[Federal Register Volume 60, Number 11 (Wednesday, January 18, 1995)]
[Proposed Rules]
[Pages 3564-3566]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1192]



 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 60, No. 11 / Wednesday, January 18, 1995 / 
Proposed Rules  
[[Page 3564]]

DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1494


Export Bonus Programs

AGENCY: Commodity Credit Corporation (CCC), USDA.

ACTION: Proposed rule.

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SUMMARY: The Commodity Credit Corporation is proposing to amend its 
regulations to: (1) Delete the export experience requirement for 
qualification to participate in the Export Enhancement Program (EEP) 
and the Dairy Export Incentive Program (DEIP) and (2) establish the 
time at which new program participants would be eligible to receive 
bonus payments. These amendments are intended to provide the 
opportunity for a greater number of U.S. exporters to participate in 
the EEP and the DEIP. The proposed rule would also amend several 
provisions of the regulations to make them clearer, easier to read, and 
more consistent with the regulations that apply to some of the other 
CCC export programs.

DATES: Comments must be submitted on or before March 20, 1995.

ADDRESSES: All comments concerning these proposed regulations should be 
addressed to L.T. McElvain, Director, CCC Operations Division, Foreign 
Agricultural Service, U.S. Department of Agriculture, AG Box 1035, 
Washington, DC 20250-1035; FAX (202) 720-2949. All comments received 
will be available for public inspection at the above address during 
regular business hours.

FOR FURTHER INFORMATION CONTACT: L.T. McElvain, Director, CCC 
Operations Division, at the address stated above. Telephone (202) 720-
6211. The U.S. Department of Agriculture (USDA) prohibits 
discrimination in its programs on the basis of race, color, national 
origin, sex, religion, age, disability, political beliefs and marital 
or familial status. Persons with disabilities who require alternative 
means for communication of program information (braille, large print, 
audiotape, etc.) should contact the USDA Office of Communications at 
(202) 720-5881 (voice) or (202) 720-7808 (TDD).

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    This proposed rule is issued in conformance with Executive Order 
12866. It has been determined to be neither significant nor 
economically significant for the purposes of E.O. 12866 and, therefore, 
has not been reviewed by the Office of Management and Budget (OMB).

Regulatory Flexibility Act

    It has been determined that the Regulatory Flexibility Act is not 
applicable to this proposed rule since CCC is not required by 5 U.S.C. 
553 or any other provision of law to publish a notice of rulemaking 
with respect to the subject matter of this rule.

Executive Order 12372

    This program is not subject to the provisions of Executive Order 
12372, which requires intergovernmental consultation with State and 
local officials. See notice related to 7 CFR part 3015, subpart V, 
published at 48 FR 29115 (June 24, 1983).

Environmental Evaluation

    It has been determined by an environmental evaluation that this 
action will not have a significant impact on the quality of the human 
environment. Therefore, neither an Environmental Assessment nor an 
Environmental Impact Statement is needed.

Paperwork Reduction Act

    The amendment to 7 CFR part 1494 set forth in this proposed rule 
does not contain information collections that require clearance by the 
OMB under the provisions of 44 U.S.C. 35.

Executive Order 12778

    This proposed rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. The proposed rule would have preemptive effect 
with respect to any state or local laws, regulations, or policies which 
conflict with such provisions or which otherwise impede their full 
implementation. The rule would not have retroactive effect. The 
regulations currently require that certain administrative remedies be 
exhausted before suit may be filed, and the proposed rule does not 
change this requirement.
    The Department of Agriculture is committed to carrying out its 
statutory and regulatory mandates in a manner that best serves the 
public interest. Therefore, where legal discretion permits, the 
Department actively seeks to promulgate regulations that promote 
economic growth, create jobs, are minimally burdensome, and are easy 
for the public to understand, use or comply with. In short, the 
Department is committed to issuing regulations that maximize net 
benefits to society and minimize costs imposed by those regulations.

Request for Public Comment

    Comments are requested with respect to this proposed rule and such 
comments shall be considered in developing the final rule.

Background

    The current EEP regulations require an exporter that seeks to 
participate in the program to qualify in accordance with the procedures 
set forth in 7 CFR 1494.301. These qualification procedures also apply 
to the DEIP pursuant to 7 CFR 1494.1200. One provision, the current 
Sec. 1494.301(a)(1), requires a person seeking to qualify to submit 
evidence of its experience, within the preceding three calendar years, 
in selling for export a particular eligible commodity or an 
agricultural commodity which CCC determines to be similar to the 
eligible commodity. Under the current regulations, an exporter must 
qualify separately for each eligible commodity that it intends to 
export.
    These requirements have limited exporter participation in the EEP 
and the DEIP. As a result, CCC is proposing to delete the current 
Sec. 1494.301(a)(1) and dispense with the prior export experience 
requirement. If the proposed amendment is adopted, an exporter would 
simply qualify one time to be eligible to participate in a program and 
could thereafter export any eligible commodity under that program. 
Accordingly, the proposed rule revises the definition of ``eligible 
exporter'' in Sec. 1494.201(q) and deletes the current 
Sec. 1494.301(b), which sets forth the procedure to qualify for 
additional eligible commodities.
[[Page 3565]]

    An exporter that is currently qualified to export a specific 
eligible commodity(ies) under one of these programs would be qualified 
to export any eligible commodity under such program. However, an 
exporter that sought to participate in both the EEP and the DEIP would 
have to qualify separately for each program.
    The proposed rule also provides, in the revised Sec. 1494.301(g), 
that a qualified exporter (i.e., an ``eligible exporter'') that has not 
yet demonstrated its ability to participate successfully in the EEP 
would become eligible to receive a bonus payment(s) only after the 
eligible commodity specified in an EEP Agreement entered into the 
eligible country. Such an exporter would have to furnish performance 
security under ``Option B'' of the applicable Invitation and follow the 
procedure specified in Sec. 1494.701(d) to request the payment of the 
bonus.
    A qualified exporter could demonstrate its ability to participate 
successfully in the EEP by entering or causing to be entered into the 
eligible country at least 95% of the quantity of the eligible commodity 
specified in any one EEP Agreement. CCC would consider that an exporter 
had proven its ability to participate successfully in the EEP as of the 
date on which CCC paid to the exporter a bonus for entry of a quantity 
that brought the total entered quantity for any one EEP Agreement to at 
least 95%. For all EEP Agreements that such exporter entered into with 
CCC subsequent to that date, the exporter could furnish performance 
security under ``Option A'' of the applicable Invitation and be 
eligible to receive bonus payments upon the submission of export 
documents, in accordance with Sec. 1494.701(c).
    CCC has not permitted exporters to furnish performance security and 
seek bonus payments under ``Option B'' in recent EEP and DEIP 
Invitations. If this proposed rule is adopted, then CCC would again 
permit exporters to select ``Option B.'' CCC would set the performance 
security rates for both ``Option A'' and ``Option B'' at the same 
level. (Currently this rate is 10% of the sales price, but the rate 
applicable to offers made in response to an Invitation will be 
specified in such Invitation.) Therefore, the only difference between 
the two options would be in the timing of the bonus payment, i.e., 
after export for ``Option A'' or after entry for ``Option B.''
    The revised Sec. 1494.301(g) would also apply to the DEIP, pursuant 
to 7 CFR Sec. 1494.1200. However, the EEP and the DEIP would continue 
to be administered separately and the entry of the eligible commodity 
into a country under one program would not satisfy the entry 
requirement to demonstrate successful performance under the other 
program.
    This proposed amendment would permit a new company without specific 
export experience to demonstrate its ability to participate 
successfully without foregoing the benefit of the export bonus. At the 
same time, by paying the bonus to new program participants only after 
the arrival of the eligible commodity, CCC would protect its interests.
    CCC is also proposing to make several other minor changes that 
would apply to both the EEP and the DEIP. First, the proposed rule 
would add, in the revised Sec. 1494.301(a)(6), a requirement that 
exporters interested in qualifying for program participation certify 
that neither the exporter nor any of its principals has been debarred, 
suspended, or proposed for debarment from contracting with or 
participating in programs administered by any U.S. Government agency. 
This would make the EEP and DEIP regulations consistent with the 
regulations governing CCC's export credit guarantee programs.
    Second, CCC is proposing to delete the second sentence in the 
paragraph that is currently designated Sec. 1474.301(e) but that has 
been redesignated as Sec. 1494.301(d) in the proposed rule. This 
sentence states that persons with a history of unsatisfactory 
participation in U.S. Government programs or performance of contracts 
or agreements with the U.S. Government during the past three years will 
be ineligible to participate in the EEP, unless CCC determines that 
permitting the interested person to participate would be in the best 
interests of the program. This sentence is unnecessary, and potentially 
confusing, because CCC already has the authority and procedures to 
suspend or debar a person from program participation for these reasons 
pursuant to its suspension and debarment regulations (7 CFR part 1407).
    Third, CCC is proposing to delete the paragraph designated 
Sec. 1494.301(f)(3) in the current regulations, which provides that a 
person is ineligible to participate in the EEP if such person employs 
any individuals debarred or suspended from contracting with or 
participating in programs administered by any agency of the U.S. 
Government. This language is overly broad and CCC would be adequately 
protected by Sec. 1494.301(a)(6) and (e) as revised in the proposed 
rule.
    Fourth, CCC is proposing to rewrite the paragraph that is currently 
designated Sec. 1474.301(g) but that has been redesignated as 
Sec. 1494.301(f) in the proposed rule. The first sentence was rewritten 
in the proposed rule to inform qualified exporters in a more direct 
fashion that they have a duty to update the information they have 
provided to CCC pursuant to Sec. 1494.301(a) to ensure that it is 
current and accurate. The second sentence was deleted in the proposed 
rule because it is unnecessary. If CCC receives information indicating 
that a qualified exporter should no longer be permitted to participate 
in its programs, it will take action to suspend or debar such exporter 
pursuant to CCC's suspension and debarment regulations.
    The proposed rule contains other minor, non-substantive changes 
that are intended to make the rule clearer, easier to read, and more 
consistent with the regulations that apply to some of the other CCC 
export programs.

List of Subjects in 7 CFR Part 1494

    Administrative practice and procedure, Agricultural commodities, 
Exports, Government contracts, Reporting and recordkeeping 
requirements.

    Accordingly, it is proposed that 7 CFR part 1494 be amended as 
follows:

PART 1494--EXPORT BONUS PROGRAMS

Subpart B--Export Enhancement Program Operations

    1. The authority citation for 7 CFR part 1494, subpart B, continues 
to read as follows:

    Authority: 7 U.S.C. 5602, 5651, 5661, 5662, 5676; 15 U.S.C. 
714c.

    2. Paragraph (q) of Section 1494.201 is revised to read as follows:


Sec. 1494.201  Definitions of terms.

* * * * *
    (q) Eligible exporter--A person that has been notified by CCC that 
such person is qualified to submit offers in response to Invitations.
* * * * *
    3. Section 1494.301 is amended by revising the introductory text 
and the paragraph (a) introductory text; by removing paragraph (a)(1) 
and redesignating paragraphs (a)(2) through (a)(6) as paragraphs (a)(1) 
through (a)(5), respectively; by adding a new paragraph (a)(6); by 
removing paragraph (b) and redesignating paragraphs (c) through (g) as 
paragraphs (b) through (f), respectively; by revising newly designated 
paragraphs (b), (d), (e) and (f); and by adding a new paragraph (g) to 
read as follows: [[Page 3566]] 


Sec. 1494.301  Information required for program participation.

    Before CCC will consider an offer from an interested person, such 
person must qualify for participation in the program. Based upon 
information submitted by the interested person and available from 
public sources, CCC will determine whether the interested person is 
eligible for participation in the program.
    (a) Submission of documentation. An interested person that wishes 
to qualify as an eligible exporter must furnish the following 
information or documentation to CCC at the address referenced in the 
Notice to Exporters--EEP Contacts:
* * * * *
    (6) The following certification: ``I certify, to the best of my 
knowledge and belief, that neither [name of interested person] nor any 
of its principals has been debarred, suspended, or proposed for 
debarment from contracting with or participating in programs 
administered by any U.S. Government agency. [``Principals,'' for the 
purpose of this certification, means officers; directors; owners of 
five percent or more of stock; partners; and persons having primary 
management or supervisory responsibility within a business entity 
(e.g., general manager, plant manager, head of a subsidiary division or 
business segment, and similar positions).] I further agree that, should 
any such debarment, suspension, or notice of proposed debarment occur 
in the future, [name of interested person] will immediately notify 
CCC.''
    (b) Necessity to qualify. An interested person may not submit an 
offer, and CCC will not consider any such offer, until CCC has notified 
the interested person that such person has qualified as an eligible 
exporter.
* * * * *
    (d) Previous performance. CCC may request additional information 
with respect to the interested person's performance under any U.S. 
Government programs or in connection with any contracts or agreements 
with the U.S. Government during the past three years.
    (e) Ineligibility for program participation. A person may be 
ineligible to participate in the EEP if such person:
    (1) is currently debarred, suspended or proposed for debarment from 
contracting with or participating in any program administered by a U.S. 
Government agency; or
    (2) is controlled or can be controlled, in whole or in part, by any 
individuals or entities currently debarred, suspended or proposed for 
debarment from contracting with or participating in programs 
administered by a U.S. Government agency.
    (f) Duty to update information provided to CCC. An eligible 
exporter is under a continuing obligation to inform CCC of any changes 
in the information or documentation submitted to CCC pursuant to 
paragraph (a) of this section and to provide current and accurate 
information to CCC.
    (g) Payment of bonus to exporters without proven EEP participation. 
An eligible exporter that has not yet demonstrated its ability to 
participate successfully in the EEP will be eligible to receive a bonus 
payment(s) only after the eligible commodity specified in an EEP 
Agreement has entered into the eligible country. Such an exporter must 
furnish performance security under ``Option B'' of the applicable 
Invitation and follow the procedure specified in Sec. 1494.701(d) to 
request the payment of the bonus. An eligible exporter may demonstrate 
its ability to participate successfully in the EEP by entering or 
causing to be entered into the eligible country at least 95% of the 
quantity of the eligible commodity specified in any one EEP Agreement. 
CCC will consider that an exporter has proven its ability to 
participate successfully in the EEP as of the date on which CCC pays to 
the exporter a bonus for entry of a quantity that brings the total 
entered quantity for any one EEP Agreement to at least 95%. For all EEP 
Agreements that such exporter enters into with CCC subsequent to that 
date, the exporter may furnish performance security under ``Option A'' 
of the applicable Invitation and will be eligible to receive bonus 
payments in accordance with Sec. 1494.701(c).

    Signed at Washington, DC, on January 11, 1995.
Christopher E. Goldthwait,
General Sales Manager and Vice President, Commodity Credit Corporation.
[FR Doc. 95-1192 Filed 1-17-95; 8:45 am]
BILLING CODE 3410-10-P