit Corporation.
[FR Doc. 2010-17407 Filed 7-15-10; 8:45 am]
BILLING CODE 3410-05-P