This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents.

Rules and Regulations Federal Register

44173 

Vol. 83, No. 169 

Thursday, August 30, 2018 

DEPARTMENT OF AGRICULTURE 

Commodity Credit Corporation 

7 CFR Part 1409 

RIN 0560–AI42 

Market Facilitation Program 

AGENCY: Commodity Credit Corporation 

and Farm Service Agency, USDA. 

ACTION: Final rule. 

SUMMARY: The Commodity Credit 

Corporation (CCC) is issuing a new 

regulation to implement the Market 

Facilitation Program (MFP). MFP 

provides payments to producers with 

commodities that have been 

significantly impacted by actions of 

foreign governments resulting in the 

loss of traditional exports. This rule 

specifies the eligibility requirements, 

payment calculations, and application 

procedures for MFP. The details for 

specific commodities and the relevant 

application start dates will be 

announced in subsequent notices of 

funds availability (NOFAs). 

DATES: Effective: August 30, 2018. 

FOR FURTHER INFORMATION CONTACT: 

Bradley Karmen, Acting Deputy 

Administrator for Farm Programs, 

telephone: (202) 720–3175. Persons with 

disabilities who require alternative 

means for communication should 

contact the USDA Target Center at (202) 

720–2600 (voice). 

SUPPLEMENTARY INFORMATION: 

Background 

The imposition of tariffs by other 

countries on U.S. agricultural products, 

among other actions, are disrupting 

marketing of agricultural commodities 

and are outside of the control of the 

agricultural producers who are being 

negatively impacted. In response to the 

actions of foreign governments, the 

President has pledged that up to $12 

billion in financial assistance will be 

made available for certain agricultural 

commodities under section 5 of the CCC 

Charter Act (15 U.S.C. 714c). This 

section authorizes CCC to assist in the 

disposition of surplus commodities and 

to increase the domestic consumption of 

agricultural commodities by expanding 

or aiding in the expansion of domestic 

markets or by developing or aiding in 

the development of new and additional 

markets, marketing facilities, and uses 

for such commodities. 

MFP payments constitute one portion 

of up to $12 billion in financial 

assistance to farmers. The MFP 

payments will aid producers in the 

disposition of surplus commodities and 

aid in the expansion of domestic 

markets or aid in the development of 

new and additional markets and uses for 

the specific crops or commodities that 

are negatively impacted by actions of 

foreign governments. The MFP 

payments will provide producers with 

financial assistance that gives them the 

ability to absorb some of the additional 

costs from having to delay or reorient 

marketing of the new crop due to the 

tariff retaliation. The determination of 

commodities that are included in MFP 

and specific program requirements 

applicable to the commodities, such as 

enrollment periods, will be announced 

in the applicable NOFAs published in 

the Federal Register. 

The Farm Service Agency (FSA) will 

administer MFP on behalf of CCC. 

MFP Description 

MFP is a temporary assistance 

program to producers of covered 

agricultural commodities. MFP will be 

available to producers of those 

commodities determined by the 

Secretary to have been adversely 

affected by the actions of foreign 

governments. 

MFP payment rates and units of 

measure will be in effect beginning 

September 4, 2018. The payment rate 

under this rule will apply to the first 50 

percent of the producer’s total 

production of the selected commodity. 

On or about December 3, 2018, CCC may 

announce a second payment rate, if 

applicable, that will apply to the 

remaining 50 percent of the producer’s 

production for the selected commodity. 

USDA will continue to monitor the 

situation with respect to adverse effects 

felt by American commodity producers 

as a result of trade disruptions and will 

determine whether additional assistance 

is necessary at a later date, considering 

additional available data and updated 

methodologies. The MFP payment 

under this announcement is expected to 

total about $5 billion. 

Producer Eligibility Requirements 

Under MFP, CCC will provide 

payments to producers of those 

commodities determined by the 

Secretary to have been adversely 

affected by the retaliatory actions of 

foreign governments. Participation in 

other CCC programs is not a prerequisite 

to participate in MFP. 

MFP payments will be available to 

those producers who had an ownership 

interest in the crop on acres that were 

planted and reported to FSA for the 

2018 crop year. Producers who reported 

such an interest are eligible for MFP 

payments, provided all other eligibility 

requirements are met. A verbal or 

written agreement that precludes a 

producer from having such an interest 

may disqualify the producer for MFP. 

Crop producers must meet all of the 

following requirements to be eligible for 

an MFP payment: 

(1) The producer must have submitted 

to FSA a form FSA–578, ‘‘Report of 

Acreage’’ (referred to as ‘‘acreage 

report’’), representing the applicable 

crop year acreage of the eligible crop as 

planted, and provide FSA with 

supporting documentation, as required 

by the applicable NOFA. For any 

producer who is not participating in 

another FSA-administered CCC 

program, the producer must provide the 

required crop planting information on 

the acreage report. If the acreage report 

deadline for the eligible crop has 

passed, the producer will follow the 

established ‘‘late-filed’’ acreage reports 

process; 

(2) The producer’s acreage report 

must specify the producer’s ownership 

share of both the eligible crop and the 

number of acres planted to that crop; 

and 

(3) The producer must apply for an 

MFP payment as announced by CCC. 

Payments for commodities other than 

crops, such as livestock and dairy, will 

be based on information submitted by 

producers to FSA as specified in the 

applicable NOFA. MFP payments will 

be available to those producers who had 

an ownership interest in the commodity 

during the applicable time period, 

provided all other eligibility 

requirements are met. 


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44174 Federal Register / Vol. 83, No. 169 / Thursday, August 30, 2018 / Rules and Regulations 

Producers of commodities other than 

crops must meet all of the following 

requirements to be eligible for an MFP 

payment: 

(1) The producer must complete an 

MFP application form and provide FSA 

with supporting documentation, as 

required by the applicable NOFA, 

which must specify the producer’s 

ownership interest in the eligible 

commodity and the amount of the 

commodity for the applicable time 

period; and 

(2) The producer must have 

ownership in the commodity as 

described in the applicable NOFA. 

Adjusted Gross Income and Payment 

Limitation Requirements 

The average adjusted gross income 

(AGI) limitations as specified in 7 CFR 

part 1400 apply to MFP. No person or 

legal entity (excluding a joint venture or 

general partnership), as defined and 

determined under 7 CFR part 1400 may 

receive, directly or indirectly, more than 

$125,000 in MFP payments for the 2018 

crop year as specified in the relevant 

NOFA. The application of the payment 

limitation will be specified in the 

NOFA. For example, certain 

commodities announced at the same 

time may have a combined payment 

limitation. 

For the $125,000 annual payment 

limit, both indirect and direct benefits 

are counted by attribution. The 

regulations in 7 CFR 1400.105 specify 

how payments are attributed; the total 

amount of payments is attributed to a 

person by taking into account the direct 

and indirect ownership interests of the 

person in a legal entity that is eligible 

to receive payments. In the case of a 

legal entity, the same payment is 

attributed to the direct payee in the full 

amount and to those that have an 

indirect interest to the amount of that 

indirect interest. 

A person or legal entity is ineligible 

for payments if the person’s or legal 

entity’s AGI for the applicable program 

year is more than $900,000. If a person 

with an indirect interest in a legal entity 

has an average AGI of more than 

$900,000, the MFP payments subject to 

average AGI compliance provisions to 

the legal entity will be reduced as 

calculated based on the percent interest 

of the person in the legal entity 

receiving the payment. The relevant 

years used to calculate average AGI are 

the 3 consecutive tax years immediately 

preceding the year before the payment 

year, which will be the crop year, or the 

marketing year for livestock or dairy). 

For example, for 2018, the relevant 

years to calculate AGI are the 2014, 

2015 and 2016 tax years. 

In addition to having a share in the 

commodity, to be eligible for an MFP 

payment for crops that are ‘‘covered 

commodities’’ as defined in 7 CFR 

1412.3, each applicant is required to be 

a person or legal entity who was 

actively engaged in farming, as provided 

in 7 CFR part 1400, in the crop year for 

which the crop is included in MFP. 

Payment Calculations 

Subject to any unique circumstance 

applicable to a specific commodity as 

specified in the applicable NOFA, the 

MFP payment for a commodity will be 

calculated as follows: 

Production × Share × MFP Payment Rate 

The share is the applicant’s share of 

the commodity. 

The MFP payment rate will be 

calculated for the specific commodity 

when it becomes eligible for MFP and 

will be announced in the applicable 

NOFA. 

The amount of production is the 

applicant’s actual production for the 

commodity. Specific production 

requirements for any commodity will be 

identified in the relevant NOFA. For 

example, for livestock, production may 

be the number of head of livestock 

during specified dates. 

MFP General Requirements 

General requirements that apply to 

other CCC programs also apply to MFP 

including compliance with the 

provisions of 7 CFR part 12, ‘‘Highly 

Erodible Land and Wetland 

Conservation,’’ during the year for 

which assistance is made available. 

Foreign persons are not eligible for 

MFP payments. Federal, State, and local 

governments are not eligible for MFP 

payments. 

There is no requirement to have crop 

insurance coverage or coverage under 

the Noninsured Crop Disaster 

Assistance Program (NAP) to be eligible 

for participation in MFP. 

Appeal regulations specified in 7 CFR 

parts 11 and 780 apply. MFP 

commodity eligibility and other matters 

of general applicability that are not in 

response to, or result from, an 

individual set of facts in an individual 

participant’s application for payment 

are not matters that can be appealed. 

Eligible Crop Acreage 

Most eligible crop producers will 

have already submitted the required 

acreage report to FSA as part of their 

participation in various FSA and CCC 

programs. The regulation in 7 CFR part 

718 requires producers to report to FSA 

their acreage for various crops and 

commodities, including the number of 

acres that were planted in the United 

States for the crop or commodity and 

their percentage share of the crop for the 

reported acreage for the crop year. 

Therefore, FSA already has some of the 

information relevant to MFP as 

previously reported to FSA for many 

producers; as noted above other 

producers who apply for MFP will also 

need to submit their information on the 

acreage report. 

If there were any errors in the 

previously submitted acreage report, the 

producer may go through the 

established FSA process to correct the 

reported information. Any such requests 

for correction must be made by the date 

specified in the relevant NOFA and 

require approval by FSA. 

Application Process 

To apply for MFP, each applicant 

must submit a complete valid MFP 

application either in person, by mail, 

email, or facsimile to an FSA county 

office. For many crops, FSA possesses 

the producer share data from the 

applicable crop year’s acreage report for 

producers who participate in other FSAadministered CCC programs. For crops, 

the applicant’s crop share interest on an 

MFP application cannot be greater than 

the crop share interest as reported on 

the acreage report. FSA will verify and 

confirm the applicant’s crop share 

interest reported on the MFP 

application by comparing it to the 

applicant’s crop share interest as 

reported on that farm’s acreage report 

for the applicable crop year. 

For livestock, the application will 

include number of head (production) 

and ownership share information as 

provided in the applicable NOFA. For 

dairy, the application will include the 

amount of historical production as 

provided in the applicable NOFA. 

If FSA decides it is necessary to 

confirm the applicant’s interest in the 

commodity, the applicant will be 

required to submit evidence upon 

request, such as seed receipts, custom 

harvesting receipts, bale gin lists, or 

purchase or sales receipts. In addition, 

the applicant will need to provide 

supporting documentation for the 

amount of production as specified in the 

relevant NOFA. 

Process for Evaluation of MFP 

Applications and Approval of 

Payments 

FSA will require producer specific 

documentation of the amount of 

production, as applicable. 

When there are multiple eligible 

applicants for a farm, FSA will approve 

each application that is filed for MFP 

when all the following have occurred: 


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(1) The landlord, tenant, and 

sharecropper have signed and submitted 

their own MFP application with the 

correct share interest in the crop, 

livestock, or dairy production on the 

farm; and 

(2) The applicant provided a copy of 

the lease agreement, if determined 

necessary and requested by the FSA 

county committee. 

Provisions Requiring Refund to CCC 

In the event that any application for 

an MFP payment resulted from 

erroneous information reported by the 

producer, the payment will be 

recalculated, and the participant must 

refund any excess payment to CCC; if 

the error was the applicant’s error, the 

refund must include interest to be 

calculated from the date of the 

disbursement to the MFP participant. If, 

for whatever reason, FSA determines 

that the applicant misrepresented either 

the total amount or producer’s share of 

the crop, head of livestock, or 

production, or if the MFP payment 

would exceed the participant’s payment 

based on correct amount of production 

and share, the application will be 

disapproved and the full MFP payment 

for that crop or livestock for that 

participant will be required to be 

refunded to CCC with interest from the 

date of disbursement. If any corrections 

to the ownership interest in the crop are 

made to the acreage report after the MFP 

application deadline, and would have 

resulted in a lower MFP payment, the 

applicant will be required to refund the 

difference with interest from date of 

disbursement. 

Effective Date and Notice and Comment 

The Administrative Procedure Act (5 

U.S.C. 553) provides that the notice and 

comment and 30-day delay in the 

effective date provisions do not apply 

when the rule involves specified 

actions, including matters relating to 

grants or benefits. This rule governs the 

program for payments to certain 

commodity producers and thus falls 

within that exemption. Accordingly, 

this rule is effective upon publication in 

the Federal Register. Further, the 

opportunity for notice and comment 

provided in this document is limited to 

the PRA requirements for the 

information collection activities. 

Executive Orders 12866, 13563, 13771 

and 13777 

Executive Order 12866, ‘‘Regulatory 

Planning and Review,’’ and Executive 

Order 13563, ‘‘Improving Regulation 

and Regulatory Review,’’ direct agencies 

to assess all costs and benefits of 

available regulatory alternatives and, if 

regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety effects, distributive impacts, 

and equity). Executive Order 13563 

emphasized the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. Executive 

Order 13777, ‘‘Enforcing the Regulatory 

Reform Agenda,’’ established a federal 

policy to alleviate unnecessary 

regulatory burdens on the American 

people. 

The Office of Management and Budget 

(OMB) designated this rule as 

economically significant under 

Executive Order 12866, ‘‘Regulatory 

Planning and Review,’’ and therefore, 

OMB has reviewed this rule. The costs 

and benefits of this rule are summarized 

below. The full cost benefit analysis is 

available on regulations.gov. 

Executive Order 13771, ‘‘Reducing 

Regulation and Controlling Regulatory 

Costs,’’ requires that in order to manage 

the private costs required to comply 

with Federal regulations that for every 

new significant or economically 

significant regulation issued, the new 

costs must be offset by the elimination 

of at least two prior regulations. The 

OMB guidance in M–17–21, dated April 

5, 2017, specifies that ‘‘transfer rules’’ 

are not covered by Executive Order 

13771. Transfer rules are Federal 

spending regulatory actions that cause 

only income transfers between 

taxpayers and program beneficiaries. 

Therefore, this is considered a transfer 

rule by OMB and is not covered by 

Executive Order 13771. 

Cost Benefit Analysis Summary 

The amount of MFP payments for 

each commodity is intended to offset 

some of the adverse impact of losing 

market demand due to trade issues, for 

example, retaliatory tariffs imposed by 

other countries. The payment rate per 

unit (for example, bushel, pound, 

hundredweight, or animal) for each 

commodity will reflect the severity of 

the impact of trade disruptions to that 

commodity and the commodity-specific 

period of adjustment to new trade 

patterns. For example, the payment rate 

for a commodity that is heavily 

dependent on export markets, such as 

soybeans, will be higher than a 

commodity for which most production 

is marketed domestically. USDA 

forecasted those impacts based on the 

percentage of 2017 U.S. production of 

each commodity that was exported in 

2017, the share of exports affected by 

trade disruptions, and other variables 

such as current stocks-to-use ratio for 

crop commodities. 

The expected cost of initial MFP 

payments is approximately $5 billion. 

The majority of payments will go to 

soybean producers, because USDA has 

determined that soybeans have been 

most severely impacted by recent trade 

actions based on analysis of exports as 

a share of total production, the time it 

will take to adjust to new trade patterns, 

the observed price impact, and the 

current stocks-to-use ratio. The 

payments represent the total benefits 

(payments) to producers, which is the 

total cost to the government for MFP. 

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, Pub. L. 

104–121), generally requires an agency 

to prepare a regulatory flexibility 

analysis of any rule whenever an agency 

is required by the Administrative 

Procedure Act or any other law to 

publish a proposed rule, unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

This rule is not subject to the Regulatory 

Flexibility Act because CCC is not 

required by Administrative Procedure 

Act or any law to publish a proposed 

rule for this rulemaking. 

Environmental Review 

The environmental impacts of this 

final 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 the FSA regulation for 

compliance with NEPA (7 CFR part 

799). 

While OMB has designated this rule 

as ‘‘economically significant’’ under 

Executive Order 12866, ‘‘. . . economic 

or social effects are not intended by 

themselves to require preparation of an 

environmental impact statement’’ (40 

CFR 1508.14), when not interrelated to 

natural or physical environmental 

effects. As previously stated, the intent 

of MFP is to compensate producers who 

have suffered post-production market 

losses. The limited discretionary aspects 

of MFP (for example, determining AGI 

and payment limitations) were designed 

to be consistent with established FSA 

and CCC programs. These discretionary 

aspects do not have the potential to 

impact the human environment as they 

are administrative, and MFP only takes 

effect after the commodity has been 

produced, harvested, and sold. 


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44176 Federal Register / Vol. 83, No. 169 / Thursday, August 30, 2018 / Rules and Regulations 

Accordingly, the following Categorical 

Exclusions in 7 CFR part 799.31 apply: 

§ 799.31(b)(6)(iii) applies to financial 

assistance to supplement income, 

manage the supply of agricultural 

commodities, or influence the cost and 

supply of such commodities; 

§ 799.31(b)(6)(iv) applies to individual 

farm participation in FSA programs 

where no ground disturbance or change 

in land use occurs as a result of the 

proposed action or participation; and 

§ 799.31(b)(6)(vi) applies to ‘‘safety net’’ 

programs administered by FSA. No 

Extraordinary Circumstances (§ 799.33) 

exist. As such, the implementation of 

MFP and the participation in MFP do 

not constitute major Federal actions that 

would significantly affect the quality of 

the human environment, individually or 

cumulatively. Therefore, CCC will not 

prepare an environmental assessment or 

environmental impact statement for this 

regulatory action and this rule serves as 

documentation of the programmatic 

environmental compliance decision for 

this federal action. 

Executive Order 12372 

Executive Order 12372, 

‘‘Intergovernmental Review of Federal 

Programs,’’ requires consultation with 

State and local officials that would be 

directly affect by proposed Federal 

financial assistance. 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 specified in 

the final rule related 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.’’ This rule will not preempt 

State or local laws, regulations, or 

policies unless they represent an 

irreconcilable conflict with this rule. 

The rule will not have retroactive effect. 

Before any judicial action may be 

brought regarding the provisions of this 

rule, the administrative appeal 

provisions of 7 CFR parts 11 and 780 

must be exhausted. 

Executive Order 13132 

This rule has been reviewed under 

Executive Order 13132, ‘‘Federalism.’’ 

The policies contained in this rule do 

not have any substantial direct effect on 

States, on the relationship between the 

Federal government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government, except as required 

by law. Nor does 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 requires Federal 

agencies to consult and coordinate with 

tribes on a government-to-government 

basis on policies that have tribal 

implications, including regulations, 

legislative comments proposed 

legislation, and other policy statements 

or actions that have substantial direct 

effects on one or more Indian tribes, on 

the relationship between the Federal 

Government and Indian tribes or on the 

distribution of power and 

responsibilities between the Federal 

government and Indian tribes. 

FSA and CCC have assessed the 

impact of this rule on Indian tribes and 

determined that this rule does not, to 

our knowledge, have tribal implications 

that required tribal consultation under 

Executive Order 13175. If a tribe 

requests consultation, FSA and CCC 

will work with USDA Office of Tribal 

Relations to ensure meaningful 

consultation is provided where changes, 

additions, and modifications are not 

expressly mandated by Congress. 

The Unfunded Mandates Reform Act of 

1995 

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 rule contains no Federal mandates, 

as defined in Title II of UMRA, for State, 

local, and Tribal governments or the 

private sector. Therefore, this rule is not 

subject to the requirements of sections 

202 and 205 of UMRA. 

SBREFA 

This rule is a major rule under 

SBREFA. SBREFA normally requires 

that an agency delay the effective date 

of a major rule for 60 days from the date 

of publication to allow for 

Congressional review. Section 808 of 

SBREFA allows an agency to make a 

major regulation effective immediately 

if the agency finds there is good cause 

to do so. The beneficiaries of this rule 

have been significantly impacted by 

actions of foreign governments resulting 

in the loss of traditional exports. 

Therefore, FSA and CCC find that it 

would be contrary to the public interest 

to delay the effective date of this rule 

because it would delay implementation 

of MFP. The regulation needs to be 

effective to provide adequate time for 

producers to submit applications to 

request payments. Therefore, this rule is 

effective on the August 30, 2018. 

Federal Assistance Programs 

The title and number of the Federal 

Domestic Assistance Program found in 

the Catalog of Federal Domestic 

Assistance to which this rule applies is 

TBD—Market Facilitation Program and 

number. 

Paperwork Reduction Act 

In accordance with the Paperwork 

Reduction Act of 1995, the following 

new information collection request that 

supports MFP was submitted to OMB 

for emergency approval. OMB approved 

the 6-month emergency information 

collection. 

List of Subjects in 7 CFR Part 1409 

Agriculture, Agricultural 

commodities, Crops, Reporting and 

recordkeeping requirements. 

For the reasons discussed in the 

preamble, CCC adds 7 CFR part 1409 to 

read as follows: 

PART 1409—MARKET FACILITATION 

PROGRAM 

Sec. 

1409.1 Applicability. 

1409.2 Definitions. 

1409.3 Producer eligibility requirements. 

1409.4 Time and method of application. 

1409.5 Calculation of payments. 

1409.6 Eligibility subject to verification. 

1409.7 Miscellaneous provisions. 

Authority: 15 U.S.C. 714b and 714c. 

§ 1409.1 Applicability. 

This part specifies the eligibility 

requirements and payment calculations 

for the Market Facilitation Program 

(MFP). MFP will provide payments with 


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respect to commodities which have 

been significantly impacted by actions 

of foreign governments resulting in the 

loss of traditional exports. The 

determination of eligible commodities 

and any specific program requirements 

for a commodity will be specified in a 

notice of funding availability published 

by CCC in the Federal Register. 

§ 1409.2 Definitions. 

The following definitions apply to 

MFP. The definitions in part 718 of this 

title and parts 1400, and 1421 of this 

section apply, except where they 

conflict with the definitions in this 

section. 

Application means the MFP 

application form. 

Commodity means an agricultural 

commodity produced in the United 

States intended to be marketed for 

commercial production that has been 

designated as eligible for payments 

under MFP. 

Crop means the harvested production 

of a commodity. 

Crop year means: 

(1) For insurable crops, the crop year 

as defined according to the applicable 

crop insurance policy; and 

(2) For NAP covered crops, the crop 

year as provided in part 1437 of this 

chapter. 

NOFA means a notice of funds 

availability published by CCC in the 

Federal Register that specifies terms 

and conditions of MFP that are 

applicable to a specific commodity. 

Producer means a livestock producer, 

dairy producer, or a producer of a crop 

as defined in § 718.2 of this title. 

§ 1409.3 Producer eligibility requirements. 

(a) To be eligible for an MFP payment, 

a producer must: 

(1) Meet all of the requirements in this 

part and the NOFA that is applicable to 

the commodity; 

(2) Be a: 

(i) Citizen of the United States; 

(ii) Resident alien, which for purposes 

of this part means ‘‘lawful alien’’ as 

defined in part 1400 of this chapter; 

(iii) Partnership of citizens of the 

United States; or 

(iv) Corporation, limited liability 

corporation, or other organizational 

structure organized under State law; 

(3) Have an ownership interest in the 

commodity. 

(b) For eligible crops, a producer’s 

share in the crop must be reported for 

the applicable crop year on form FSA– 

578, Report of Acreage, on file in the 

FSA county office as of the acreage 

reporting deadline, or no later than the 

date specified in the relevant NOFA. For 

crops that are covered commodities 

under § 1412.3 of this chapter, each 

applicant must be a person or legal 

entity who was actively engaged in 

farming, as provided in part 1400 of this 

chapter, in the crop year for which the 

crop is included in MFP. 

(c) For livestock and dairy, a producer 

must have had an ownership interest in 

livestock or dairy production during the 

applicable time period established by 

CCC in the applicable NOFA. 

§ 1409.4 Method of application. 

(a) To apply for an MFP payment, the 

producer must submit an MFP 

application on the form designated by 

CCC to an FSA county office. 

(b) In the event that the producer does 

not submit documentation in response 

to any request of FSA to support the 

producer’s application or 

documentation furnished does not show 

the producer had ownership in the 

commodity as claimed, the application 

for that commodity will be disapproved. 

(c) A request for an MFP payment will 

not be approved by CCC until all the 

applicable eligibility provisions have 

been met and the producer has 

submitted all required forms and 

supporting documentation. In addition 

to the completed application form, if the 

following forms and documentation are 

not on file in the FSA county office or 

are not current for the applicable crop 

year of the crop or applicable year for 

the commodity for which MFP has been 

announced as available, the producer 

must also submit: 

(1) A farm operating plan for an 

individual or legal entity as provided in 

part 1400 of this chapter; 

(2) An average adjusted gross income 

statement for the applicable year entity 

as provided in part 1400 of this chapter; 

(3) A highly erodible land 

conservation (sometimes referred to 

elsewhere as HELC) and wetland 

conservation certification as provided in 

part 12 of this title; 

(4) For crops, an acreage report for the 

applicable crop year as provided in part 

718 of this title; and 

(5) Verifiable records that substantiate 

the amount of production as specified in 

the relevant NOFA. 

§ 1409.5 Calculation of payments. 

The payment under this rule will be 

calculated by multiplying fifty percent 

of the total production of the 

commodity times the MFP payment rate 

for that commodity that is in effect 

when the payment is made times the 

producer’s eligible share of the 

commodity. On or about December 3, 

2018, CCC may announce a second 

payment rate, if applicable, that will 

apply to the remaining 50 percent of the 

producer’s production for the selected 

commodity. 

§ 1409.6 Eligibility subject to verification. 

(a) Producers who are approved for 

participation in MFP are required to 

retain documentation in support of their 

application for 3 years after the date of 

approval. 

(b) Producers must submit 

documentation to CCC as requested to 

substantiate an application. 

(c) Producers receiving payments or 

any other person who furnishes such 

information to CCC must permit 

authorized representatives of USDA or 

the General Accounting Office during 

regular business hours to inspect, 

examine, and to allow such 

representatives to make copies of such 

books, records or other items for the 

purpose of confirming the accuracy of 

the information provided by the 

producer. 

§ 1409.7 Miscellaneous provisions. 

(a) If an MFP payment resulted from 

erroneous information provided by a 

producer, or any person acting on their 

behalf, the payment will be recalculated 

and the producer must refund any 

excess payment to CCC with interest 

calculated from the date of the 

disbursement of the payment. 

(b) The refund of any payment to CCC 

is in addition to liability under any 

other provision of law including, but 

not limited to: 18 U.S.C. 286, 287, 371, 

641, 651, 1001, and 1014; 15 U.S.C. 714; 

and 31 U.S.C. 3729. 

(c) The regulations in parts 11 and 

780 of this title apply to determinations 

under this part. 

(d) Any payment 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 

commodity or proceeds from the sale of 

the commodity. 

(e) The $900,000 average AGI 

limitation provisions in part 1400 of this 

chapter relating to limits on payments 

for persons or legal entities, excluding 

joint ventures and general partnerships, 

apply to each applicant for MFP. The 

average AGI will be calculated for a 

person or legal entity based on the 3 

complete tax years that precede the year 

for which the payment is made (for the 

2018 crop year or marketing year for 

livestock and dairy the tax years are 

2014, 2015, and 2016). 

(f) No person or legal entity, 

excluding a joint venture or general 

partnership, as determined by the rules 

in part 1400 of this chapter may receive, 

directly or indirectly, more than 

$125,000 in payments as specified in 

the relevant NOFA. 


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44178 Federal Register / Vol. 83, No. 169 / Thursday, August 30, 2018 / Rules and Regulations 

(g) The direct attribution provisions in 

part 1400 of this chapter apply to MFP. 

Under those rules, any payment to any 

legal entity will also be considered for 

payment limitation purposes to be a 

payment to persons or legal entities 

with an interest in the legal entity or in 

a sub-entity. If any such interested 

person or legal entity is over the 

payment limitation because of direct 

payment or their indirect interests or a 

combination thereof, then the payment 

to the actual payee will be reduced 

commensurate with the amount of the 

interest of the interested person in the 

payee. If anyone with a direct or 

indirect interest in a legal entity or subentity of a payee entity exceeds the AGI 

levels that would allow a producer to 

directly receive an MFP payment, then 

the MFP payment to the actual payee 

will be reduced commensurately with 

that interest. 

(h) For the purposes of the effect of 

lien on eligibility for Federal programs 

(28 U.S.C. 3201(e)), CCC waives the 

restriction on receipt of funds under 

MFP but only as to beneficiaries who, as 

a condition of such waiver, agree to 

apply the MFP payments to reduce the 

amount of the judgment lien. 

(i) The provisions of § 718.304 of this 

title, ‘‘Failure to Fully Comply,’’ do not 

apply to this part. 

Richard Fordyce, 

Administrator, Farm Service Agency. 

Robert Stephenson, 

Executive Vice President, Commodity Credit 

Corporation. 

[FR Doc. 2018–18842 Filed 8–28–18; 8:45 am] 

BILLING CODE 3410–05–P 

DEPARTMENT OF AGRICULTURE 

Commodity Credit Corporation 

7 CFR Part 1489 

RIN 0551–AA92 

Agricultural Trade Promotion Program 

AGENCY: Foreign Agricultural Service 

and Commodity Credit Corporation, 

USDA. 

ACTION: Final rule. 

SUMMARY: The Commodity Credit 

Corporation (CCC) is issuing a new 

regulation to implement the 

Agricultural Trade Promotion Program 

(ATP). The ATP provides assistance to 

U.S. agricultural industries to conduct 

activities that promote U.S. agricultural 

commodities in foreign markets for 

commodities impacted by tariffs, 

including activities that address existing 

or potential non-tariff barriers to trade. 

This rule specifies, among other things, 

eligibility requirements, activities 

eligible for reimbursement, contribution 

requirements, and application 

procedures for the ATP. This rule also 

proposes a new information collection 

for required program information. 

Specific program requirements will be 

set forth in future Notices of Funds 

Availability (NOFAs) announced 

through the Grants.gov website. 

DATES: 

Effective date: August 30, 2018. 

Comment date: We will consider 

comments on the Paperwork Reduction 

Act (PRA) that we receive by: October 

29, 2018. 

ADDRESSES: We invite you to submit 

comments as required by the PRA for 

the information collection activities. In 

your comment, specify RIN 0551–NEW, 

and include the volume, date, and page 

number of this issue of the Federal 

Register. You may submit comments by 

any of the following methods: 

• Federal Rulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

• Email: podadmin@fas.usda.gov. 

• Fax: (202) 720–9361. 

• Mail or Courier Service: Director, 

Program Operations Division, OTP/FAS, 

U.S. Department of Agriculture, 1400 

Independence Avenue SW, Room 6512, 

Stop 1020, Washington, DC 20250– 

1020. 

Comments will be available for viewing 

online at http://www.regulations.gov. In 

addition, comments will be available for 

public inspection at the above address 

during business hours from 8 a.m. to 5 

p.m., Monday through Friday, except 

holidays. 

FOR FURTHER INFORMATION CONTACT: Curt 

Alt, Director, Program Operations 

Division, by telephone: (202) 720–4327; 

or by fax: (202) 720–9361; or by email: 

podadmin@fas.usda.gov. 

The U.S. Department of Agriculture 

(USDA) prohibits discrimination in its 

programs on the basis of race, color, 

national origin, sex, religion, sexual 

orientation, age, disability, political 

beliefs and marital or familial status. 

(Not all prohibited bases apply to all 

programs.) Persons with disabilities 

who require alternative means for 

communication of program information 

(braille, large print, audiotape, etc.) 

should contact the USDA TARGET 

Center at (202) 720–2600 (Voice and 

TDD). 

SUPPLEMENTARY INFORMATION: 

Background 

The nature and severity of financial 

impacts of recent international trade 

actions (for example, the imposition of 

tariffs by other countries on U.S. 

agricultural products) are disrupting the 

marketing of U.S. agricultural 

commodities and are outside of the 

control of the industries that are being 

negatively affected. In response to these 

actions by foreign governments, the 

Commodity Credit Corporation (CCC) 

has decided to exercise its authority 

under Section 5 of the CCC Charter Act, 

which includes authority for CCC to use 

its general powers to ‘‘aid in the 

development of foreign markets for . . . 

agricultural commodities . . . .’’ [15 

U.S.C. 714c(f)], to provide assistance to 

eligible organizations for market 

promotion activities. ATP funding is 

intended to ameliorate the negative 

impacts of recent international trade 

actions on U.S. agriculture by 

developing, maintaining, and expanding 

commercial export markets for U.S. 

agricultural commodities and products. 

ATP Participants may receive assistance 

for either generic or branded promotion 

activities as well as assistance to 

conduct activities to address existing or 

potential non-tariff barriers to trade. 

The Foreign Agricultural Service 

(FAS) will administer the ATP on behalf 

of the CCC. Specific program 

requirements and details for applying 

for assistance under the ATP will be set 

forth in future NOFAs announced 

through the Grants.gov website. 

Eligible Organizations 

The ATP is a cost-share program that 

is designed to reimburse nonprofit U.S. 

agricultural trade organizations, 

nonprofit state regional trade groups, 

state agencies, U.S. agricultural 

cooperatives, and other entities that 

conduct approved foreign market 

promotion activities and can 

demonstrate damages suffered as a 

result of tariffs imposed on U.S. 

agricultural products in 2018/2019. 

When considering eligible nonprofit 

U.S. trade organizations, the CCC gives 

priority to organizations that have the 

broadest producer representation and 

affiliated industry participation of the 

commodity being promoted. Eligible 

activities can be generic or branded in 

nature. In order to be eligible for ATP 

assistance, U.S. for-profit entities shall 

be limited to those whose size does not 

exceed 300 percent of the small 

business size standards established for 

their particular industry and published 

at 13 CFR part 121, Small Business Size 

Regulations. Eligible for-profit entities 

may participate in an ATP Participant’s 

brand promotion program. Any ATP 

Participant that operates a brand 

promotion program will be required to 

establish brand program operational 


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