Asparagus Revenue Market Loss Assistance Payment Program, 41397-41404 [2010-17407]

Agencies

• DEPARTMENT OF AGRICULTURE
• Commodity Credit Corporation

[Federal Register Volume 75, Number 136 (Friday, July 16, 2010)]
[Proposed Rules]
[Pages 41397-41404]
From the Federal Register Online via the Government Printing 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: Gene.rosera@wdc.usda.gov.
     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 https://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 https://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: 
gene.rosera@wdc.usda.gov. 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 
https://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 https://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

[[Page 41403]]

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