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[Federal Register Volume 76, Number 24 (Friday, February 4, 2011)]
[Rules and Regulations]
[Pages 6313-6319]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-2506]

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DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1429

RIN 0560-AI02

Asparagus Revenue Market Loss Assistance Payment Program

AGENCY: Commodity Credit Corporation and Farm Service Agency, USDA.

ACTION: Final rule.

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SUMMARY: This rule implements the Asparagus Revenue Market Loss 
Assistance Payment (ALAP) Program authorized by the Food, Conservation 
and Energy Act of 2008 (the 2008 Farm Bill). The ALAP Program will 
compensate domestic asparagus producers for marketing losses resulting 
from imports during the 2004 through 2007 crop years. Payments will be 
calculated based on 2003 crop production. Through the ALAP Program, CCC 
is authorized to provide up to $15 million in direct payments to 
asparagus producers. This rule specifies eligibility requirements, 
payment application procedures, and the method for calculating 
individual payments.

DATES: Effective date: February 4, 2011.

FOR FURTHER INFORMATION CONTACT: Danielle Cooke, Program Manager, Farm 
Service Agency (FSA), USDA; telephone (202) 720-1919. Persons with 
disabilities who require alternative means for communications (Braille, 
large print, audio tape, etc.) should contact the USDA Target Center at 
(202) 720-2600 (voice and TDD).

SUPPLEMENTARY INFORMATION:

Background

    During the 2004 through 2007 crop years, a substantial increase in 
asparagus imports to the United States resulted in reduced domestic 
production, reduced U.S. market share for domestic producers, and 
reduced market prices for both fresh and processed asparagus in the 
United States. Section 10404 of the 2008 Farm Bill (Pub. L. 110-246) 
directs the Secretary of Agriculture to ``make payments to producers of 
the 2007 crop of asparagus for market loss resulting from imports 
during the 2004 through 2007 crop years.'' A total of $15 million of 
Commodity Credit Corporation (CCC) funds are authorized for payments, 
with an allocation of $7.5 million of those funds for payments for 
asparagus marketed as fresh, and $7.5 million for payments for 
processed asparagus.
    The ALAP Program payment rates are based on CCC's estimate of the 
reduction in asparagus farm revenue per pound for the 2004 through 2007 
crop years in the two marketing categories, fresh and processed. The 
payment quantity for a producer will be the quantity of the 2003 crop 
of asparagus produced on a farm, which is used as the ``baseline'' 
production amount before the losses in 2004 through 2007 occurred. 
Producers must have produced asparagus in both 2003 and 2007 to be 
eligible for this program. If applications exceed the available 
funding, the payment rates will be adjusted downward to remain within 
the available funding for each marketing category.
    CCC published a proposed rule on July 16, 2010 (75 FR 41397-41404), 
with a 60-day comment period which ended on September 14, 2010. The 
proposed rule proposed eligibility requirements, payment application 
procedures, and the method for calculating ALAP Program payments. This 
final rule addresses the comments received on the proposed rule; minor 
revisions were made to address the comments.
    The ALAP Program is a CCC program that will be administered by FSA. 
The ALAP Program provides a one-time payment to asparagus producers. 
The ALAP Program regulations are specified in 7 CFR part 1429, which is 
a new part.

Discussion of Comments

    FSA received six comments on the proposed rule. The comments were 
from individual producers, a State advisory board, and a State 
asparagus commission. The comments generally supported the goals of the 
ALAP Program. Some comments suggested changes to the eligibility 
provisions. The following provides a summary of the comments that 
suggested specific changes to the regulations in the proposed rule, and 
FSA's response,

[[Page 6314]]

including changes we are making in the final rule in response to the 
comments.
    Comment: The proposed eligibility provision that would have 
required producers to have produced asparagus in the United States 
during both crop years 2003 and 2007 should be changed. The import 
competition that depressed the U.S. market during the 2003 and 2004 
crop years forced some growers out of business. Therefore, the proposed 
eligibility provision should be changed to allow asparagus producers 
that stopped growing asparagus after the 2003 and 2004 crop years to be 
allowed benefits under the ALAP Program, regardless of whether they 
were still producing asparagus during the 2007 crop year.
    Response: The 2008 Farm Bill specifies that ALAP payments are to be 
made to producers of the 2007 crop of asparagus for market loss 
resulting from imports during the 2004 through 2007 crop years. We do 
not have the authority under this program to pay producers who did not 
produce asparagus in 2007. Therefore, no change has been made regarding 
this eligibility requirement.
    Comment: Why is funding being allocated to domestic asparagus 
producers to make up for revenue losses rather than placing a limit on 
the amount of asparagus imports? Funds should be used to support the 
local farmer by expanding domestic asparagus farms and structures to 
improve farmer sustainability and reduce dependence on foreign imports.
    Response: The 2008 Farm Bill does not give us authority to use the 
funds authorized for the ALAP Program to limit imports or for any other 
purpose not specified in Section 10404. Asparagus farmers may use their 
ALAP Program payments to expand domestic production, but are not 
required to do so. No change was made to the final rule as a result of 
this comment.
    Comment: Small asparagus producers with less than 2 acres or annual 
sales of less than 3,000 pounds should be excluded from ALAP program 
eligibility, because small producers that sell to local markets are 
insulated from imports and world supply levels that affect commercial 
producers.
    Response: The 2008 Farm Bill does not distinguish between the 
different sizes of producers who may be impacted by imports. Adopting 
this comment would penalize small producers, contrary to the general 
goals of FSA farm programs. Presumably both small and large producers 
are impacted in some way by imports and while a large producer may 
suffer larger impacts, those larger impacts will qualify the larger 
producer for a higher payment, up to the amount of the payment limit. 
ALAP only covers commercial producers, so very small producers that do 
not sell in commercial markets would be ineligible. To exclude small 
producers would have been directly contrary to the adoption of the 
payment limit for ALAP. The payment limit provision allows small 
producers to receive an equitable share of the funding. Accordingly, no 
change was made to the final rule in response to this comment.
    Comment: Clarify how entities that have reorganized since 2003 
under a different entity name or structure should apply for the ALAP 
Program.
    Response: The application form for program benefits allows for the 
entry of the name and address of the asparagus farm operation where the 
2003 crop was produced and the name and address of the asparagus farm 
operation where the 2007 crop was produced, if it is different from 
that in 2003. FSA believes that this addresses entity changes during 
the period of 2003 and 2007. Therefore, no change has been made to the 
final rule regarding this eligibility requirement. The local FSA county 
office can provide guidance in filling out the application.
    Comment: Clarify the terms ``production'' and ``engaged'' for the 
purposes of determining grower eligibility. If a producer harvested an 
asparagus crop in 2003, and then replanted, but did not harvest the 
replanted crop in 2007 because the crowns were not mature enough to 
produce a marketable crop, would they be eligible?
    Response: As specified in Sec.  1429.105, to be eligible for ALAP 
payments, producers must ``have produced and marketed asparagus in 
commercial quantities in commercial markets in the United States during 
both of the 2003 and 2007 crop years * * *'' A producer that did not 
harvest asparagus in 2007 would not meet that eligibility requirement. 
The term ``engaged'' does not appear in the rule in the context of 
production; it appears only in reference to engaging in 
misrepresentation or fraud. No change has been made to the final rule 
in response to this comment.
    Comment: Clarify how the applicable year average Adjusted Gross 
Income (AGI) provisions apply.
    Response: Under the provisions of this final rule, if the total 
value of payments claimed exceeds the available funding, then any 
producer who has average AGI in excess of $2,500,000 for calendar years 
2003 through 2005 is not eligible for program benefits. The base years 
used for the determination have been adjusted from the proposed rule, 
where the relevant AGI years were proposed to be the calendar years 
2004 through 2006. This final rule amends Sec.  1429.105(a)(4) 
accordingly and the amendment reflects an intent to be consistent with 
the application of the AGI test in other FSA commodity programs, such 
as the Direct and Counter-cyclical Program (DCP), where the application 
of the AGI test, unlike here, is required by the 2008 Farm Bill. Under 
the AGI test specified for other FSA programs by the 2008 Farm Bill, 
for practical reasons presumably (involving the availability of 
completed tax calculations), the relevant AGI years are those 3 tax 
years that precede the most immediate complete tax year preceding the 
program year. For example, for 2010 DCP payments, the 3 years preceding 
that most recent complete tax year (2009) which preceded the program 
year (2010) are the years 2006 through 2008. The asparagus program 
makes payments to 2007 crop year producers and for this purpose FSA has 
used 2007 as the program year, and the complete tax year preceding the 
program year would be 2006. Therefore, following the formula used under 
the AGI test, the 3 years preceding 2006 are the relevant base years, 
those being the years 2003 through 2005.
    Comment: If a producer's share of production in 2003 for each 
marketing category of fresh and processed changed for the 2007 crop, 
will payment be calculated on the share percentages of the 2003 crop or 
the 2007 crop? For example, what if a producer marketed their 2003 crop 
for processing but switched entirely to fresh production in 2007? Would 
they be paid at the processed asparagus rate or the fresh asparagus 
rate?
    Response: Payment will be calculated based on the marketing 
category share of the 2003 crop since that year is specified in the 
2008 Farm Bill as the base year for the program. CCC will determine 
each applicant's payment quantity based on their share of their 2003 
production quantity for each marketing category of fresh and processed 
as certified on the application. No change to the final rule was made 
as a result of this comment.

Miscellaneous Changes

    FSA made two additional changes that were not in response to 
comments. The $100,000 payment cap has been clarified to specify that a 
separate $100,000 payment cap per producer applies to each of the two 
marketing categories: fresh and processed asparagus. In the event that 
the authorized funding for a marketing category, fresh or processed, is 
not

[[Page 6315]]

sufficient to pay all claims at maximum payment rates, a payment cap of 
$100,000 per producer for each marketing category will apply. Likewise, 
if one marketing category is oversubscribed and not the other, the 
maximum payment limit will only apply to the oversubscribed marketing 
category. A producer that markets both fresh and processed asparagus 
may, accordingly, receive up to $200,000 per farm operation if both 
maximum payment caps are applied. The use of these subcaps, rather than 
an overall cap of $100,000, was intended to ease program administration 
and to some degree represents an understanding that Congress 
effectively created separate programs for the fresh and processed 
asparagus markets. The use of subcaps could, however, reduce the 
payments to small producers by providing larger payments to the largest 
producers than would a $100,000 overall cap. However, for the reasons 
given, we think that the rule strikes a proper balance and the 
facilitation of the administration of the payment limits will aid in 
advancing the interests of all producers by making quicker payments 
possible.
    An additional change was made to extend the application period from 
30 days to 60 days to allow more time for producers to apply for 
program benefits.

Effective Date

    The Administrative Procedure Act (5 U.S.C. 553) provides generally 
that before rules are issued by Government agencies, the rule must be 
published in the Federal Register, and the required publication of a 
substantive rule is to be not less than 30 days before its effective 
date. One of the exceptions is when the agency finds good cause for not 
delaying the effective date. FSA finds that there is good cause for 
making this rule effective less than 30 days after publication in the 
Federal Register. This rule allows FSA to provide benefits to asparagus 
producers who suffered economic losses. Therefore, to begin providing 
benefits to producers as soon as possible, this final rule is effective 
when published in the Federal Register.

Executive Order 12866

    The Office of Management and Budget (OMB) designated this rule as 
not significant under Executive Order 12866, ``Regulatory Planning and 
Review,'' and therefore has not reviewed this rule. Even though this 
rule has been designated as not significant, a summary of cost benefit 
analysis is provided below, and the cost-benefit analysis is available 
through http://www.regulations.gov.

Summary of Economic Impacts

    The 2008 Farm Bill authorizes $15 million in payments to asparagus 
producers for losses that asparagus producers sustained due to imports. 
The estimated U.S. asparagus revenue losses due to crop year 2004 
through 2007 imports in the fresh market totaled $141.6 million, and in 
the processed market, $73.3 million, for a total of $214.9 million in 
losses. Therefore, we expect to receive applications that exceed the 
available funding. The payment rates will be calculated so as not to 
exceed the available funding. The expected benefit to producers is $15 
million, which is all of the available funding. Since producers are 
being paid for past losses on past production, this program is not 
expected to increase production of asparagus or to change the price 
that consumers pay for asparagus.
    Alternative methods for calculating payment quantities and rates 
would result in a different distribution of payment amounts among 
producers, but would not reduce the costs or benefits of this program 
to below $15 million.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA), generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to the notice and comment 
rulemaking requirements under the Administrative Procedure Act (5 
U.S.C. 553) or any other statute, unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. FSA has determined that this rule will not 
have a significant impact on a substantial number of small entities for 
the reasons explained below. Consequently, FSA has not prepared a 
regulatory flexibility analysis.
    Small entities include small businesses, small organizations and 
small governmental jurisdictions. For purposes of assessing the impacts 
of this rule on small entities, a small business, as described in the 
Small Business Administration's Table of Small Business Size Standards 
by North American Industry Classification System Category (13 CFR 
121.201) includes the following categories and the relative size 
standard: NAICS 111219, Other Vegetable (except Potato) and Melon 
Farming with maximum annual receipts of $750,000; NAICS 311411, Frozen 
Fruit, Juice, and Vegetable Manufacturing, with up to 500 employees; 
and NAICS 311421, Fruit and Vegetable Canning, with up to 500 
employees. It is difficult to estimate the number of small entities for 
asparagus producers because the data for annual receipts and number of 
employees are not readily available. Therefore, FSA used Census of 
Agriculture data to estimate the number and size of asparagus farms.
    According to the 2007 Census of Agriculture, there are 2,605 
asparagus farms, with 1,408 of those farms harvesting 1 acre or less. 
Those farms harvesting 100 acres or more account for 5 percent of farms 
harvesting asparagus and 74 percent of all asparagus production. Most 
of the payments as specified in this rule will likely go to the 
producers on larger farms that accounted for most of the production, 
rather than the smaller farms. CCC will calculate and disburse payments 
based on the actual 2003 crop production quantities for fresh and 
processed marketing. Producers on both small and large farms will 
receive payment in proportion to their production, subject to the 
$100,000 cap for each marketing category that will impact only 
producers on the largest farms. Direct and indirect costs of applying 
for these one-time payments will likely be very small as a percentage 
of the resulting payment. The minimal regulatory requirements will 
impact large and small businesses equally, and the ALAP program's 
benefits should slightly improve cash flow and liquidity for farmers 
participating in the ALAP program. Therefore, in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 601-612), CCC is certifying that 
there would not be a significant economic impact on a substantial 
number of small entities. Due to the limited amount of funding 
available, payments are unlikely to have a substantial economic impact 
on entities of any size.

Environmental Review

    The environmental impacts of this rule have been considered in a 
manner consistent with the provisions of the National Environmental 
Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council 
on Environmental Quality (40 CFR parts 1500-1508), and FSA regulations 
for compliance with NEPA (7 CFR part 799). The implementation and 
administration of the ALAP Program required by the 2008 Farm Bill that 
is identified in this rule is non-discretionary in nature, solely 
providing financial assistance. Therefore, FSA has determined that NEPA 
does not require that an environmental assessment or environmental 
impact statement be prepared and neither will be prepared.

[[Page 6316]]

Executive Order 12372

    Executive Order 12372, ``Intergovernmental Review of Federal 
Programs,'' requires consultation with State and local officials. The 
objectives of the Executive Order are to foster an intergovernmental 
partnership and a strengthened Federalism, by relying on State and 
local processes for State and local government coordination and review 
of proposed Federal Financial assistance and direct Federal 
development. For reasons set forth in the Notice to 7 CFR part 3015, 
subpart V (48 FR 29115, June 24, 1983), the programs and activities 
within this rule are excluded from the scope of Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials.

Executive Order 12988

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

Executive Order 13132

    This rule has been reviewed under Executive Order 13132, 
``Federalism.'' The policies contained in this rule would not have any 
substantial direct effect on States, the relationship between the 
Federal Government and the States, or the distribution of power and 
responsibilities among the various levels of government. Nor would this 
rule impose substantial direct compliance costs on State and local 
governments. Therefore, consultation with the States is not required.

Executive Order 13175

    This rule has been reviewed for compliance with Executive Order 
13175, ``Consultation and Coordination with Indian Tribal 
Governments.'' Executive Order 13175 imposes requirements on the 
development of regulatory policies that have tribal implications or 
preempt tribal laws. The policies contained in this rule do not preempt 
Tribal law. This rule was included in the October through December, 
2010, Joint Regional Consultation Strategy facilitated by USDA that 
consolidated consultation efforts of 70 rules from the 2008 Farm Bill. 
USDA sent senior level agency staff to seven regional locations and 
consulted with Tribal leadership in each region on the rules. When the 
consultation process is complete, USDA will analyze the feedback and 
then incorporate any required changes into the regulations.

Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 
104-4) requires Federal agencies to assess the effects of their 
regulatory actions on State, local, and tribal governments or the 
private sector. Agencies generally must prepare a written statement, 
including a cost benefit analysis, for proposed and final rules with 
Federal mandates that may result in expenditures of $100 million or 
more in any 1 year for State, local, or tribal governments, in the 
aggregate, or to the private sector. UMRA generally requires agencies 
to consider alternatives and adopt the more cost effective or least 
burdensome alternative that achieves the objectives of the rule. This 
proposed rule contains no Federal mandates, as defined under title II 
of the UMRA, for State, local, and tribal governments or the private 
sector. Thus, this rule is not subject to the requirements of sections 
202 and 205 of UMRA.

Federal Assistance Programs

    The title and number of the Federal assistance program in the 
Catalog of Domestic Federal Assistance to which this rule will apply is 
10.098--Asparagus Revenue Market Loss Assistance Payment Program.

Small Business Regulatory Enforcement Fairness Act

    In general, any rule designated by OMB under Executive Order 12866 
as economically significant is also a major rule. As noted above, OMB 
designated this rule as not significant. As a result, this rule is not 
considered a major rule under SBREFA. Therefore, FSA is not required to 
delay the effective date for 60 days from the date of publication to 
allow for Congressional review and this rule is effective on the date 
of publication in the Federal Register. Further, if this rule had been 
designated as significant, FSA would have found that there is good 
cause for making this rule effective less than 60 days after 
publication in the Federal Register. The good cause exemption would 
have applied as it would be contrary to the public interest to delay 
this rule given that it allows FSA to provide benefits to asparagus 
producers who suffered economic losses and that any delay in the 
effective date would further delay the provision of benefits clearly 
intended and provided for by Congress.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
chapter 35), in the proposed rule CCC described the new information 
collection activities associated with the ALAP Program. CCC requires 
producers to submit an application on a form specified by CCC to the 
FSA County Office for the farms where they produced 2003 and 2007 crop 
asparagus. Comments on the information collection were requested in the 
proposed rule. No comments about the information collection were 
received from the public during the 60-day comment period. The 
information collection reporting and recordkeeping requirements 
associated with this rulemaking have been approved by OMB and assigned 
control number 0560-0273.

E-Government Act Compliance

    CCC is committed to complying with the E-Government Act, to promote 
the use of the Internet and other information technologies to provide 
increased opportunities for citizen access to Government Information 
and services, and for other purposes.

List of Subjects in 7 CFR Part 1429

    Asparagus, Reporting and record keeping requirements.

    For the reasons discussed in the preamble, the Commodity Credit 
Corporation (USDA) adds 7 CFR part 1429 to read as follows:

PART 1429--ASPARAGUS REVENUE MARKET LOSS ASSISTANCE PAYMENT PROGRAM

Sec.
1429.101 Applicability.
1429.102 Administration.
1429.103 Definitions.
1429.104 Application requirements.
1429.105 Producer eligibility requirements.
1429.106 Proof of production.
1429.107 Maximum and final payment rates.
1429.108 Calculation of individual payments.
1429.109 Availability of funds.
1429.111 Misrepresentation and scheme or device.
1429.112 Death, incompetence, or disappearance.
1429.113 Maintaining records.
1429.114 Refunds; joint and several liability.
1429.115 Miscellaneous provisions and appeals.

    Authority: 15 U.S.C. 714b and 714c, and Sec. 10404, Pub. L. 110-
246, 122 Stat. 2111.

Sec.  1429.101  Applicability.

    (a) The regulations in this part are applicable to program 
applicants who

[[Page 6317]]

produced both 2003- and 2007-crop asparagus. Asparagus producers may 
apply to the Commodity Credit Corporation (CCC) for a payment based on 
the actual quantity of their 2003 asparagus production and their share 
of that production.
    (b) Total payments made through the Asparagus Revenue Marketing 
Loss Assistance Payment Program will not exceed $15 million, allocated 
as $7.5 million for fresh asparagus and $7.5 million for processed 
asparagus, less any reserve allocated for disputed claims.

Sec.  1429.102  Administration.

    (a) The Asparagus Revenue Market Loss Assistance Payment Program 
will be administered under the general supervision of the Executive 
Vice President, CCC (Administrator, Farm Service Administration (FSA)), 
or a designee, and will be carried out in the field by FSA State and 
county committees and FSA employees.
    (b) FSA State and county committees, and representatives and 
employees of those committees, do not have the authority to modify or 
waive any of the provisions of this part, except as provided in 
paragraph (e) of this section.
    (c) The FSA State committee will take any action required by this 
part that has not been taken by the FSA county committee. The FSA State 
committee will also:
    (1) Correct or require correction of an action taken by an FSA 
county committee that is not in compliance with this part; and
    (2) Require an FSA county committee to not take an action or 
implement a decision that is not in compliance with the regulations of 
this part.
    (d) No delegation in this part to an FSA State or county committee 
will preclude the Executive Vice President, CCC, or a designee, from 
determining any question for the Asparagus Revenue Marketing Loss 
Assistance Payment Program, or from reversing or modifying any 
determination made by a State or county committee.
    (e) The Deputy Administrator for Farm Programs, FSA, may authorize 
FSA State and county committees to waive or modify program requirements 
that are not statutory in cases where failure to meet such requirements 
does not adversely affect the operation of the Asparagus Revenue Market 
Loss Assistance Payment Program.

Sec.  1429.103  Definitions.

    The following definitions apply to this part. The definitions in 
parts 718 and 1400 of this title also apply, except where they conflict 
with the definitions in this section.
    Application means the Asparagus Revenue Market Loss Assistance 
Payment Program application form approved for use in this program by 
CCC and any required accompanying information or documentation.
    Application period means the 60-day period established by the 
Deputy Administrator for producers to apply for the Asparagus Revenue 
Marketing Loss Assistance Payment Program.
    Asparagus producer means any individual, group of individuals, 
partnership, corporation, estate, trust, association, cooperative, or 
other business enterprise or other legal entity, as defined in Sec.  
1400.3 of this chapter, who is an owner, operator, landlord, tenant, or 
sharecropper, who directly or indirectly, as determined by the 
Secretary, shares in the risk of producing asparagus and who is 
entitled to ownership share in the asparagus crop available for 
marketing from the farm operation. Growers producing asparagus under 
contract for crop owners are not considered asparagus producers unless 
the grower can be determined to have an ownership share of the crop.
    Base period means the 2003 crop year of asparagus.
    County office means the FSA office responsible for administering 
CCC programs located in a specific area in a State.
    Crop year means the marketing season or year as defined by the 
National Agricultural Statistics Service (NASS).
    Department or USDA means the U.S. Department of Agriculture.
    Determined production means, with respect to the base period, the 
total amount of fresh and processed asparagus specified on the 
application for payment verified by CCC as having been produced and 
marketed by the producer in the base period.
    Farm Service Agency or FSA means the Farm Service Agency of the 
U.S. Department of Agriculture.
    Fresh asparagus means domestically-produced asparagus that, 
regardless of intended use, was marketed as a fresh product without any 
processing other than cleaning, grading, sorting, trimming, drying, 
cooling, and packing.
    Hundredweight or cwt. means 100 pounds.
    Processed asparagus means domestically-produced asparagus that, 
regardless of intended use, was marketed as frozen, canned, pickled, or 
otherwise treated or handled in such fashion that the buyer would not 
consider the asparagus to be consumed as fresh, as determined by CCC.
    Reliable production records means evidence provided by the producer 
to the FSA county office that FSA determines is adequate to 
substantiate the amount of production reported when verifiable records 
are not available, including copies of receipts, ledgers of income, 
income statements, deposit slips, register tapes, invoices for custom 
harvesting, records to verify production costs, contemporaneous 
measurements, truck scale tickets, and contemporaneous diaries. When 
the term ``acceptable production records'' is used in this rule, it may 
be either reliable or verifiable production records, as defined in this 
section.
    Reported production means the total amount of fresh and processed 
asparagus produced and marketed by a producer, as specified by a 
producer on the application for payment.
    United States means the 50 States of the United States, the 
District of Columbia, and Puerto Rico.
    Verifiable production records means evidence that is used to 
substantiate the amount of production reported and that can be verified 
by FSA through an independent source.

Sec.  1429.104  Application requirements.

    (a) To be eligible for payment, asparagus producers must submit a 
completed application for payment and meet other eligibility 
requirements as specified in this part. Asparagus producers may obtain 
an application in person, by mail, by telephone, or by facsimile from 
any FSA county office. In addition, applicants may download a copy of 
the application from http://www.sc.egov.usda.gov.
    (b) An application for payment must be submitted on a completed 
application form. Applications and any other supporting documentation 
must be submitted to the FSA county office serving the county in which 
the producer produced asparagus in 2003 unless the producer now resides 
in a different county than the county in which asparagus was produced 
in the base period.
    (c) Asparagus producers who apply for payment must certify the 
information on the application before the application will be 
considered complete. Applications may be accompanied by acceptable 
production records for all fresh and processed asparagus produced and 
marketed from the farm in the 2003 crop year. Producers must certify 
they had a share interest in both 2003 and 2007 crop asparagus. To be 
eligible for payment on asparagus produced in the base period, the 
producer must have produced asparagus in 2007 for the commercial

[[Page 6318]]

market in commercial quantities as determined for this purpose by the 
Deputy Administrator. At any time CCC deems appropriate, either before 
or after payment issuance, CCC may, at its discretion, require a 
producer to provide documentation to support:
    (1) Reported production of 2003 crop fresh or processed asparagus 
production or both entered on the application accompanied by acceptable 
production record,
    (2) Share percentage of 2003 crop production by marketing category 
for each producer in the asparagus farm operation, or
    (3) Any other eligibility requirement specified in this part 
including commercial quantities of 2007 production to meet the 2007 
production requirement.
    (d) Each asparagus producer who signs the application must certify 
the accuracy and truthfulness of the information in the application and 
any supporting documentation. All information provided is subject to 
verification by CCC. Refusal to allow CCC or any other agency of USDA 
to verify any information provided will result in a denial of 
eligibility. Furnishing the information is voluntary; however, without 
it program payments will not be approved. Providing a false 
certification may be punishable by imprisonment, fines, and other 
penalties or sanctions.
    (e) Data furnished by the applicants will be used to determine 
eligibility for program payments. Although participation in the 
Asparagus Revenue Market Loss Assistance Payment Program is voluntary, 
program payments will not be provided unless the participant furnishes 
a complete application by the end of the application period with all 
requested data.
    (f) Individuals or entities who submit applications after the 
application period are not entitled to any payment consideration or 
determination of eligibility. Regardless of the reason why an 
application is not submitted to or received by the FSA county office, 
any late application will be considered as not having been timely filed 
and the applicants on that application will not be eligible for the 
Asparagus Revenue Marketing Loss Assistance Payment Program.

Sec.  1429.105  Producer eligibility requirements.

    (a) To be eligible to receive the Asparagus Revenue Marketing Loss 
Assistance Payment Program payments, asparagus producers must submit an 
application during the application period and must:
    (1) Have produced and marketed asparagus in commercial quantities 
in commercial markets in the United States during both of the 2003 and 
2007 crop years;
    (2) Be an asparagus producer, as defined in Sec.  1429.103, for the 
2003 and 2007 crop years;
    (3) Certify their shares and the pounds of fresh and processed 
asparagus produced and marketed from the farm operation during the 2003 
crop year as reflected on the application;
    (4) If the total value of payments claimed exceeds the available 
funding, have an average adjusted gross income (AGI) of less than $2.5 
million for the 3 tax years of 2003 through 2005; and
    (5) Be in compliance with the requirements in 7 CFR part 12 
regarding highly erodible cropland and wetlands and meet any general 
farm program eligibility requirements that apply under 7 CFR part 1400 
or other regulations as applicable.
    (b) Asparagus producers must sign an application to be considered 
for payment eligibility. Asparagus producers who do not sign an 
application will not receive payment or a determination of eligibility, 
even if other producers in the asparagus farm operation sign an 
application and receive payment.
    (c) Each applicant determined by spot check or other information to 
not have an interest as an asparagus producer in 2003 and 2007 who 
meets the other qualifications of this part will be ineligible for 
payment and such applicant's claimed share shown on the application 
will not be paid.

Sec.  1429.106  Proof of production.

    (a) Producers selected for spot check by CCC must, in accordance 
with instructions issued by the Deputy Administrator or a designee, 
provide adequate proof of the fresh and processed asparagus produced 
and marketed during the 2003 and 2007 crop years.
    (b) If adequate proof of marketed production and supporting 
documentation in support of any application for payment is not 
presented to the satisfaction of CCC or the FSA county office 
requesting information, the application and the producers on that 
application will be determined ineligible for payment.

Sec.  1429.107  Maximum and final payment rates.

    (a) Subject to the funding limits that may apply to the program, 
the estimated maximum per pound payment rates for fresh market 
asparagus and for processed market asparagus are:
    (1) $1.06 per pound ($106.00 per hundredweight) for 2003 crop 
quantities of asparagus marketed to fresh markets; and
    (2) $1.08 per pound ($108.00 per hundredweight) for 2003 crop 
quantities of asparagus marketed for processing.
    (b) This program will be administered to assure that total payments 
do not exceed the available funding. If the total value of payments 
claimed calculated using the maximum payment rates specified in 
paragraph (a) of this section exceeds the funding available for each 
marketing category, less any reserve that may be created as specified 
in Sec.  1429.109, the payment quantities will be paid at a lower rate 
determined by dividing the funds available in each marketing category 
of asparagus, by the payment quantity from applications received by the 
end of the application period in each marketing category.
    (c) In no event will the payment rate exceed the maximum payment 
rate for each marketing category of asparagus determined in paragraph 
(a) of this section.

Sec.  1429.108  Calculation of individual payments.

    (a) Producers will be eligible for payment for both fresh and 
processed asparagus. CCC will calculate the payment quantity of 2003 
fresh and processed asparagus for an asparagus farm operation based on 
the lower of:
    (1) Reported production reflected on the application, or
    (2) If applicable, determined production.
    (b) The payment quantity will be multiplied by the following:
    (1) Each asparagus producer's share, and
    (2) The payment rate for the fresh or processed asparagus 
determined as specified in Sec.  1429.107.
    (c) If the total value of payments claimed exceeds the available 
funding, payments to producers are subject to a $100,000 cap per each 
of the two program marketing categories (fresh and processed) per 
asparagus producer as defined in this part, not per ``person'' or 
``legal entity'' as those terms might be defined in part 1400 of this 
title.

Sec.  1429.109  Availability of funds.

    (a) Payments specified in this part are subject to the availability 
of funds. The total available program funds will be $15,000,000 as 
provided by section 10404 of Public Law 110-246.
    (b) Of the available funds, $7,500,000 are allocated for fresh 
market asparagus production and $7,500,000 are allocated to processed 
market asparagus.

[[Page 6319]]

    (c) CCC will prorate the available funds by a national factor to 
ensure that payments do not exceed $15,000,000. CCC will prorate the 
payments in such manner as it, in its sole discretion, finds fair and 
reasonable.
    (d) A reserve will be created to handle appeals and errors. Claims 
will not be payable once the available funding is expended. Any amount 
of funds reserved for such purposes that are not disbursed for the 
purpose of correcting errors or omissions, or for the payment of 
appeals, will not otherwise be distributed to any payment applicants 
and will be refunded to the U.S. Department of Treasury.

Sec.  1429.111  Misrepresentation and scheme or device.

    (a) In addition to other penalties, sanctions, or remedies as may 
apply, an asparagus producer will be ineligible to receive assistance 
through the Asparagus Revenue Market Loss Assistance Payment Program if 
the asparagus producer is determined by CCC to have:
    (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 program determination.
    (b) Any funds disbursed pursuant to this part to any person or 
operation engaged in a misrepresentation, scheme, or device, must be 
refunded with interest together with such other sums as may become due 
and all charges including interest will run from the date of the 
disbursement of the CCC funds. Any asparagus farm operation, asparagus 
producer, or person engaged in acts prohibited by this section and any 
asparagus farm operation, asparagus producer, or person receiving 
payment as specified in this part will be jointly and severally liable 
with other persons or operations involved in such claim for payment for 
any refund due as specified in this section and for related charges. 
The remedies provided in this part will be in addition to other civil, 
criminal, or administrative remedies that may apply.

Sec.  1429.112  Death, incompetence, or disappearance.

    (a) In the case of death, incompetency, disappearance, or 
dissolution of a person or an entity that is eligible to receive 
payment as specified in this part, an alternate person or persons as 
specified in part 707 of this title may receive such payment, as 
determined appropriate by CCC.
    (b) Payment may be made for asparagus market losses suffered by an 
otherwise eligible asparagus producer who is now deceased or is a 
dissolved entity if a representative who currently has authority to 
enter into an application for the producer or the producer's estate 
signs the application for payment. Proof of authority to sign for the 
deceased producer's estate or a dissolved entity must be provided. If 
an asparagus 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.

Sec.  1429.113  Maintaining records.

    Producers applying for payment through the Asparagus Revenue Market 
Loss Assistance Payment Program must maintain records and accounts to 
document all eligibility requirements specified in this part. Such 
records and accounts must be retained for 3 years after the date of 
payment.

Sec.  1429.114  Refunds; joint and several liability.

    (a) Excess payments, payments provided as the result of erroneous 
information provided by any person, or payments resulting from a 
failure to comply with any requirement or condition for payment in the 
application or this part, must be refunded to CCC.
    (b) A refund required as specified in this section will be due with 
interest from the date of CCC disbursement and determined in accordance 
with paragraph (d) of this section and late payment charges as provided 
in part 1403 of this chapter.
    (c) Persons signing an ALAP Program application as having an 
interest in the asparagus farm operation will be jointly and severally 
liable for any refund and related charges found to be due as specified 
in this section.
    (d) Interest will be applicable to any refunds required as 
specified in parts 792 and 1403 of this title. Such interest will be 
charged at the rate that the U.S. Department of the Treasury charges 
CCC for funds, and will accrue from the date CCC made the erroneous 
payment to the date of repayment.
    (e) CCC may waive the accrual of interest if it determines that the 
cause of the erroneous determination was not due to any action of the 
person, or was beyond the control of the person committing the 
violation. Any waiver is at the discretion of CCC alone.

Sec.  1429.115  Miscellaneous provisions and appeals.

    (a) Offset. CCC may offset or withhold any amount due CCC as 
specified in this part in accordance with the provisions of part 1403 
of this chapter.
    (b) Claims. Claims or debts will be settled in accordance with the 
provisions of part 1403 of this chapter.
    (c) Other interests. Payments or any portion thereof due under this 
part will be made without regard to questions of title under State law 
and without regard to any claim or lien against the asparagus crop, or 
proceeds thereof, in favor of the owner or any other creditor except 
agencies and instrumentalities of the U.S. Government.
    (d) Assignments. Any asparagus producer entitled to any payment as 
specified in this part may assign any payment in accordance with the 
provisions of part 1404 of this chapter.
    (e) Appeals. Appeals will be handled as specified in parts 11 and 
780 of this title.

    Signed in Washington, DC, on January 30, 2011.
Jonathan W. Coppess,
Executive Vice President, Commodity Credit Corporation.
[FR Doc. 2011-2506 Filed 2-3-11; 8:45 am]
BILLING CODE 3410-05-P
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