[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]
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Proposed Rules
Federal Register
________________________________________________________________________
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.
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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