[Federal Register Volume 75, Number 39 (Monday, March 1, 2010)]
[Rules and Regulations]
[Pages 9087-9093]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3984]



[[Page 9087]]

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DEPARTMENT OF AGRICULTURE

Foreign Agricultural Service

7 CFR Part 1580

RIN 0551-AA80


Trade Adjustment Assistance for Farmers

AGENCY: Foreign Agricultural Service, USDA.

ACTION: Interim rule.

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SUMMARY: This interim rule immediately implements the Trade Adjustment 
Assistance (TAA) for Farmers program as reauthorized by the American 
Recovery and Reinvestment Act of 2009 (ARRA) and provides for the 
opening of a 30-day comment period. The ARRA modified the TAA for 
Farmers program as established by Subtitle C of Title I of the Trade 
Act of 2002, which amended the Trade Act of 1974. The rule establishes 
the procedures by which producers of raw agricultural commodities can 
petition for certification, apply for technical assistance, and receive 
cash benefits for the development and implementation of approved 
business adjustment plans. The Foreign Agricultural Service (FAS) is 
issuing this interim rule and providing for the opening of an interim 
rule comment period to ensure that an adequate opportunity to comment 
is provided all interested parties. After closure of the interim rule 
comment period and after consideration is provided to all comments 
received during the interim rule comment period, this rule will be 
adopted as final with or without change by publication in the Federal 
Register.

DATES: Effective Date: March 1, 2010.
    Comment Date: Comments should be received on or before March 31, 
2010, to be assured consideration.

ADDRESSES: Comments should be mailed or delivered to The Trade 
Adjustment Assistance for Farmers Staff, Import Policies and Export 
Reporting Division, Office of Trade Programs, Foreign Agricultural 
Service, 1400 Independence Avenue, SW., STOP 1021, Washington, DC 
20250-1021. Comments can also be e-mailed to 
[email protected]. Comments received may be inspected 
between 10 a.m. and 4 p.m. in Suite 100, 1250 Maryland Avenue, SW., 
Washington, DC 20034.

FOR FURTHER INFORMATION CONTACT: The Trade Adjustment Assistance for 
Farmers Staff, Import Policies and Export Reporting Division, Office of 
Trade Programs, Foreign Agricultural Service, 1400 Independence Avenue, 
SW., STOP 1021; or by e-mail at [email protected]; or by 
telephone at (202) 720-0638; or by fax at (202) 720-8461.

SUPPLEMENTARY INFORMATION: 

Background

    The American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) 
reauthorizes and modifies the Trade Adjustment Assistance (TAA) for 
Farmers program and provides both technical assistance and cash 
benefits to producers as established by Subtitle C of Title I of the 
Trade Act of 2002 (Pub. L. 107-210), which amended the Trade Act of 
1974. The statute authorizes an appropriation of not more than $90 
million per year for the 2009 and 2010 fiscal years, and $22.5 million 
for the period beginning October 1, 2010 and ending December 31, 2010 
to carry out the program; including the U. S. Department of Agriculture 
(USDA) salaries and expenses.
    Under this rule, a group of producers may petition the 
Administrator (FAS) for trade adjustment assistance during the petition 
period announced in the Federal Register. Petitioners must submit data 
on either the national average price, or quantity of production, or 
value of production, or cash receipts for the agricultural commodity 
for the most recent marketing year for which data are available and the 
three preceding marketing years. FAS will first review the petition for 
appropriateness, completeness, and timeliness, before publishing a 
notice in the Federal Register that it has been accepted. The Economic 
Research Service (ERS) will then conduct a market study to verify the 
decline in the national average price, or quantity of production, or 
value of production, or cash receipts for the petitioned commodity, and 
to assess possible causes, taking into due account any special factors 
which may have affected prices, including imports, exports, production, 
changes in consumer preferences, weather conditions, diseases, and 
other relevant issues. ERS will report its findings to the 
Administrator (FAS) who will review and determine whether or not to 
certify the petitioning group's eligibility for trade adjustment 
assistance.
    Upon certification of the petition, producers have 90 days to 
contact the Farm Service Agency (FSA) to apply for assistance. As soon 
as producers are found eligible, they may receive; (1) Training 
specifically tailored to their needs by the National Institute of Food 
and Agriculture (NIFA); and under certain circumstances (2) travel and 
per diem payments to help offset costs incurred to attend initial 
training. Depending on the commodity and the region, the training 
package may include technical publications in print or on-line, group 
seminars and presentations, one-on-one meetings, and assistance in the 
development of business adjustment plans. Producers who satisfy 
personal and farm income limits; complete the designated technical 
training; and develop and implement approved business plans are 
eligible for TAA for Farmers cash benefits. During the 36-month period 
following certification of the petition by the Administrator (FAS), a 
producer may receive not more than $12,000 for the development and 
implementation of business plans approved under the TAA for Farmers 
program. If the funding authorized by Congress is insufficient to pay 
100 percent of all TAA for Farmers obligations during the fiscal year, 
the payments provided for business plan development and implementation 
will be reduced proportionately, as determined by the Administrator 
(FAS).

Discussion of Comments

    FAS received sixteen comments on the proposed rule (74 FR 42799, 
August 25, 2009) during the proposed rule comment period which ran from 
August 25, 2009 through September 24, 2009. The comments focused on the 
following areas:

Payment Limitations and Adjusted Gross Income

    Three respondents expressed concern with limitations currently 
capped at $65,000 per year for counter-cyclical and Average Crop 
Revenue Election (ACRE) payments, and recommended removing these limits 
for cash payments under the TAA for Farmers program. Respondents also 
recommended removing the average Adjusted Gross Income (AGI) 
requirement. Section 296 of the Trade Act of 1974, as amended, 
specifically mandates limitations on assistance based on individual 
counter-cyclical, ACRE, and average AGI requirements as they are 
defined in the Food Security Act of 1985 (the 1985 Act). Therefore, 
these regulatory limits are being retained. FAS further refined these 
provisions by inserting language that clarifies the differences that 
exist in counter-cyclical, ACRE, and average AGI requirements for 
certified petitions for the 2008 crop year, and certified petitions for 
subsequent crop years.
    The interim rule incorporates revisions to Sec.  1580.301(d)(1) and 
(2) as contained in the proposed rule. The revision is for clarity and 
is consistent with the statutory authority for TAA for

[[Page 9088]]

Farmers. The statute provides that producers must demonstrate 
compliance that their average AGI does not exceed limits set forth in 
the 1985 Act. The average AGI provisions of the 1985 Act which are 
administered by the Commodity Credit Corporation pursuant to the 
regulations in 7 CFR part 1400 provide an average AGI limit of $2.5 
million for 2008 crop programs and, for 2009 and subsequent crops, 
limits of $500,000 for nonfarm average AGI and $750,000 farm average 
AGI. The proposed rule addressed the average AGI limits for 2009 and 
subsequent crops but did not include any reference to the $2.5 million 
average AGI limit applicable to 2008 crops. The interim rule at Sec.  
1580.301(d)(1) and (2) is amended so that the average AGI limits are 
specified for all crop years that might be certified for TAA for 
Farmers.
    For purposes of clarity, the interim rule incorporates revisions to 
the payment limitation provisions in Sec.  1580.301(e) as contained in 
the proposed rule. The statutory authority for TAA for Farmers provides 
that the total amount of payments made to a producer during any crop 
year may not exceed the limitations applicable to counter-cyclical 
payments and ACRE payments. For 2008 and 2009 and subsequent crop 
years, the payment limitation is $65,000. However, the proposed rule 
was not clear that the ACRE limitation is only effective for the 2009 
and subsequent crop commodities. The interim rule is therefore amended 
at Sec.  1580.301(e) to identify the payment limitation regulations 
applicable to the 2008 crop separately from regulations applicable to 
2009 and subsequent crop commodities.

Specialty Crops

    One respondent inquired if this program is specific to specialty 
crops and if processors are eligible for program benefits. The purpose 
of TAA for Farmers is to assist producers of raw agricultural 
commodities, aquaculture products, or wild-caught aquatic species, 
adjust to imports by providing technical assistance and cash benefits, 
and preparing and implementing business adjustment plans. The interim 
rule leaves unchanged the eligibility requirements to exclude 
processors since the statute specifically limits program benefits to 
producers of raw agricultural commodities.

Length of Intensive Training

    One respondent suggested that the Intensive Technical Assistance 
offered by NIFA be a minimum of 16 hours to accommodate the needs that 
would vary from applicant to applicant. The respondent felt that 
training must be at least 16 hours so that important information is 
covered that helps producers make the required adjustments in their 
agricultural businesses. The interim rule leaves the Intensive 
Technical Assistance training unchanged to provide the Administrator 
flexibility in developing a series of comprehensive courses to meet the 
needs of an individual producer and their particular circumstances.

Further Revisions

    In addition to the changes made in response to the comments listed 
above, FAS made additional changes in the interim rule by adding three 
new definitions that were not included in the proposed rule, namely 
``County price maintained by the Secretary,'' ``Deputy Administrator,'' 
and ``NIFA.''
    The definition of ``County price maintained by the Secretary'' was 
added for consistency with the statute that provides for use of such 
price by producers to establish their eligibility, and to clarify that 
a maintained price might be obtained from any USDA agency that records 
commodity prices for the purpose of program administration. The 
proposed rule provided for use of prices ``maintained by FSA,'' but the 
new definition and revised rule allows for the use of prices maintained 
by other USDA agencies in addition to prices maintained by FSA. This 
definition is consistent with the interim rule provision at Sec.  
1580.301(c)(3)(ii), under which a producer may establish benefit 
eligibility if there has been a decrease in the commodity price based 
on the county price, maintained by the Secretary on the date the 
petition was filed, compared to the county price for the 3 preceding 
marketing years.
    The interim rule incorporates a definition of ``Deputy 
Administrator,'' and adds a new provision at Sec.  1580.501(e) that 
provides authority for the Deputy Administrator of FSA to waive or 
modify non-statutory deadlines or other requirements where lateness to 
meet requirements by applicants does not adversely affect the operation 
of the program. This definition and authority were included in the 
interim rule governing the previous TAA program and are included in 
this interim rule to provide FSA flexibility in administering the 
application and payment processes for TAA for Farmers applicants.
    The interim rule incorporates a definition of ``NIFA,'' the 
National Institute of Food and Agriculture which was previously known 
as the Cooperative State Research, Education, and Extension Service 
(CSREES). This agency was renamed effective October 1, 2009 and the 
definition is included for clarity because the name change is thought 
not to be commonly known by prospective program applicants. The 
definition of CSREES has been deleted because the name of the agency 
has been changed.
    Upon further consideration of the proposed rule, FAS also made some 
other revisions and clarifications in the interim rule. The definition 
of ``Average price received by the producer'' was modified to remove 
the requirement that prices received by the producer be ``not weighted 
by production.'' This change was made to reflect the likelihood that 
prices received by the producer at the point of first sale would be 
established based on current production levels, and thus would be 
weighted.
    In Sec. Sec.  1580.201(d) and 1580.203(a) the word ``accepted'' was 
changed to ``filed'' to conform to the term usage in the statute.
    Clarification was made to Sec.  1580.301(c)(3)(ii) to define the 
date on which a petition is filed as the date on which the 
Administrator (FAS) accepts a petition for consideration as published 
in the Federal Register, and add a provision that if county prices are 
not available from within USDA, prices from other verifiable sources 
may be used.
    Upon further consideration of the proposed rule, FAS also decided 
not to conduct hearings with respect to appeals of adverse 
determinations. This change was made to minimize the potential burden 
upon the applicant and expedite FAS' review in making a final 
determination.

Executive Order 12866

    The Office of Management and Budget (OMB) designated this rule as 
significant under Executive Order 12866 and, therefore, it has been 
reviewed by OMB. A cost-benefit assessment for the proposed rule has 
been prepared and is available from the information contact cited 
above.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) requires agencies to prepare 
an analysis of the economic impact of any rule that is subject to 
notice and comment rulemaking, unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. The RFA does not apply to interim rules. As 
such, neither a regulatory flexibility analysis nor a certification is 
required at this time. FAS will prepare and publish its regulatory 
flexibility analysis or certification when this rule is finalized.

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Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995, FAS has 
previously received approval from the OMB with respect to the 
information collection required to support this program. The 
information collection is described below:
    Title: Trade Adjustment Assistance for Farmers.
    OMB Control Number: 0551-0040.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988. The 
provisions of this rule would not have preemptive effect with respect 
to any State or local laws, regulations, or policies which conflict 
with such provision or which otherwise impede their full 
implementation. The rule would not have retroactive effect. Before any 
judicial action may be brought regarding this rule, all administrative 
remedies must be exhausted.

National Environmental Policy Act

    The Administrator (FAS) has determined that this action will not 
have a significant effect on the quality of the human environment. 
Therefore, neither an Environmental Assessment nor an Environmental 
Impact Statement is necessary for this rule.

Executive Orders 12372, 13083 and 13084, and the Unfunded Mandates 
Reform Act (Pub. L. 104-4)

    These Executive Orders and Public Law 104-4 require consultation 
with State and local officials and Indian tribal governments. This rule 
does not impose an unfunded mandate or any other requirement on State, 
local or tribal governments. Accordingly, these programs are not 
subject to the provisions of Executive Order 12372, Executive Order 
13083, and Executive Order 13084, or the Unfunded Mandates Reform Act.

Executive Order 12630

    This Order requires careful evaluation of governmental actions that 
interfere with constitutionally protected property rights. This rule 
would not interfere with any property rights and, therefore, does not 
need to be evaluated on the basis of the criteria outlined in Executive 
Order 12630.

List of Subjects in 7 CFR Part 1580

    Agricultural commodity imports; Reporting and recordkeeping 
requirements; and trade adjustment assistance.

0
For reasons set out in the preamble, 7 CFR part 1580 is revised to read 
as follows:

Title 7--Agriculture

PART 1580--TRADE ADJUSTMENT ASSISTANCE FOR FARMERS

Sec.
1580.101 General statement.
1580.102 Definitions.
1580.201 Petitions for trade adjustment assistance.
1580.202 Hearings, petition reviews, and amendments.
1580.203 Determination of eligibility and certification by the 
Administrator (FAS).
1580.301 Application for trade adjustment assistance.
1580.302 Technical assistance and services.
1580.303 Adjustment assistance payments.
1580.401 Subsequent year petition recertification.
1580.501 Administration.
1580.502 Maintenance of records, audits, and compliance.
1580.503 Recovery of overpayments.
1580.504 Debarment, suspension, and penalties.
1580.505 Appeals.
1580.506 Judicial review.
1580.602 Paperwork Reduction Act assigned number.

    Authority: 19 U.S.C. 2401.


Sec.  1580.101  General statement.

    This part provides regulations for the Trade Adjustment Assistance 
(TAA) for Farmers program as authorized by the Trade Act of 1974, 
amended by Subtitle C of Title I of the Trade Act of 2002 (Pub. L. 107-
210), and re-authorized and modified by the American Recovery and 
Reinvestment Act of 2009 (Pub. L. 111-5). The regulations establish 
procedures by which a group of producers of raw agricultural 
commodities or fishermen (jointly referred to as ``producers'') can 
petition for certification of eligibility and through which individual 
producers covered by a certified petition can apply for technical 
assistance and cash benefits for the development and implementation of 
approved business adjustment plans.


Sec.  1580.102  Definitions.

    As used in the part, the following terms mean:
    Agricultural commodity means any commodity in its raw or natural 
state; found in chapters 1, 3, 4, 5, 6, 7, 8, 10, 12, 14, 23, 24, 41, 
51, and 52 of the Harmonized Tariff Schedule of the United States 
(HTS).
    Articles like or directly competitive generally means products 
falling under the same HTS number used to identify the agricultural 
commodity in the petition. A ``like'' product means substantially 
identical in inherent or intrinsic characteristics, and the term 
``directly competitive'' means articles that are substantially 
equivalent for commercial purposes (i.e., adapted to the same uses and 
essentially interchangeable therefore). For fishery products, 
competition could be either from farm-raised or wild-caught products.
    Authorized representative means an entity that represents a group 
of agricultural commodity producers or fishermen.
    Average price received by the producer means the average of the 3 
marketing year prices per unit received by the producer from the first 
level of sales for the commodity.
    Cash receipts mean the value of commodity marketings during the 
calendar year, irrespective of the year of production, as calculated by 
the Economic Research Service of the USDA.
    Certification of eligibility means the date on which the 
Administrator (FAS) announces in the Federal Register or by Department 
news release, whichever comes first, a certification of eligibility to 
apply for trade adjustment assistance.
    Contributed importantly means a cause which is important, but not 
necessarily more important than any other cause.
    County price maintained by the Secretary means a daily price 
obtained from a USDA agency for the commodity and producer location, 
except that weekly or monthly prices may be used if daily prices are 
unavailable.
    Department means the U.S. Department of Agriculture.
    Deputy Administrator means the Deputy Administrator for Farm 
Programs of the Farm Service Agency (FSA).
    Family member means an individual to whom a producer is related as 
spouse, lineal ancestor, lineal descendent, or sibling, including:
    (1) Great grandparent;
    (2) Grandparent;
    (3) Parent;
    (4) Children, including legally adopted children;
    (5) Grandchildren;
    (6) Great grandchildren;
    (7) Sibling of the family member in the farming operation; and
    (8) Spouse of a person listed in paragraphs (1) through (7) of this 
definition.
    Filing period means the dates during which petitions may be 
submitted, as published in the Federal Register.
    FSA means the Farm Service Agency of the U.S. Department of 
Agriculture.
    Group means three or more producers who are not members of the same 
family.
    Impacted area means one or more States of the United States.

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    Marketing year means the marketing season or year designated by the 
Administrator (FAS) with respect to an agricultural commodity. In the 
case of an agricultural commodity that does not have a designated 
marketing year, a calendar year will be used.
    National average price means the average price paid to producers 
for an agricultural commodity in a marketing year as determined by the 
National Agricultural Statistics Service (NASS) of the U.S. Department 
of Agriculture, or the National Marine Fisheries Service of the 
National Oceanic and Atmospheric Administration, when available, or 
when unavailable, as determined by the Administrator (FAS).
    NIFA means the National Institute of Food and Agriculture, the 
Federal agency within the U.S. Department of Agriculture which 
administers the Federal agricultural extension programs.
    Producer means a person who shares in the risk of producing an 
agricultural commodity and is entitled to a share of the commodity for 
marketing; including an operator, a sharecropper, or a person who owns 
or rents the land on which the commodity is produced; or a person who 
reports gain or loss from the trade or business of fishing on the 
person's annual Federal income tax return for the taxable year that 
most closely corresponds to the marketing year with respect to which a 
petition is filed.
    Raw or natural state means unaltered by any process other than 
cleaning, grading, coating, sorting, trimming, mixing, conditioning, 
drying, dehulling, shelling, chilling, cooling, blanching, irradiating, 
or fumigating.
    State Cooperative Extension Service means an organization 
established at the land-grant college or university under the Smith-
Lever Act of May 8, 1914, as amended (7 U.S.C. 341-349); section 209(b) 
of the Act of October 26, 1974, as amended (D.C. Code, through section 
31-1719(b)); or section 1444 of the National Agricultural Research, 
Extension, and Teaching Policy Act of 1977, as amended (7 U.S.C. 3221).
    United States means the 50 States of the United States, the 
District of Columbia, and Puerto Rico.
    Value of production means the value of commodities produced during 
the crop year calculated as production times the marketing year average 
price. This may be equal to cash receipts when the crop year for the 
commodity runs from January through December.


Sec.  1580.201  Petitions for trade adjustment assistance.

    (a) A group of producers in the United States or its authorized 
representative may file a petition for trade adjustment assistance.
    (b) Filings may be written or electronic, as provided for by the 
Administrator (FAS), and submitted to FAS no later than the last day of 
the filing period announced in the Federal Register. Petitions received 
after this date will be returned to the sender.
    (c) Petitions shall include the following information.
    (1) Name, business address, phone number, and e-mail address (if 
available) of each producer in the group, or its authorized 
representative. The petition shall identify a contact person for the 
group.
    (2) The agricultural commodity and its Harmonized Tariff Schedule 
of the United States (HTS) number.
    (3) The production area represented by the group or its authorized 
representative. The petition shall indicate if the group is filing on 
behalf of all producers in the United States, or if it is filing solely 
on behalf of all producers in a specifically identified impacted area. 
In the latter case, at least one member of the group must reside in 
each State within the impacted area.
    (4) The beginning and ending dates for the marketing year upon 
which the petition is based. A petition may be filed for only the most 
recent full marketing year for which data are available for national 
average prices, or quantity of production, or value of production, or 
cash receipts.
    (5) A justification statement explaining why the petitioners should 
be considered eligible for adjustment assistance.
    (6) Supporting information justifying the basis of the petition, 
including required data for the petitioned marketing year and the 
previous 3 marketing years.
    (i) Whenever possible, the petitioners shall use national average 
data compiled by the National Agricultural Statistics Service (NASS) or 
the National Marine Fisheries Service (NMFS), to determine national 
average prices, or quantity of production, or value of production, or 
cash receipts. If NASS or NMFS has not compiled such data for the 
commodity, the petitioners shall provide alternative data for the 
marketing year under review and for the previous 3 marketing years, and 
identify the source of the data. In such cases the Administrator (FAS) 
shall determine if the alternative data is acceptable.
    (ii) If the petition is filed on behalf of producers in a 
specifically identified impacted area, the petitioners shall provide 
the national average prices or county prices if applicable, or quantity 
of production or value of production, or cash receipts for the 
petitioned commodity in the impacted area for the marketing year under 
review and for the previous 3 marketing years, and identification of 
the data source.
    (iii) The Administrator (FAS) may request petitioners to provide 
records to support their data.
    (d) Once the petition is received, the Administrator (FAS) shall 
determine if it meets the requirements of Sec.  1580.201(c) of this 
part, and if so, publish notice in the Federal Register that a petition 
has been filed and that an investigation is being initiated. The notice 
shall identify the agricultural commodity, including any like or 
directly competitive commodities, the marketing year being 
investigated, the data being used, and the production area covered by 
the petition. The notice may also announce the scheduling of a public 
hearing, if requested by the petitioner. If the petition does not meet 
the requirements of Sec.  1580.201(c) of this part, the Administrator 
(FAS) shall notify as soon as practicable the contact person or the 
authorized representative for the group of the deficiencies.


Sec.  1580.202  Hearings, petition reviews, and amendments.

    (a) If the petitioner, or any other person found by the 
Administrator (FAS) to have a substantial interest in the proceedings, 
submits not later than 10 days after the date of publication of notice 
in the Federal Register under Sec.  1580.201(d) of this part, a request 
in writing for a hearing, the Administrator (FAS) shall provide for a 
public hearing and afford such interested person an opportunity to be 
present, to produce evidence, and to be heard.
    (b) If the petitioner or any other person having an interest in the 
proceedings takes issue with any of the information published in the 
Federal Register concerning the petition, such person may submit to the 
Administrator (FAS) their comments in writing or electronically for 
consideration by the Administrator (FAS) not later than 10 days after 
the date of publication of notice in the Federal Register under Sec.  
1580.201(d) of this part.
    (c) A producer or group of producers that resides outside of the 
State or region identified in the petition filed under paragraph (a) of 
this section, may file a request to become a party to that petition not 
later than 15 days after the date that the notice is published in the 
Federal Register under Sec.  1580.201(d) of this part. The 
Administrator (FAS) may amend the original petition to expand the 
impacted area and include the additional filer, or consider it a 
separate filing.

[[Page 9091]]

    (d) The Administrator (FAS) shall publish in the Federal Register 
as soon as practicable any changes to the original notice resulting 
from any actions taken under this section.


Sec.  1580.203  Determination of eligibility and certification by the 
Administrator (FAS).

    (a) As soon as practicable after the petition has been filed, but 
in any event not later than 40 days after that date, the Administrator 
(FAS) shall certify a group of producers as eligible to apply for 
adjustment assistance under this chapter if the Administrator (FAS) 
determines:
    (1) At least one of the following:
    (i) The national average price of the agricultural commodity 
produced by the group during the most recent marketing year for which 
data are available is less than 85 percent of the average of the 
national average price for the commodity in the 3 marketing years 
preceding such marketing year; or
    (ii) The quantity of production of the agricultural commodity 
produced by the group during such marketing year is less than 85 
percent of the average of the quantity of production of the commodity 
produced by the group in the 3 marketing years preceding such marketing 
year; or
    (iii) The value of production of the agricultural commodity 
produced by the group during such marketing year is less than 85 
percent of the average value of production of the commodity produced by 
the group in the 3 marketing years preceding such marketing year; or
    (iv) The cash receipts for the agricultural commodity produced by 
the group during such marketing year are less than 85 percent of the 
average of the cash receipts for the commodity produced by the group in 
the 3 marketing years preceding such marketing year;
    (2) The volume of imports of articles like or directly competitive 
with the agricultural commodity produced by the group in the marketing 
year with respect to which the group files the petition increased 
compared to the average volume of such imports during the 3 marketing 
years preceding such marketing year; and
    (3) The increase in such imports contributed importantly to the 
decrease in the national average price, or quantity of production, or 
value of production, or cash receipts for, the agricultural commodity.
    (b) In any case in which there are separate classes of goods within 
an agricultural commodity, the Administrator (FAS) shall treat each 
class as a separate commodity in determining:
    (1) Group eligibility;
    (2) The national average price, or quantity of production, or value 
of production, or cash receipts; and
    (3) The volume of imports.
    (c) Upon making a determination, whether affirmative or negative, 
the Administrator (FAS) shall promptly publish in the Federal Register 
a summary of the determination, together with the reasons for making 
the determination.
    (d) In addition, the Administrator (FAS) shall notify producers 
covered by a certification how to apply for adjustment assistance. 
Notification methods may include direct mailings to known producers, 
messages to directly affected producer groups and organizations, 
electronic communications, Web site notices on the Internet, use of 
broadcast print media, and transmittal through local USDA offices.
    (e) Whenever a group of agricultural producers is certified as 
eligible to apply for assistance, the Administrator (FAS) shall notify 
NIFA, the Agricultural Marketing Service, and FSA who will assist in 
informing other producers about the TAA for Farmers program and how 
they may apply for trade adjustment assistance.


Sec.  1580.301  Application for trade adjustment assistance.

    (a) Only producers covered by a certification of eligibility under 
Sec.  1580.203 of this title, may apply for adjustment assistance.
    (b) An eligible producer may submit an application for adjustment 
assistance by submitting to FSA a designated application form at any 
time after the certification date but not later than 90 days after the 
certification date. If the 90-day application period ends on a weekend 
or legal holiday, the producer may apply the following business day.
    (c) When submitting an application, the producer shall provide 
sufficient documentation to establish that:
    (1) The producer produced the agricultural commodity in the 
marketing year for which the petition is filed and in at least 1 of the 
3 marketing years preceding that marketing year;
    (2) There has been a decrease in the quantity of the agricultural 
commodity produced by the producer in the marketing year for which the 
petition is certified from the most recent prior marketing year 
preceding that marketing year for which data is available; or
    (3) There has been a decrease in the price of the agricultural 
commodity based on:
    (i) The price received for the agricultural commodity by the 
producer during the marketing year with respect to which the petition 
is filed from the average price for the commodity received by the 
producer in the 3 marketing years preceding that marketing year; or
    (ii) The effective posted county price maintained by the Secretary 
for the agricultural commodity on the date on which the Administrator 
(FAS) accepts a petition for consideration as published in the Federal 
Register from the average effective posted county level price for the 
commodity in the 3 marketing years preceding that date. If USDA prices 
are not available, prices from verifiable sources, including 
universities, cooperatives, or local markets, may be used.
    (4) If a petition is certified with respect to a commodity not 
produced by the producer every year, the producer may establish the 
average price received by the producer for the commodity in the 3 
marketing years preceding the year in which the petition is filed by 
using annual price data for the 3 most recent marketing years in which 
the producer produced the commodity.
    (5) The producer must certify that the producer has not received 
cash benefits under the Trade Adjustment Assistance for Workers or 
Trade Adjustment Assistance for Firms programs; or TAA for Farmers 
benefits based on the production of an agricultural commodity covered 
by another TAA for Farmers petition.
    (d) The producer must certify that:
    (1) For petitions certified for 2008 crops, their compliance with 
person determinations set forth in part 1400 of this title, subpart B 
and average adjusted gross income limitation requirements set forth in 
subpart G, effective July 18, 1996.
    (2) For petitions certified for 2009 and subsequent crops, their 
average gross nonfarm income and average adjusted gross farm income 
meet requirements set forth in part 1400 of this title, subpart F, and 
payment limitation requirements set forth in part 1400 of this title, 
subparts A and B, effective December 29, 2008; and,
    (e) The total amount of payments made to a producer for which the 
application was approved may not exceed the limitations on payments 
applicable to:
    (1) For petitions certified for 2008 crops, counter-cyclical 
payments, set forth in part 1400 of this title, subpart A, effective 
July 18, 1996.
    (2) For petitions certified for 2009 and subsequent crops, the 
counter-cyclical payments, including the Average Crop Revenue Election 
(ACRE) set forth in

[[Page 9092]]

part 1400 of this title, subparts A and B, effective December 29, 2008; 
and
    (f) If requested by FSA, a producer must provide documentation 
regarding average adjusted gross income and payment limitations.


Sec.  1580.302  Technical assistance and services.

    (a) Initial Technical Assistance: A producer covered by a 
certification who has been determined by FSA to meet the requirements 
of Sec.  1580.301 of this part, is eligible to receive Initial 
Technical Assistance through NIFA to be completed within 180 days of 
petition certification. Such assistance shall include information 
regarding:
    (1) Improving the yield and marketing of that agricultural 
commodity, and
    (2) The feasibility and desirability, of substituting one or more 
agricultural commodities for that agricultural commodity.
    (b) Intensive Technical Assistance: Upon completion of Initial 
Technical Assistance, a producer is eligible to participate in 
Intensive Technical Assistance. Intensive Technical Assistance shall 
consist of:
    (1) A series of courses to further assist the producer in improving 
the competitiveness of producing the agricultural commodity certified 
under Sec.  1580.203 of this part, or another agricultural commodity, 
and
    (2) Assistance in developing an initial business plan based on the 
courses completed under paragraph (a) of this section.
    (c) During Intensive Technical Assistance: NIFA shall deliver and 
the producer shall be required to attend a series of Intensive 
Technical Assistance workshops relevant to the circumstances of the 
producer.
    (d) Initial Business Plan: Upon completion of the Initial and 
Intensive Technical Assistance, the producer shall be required to 
develop an Initial Business Plan recommended by NIFA and approved by 
the Administrator (FAS) before receiving an adjustment assistance 
payment. The Initial Business Plan will:
    (1) Reflect the skills gained by the producer through the courses 
described in paragraph (c) of this section; and
    (2) Demonstrate how the producer will apply those skills to the 
circumstances of the producer.
    (e) Upon approval of the Initial Business Plan, the producer will 
receive an amount not to exceed $4,000 to implement the Initial 
Business Plan or develop a Long-Term Business Adjustment Plan.
    (f) A producer who completes the Intensive Technical Assistance and 
whose Initial Business Plan has been approved shall be eligible, in 
addition to the amount under paragraph (e) of this section, for 
assistance in developing a Long-Term Business Adjustment Plan.
    (g) Long-Term Business Adjustment Plan: The Long-Term Business 
Adjustment Plan shall:
    (1) Include steps reasonably calculated to materially contribute to 
the economic adjustment of the producer to changing market conditions;
    (2) Take into consideration the interests of the workers employed 
by the producer; and
    (3) Demonstrate that the producer will have sufficient resources to 
implement the business plan.
    (h) Upon recommendation by NIFA and approval of the producer's 
Long-Term Business Adjustment Plan by the Administrator (FAS), the 
producer shall be entitled to receive an amount not to exceed $8,000 to 
implement their Long-Term Business Adjustment Plan.
    (i) The Initial Business Plan and Long-Term Business Adjustment 
Plan must be completed and approved within 36 months after a petition 
is certified.
    (j) A producer shall not receive a combined total of more than 
$12,000 for the Initial Business Plan and the Long Term Business 
Adjustment Plan in the 36-month period following petition 
certification.
    (k) The Administrator (FAS) may authorize supplemental assistance 
necessary to defray reasonable transportation and subsistence expenses 
incurred by a producer in connection with the initial technical 
assistance, if such initial technical assistance is provided at 
facilities that are not within normal commuting distance of the regular 
place of residence of the producer. NIFA and FSA will work with the 
producer and the Administrator (FAS) to facilitate application for and 
proper payment of reasonable allowable supplemental expenses. The 
Administrator (FAS) will not authorize payments to a producer:
    (1) For subsistence expenses that exceed the lesser of:
    (i) The actual per diem expenses for subsistence incurred by a 
producer; or
    (ii) The prevailing per diem allowance rate authorized under 
Federal travel regulations; or
    (2) For travel expenses that exceed the prevailing mileage rate 
authorized under the Federal travel regulations.


Sec.  1580.303  Adjustment assistance payments.

    (a) If the Administrator (FAS) determines that insufficient 
appropriated fiscal year funds are available to provide maximum cash 
benefits to all eligible applicants, after having deducted estimated 
transportation and substance payments and administrative and technical 
assistance costs, the Administrator (FAS) shall prorate cash payments 
to producers for the approved initial and long-term business plans.
    (b) Any producer who may be entitled to a payment may assign their 
rights to such payment in accordance with 7 CFR part 1404 or successor 
regulations as designated by the Department.
    (c) In the case of death, incompetency, disappearance, or 
dissolution of a producer that is eligible to receive benefits in 
accordance with this part, such producer or producers specified in 7 
CFR part 707 may receive such benefits.


Sec.  1580.401  Subsequent year petition recertification.

    (a) Prior to the anniversary of the petition certification date:
    (1) Groups or authorized representatives that provided the data to 
justify their initial petition shall provide the Administrator (FAS) 
data for the most recent marketing year, and
    (2) The Administrator (FAS) shall make a determination with respect 
to the re-certification of petitions for the subsequent year by 
applying criteria as set forth in Sec.  1580.203 of this part for the 
most recent marketing year.
    (b) The Administrator (FAS) will promptly publish in the Federal 
Register the determination with the reasons for the determination.
    (c) If a petition is re-certified, only eligible producers who did 
not receive training and cash benefits under this program may apply.


Sec.  1580.501  Administration.

    (a) The petition process will be administered by FAS. FAS will 
publish in the Federal Register the filing dates for commodity groups 
to file petitions.
    (b) FSA will administer the producer application and payment 
process.
    (c) State and county FSA committees and representatives do not have 
the authority to modify or waive any of the provisions of this part.
    (d) The technical assistance process and the recommendation for 
approval of all producer business plans will be under the general 
supervision of NIFA. NIFA may award the technical assistance and 
services to a state cooperative extension service.
    (e) The Deputy Administrator may, in consultation with the 
Administrator, FAS, authorize the State and County committees to waive 
or modify non-statutory deadlines or other program requirements in 
cases where lateness or

[[Page 9093]]

failure to meet such other requirements by applicants does not 
adversely affect the operation of the program.


Sec.  1580.502  Maintenance of records, audits, and compliance.

    (a) Producers 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. Such records and accounts must be retained for 2 years after 
the date of the final payment to the producer under this program.
    (b) At all times during regular business hours, authorized 
representatives of the U.S. Department of Agriculture or any agency 
thereof, the Comptroller General of the United States shall have access 
to the premises of the producer 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) Audits of certifications of average adjusted gross income may 
be conducted as necessary to determine compliance with the requirements 
of this subpart. As a part of this audit, income tax forms may be 
requested and if requested, must be supplied. If a producer has 
submitted information to FSA, including a certification from a 
certified public accountant or attorney, that relied upon information 
from a form previously filed with the Internal Revenue Service, such 
producer shall provide FSA a copy of any amended form filed with the 
Internal Revenue Service within 30 days of the filing.
    (d) If requested in writing by the U.S. Department of Agriculture 
or any agency thereof, or the Comptroller General of the United States, 
the producer shall provide all information and documentation the 
reviewing authority determines necessary to verify any information or 
certification provided under this subpart, including all documents 
referred to in Sec.  1580.301(c) of this part, within 30 days. 
Acceptable production documentation may be submitted by facsimile, in 
person, or by mail and may include copies of receipts, ledgers, income 
statements, deposit slips, register tapes, invoices for custom 
harvesting, records to verify production costs, contemporaneous 
measurements, truck scale tickets, fish tickets, landing reports, and 
contemporaneous diaries that are determined acceptable. Failure to 
provide necessary and accurate information to verify compliance, or 
failure to comply with this part's requirements, will result in 
ineligibility for all program benefits subject to this part for the 
year or years subject to the request.


Sec.  1580.503  Recovery of overpayments.

    (a) If the Administrator (FAS) determines that any producer has 
received any payment under this program to which the producer was not 
entitled, or has expended funds received under this program for purpose 
that was not approved by the Administrator (FAS) such producer will be 
liable to repay such amount. The Administrator (FAS) may waive such 
repayment if it is determined that:
    (1) The payment was made without fault on the part of the producer; 
and
    (2) Requiring such repayment would be contrary to equity and good 
conscience.
    (b) Unless an overpayment is otherwise recovered, or waived under 
paragraph (a) of this section, the Administrator (FAS), shall recover 
the overpayment as a debt following the procedures in 7 CFR part 3. The 
requirement for demand and notice and opportunity for a hearing under 
the debt collection procedures in 7 CFR part 3 shall satisfy the notice 
and hearing requirements under 19 U.S.C. 2401f(c), and the appeal 
procedures in Sec.  1580.505 of this part shall not apply to collection 
of overpayments


Sec.  1580.504  Debarment, suspension, and penalties.

    (a) Generally. The regulations governing Governmentwide Debarment 
and Suspension (Nonprocurement), 7 CFR part 3017, and Government 
Requirements for Drug-Free Workplace (Financial Assistance), 7 CFR part 
3021, apply to this part.
    (b) Additional specific suspension and debarment provision for this 
program. In addition to any other debarment or suspension of a producer 
under paragraph (a) of this section, in connection with this program, 
if the Administrator (FAS) or a court of competent jurisdiction, 
determines that a producer:
    (1) Knowingly has made, or caused another to make, a false 
statement or representation of a material fact, or
    (2) Knowingly has failed, or caused another to fail, to disclose a 
material fact; and, as a result of such false statement or 
representation, or of such nondisclosure, such producer has received 
any payment under this program to which the producer was not entitled, 
the Administrator (FAS) shall suspend and debar such producer from any 
future payments under this program, as provided in 19 U.S.C. 2401f(b).
    (c) Criminal penalty. Whoever makes a false statement of a material 
fact knowing it to be false, or knowingly fails to disclose a material 
fact, for the purpose of obtaining or increasing for himself or for any 
other producer any payments authorized to be furnished under this 
program shall be fined not more that $10,000 or imprisoned for not more 
than 1 year, or both.


Sec.  1580.505  Appeals.

    (a) A producer adversely affected by a determination with respect 
to their application for trade adjustment assistance under Sec.  
1580.301 of this part or with respect to the receipt of technical 
assistance or payments under Sec.  1580.302 of this part may file a 
notice of appeal within 30 days of the date that the notification of 
the adverse determination was sent.
    (b) A producer may not seek judicial review of any adverse decision 
under this paragraph without receiving a final determination pursuant 
to this paragraph.


Sec.  1580.506  Judicial review.

    Any producer aggrieved by a final agency determination under this 
part may appeal to the U.S. Court of International Trade for a review 
of such determination in accordance with its rules and procedures.


Sec.  1580.602  Paperwork Reduction Act.

    The information collection requirements contained in this part have 
been approved by the Office of Management and Budget (OMB) under the 
provisions of 44 U.S.C. Chapter 35 and been assigned OMB control number 
0551-0040.

    Dated: February 22, 2010.
John D. Brewer,
Administrator, Foreign Agricultural Service.
[FR Doc. 2010-3984 Filed 2-26-10; 8:45 am]
BILLING CODE 3410-10-P