Federal Register / Vol. 76, No. 24 / Friday, February 4, 2011 / Rules and Regulations 6313 

§ 9.1 Publication required. 

(a) The Director publishes a special 

edition of the Federal Register called 

‘‘The United States Government 

Manual’’ as authorized by the 

Administrative Committee. 

(b) The Director may update the 

Manual when such supplementation is 

considered to be in the public interest. 

§ 9.2 Scope. 

(a) The Manual will contain 

appropriate information about the 

Executive, Legislative, and Judicial 

branches of the Federal Government, 

which for the major Executive agencies 

will include— 

(1) Descriptions of the agency’s legal 

authorities, public purposes, programs, 

and functions; 

(2) Established places and methods 

whereby the public may obtain 

information and make submittals or 

requests; and 

(3) Lists of officials heading major 

operating units. 

(b) The Manual will also contain brief 

information about quasi-official 

agencies and supplemental information 

that, in the opinion of the Director, is of 

enough public interest to warrant. 

PART 11—[AMENDED] 

■ 2. The authority citation for part 11 

continues to read as follows: 

Authority: 44 U.S.C. 1506; sec. 6, E.O. 

10530, 19 FR 2709, 3 CFR, 1954–1958 Comp., 

p. 189. 

■ 3. Revise § 11.4 as follows: 

§ 11.4 The United States Government 

Manual. 

(a) The online edition of the Manual, 

issued under the authority of the 

Administrative Committee, is available 

through the Government Printing 

Office’s Web site. 

(b) Copies of a bound, paper edition 

of the Manual may be sold at a price 

determined by the Superintendent of 

Documents under the general direction 

of the Administrative Committee. 

PART 12—[AMENDED] 

■ 4. The authority citation for part 12 

continues to read as follows: 

Authority: 44 U.S.C. 1506; sec. 6, E.O. 

10530, 19 FR 2709; 3 CFR, 1954–1958 Comp., 

p. 189. 

§ 12.3 [Removed] 

■ 5. Remove § 12.3. 

David S. Ferriero, 

Chairman, Administrative Committee of the 

Federal Register. 

William J. Boarman, 

Member, Administrative Committee of the 

Federal Register. 

Rosemary Hart, 

Member, Administrative Committee of the 

Federal Register. 

Eric H. Holder, Jr., 

Attorney General. 

David S. Ferriero, 

Archivist of the United States. 

[FR Doc. 2011–2463 Filed 2–3–11; 8:45 am] 

BILLING CODE 1505–02–P 

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. 

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, 


jdjones on DSK8KYBLC1PROD with RULES
6314 Federal Register / Vol. 76, No. 24 / Friday, February 4, 2011 / Rules and Regulations 

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 § 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 

§ 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 


jdjones on DSK8KYBLC1PROD with RULES
Federal Register / Vol. 76, No. 24 / Friday, February 4, 2011 / Rules and Regulations 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 nondiscretionary 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. 


jdjones on DSK8KYBLC1PROD with RULES
6316 Federal Register / Vol. 76, No. 24 / Friday, February 4, 2011 / Rules and Regulations 

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. 

§ 1429.101 Applicability. 

(a) The regulations in this part are 

applicable to program applicants who 


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Federal Register / Vol. 76, No. 24 / Friday, February 4, 2011 / Rules and Regulations 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. 

§ 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. 

§ 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 § 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 domesticallyproduced 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. 

§ 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 


jdjones on DSK8KYBLC1PROD with RULES
6318 Federal Register / Vol. 76, No. 24 / Friday, February 4, 2011 / Rules and Regulations 

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. 

§ 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 § 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. 

§ 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. 

§ 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 

§ 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. 

§ 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 § 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. 

§ 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. 


jdjones on DSK8KYBLC1PROD with RULES
Federal Register / Vol. 76, No. 24 / Friday, February 4, 2011 / Rules and Regulations 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 

DEPARTMENT OF AGRICULTURE 

7 CFR Part 2902 

RIN 0503–AA39 

Designation of Biobased Items for 

Federal Procurement 

AGENCY: Departmental Management, 

USDA. 

ACTION: Direct final rule. 

SUMMARY: The U.S. Department of 

Agriculture (USDA) is amending its 

Guidelines for Designating Biobased 

Products for Federal Procurement, to be 

consistent with certain statutory 

changes to section 9002 of the Farm 

Security and Rural Investment Act 

(FSRIA) that were effected when the 

Food, Conservation, and Energy Act 

(FCEA) of 2008 was signed into law on 

June 18, 2008. The amendment is issued 

as an immediately effective final rule. 

Elsewhere in this issue of the Federal 

Register, we are publishing a 

companion proposed rule under 

USDA’s usual procedure for notice and 

comment to provide a procedural 

framework to finalize the rule in the 

event we receive significant adverse 

comment and withdraw this direct final 

rule. 

DATES: This rule is effective June 6, 

2011. Submit comments on the direct 

final rule by April 5, 2011. If we receive 

any timely significant adverse comment, 


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