[Federal Register Volume 67, Number 177 (Thursday, September 12, 2002)]
[Rules and Regulations]
[Pages 57719-57722]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23074]



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 Rules and Regulations
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  Federal Register / Vol. 67, No. 177 / Thursday, September 12, 2002 / 
Rules and Regulations  

[[Page 57719]]



DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1470

RIN 0560-AG63


Apple Market Loss Assistance Payment Program II

AGENCY: Commodity Credit Corporation, USDA.

ACTION: Final rule.

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SUMMARY: This rule implements the Apple Market Loss Assistance Payment 
Program II (AMLAP-II). The program is designed to provide relief to 
apple producers for the loss of markets during the 2000 crop year. The 
payments provided by this rule will offset a portion of the per-bushel 
losses producers have incurred marketing apples in the U.S. Those 
eligible will receive an immediate payment to help pay operating 
expenses and meet other financial obligations.

DATES: Effective September 12, 2002.

FOR FURTHER INFORMATION CONTACT: Danielle Cooke, Price Support 
Division, FSA/USDA, Stop 0512, 1400 Independence Ave., SW., Washington, 
DC, 20250-0512; telephone (202) 720-1919; facsimile (202) 690-3307; e-
mail: [email protected]. Persons with disabilities who 
require alternative means for communication (Braille, large print, 
audio tape, etc.) should contact the USDA Target Center at (202) 720-
2600 (voice and TDD).

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    This final rule is issued in conformance with Executive Order 12866 
and has been determined to be significant and has been reviewed by the 
Office of Management and Budget.

Regulatory Flexibility Act

    The Regulatory Flexibility Act is not applicable to this rule 
because USDA is not required by 5 U.S.C. 553 or any other provision of 
law to publish a notice of proposed rulemaking on the subject matter of 
this rule.

Environmental Evaluation

    It has been determined by an environmental evaluation that this 
action will have no significant impact on the quality of the human 
environment. Therefore, neither an environmental assessment nor an 
Environmental Impact Statement is needed.

Executive Order 12988

    This rule has been reviewed in accordance with Executive Order 
12988. This rule preempts State laws that are inconsistent with this 
rule. Before any judicial action may be brought concerning this rule, 
the administrative remedies must be exhausted.

Executive Order 12372

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

Unfunded Mandates

    The provisions of Title II of the Unfunded Mandates Reform Act of 
1995 are not applicable to this rule because the USDA is not required 
by 5 U.S.C. 553 or any other law to publish a notice of proposed 
rulemaking on the subject matter of this rule. Further, in any case, 
these provisions do not impose any mandates on state, local or tribal 
governments, or the private sector.

Federal Assistance Program

    The title and number of the Federal assistance program, as found in 
the Catalogue of Federal Domestic Assistance, to which this rule 
applies are:

    10.075--Special Apple Program

Paperwork Reduction Act

    A notice with request for comments on the information collection 
was part of the proposed rule. No comments were received from the 
public during the 60-day comment period regarding the information 
collection. In accordance with the Paperwork Reduction Act of 1995, FSA 
has submitted an emergency information collection request to OMB for 
the approval of a reinstatement, with change, or a previously approved 
collection for which approval has expired for the Apple Market Loss 
Assistance Payment Program application, as necessary for the proper 
functioning of the program. A regular information collection package 
will be submitted to OMB.

Information Collection

    FSA is committed to compliance with the Government Paperwork 
Elimination Act (GPEA) and the Freedom to E-File Act, which require 
Government agencies in general and FSA in particular to provide the 
public the option of submitting information or transacting business 
electronically to the maximum extent possible. The forms and other 
information collection activities required for participation in the 
program implemented under this rule are not yet fully implemented for 
the public to conduct business with FSA electronically. However, the 
application form will be available electronically through the USDA 
eForms web site at http://www.sc.egov.usda.gov for downloading. The 
regulation will be available at FSA's Price Support Division internet 
site at http://www.fsa.usda.gov/dafp/psd. Applications may be submitted 
at the FSA county offices, by mail or by FAX. At this time, electronic 
submission is not available because signatures from multiple producers 
with shares in the apple operations production are required. Still, 
full implementation of electronic submission is underway.

Executive Order 12612

    This rule does not have sufficient Federalism implications to 
warrant the preparation of a Federalism Assessment. The provisions 
contained in this rule will not have a substantial direct effect on 
States or their political subdivisions, or on the distribution of power 
and responsibilities among the various levels of government.

Public Comments

    This rule finalizes the proposed rule published in the Federal 
Register at 67 FR 139 on July 19, 2002. The comment period for the 
proposed AMLAP-II rule closed on August 19, 2002. Comments were 
received from two agricultural

[[Page 57720]]

trade associations and one farm bureau. Two comments received expressed 
the urgency for USDA to administer this critical assistance to apple 
growers. FSA recognizes the immediate need of the financial assistance 
this program will offer to the nation's apple growers and are 
undertaking measures to expedite the dispersal of funds and relieve 
some of the economic stress from production losses experienced by 
growers in the apple industry.
    The other comment received directed concern toward inconsistencies 
in how the rule establishes eligible production. Their concern was that 
the rule, as written, would confuse program participants. The 
respondent indicated that the definition of ``eligible production'' in 
section 1470.103 should be changed to include harvested production, so 
it is consistent with section 1470.101(b), which indicates that 
payments shall be available only for apples produced and harvested. The 
respondent also noted that there were other areas in the rule that 
referenced eligible production as only having to be produced during the 
2000 crop year rather than produced and harvested during the 2000 crop 
year. The Agency agrees that this clarification is useful and adopted 
the appropriate changes in this final rule to state explicitly in 
section 1470.103, as well, that eligible apple production must be 
produced and harvested during the 2000 crop year.

List of Subjects in 7 CFR Part 1470

    Administrative practice and procedure, Apples, Grant programs-
agriculture, Reporting and recordkeeping requirements.


    Accordingly, for the reasons set forth in the preamble, 7 CFR part 
1470 is amended as follows:

PART 1470--APPLE MARKET LOSS ASSISTANCE PAYMENT PROGRAM

    1. The authority citation for part 1470 is revised to read as 
follows:

    Authority: Sec. 811, Pub. L. 106-387, 114 Stat. 1549; Sec. 741, 
Pub. L. 107-76, 115 Stat. 704; Sec. 102, Pub. L. 107-117, 115 Stat. 
2230.


    2. Redesignate Sec. Sec.  1470.1 through 1470.16 as subpart A and 
add a heading for subpart A to read as follows:

Subpart A--Apple Market Loss Payment Program

    3. Add subpart B to part 1470 to read as follows:
Subpart B--Apple Market Loss Assistance Payment Program II
Sec.
1470.101 Applicability.
1470.102 Administration.
1470.103 Definitions.
1470.104 Time and method of application.
1470.105 Eligibility.
1470.106 Proof of production.
1470.107 Availability of funds.
1470.108 Applicant payment quantity.
1470.109 Payment rate and apple operation payment.
1470.110 Offsets and withholdings.
1470.111 Assignments.
1470.112 Appeals.
1470.113 Misrepresentation and scheme or device.
1470.114 Estates, trusts, and minors.
1470.115 Death, incompetency, or disappearance.
1470.116 Maintenance and inspection of records.
1470.117 Refunds; joint and several liability.

Subpart B--Apple Market Loss Assistance Payment Program II


Sec.  1470.101  Applicability.

    (a) The regulations in this subpart are applicable to producers of 
the 2000 crop of apples. These regulations set forth the terms and 
conditions under which the Commodity Credit Corporation (CCC) shall 
provide payments to apple producers who have applied to participate in 
the Apple Market Loss Assistance Payment Program II in accordance with 
section 741 of Public Law 107-76, as amended by Public Law 107-117. 
Additional terms and conditions may be set forth in the payment 
application that must be executed by participants to receive a market 
loss payment for apples.
    (b) Payments shall be available only for apples produced and 
harvested in the United States.


Sec.  1470.102  Administration.

    (a) The Apple Market Loss Assistance Payment Program II shall be 
administered under the general supervision of the Executive Vice 
President, CCC (Administrator, FSA), or a designee, and shall be 
carried out in the field by FSA State and county committees (State and 
county committees) and FSA employees.
    (b) State and county committees, and representatives and employees 
thereof, do not have the authority to modify or waive any of the 
provisions of the regulations of this subpart.
    (c) The State committee shall take any action required by the 
regulations of this subpart that has not been taken by the county 
committee. The State committee shall also:
    (1) Correct, or require the county committee to correct, any action 
taken by such county committee that is not in accordance with the 
regulations of this subpart; and
    (2) Require a county committee to withhold taking any action that 
is not in accordance with the regulations of this subpart.
    (d) No provision or delegation of this subpart to a State or county 
committee shall preclude the Executive Vice President, CCC, or a 
designee, from determining any question arising under the program or 
from reversing or modifying any determination made by the State or 
county committee.
    (e) The Deputy Administrator, Farm Programs, FSA, may authorize 
State and county committees to waive or modify deadlines and other 
program requirements in cases where lateness or failure to meet such 
other requirements do not adversely affect the operation of the Apple 
Market Loss Assistance Payment Program II and does not violate 
statutory limitations on the program.
    (f) Payment applications and related documents not executed in 
accordance with the terms and conditions determined and announced by 
CCC, including any purported execution outside of the dates authorized 
by CCC, shall be null and void unless the Executive Vice President, 
CCC, shall otherwise allow.


Sec.  1470.103  Definitions.

    The definitions set forth in this section shall be applicable for 
all purposes of administering the Apple Market Loss Assistance Payment 
Program II established by this subpart.
    Administrator means the FSA Administrator.
    Apple operation means any person or group of persons who, as a 
single unit as determined by CCC, produces and market apples in the 
United States.
    Application means Form CCC-891, the Apple Market Loss Assistance 
Payment Application.
    Application period means the date established by the Deputy 
Administrator for producers to apply for program benefits.
    CCC means the Commodity Credit Corporation.
    County committee means the FSA county committee.
    County office means the local FSA office.
    Department or USDA means the United States Department of 
Agriculture.
    Deputy Administrator means the Deputy Administrator for Farm 
Programs (DAFP), Farm Service Agency (FSA) or a designee.
    Farm Service Agency or FSA means the Farm Service Agency of the 
Department.
    Eligible production means apples that were produced and harvested 
in the

[[Page 57721]]

United States anytime during the 2000 crop year, up to a maximum of 
5,000,000 pounds per apple operation.
    Payment pounds means the pounds of apples for which an operation is 
eligible to be paid under this subpart.
    Person means any individual, group of individuals, partnership, 
corporation, estate, trust association, cooperative, or other business 
enterprise or other legal entity who is, or whose members are, a 
citizen of, or legal resident alien or aliens in the United States.
    Secretary means the Secretary of the United States Department of 
Agriculture or any other officer or employee of the Department who has 
been delegated the authority to act in the Secretary's stead with 
respect to the program established in this part.
    United States means the 50 States of the United States of America, 
the District of Columbia, and the Commonwealth of Puerto Rico.
    Verifiable production records means evidence that is used to 
substantiate the amount of production reported and that can be verified 
by CCC through an independent source.


Sec.  1470.104  Time and method of application.

    (a) Apple producers may obtain an application, in person, by mail, 
by telephone, or by facsimile from any county FSA office. In addition, 
applicants may download a copy of the application at http://www.sc.egov.usda.gov.
    (b) A request for benefits under this subpart must be submitted on 
a completed application as defined in Sec.  1470.103. Applications 
should be submitted to the FSA county office serving the county where 
the apple operation is located but, in any case, must be received by 
the FSA county office by the close of business on the date established 
by the Deputy Administrator. Applications not received by the close of 
business on such date will be disapproved as not having been timely 
filed and the apple operation will not be eligible for benefits under 
this program.
    (c) All persons who share in the risk of an apple operation's total 
production must certify to the information on the application before 
the application will be considered complete.
    (d) The apple operation requesting benefits under this subpart must 
certify to the accuracy and truthfulness of the information provided in 
their application. All information provided is subject to verification 
by CCC. Refusal to allow CCC or any other agency of the Department of 
Agriculture to verify any information provided will result in a denial 
of eligibility. Furnishing the information is voluntary; however, 
without it program benefits will not be approved. Providing a false 
certification to the Government is punishable by imprisonment, fines 
and other penalties.


Sec.  1470.105  Eligibility.

    (a) To be eligible to receive a payment under this subpart, an 
apple operation must:
    (1) Have produced and harvested apples in the United States at some 
time during the 2000 crop year;
    (2) Not have been compensated for the same market loss by any other 
Federal programs, except an indemnity provided under a policy or plan 
of insurance offered under the Federal Crop Insurance Act (7 U.S.C. 
1501).
    (3) Apply for payments during the application period.
    (b) Payments may be made for losses suffered by an eligible 
producer who is now deceased or is a dissolved entity if a 
representative who currently has authority to enter into a contract for 
the producer signs the application for payment. Proof of authority to 
sign for the deceased producer or dissolved entity must be provided. If 
a 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.
    (c) An apple operation must submit a timely application and comply 
with all other terms and conditions of this subpart and instructions 
issued by CCC, as well as comply with those instructions that are 
otherwise contained in the application to be eligible for benefits 
under this subpart.
    (d) All payments under this part are subject to the availability of 
funds.


Sec.  1470.106  Proof of production.

    (a) Apple operations selected for spot checks by CCC must, in 
accordance with instructions issued by the Deputy Administrator, 
provide adequate proof of the apples produced and harvested during the 
2000 crop year to verify production. The documentary evidence of apple 
production claimed for payment shall be reported to CCC together with 
any supporting documentation under paragraph (b) of this section. The 
2000 crop year production must be documented using actual records.
    (b) All persons involved in such apple operation producing apples 
during the 2000 crop year shall provide any available supporting 
documents to assist the county FSA office in verifying the operation's 
apple production indicated on the application. Examples of supporting 
documentation include, but are not limited to: picking, packout, and 
payroll records, RMA records, sales documents, copies of receipts, 
ledgers of income, or any other documents available to confirm the 
production and production history of the apple operation. In the event 
that supporting documentation is not presented to the county FSA office 
requesting the information, apple operations will be determined 
ineligible for benefits.


Sec.  1470.107  Availability of funds.

    The total available program funds shall be $75 million as provided 
by section 741 of Public Law 107-76 except as determined appropriate by 
the Executive Vice President of CCC and authorized by law. Any 
discretion in such matters shall be the discretion of the Executive 
Vice President alone.


Sec.  1470.108  Applicant payment quantity.

    (a) The applicant's payment quantity of apples will be determined 
by CCC, based on the production of the 2000 crop of apples that was 
produced and harvested by each operation.
    (b) The maximum quantity of apples for which producers are eligible 
for a payment under this subpart shall be 5,000,000 pounds per 
operation. The Deputy Administrator shall determine what may be 
considered a distinct operation and that decision shall be final.


Sec.  1470.109  Payment rate and apple operation payment.

    (a) A national per-pound payment rate will be determined after the 
conclusion of the application period, and shall be calculated, to the 
extent practicable, by dividing the $75 million available for the Apple 
Market Loss Assistance Payment Program II by the total pounds of 
eligible production approved for payment.
    (b) Each eligible apple operation's payment will be calculated by 
multiplying the payment rate determined in paragraph (a) of this 
section by the apple operation's eligible production.
    (c) In the event that approval of all eligible applications would 
result in expenditures in excess of the amount available, CCC shall 
reduce the payment rate in such manner as CCC, in its sole discretion, 
finds fair and reasonable.
    (d) A reserve may be created to handle claims but claims shall not 
be payable once the available funding is expended.


Sec.  1470.110  Offsets and withholdings.

    CCC may offset or withhold any amount due CCC under this subpart in

[[Page 57722]]

accordance with the provisions of 7 CFR part 1403.


Sec.  1470.111  Assignments.

    Any person who may be entitled to a payment may assign his rights 
to such payment in accordance with 7 CFR part 1404 or successor 
regulations as designated by the Department.


Sec.  1470.112  Appeals.

    Any producer who is dissatisfied with a determination made pursuant 
to this subpart may make a request for reconsideration or appeal of 
such determination in accordance with the appeal regulations set forth 
at 7 CFR parts 11 and 780.


Sec.  1470.113  Misrepresentation and scheme or device.

    (a) An apple operation shall be ineligible to receive assistance 
under this program if it is determined by the State committee or county 
committee to have knowingly:
    (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 determination under this 
program. CCC will notify the appropriate investigating agencies of the 
United States and take steps deemed necessary to protect the interests 
of the government.
    (b) Any funds disbursed pursuant to this part to any person or 
operation engaged in a misrepresentation, scheme, or device, shall be 
refunded to CCC in accordance with Sec.  1470.117(a). The remedies 
provided in this subpart shall be in addition to other civil, criminal, 
or administrative remedies which may apply.


Sec.  1470.114  Estates, trusts, and minors.

    (a) Program documents executed by persons legally authorized to 
represent estates or trusts will be accepted only if such person 
furnishes evidence of the authority to execute such documents.
    (b) A minor who is otherwise eligible for assistance under this 
part must also:
    (1) Establish that the right of majority has been conferred on the 
minor by court proceedings or by statute;
    (2) Show that a guardian has been appointed to manage the minor's 
property and the applicable program documents are executed by the 
guardian; or
    (3) Furnish a bond under which the surety guarantees any loss 
incurred for which the minor would be liable had the minor been an 
adult.


Sec.  1470.115  Death, incompetency, or disappearance.

    In the case of death, incompetency, disappearance or dissolution of 
a person that is eligible to receive benefits in accordance with this 
subpart, such person or persons specified in part 707 of this chapter 
may receive such benefits, as determined appropriate by FSA.


Sec.  1470.116  Maintenance and inspection of records.

    (a) Persons making application for benefits under this program must 
maintain accurate records and accounts that will document that they 
meet all eligibility requirements specified herein, as may be requested 
by CCC. Such records and accounts must be retained for 3 years after 
the date of payment to the apple operation under this program. 
Destruction of the records 3 years after the date of payment shall be 
the risk of the party undertaking the destruction.
    (b) At all times during regular business hours, authorized 
representatives of CCC, the United States Department of Agriculture, or 
the Comptroller General of the United States shall have access to the 
premises of the apple operation in order to inspect, examine, and make 
copies of the books, records, and accounts, and other written data as 
specified in paragraph (a) of this section.
    (c) Any funds disbursed pursuant to this subpart to any person or 
operation who does not comply with the provisions of paragraphs (a) or 
(b) of this section, or who otherwise receives a payment for which they 
are not eligible, shall be refunded with interest.


Sec.  1470.117  Refunds; joint and several liability.

    (a) In the event of an error on an application, a failure to comply 
with any term, requirement, or condition for payment arising under the 
application, or this subpart, all improper payments shall be refunded 
to CCC together with interest and late payment charges as provided in 
part 1403 of this chapter.
    (b) All persons signing an apple operation's application for 
payment as having an interest in the operation shall be jointly and 
severally liable for any refund, including related charges, that is 
determined to be due for any reason under the terms and conditions of 
the application or this part with respect to such operation.

    Signed in Washington, DC, on August 30, 2002.
James R. Little,
Executive Vice President, Commodity Credit Corporation.
[FR Doc. 02-23074 Filed 9-11-02; 8:45 am]
BILLING CODE 3410-05-P