[Federal Register Volume 67, Number 198 (Friday, October 11, 2002)]
[Rules and Regulations]
[Pages 63242-63246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-25984]


-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1470

RIN 0560-AG85


Apple Market Loss Assistance Payment Program III

AGENCY: Commodity Credit Corporation, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule implements the Apple Market Loss Assistance 
Payment Program III under the Farm Security and Rural Investment Act of 
2002 (Public Law 107-171) (the 2002 Act). The program will provide 
direct payments to apple producers to provide relief due to the low 
prices received for their 2000 crop.

DATES: Effective October 8, 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:

Notice and Comment

    Section 1601(c) of the 2002 Act requires that regulations needed to 
implement Title I of the 2002 Act, which includes this program, be 
promulgated without regard to the notice and comment provisions of 5 
U.S.C. 553 or the Statement of Policy of the Secretary of Agriculture 
(the Secretary) effective July 24, 1971 (36 FR 13804) relating to 
notices of proposed rulemaking and public participation in rulemaking. 
These regulations are thus issued as final.

Executive Order 12866

    This rule was determined to be significant for the purposes of 
Executive Order 12866 and has been reviewed by the Office of Management 
and Budget.

Federal Assistance Programs

    The title and number of the Federal assistance program found in the 
Catalog of Federal Domestic Assistance to which this final rule applies 
is:

Special Apple Program--10.075

Regulatory Flexibility Act

    The Regulatory Flexibility Act is not applicable to this rule 
because the Commodity Credit Corporation (CCC) 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 Assessment

    The environmental impacts of this final rule have been considered 
under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 
4321 et seq., the regulations of the Council on Environmental Quality 
(40 CFR parts 1500-1508), and FSA's regulations for compliance with 
NEPA, 7 CFR part 799. FSA has completed a final environmental 
assessment and concluded that the proposed action will have no 
significant impacts upon the human environment as documented through 
the completion of a Finding of No Significant Impact (FONSI). A copy of 
the final environmental assessment and FONSI are available for 
inspection and review upon request.

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

    Title II of the Unfunded Mandates Reform Act of 1995 does not apply 
to this rule because CCC is not required by 5 U.S.C. 553 or any other 
law to publish a notice of proposed rulemaking about this rule. Also, 
this rule contains no mandates as defined in sections 202 and 205 of 
UMRA.

Small Business Regulatory Enforcement Fairness Act of 1996

    Section 1601(c) of the 2002 Act requires that the regulations 
necessary to implement these provisions be issued as soon as practical 
after the date of enactment of Pub. L. 107-171 and that such 
regulations shall be issued without regard to the notice and comment 
provisions of 5 U.S.C. 553. Section 1601(c) also requires that the 
Secretary use the authority in section 808 of the Small Business 
Regulatory Enforcement Fairness Act of 1996, Pub. L. 104-121 (SBREFA), 
which allows an agency to forgo SBREFA's usual 60-day Congressional 
review delay of the effective date of a major regulation if the agency 
find that there is good cause to do so. These regulations affect the 
planting and marketing decisions of a large number of agricultural 
producers. Accordingly, this rule is effective upon filing for public 
inspection by the Office of the Federal Register.

[[Page 63243]]

Paperwork Reduction Act

    Section 1601(c) of the 2002 Act provides that the promulgation of 
regulations and the administration of Title I of the 2002 Act shall be 
done without regard to chapter 5 of title 44 of the United States Code 
(the Paperwork Reduction Act). Accordingly, these regulations and the 
forms and other information collection activities needed to administer 
the program authorized by these regulations are not subject to review 
by the Office of Management and Budget under the Paperwork Reduction 
Act.

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 operation's production are required. Still, 
full implementation of electronic submission is underway.

Background

    Section 10105 of the 2002 Act directs the Secretary of Agriculture 
to use $94 million of funds of the Commodity Credit Corporation (CCC) 
to provide assistance to producers for loss of markets during the 2000 
crop year.
    Apples are grown in every state in the continental United States, 
and are grown commercially in 36 states. During the past few years a 
number of factors have produced a serious economic crisis that 
threatens the existence of apple producers throughout the United 
States. Twenty years of increasing world production, stagnant domestic 
consumption, natural disasters and low-priced juice imports have 
altered the blueprint for economic success in the apple industry.
    This rule addresses the situation by continuing with an ongoing 
series of rulemaking that authorizes continuation of a program for the 
market loss of apples for 2000 crop production utilizing the forgoing 
authority. 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.
    Section 801 of Public Law 106-387 authorized the first Apple Market 
Loss Assistance Program (AMLAP I) for the 1998 and 1999 crops of 
apples. Regulations for that program were published on March 8, 2001 
(66 FR 13839). A similar program (AMLAP II) was authorized in section 
741 of Public Law 107-76, as amended by Public Law 101-117, for the 
2000 crop of apples, which provided that there could be no duplicative 
benefits made under another act for the same losses covered by AMLAP I. 
Because there was no exemption from rulemaking, as provided in section 
1601(c) of the 2002 Act, a proposed rule was issued on July 19, 2002 
for AMLAP II (67 FR 47477), and a final rule was published on September 
12, 2002 (67 FR 57719).
    The 2002 Act does not contain any reference to duplicative 
payments. Because (1) the 2002 Act was later enacted, and there is no 
legislative history to indicate that Public Law 107-76, as amended by 
Public Law 107-117, was to be applied to subsequently-enacted statutory 
provisions, and (2) the funds available to make payments under AMLAP II 
are not sufficient to cover all of the losses incurred by producers 
with respect to their 2000 crop of apples, AMLAP III payments made to 
producers who receive AMLAP II payments are not considered duplicative 
payments, which are prohibited under AMLAP II.
    The 2002 Act provides that producers of apples can receive a 
payment on a per-pound basis for 2000-crop production from a qualifying 
operation, up to a maximum of 5 million pounds per separate apple 
operation. To be eligible, apple producers must: (1) Have produced and 
harvested apples during the 2000 crop year, and (2) apply for cash 
payments during the application period for each apple operation. The 
2002 Act also specified that benefits under the program would not be 
subject to payment or income eligibility limitations, other than those 
provided for in the statute. Therefore, producers do not have to be in 
the business of producing and marketing agricultural products at the 
time of application if the producer was actively producing and 
marketing agricultural products during the 2000 crop year. At the close 
of the sign-up period, a national per-pound payment rate will be 
determined by dividing the available $94,000,000 by the total pounds of 
apples from all applicants, with no operation exceeding 5 million 
pounds. Because funds for this program are fixed, the national average 
payment rate and individual payments can only be calculated after the 
total eligible quantity of apple production has been determined. 
Information provided on applications will be subject to verification by 
FSA. Applications to be verified will be selected randomly. Penalties 
for false certifications can be easily assessed and are expected to 
minimize such certifications. Apple operations may, during the 
application period, apply in person at FSA county offices during 
regular business hours. Alternatively, program applications may be 
obtained by mail, telephone, and facsimile from their designated FSA 
county office or obtained via the Internet. The Internet Web site is 
located at http://www.fsa.usda.gov/dafp/psd/.

List of Subjects in 7 CFR Part 1470

    Apples, Reporting and recordkeeping requirements.

    For the reasons set out 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; Sec. 10105, Pub. L. 107-171, 116 Stat. 489.

    2. Add subpart C to part 1470 to read as follows:

Subpart C--Apple Market Loss Payment Program III

Sec.
1470.201 Applicability.
1470.202 Administration.
1470.203 Definitions.
1470.204 Time and method of application.
1470.205 Eligibility.
1470.206 Proof of production.
1470.207 Availability of funds.
1470.208 Applicant payment quantity.
1470.209 Payment rate and apple operation payment.
1470.210 Offsets and withholdings.
1470.211 Assignments.
1470.212 Appeals.
1470.213 Misrepresentation and scheme or device.
1470.214 Estates, trusts, and minors.
1470.215 Death, incompetency, or disappearance.

[[Page 63244]]

1470.216 Maintenance and inspection of records.
1470.217 Refunds; joint and several liability.
1470.218 Violations of highly erodible land and wetland conservation 
provisions.

Subpart C--Apple Market Loss Assistance Payment Program III


Sec.  1470.201  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 III in accordance with 
section 10105 of Public Law 107-171. 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.  1470.202  Administration.

    (a) The Apple Market Loss Assistance Payment Program III shall be 
administered under the general supervision of the Executive Vice 
President, CCC, 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 for 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 III and do 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.  1470.203  Definitions.

    The definitions set forth in this section shall apply to the Apple 
Market Loss Assistance Payment Program III as follows:
    Administrator means the Administrator, Farm Service Agency.
    Apple operation means any person or group of persons who, as a 
single unit as determined by CCC, produces and markets apples in the 
United States.
    Application means the Apple Market Loss Assistance Payment 
Application.
    Application period means the period beginning September 30, 2002, 
and ending on November 8, 2002, 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, Farm Service Agency, or a designee.
    Eligible production means apples that were produced and harvested 
in the United States anytime during the 2000 crop year, up to a maximum 
of 5 million pounds per apple operation.
    Farm Service Agency or FSA means the Farm Service Agency of the 
Department.
    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 subpart.
    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 harvested production reported and that can 
be verified by CCC through an independent source.


Sec.  1470.204  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.  1470.203. 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 November 8, 2002. 
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.  1470.205  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) Apply for payments during the application period according to 
Sec.  1470.204.
    (b) Payments may be made for losses suffered by an eligible 
producer who is

[[Page 63245]]

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 subpart are subject to the availability 
of funds.


Sec.  1470.206  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 must 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.  1470.207  Availability of funds.

    The total available program funds shall be $94 million as provided 
by Sec.  10105 of Public Law 107-171 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.  1470.208  Applicant payment quantity.

    (a) The applicants 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 million pounds per 
operation. The Deputy Administrator shall determine what may be 
considered a distinct operation and that decision shall be final.


Sec.  1470.209  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 $94 million available for the Apple 
Market Loss Assistance Payment Program III by, for all applicants taken 
together, 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 otherwise expended.


Sec.  1470.210  Offsets and withholdings.

    CCC may offset or withhold any amount due CCC under this subpart in 
accordance with the provisions of part 1403 of this chapter.


Sec.  1470.211  Assignments.

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


Sec.  1470.212  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 parts 11 and 780 of this title.


Sec.  1470.213  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.  1470.217(a). The remedies 
provided in this subpart shall be in addition to other civil, criminal, 
or administrative remedies which may apply.


Sec.  1470.214  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.  1470.215  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 
part, such person or persons specified in part 707 of this chapter may 
receive such benefits, as determined appropriate by FSA.


Sec.  1470.216  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

[[Page 63246]]

be at 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 part 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.  1470.217  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 title.
    (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.


Sec.  1470.218  Violations of highly erodible land and wetland 
conservation provisions.

    The provisions of part 12 of this title apply to this subpart.

    Signed in Washington, DC, on September 25, 2002.
James R. Little,
Executive Vice President, Commodity Credit Corporation.
[FR Doc. 02-25984 Filed 10-8-02; 1:07 pm]
BILLING CODE 3410-05-P