67608 Federal Register / Vol. 65, No. 219 / Monday, November 13, 2000 / Rules and Regulations

PART 1209—PRACTICES AND

PROCEDURES FOR APPEALS AND

STAY REQUESTS OF PERSONNEL

ACTIONS ALLEGEDLY BASED ON

WHISTLEBLOWING

1. The authority citation for part 1209

continues to read as follows:

Authority: 5 U.S.C. 1204, 1221, 2302(b)(8),

and 7701.

2. Amend § 1209.6 at paragraph (a) by

revising subparagraphs (a)(4) and

(a)(5)(ii) and by adding new

subparagraph (a)(6) to read as follows:

§ 1209.6 Content of appeal; right to

hearing.

(a) * * *

(4) A description of each disclosure

evidencing whistleblowing as defined in

§ 1209.4(b) of this part; and

(5) * * *

(ii) The personnel action was or will

be based wholly or in part on the

whistleblowing disclosure, as described

in § 1209.4(b) of this part.

(6) An appellant who first sought

corrective action from the Special

Counsel may satisfy the requirements of

paragraphs (a)(3) through (a)(5) of this

section by filing with the appeal a copy

of Part 2: Reprisal For Whistleblowing of

the complaint form submitted to the

Office of Special Counsel (Form OSC–

11, Complaint of Possible Prohibited

Personnel Practice or Other Prohibited

Activity, Rev. 8/00), together with a

copy of any continuation sheet with

answers to Part 2 questions filed with

the Office of Special Counsel, and any

supplement to Part 2 of the original

complaint filed with the Office of

Special Counsel or completed by the

Office of Special Counsel and furnished

to the appellant.

* * * * *

Dated: November 6, 2000

Robert E. Taylor,

Clerk of the Board.

[FR Doc. 00–28823 Filed 11–9–00; 8:45 am]

BILLING CODE 7400–01–P

DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1424

RIN 0560–AG16

Bioenergy Program

AGENCY: Commodity Credit Corporation,

USDA.

ACTION: Final rule.

SUMMARY: The Commodity Credit

Corporation (CCC) is adopting as final

the proposed rule published July 27,

2000, in the Federal Register to

accelerate the development and use of

bio-based technologies in stimulating

the industrial use of agricultural

commodities into bio-based fuels and

products. CCC will make incentive cash

payments to bioenergy producers who

increase their purchases of eligible

agricultural commodities, as compared

to the corresponding period in the prior

fiscal year (FY), and convert that

commodity into increased bioenergy

production.

EFFECTIVE DATE: This program will

become effective December 1, 2000. The

FY 2001 sign-up period will begin that

day and will end December 31, 2000.

FOR FURTHER INFORMATION CONTACT:

Steve Gill, Director, Warehouse and

Inventory Division, FSA, United States

Department of Agriculture (USDA),

STOP 0553, 1400 Independence

Avenue, SW., Washington, DC 20250–

0553, telephone (202) 720–2121 or email address,

Steve_Gill@wdc.fsa.usda.gov or Jim Goff

at (202) 720–5396. Persons with

disabilities who require alternative

means of communication for regulatory

information (braille, large print,

audiotape, etc.) should contact USDA’s

TARGET Center at (202) 720–2600

(voice and TDD).

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This rule has been determined to be

economically significant for the

purposes of Executive Order 12866 and

therefore has been reviewed by the

Office of Management and Budget

(OMB). A summary of the cost-benefit

assessment is included in the

Background section explaining the

actions this rule will take.

Small Business Regulatory Enforcement

Fairness Act

This rule was determined to be Major

under the Small Business Regulatory

Enforcement Fairness Act of 1996

(SBREFA). Section 801 of SBREFA

requires a 60-day delay for

Congressional review before Major

regulations can go into effect. However,

section 808 of SBREFA allows an

agency to promulgate a rule at such time

as it determines necessary,

notwithstanding the Congressional

review required by section 801 of

SBREFA, if the agency finds for good

cause that it is impracticable,

unnecessary, or contrary to the public

purpose to delay the rule. It is hereby

determined that delaying this rule

would be contrary to the public interest

and, accordingly, this rule is effective

December 1, 2000.

Regulatory Flexibility Act

It has been determined that the

Regulatory Flexibility Act is not

applicable to this rule because CCC is

not required by 5 U.S.C. 553 or any

other provision of law to publish a

notice of proposed rule making with

respect to the matter of this rule.

Executive Order 12372

This program is not subject to the

provisions of Executive Order 12372,

which requires intergovernmental

consultation with State and local

officials. See the notice related to 7 CFR

part 3015 subpart V published at 48 FR

29115 (June 24, 1983).

Environmental Assessment

An environmental assessment has

been completed and it has been

determined that there will be no

significant impact on the environment.

Executive Order 12988

This rule has been reviewed in

accordance with Executive Order 12988,

Civil Justice Reform. All State and local

laws and regulations that are in conflict

with this rule will be preempted. No

retroactive effect will be given to this

rule. It will not effect agreements

entered into prior to the effective date

of the rule. The administrative appeal

provisions published at 7 CFR parts 11

and 780 must be exhausted before

bringing any action for judicial review.

Executive Order 12612

It has been determined that this rule

does not have sufficient Federalism

implications to warrant the preparation

of a Federalism Assessment. The

provisions contained in this Rule will

not have a substantial direct effect on

States or their political subdivisions or

on the distribution of power and

responsibilities among the various

levels of Government.

Unfunded Mandates Reform Act of

1995

This Rule contains no Federal

mandates under the regulatory

provisions of Title II of the Unfunded

Mandates Reform Act of 1995 (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 the UMRA

regulations.

Paperwork Reduction Act

The information collection reporting

and recordkeeping requirements

associated with this rulemaking have

Federal Register / Vol. 65, No. 219 / Monday, November 13, 2000 / Rules and Regulations 67609

been approved by OMB and assigned

control number 0560-xxxx. A Federal

Register notice for this information

collection was published on July 27,

2000. No comments were received.

Background

To encourage bioenergy producers to

expand agricultural markets by

promoting increased bioenergy (ethanol

and biodiesel) production, CCC, in

accordance with Executive Order 13134,

Developing and Promoting Biobased

Products and Bioenergy, and the CCC

Charter Act, will make incentive cash

payments to bioenergy producers who

increase their purchases of agricultural

commodities over the previous fiscal

year’s (FY’s) purchases and convert that

commodity into increased ethanol and

biodiesel production over previous FY

ethanol and biodiesel production. This

rule provides for payments on

purchases of barley, corn, grain

sorghum, oats, rice, wheat, soybeans,

sunflower seed, canola, crambe,

rapeseed, safflower, sesame seed,

flaxseed, mustard seed, and cellulosic

crops, such as switchgrass and short

rotation trees, grown on farms, for the

purpose of producing ethanol and or

biodiesel used in either ethanol or

biodiesel production.

Eligible bioenergy producers will

receive incentive cash payments

quarterly, based on the producer’s total

annual bioenergy production increase

for the FY to date compared to the same

time period in the previous FY. If, at the

end of the fourth quarter, overpayments

have been made, the bioenergy producer

shall repay the overpayment plus

interest from the date of the

overpayment through the date of

repayment to CCC. Eligible bioenergy

producers with less than 65 million

gallons annual production capacity from

all facilities will receive a higher

effective payment rate than bioenergy

producers with 65 million gallons or

more annual production capacity to

increase the incentive for smaller plants

and thereby further promote expansion

of bioenergy production. A higher

incentive is needed for smaller plants

because, compared to larger plants, they

tend to produce a more limited product

range during refining, are less able to

capture economies of scale, and may not

have access to attractive risk

management strategies.

Except for FY 2001, bioenergy

producers will enter into annual

agreements with CCC establishing their

eligibility to receive program payments

before September of the preceding FY.

Once an agreement is entered into,

eligible bioenergy producers will submit

quarterly applications after the end of

each quarter requesting payments for

that quarter. For example, during

January 2002, producers may request

payments for the period beginning

October 1, 2001 through December 31,

2001. CCC will make payments to

eligible bioenergy producers within 30

calendar days of receiving a completed

eligible application.

CCC will make available up to $150

million in FY 2001 and $150 million in

FY 2002 for this program. Because

payment requests could potentially

exceed available program funding,

producers will be required to complete

an agreement during a sign-up period to

be announced by CCC for each FY of the

program. The agreement will include an

estimate of increased production for the

upcoming FY. The total estimated

increase in production for the upcoming

FY will be used to determine if payment

requests will exceed funding. If so, a

factor will be used to prorate payments

to keep payments at or below the

budgeted amount. Eligible producers

(agreement holders) will submit

applications for program payments after

each FY quarter. A producer will enter

into a single agreement covering all

production facilities operated or

planned to be operated during the

applicable FY by the producer at signup. However, agreement holders must

submit separate applications for each

facility location each quarter once

enrolled in the program. Applicable

payments will be based on the total

production increase from all facilities

FY to date, reconciled each quarter,

compared to the producer’s production

at all locations during the base period.

Producers who anticipate having new or

expanded production capacity on line

during the FY applicable to the sign-up

period should enroll that anticipated

production increase in the program

during sign-up.

Payments under the program will be

based on the expected additional

amount of agricultural commodities

used by producers to produce additional

energy. Interested parties will be

required to sign up for the program and

the total amount of expected claims will

then be prorated, as needed, to match

the available funding. Actual payments

will be made on a quarterly basis by

converting the extra fuel production to

a gross extra commodity amount by

using a factor set by CCC which

estimates the amount of corn or other

eligible commodity that was used to

produce the increase in bioenergy. That

figure will then be reduced to payable

bushels or other unit of production. For

smaller firms, as specified in the rule,

payable bushels will be 1 bushel for

every 2.5 gross bushels. For larger firms,

it will be 1 bushel for every 3.5 gross

bushels. Subject to the proration factor

referred to above, a producer’s payable

bushels will be multiplied by a current

(at the time) per bushel dollar amount

to reach the payment amount. However,

rising commodity prices could mean

that funding is exhausted, despite the

proration, before the end of the year.

Should that happen, the agency will

determine the manner in which it will

resolve the competing claims but in no

case will total payments exceed

available funding. All participants will

be required to sign an agreement that

will set out the terms of the payment

and the refund obligations that will

apply if the additional commodity use

levels are not obtained. The agreement

will also set out whatever additional

terms and conditions appear to be

appropriate to assure that the program

obtains its objectives. In all cases, the

amount of the payment to which the

producer remains eligible will be based

on the increases in the energy produced

for the year to date (as accounted for

each quarter). Hence, changes in

production could mean that payments

received earlier in the year may have to

be returned.

Bioenergy producers, to be eligible for

this program, must meet additional

requirements specific to the bioenergy

fuel being produced. For example,

ethanol producers must also be licensed

by the Bureau of Alcohol, Tobacco, and

Firearms (ATF) for fuel ethanol

production.

Proposed Rule

A proposed rule addressing this

matter was published in the Federal

Register (65 FR 46115) on July 27, 2000.

Comments from interested parties were

due on or before August 28, 2000. A

total of 123 comments were received

from 6 different sectors as follows: three

Government; 16 ethanol and biodiesel

organizations; three Congressional; 17

industry (processors, plants, banks,

accounting firms and cooperatives); 31

renderers; and 53 individuals.

Comments submitted varied widely in

support for the proposed rule. Fortythree supported the rule as written,

while all 31 renderers were strongly

opposed to the program unless

substantial changes are made to include

rendered animal by-products and

recycled cooking oils as eligible for

program payments. Most renderers

mentioned in some way perceived

unfairness because the grain

commodities already are eligible for

other USDA program benefits while

renderers and recycled products are not

eligible.

67610 Federal Register / Vol. 65, No. 219 / Monday, November 13, 2000 / Rules and Regulations

The proposed rule asked for

comments on 8 specific questions.

These questions and the responses to

them are as follows:

1. Producers of What Forms of

Bioenergy Should be Eligible for

Program Payments?

Ethanol and biodiesel were included

in the proposed rule.

Comments: The majority of comments

(43) supported making payments to only

ethanol and biodiesel producers. The

remainder of commentators suggested

various alternatives such as: focusing

incentives on expansion of alternative

fuels; transferring funds from farm level

price support subsidies to programs

such as this to refocus payments for

crops used in bioenergy production;

adding E–85 (a blend of 85 percent

ethanol and 15 percent gasoline);

limiting program to biodiesel and

ethanol produced from domestic feed

stocks; adding E-diesel (less than 5

percent additive and diesel fuel);

changing the word gasoline in the

definition of ethanol to denaturant;

limiting biodiesel producers to

commercial producers registered and in

good standing with Environmental

Protection Agency (EPA) under section

211(b) of the Clean Air Act Amendment

of 1990.

Response: As supported by the

majority of comments received, the

program will only cover ethanol and

biodiesel production in the US from

commodities produced in the US. This

has remained unchanged so that the

effect of this program will not be diluted

but will be confined to traditional uses

of those commodities which could,

otherwise, produce inventories of goods

that would have to be stored at

government expense. However,

definitions of ethanol and biodiesel fuel

have been broadened and requirements

have been added to address comments

received about E-diesel, the use of

gasoline as a denaturant, and to assure

that eligible biodiesel producers meet

EPA regulatory requirements. No change

was made regarding adding E–85 since

payments will only be made on

increased ethanol production and the

percentage of blend with gasoline will

not be a factor.

2. What Agricultural Commodities Used

in Bioenergy Production Should be

Included in the Program?

The proposed rule listed barley, corn,

grain sorghum, oats, rice, wheat,

soybeans, sunflower seed, canola,

crambe, rapeseed, safflower, flaxseed,

and mustard seed used in either ethanol

or biodiesel production.

Comments: The majority of

respondents were in favor of the

proposed eligible commodities.

However, we did receive comments

favoring the inclusion of sugar and

commodities for which there is another

statutory program so that incentive

payments for using that commodity in

this Program will result in lower costs

in other Programs in the form of loan

deficiency payments (LDP’s), forfeitures,

storage costs, or other payments to

farmers. We also received many (31)

letters from renderers recommending

the inclusion of animal fats and oils and

certain recycled products of these fats

and oils as eligible commodities in the

Program. Additional items that were

suggested to be added to the definition

were as follows: tobacco, peanuts,

cellulosic crops such as switchgrass,

crop residues (such as corn stover),

forest residue, non-recyclable cellulosic

solid waste (i.e. waste paper), cotton

waste, sustainable forest thinning

material, soybean wax, and other

biomass materials. One respondent was

against including recycled and waste

products as eligible commodities.

Response: In response CCC has

decided to add cellulosic crops, such as

switchgrass and short rotation trees,

grown on farms for the purpose of

producing ethanol or biodiesel to the

eligible commodity definition. This

change allows CCC to support crops

with excellent long-run potential for

increasing the Nation’s supply of

ethanol and biodiesel and are the basis

for much of USDA’s efforts under the

President’s Bioenergy Initiative and the

Biomass Research and Development Act

of 2000. While we have an interest in

supporting a broad bioenergy industry,

the addition of other items proposed

needs further analysis and public

comment. We plan to specifically

request comments on adding animal fats

and oils that are first used in ethanol

and biodiesel production to this

program. For the reasons given earlier,

this rule will for the time being focus on

field crops for which marketing

assistance is provided and which are

more customarily the focus of the use of

agricultural products to produce ethanol

and biodiesel fuel.

3. At What Plant Capacity Level Should

Program Payment Rates Change to

Account for Plant Efficiency Variances

by Eligible Program Commodity?

The proposed rule suggested making

larger payments to producers with less

than 30 million gallon-per-year capacity

than to plants with 30 million gallon or

more capacity.

Comments: Several respondents

indicated that, while the 30 million

gallons per year limit has been the

‘‘traditional’’ definition of a ‘‘small’’

ethanol producer, time and technology

have changed. One respondent stated,

‘‘In a country where there are at least

five ethanol plants that can produce at

least 100 million gallons per year, a 31

million gallon plant is by no means a

large producer and should not be

categorized as one for the sake of this

program.’’ Since 1990, the majority of

the industry’s growth has been in

smaller, farmer-owned cooperatives.

Today, many of these facilities are

looking to expand their initial output to

more than 30 million gallons per year to

take advantage of plant efficiencies,

economies of scale, and potential new

market demand. The majority of

respondents commenting in this area

felt the level should be raised to 65

million gallons per year. We also had

individual comments to: cap payments

to plants with 150 million gallon-peryear production capacity; provide a

reduced payment to firms with multiple

facilities; and provide the smallest

incentives to firms with largest

capacities that also have other

production.

Response: We agree with the majority

of respondents and this rule provides

for more advantageous payments to

producers with less than 65 million

gallons-per-year capacity than to

producers with 65 million gallons or

more capacity. This level appears to be

a reasonable line of demarcation, based

on the comments, between those

producers who may need an extra

incentive and those that do not. Under

the terms of the rule, that extra

incentive will, as indicated, mean that

smaller firms will receive payment on a

higher percentage of their extra

purchases of agricultural commodities.

As for capping payments at 150 million

gallons per year capacity by producer or

considering the number of other

production sites, we believe neither

would help accomplish the purpose of

the program which is increased

bioenergy production. In addition, by

having a five percent payment

limitation, we will restrict payments to

very large producers so funding is

available to more producers.

4. How Should Payment Rates Be

Established, Especially for Commodities

Without CCC Announced Terminal

Market Prices?

The proposed rule limited payments

to commodities with established CCC

announced terminal prices.

Comments: A few respondents

suggested: establishing a separate

budget for biodiesel and ethanol;

changing the time period used in

Federal Register / Vol. 65, No. 219 / Monday, November 13, 2000 / Rules and Regulations 67611

comparison to determine increase in

production; and, structuring payments

to allow plant construction or

expansion. Individual respondents

suggested: considering a flexible

mechanism in adjusting payment

formulas to maximize removal of

commodities from markets; using daily

prices by region or area for payments;

establishing terminal market prices for

those commodities without them or

using an average of recent prices paid by

the producers.

Response: While the suggestion that

the time period for comparison be

changed, there was no consensus what

would be better and the vast majority of

respondents recommended no change to

the program. Therefore, the comparison

time period remains FY compared to the

prior FY. However, the formula has

been adjusted from a quarterly

comparison to FY to date as the FY

progresses to level out payments

between quarters and reduce the need

for end of FY repayments. CCC

considered the comments on structuring

the payments to allow plant expansion

and construction and concluded that the

program as proposed met those goals in

the short term. Since CCC cannot

predict the amount of either ethanol or

biodiesel production that will be

covered by the program, we do not feel

we can accurately establish a separate

budget for ethanol versus biodiesel. The

sign-up will decide how funding is

divided between the two. Based on the

limited comments received, no change

has been made from the proposed rule

in this area. However, since terminal

market prices and county differentials

are not available for cellulosic crops,

such as switchgrass and short rotation

trees, grown on farms for the purpose of

producing ethanol and or biodiesel that

have been added as eligible

commodities, CCC will announce how

payment rates will be established on

these commodities after sign-up occurs

and CCC knows payments will be

applicable on the commodity.

5. When Payments Are Limited, How

Should Payments Be Distributed?

The proposed rule asked for

comments on how payments should be

prorated in the event that the program

should be oversubscribed in the sense

that there might be more willing

participants than the normal payment

formulas and funding would allow. It

was contemplated in that respect,

however, that there would be a sign-up

period so that all interested parties

could make their interest known so that

the amount of proration could be then

adduced. The proposed rule suggested

several methods for dealing with

shortage in funding.

Comments: We received a variety of

comments on how to distribute

payments including: supported

prorating payments; advance 90 percent

of expected payments quarterly with

final payments reflecting the balance

due; limit the total dollars any one

entity could receive; limit program to 30

million gallon-per-year capacity

producers; issue payments on a first

come first paid basis; and, limit

payments to corporations with 125

million gallon-per-year capacity or less

capacity for program participation.

Response: Based on comments

received, we believe the procedure in

the proposed rule is best. Therefore,

there will be a sign-up period and a

proration made on the basis of that sign

up as otherwise there would be an

overemphasis on early filings. As for

limitations on payments to particular

entities, while there is a desire to avoid

over-concentration of the payment to

one or several entities, it was felt that

goal is met by setting, in the rule, a limit

on the annual amount of program

funding that could be received by a

particular party.

6. Should the Payment Formulas Be

Adjusted if There Is an Under

Subscription of the Program, so as to, in

Effect, Allow Payments at Higher Than

the 100 Percent of Formula Level

Contemplated in the Proposed Rule?

Comments: A few respondents stated

the cap should be 100 percent. Other

individual respondents stated that

payments should be prorated provided

all other criteria are met and a payment

cap would not be necessary if bid offer

system was used to establish payments.

Response: The payment ‘‘cap’’ will

stay at 100 percent of formula amount

since it appears for now to provide a

sufficient incentive for increased

production of energy resources using

grains and other eligible agricultural

commodities. A bid offer system is

discussed below under ‘‘Change the way

payments are established’’.

7. How Should Increases in Bioenergy

Production be Established for the

Various Commodities Receiving

Program Payments?

The proposed rule compared ethanol

and biodiesel production for the just

completed FY quarter to the production

from the same quarter in the prior FY.

Comments: Individual comments

received in response to this question

included: base program payments on the

percentage increase in eligible domestic

crop purchases and renewable energy

production; proposed rule considers

purchases and production from existing

nonproducing plants as increases;

payments should reflect changes in

feedstock components and commodity

prices based on volume and input cost

of product.

Response: The final rule compares the

producer’s agricultural commodity

energy production at all locations with

that producer’s production in the

previous year at all locations. For the

first quarter of the year, energy

production will be compared with the

production from the first quarter of the

previous year. After that quarter, the

comparison will be made as a running

total. That is, for example, at the end of

the third quarter, the payment will be

based on the increase in bioenergy for

all three quarters, not just the third

quarter by itself. This will reduce the

need for any producer repayments at the

end of the FY. At the same time, it will

encourage producers to immediately

begin their process of increasing their

use of agricultural commodities and

increasing their energy production. We

concur with the comment that this

considers purchases and production

from existing nonproducing plants as

increases and believe that meets the

program’s goal of increasing bioenergy

production. We also believe that the

procedure for establishing program

payments addresses the other

comments.

8. What are the Expected Impacts of

This Program on Agricultural

Commodity Prices, Fossil Fuel Energy

Prices, Farm Income, Bioenergy

Production and Prices, and

International Trade in Agricultural and

Energy Products?

Comments: The majority of

respondents that commented (54) stated

the program would have a positive

impact in these areas. One respondent

mentioned the program would provide

a market for aflatoxin corn.

A large group of respondents (33) felt

the program would have a negative

impact in these areas. A couple of

respondents stated the program would

have a minimal impact in these areas.

Specific single negative comments

stated the program would: pay

incentives for capacity and demand that

would have occurred anyway;

encourage the building of small plants

that may not be financially viable; have

a side effect of restraining bioenergy

production; discourage construction of

new plants or put recently completed

plants at a disadvantage; attempt to

reward production increases but instead

creates uncertainty; and, result in some

ethanol and biodiesel production

facilities not receiving payments since

67612 Federal Register / Vol. 65, No. 219 / Monday, November 13, 2000 / Rules and Regulations

they are already at 100 percent

production capacity. One respondent

advised against the adoption of the

proposed rule as currently written.

Several respondents suggested

changing the program as follows:

emphasize the soy-based biodiesel

industry; increase program’s life-span to

3 to 6 years; issue Payment-in-Kind

(PIK) certificates instead of cash

payments; target low-income areas of

the county; and, use a per-capita basis

for allocating funds.

Additionally some individual

respondents suggested that USDA

instead of proceeding with the program

should: conduct an assessment of

impacts on country grain elevators and

feed mills before proceeding; establish a

strategic corn reserve to remove corn

from the market during periods of low

prices; and, establish a limited farmerstored reserve program dedicated to

bioenergy feed stock.

Response: We agree with the positive

comments received and agree that

ethanol production does provide a

market for aflatoxin corn. The negative

comments question the wisdom of the

program as it was proposed. USDA has

in that respect conducted what it

believes to be a thorough evaluation of

the program and believes that these

incentives will in fact produce

appropriate and needed increases in

energy production and commodity use.

Should the operation of the program

have any of the negative impacts cited

by respondents or other negative

impacts, a reassessment will be made

and changes will be made as needed.

We believe the program will have a

positive impact and therefore it is being

implemented. Current available funding

does not allow CCC to extent the

guaranteed life of the program beyond

FY 2002. CCC does not have the

inventory needed to support changing

payments from cash to PIK. Changing

the program to target low-income areas

or base payments on a per-capita basis

would be counter to the program’s goal

of increasing bioenergy production as

much as possible. Establishing a

strategic corn reserve and or a limited

farmer-stored reserve program are

outside the scope of this rule.

In addition to comments on the eight

specific questions above, comments

were also received on the following

issues:

1. Unspent Funding Allocations for FY

2000

Comments: A few respondents

wanted CCC to commit the $100 million

for FY 2000 retroactively.

Response: Originally it was hoped

that this program would be operated in

FY 2000 but that has not proved to be

possible. Any retroactive payments

would, at this time, not be an incentive

payment and thus would not be

consistent with the nature of this

program.

2. Change Payment Restriction

Under the proposed rule no person

could receive more than 10 percent of

the total funding available under the

program.

Comments: Several respondents

supported some level of payment

limitation. However, a number of

respondents favored changes that would

increase the number of firms that could

receive payments. Comments made by

these respondents included: limit gross

amount of funding for each large

producer to an equitable percent of

funding; lower the payment limitation

to 8 percent; lower payment limitation

to 5 percent; and change payment

limitation to per corporation capacity of

125 million gallons per year ethanol.

Additionally comments received

suggested: having a separate biodiesel

payment limitation of 30 percent;

limiting payments by single company;

and not having a payment limitations.

Response: In order to increase the

number of producers that can enroll in

the program, the payment restriction has

been lowered to five percent of total

funding so payments will be available to

a greater number of producers, and the

rule has been clarified that the

restriction is by producer for all plants.

Without sign-up data and long range

commodity price forecasts, we cannot

predict what limitation the five percent

will establish on producer size or justify

establishing a separate limitation for

biodiesel producers.

3. Records Inspection

Comments: Inividual respondents

commented that production increases

should be verifiable by documentation

and record retention should be reduced

to only 3 years.

Response: We agree with both

comments. Record retention has been

reduced to 3 years in section 1424.11(b)

and the rule requires documentation be

kept to support all program payments.

4. Change the way Payments Are

Established

Comments: One respondent suggested

that a reverse auction similar to the

Conservation Reserve Program should

be used so producers would bid on

payments per unit of increased

bioenergy production. Another

respondent questioned whether the

program should expand the use of

terminal market prices.

Response: We believe a reverse

auction would favor large plants at the

expense of others and would be contrary

to the goals of the program to encourage

greater production among all producers

and to encourage diversity in

production by providing greater

incentives to smaller plants. While one

respondent questioned using terminal

market prices in this program, we

consider using them whenever possible

as the best option for the program.

5. Change Payment Amounts

Comments: A respondent suggested

basing payment on grain use instead of

increased bioenergy production.

Response: The primary goal of the

program is to increase bioenergy

production and, as structured, payments

will also reflect increased commodity

use.

6. Clarify Definition of Producer

Comments: A respondent asked that

we clarify the difference between

producer and facility.

Response: We agree that there was

ambiguity in the proposed rule between

these two terms. The definition of

producer has been modified to say that

a producer is a legal entity (individual,

partnership, cooperative, or corporation,

etc) who is a producer of bioenergy.

Clarification has also been made

throughout this rule that payment

restrictions apply by producer and

payments.

Changes From Proposed Rule

CCC is adopting as final the proposed

rule published July 27, 2000, in the

Federal Register with the following

changes. First, most of the major

payment provisions, for purposes of

clarity, have been concentrated in one

section rather than spread throughout

the regulation, including that portion of

the regulation that contains definitions.

In that connection, the provision

allowing smaller producers to be paid

on a higher percentage of the extra units

of the agricultural commodity they use

for extra energy production has been

changed so that the dividing line

between small and large producers has

been raised from a 30 million gallon per

year energy production level to a 65

million gallons per year production

level. Also the regulations now reflect

that quality factors can be used in

determining per unit payment rates for

the payable units of the commodity.

Also, the proration provision has been

amended to correct an error in the

original formula and to assure that the

proration is as accurate as possible. In

that respect as well, terms have been

adjusted and reorganized. In addition,

Federal Register / Vol. 65, No. 219 / Monday, November 13, 2000 / Rules and Regulations 67613

the amended rule, in order to help

assure real increases in the use of

agricultural commodities to produce

fuel, provides that in accounting for

production the producer must aggregate

production by all persons (not just the

producer) at all locations in which the

producer had an interest now (in the

current FY) or in the previous FY,

irrespective of whether the producer

still has such an interest in that facility.

This will avoid situations in which

there could otherwise be an artificial

increase due to a mere reorganization or

change of ownership, or shift of

production from one plant to another.

CCC will be able to grant exemptions to

that requirement should a need arise.

Also, the rule provides that CCC may, in

the program agreement, require that the

producer certify the amount of the

actual increased use of agricultural

commodities for energy production at

all such locations for the relevant period

and make an adjustment in the

formulaic payments that would

otherwise be made to the producer if

there is a difference between that

certification and the amount of

increased commodity use as calculated

under the formula. A provision has also

been added which would allow persons

who acquire facilities under contract to

petition CCC to be permitted to succeed

to the existing contract. Still further, a

provision has been added to specify that

a contract may be terminated if the

contracting party fails to retain the

ability to assure that the contract

obligations and responsibilities will be

met over the full life of the contract. of

payment to provide greater clarity.

Further:

(a) In § 1424.3 the following

definitions are changed:

(1) The definition of biodiesel

producer will require commercial

biodiesel producers to also be registered

and in good standing with EPA under

the Clean Air Act Amendment of 1990,

Title II, Section 211(b).

(2) The definition of eligible

commodity has been expanded to

include sesame seed and cellulosic

crops, such as switchgrass and short

rotation trees, grown on farms for the

purpose of producing ethanol and or

biodiesel.

(3) The definition of ethanol has been

changed to state that it ‘‘has been

rendered unfit for beverage use’’ instead

of composed of 95 percent ethanol and

5 percent gasoline.

(4) The definition of producer has

been clarified to be ‘‘a legal entity

(individual, partnership, cooperative, or

corporation, etc) who is a commercial

producer of bioenergy making

application under this program.’’

(b) 1424.4(a) has been changed to

indicate that Agreement forms may be

also obtained via the internet.

(c) 1424.4(b) has been changed to

indicate that Form CCC–850, Bioenergy

Program Agreement, must be submitted

to KCCO, Contract Reconciliation

Division, STOP 8758, P.O. Box 419205,

Kansas City, Missouri 64141–6205;

(d) 1424.5(b) has been changed to

indicate Applications are also available

via the internet.

(e) 1424.5(c) has been changed to

remove the requirement that

applications must be submitted within

30 days of the end of a quarter. It now

just states that applications must be

submitted by 30 days after the end of

the applicable FY.

(f) 1424.8(a) has been changed to

indicate that unused funds for any FY

will not be reallocated and, therefore,

will not be carried over.

(g) 1424.8(b) has been changed to state

that reconciliations will be year-to-date

for each quarter of the FY.

(h) 1424.8(e) has been changed to

indicate that no producer may receive

more than five percent of the available

funding for this program and

determinations of payment eligibility

shall take that limit into account.

(i) 1424.9 has been changed to

indicate that once an eligible producer

has submitted an Agreement, Form

CCC–850, that producer shall file

information for each bioenergy

producing facility quarterly through the

end of the applicable FY as specified by

CCC.

(j) 1424.11 b has been changed to

require record retention for 3 years

(instead of 6) from the payment date.

Cost-Benefit Assessment

The program is projected to provide

significant benefits for the agricultural

sector. It will expand existing demand

for corn and other grains used in

ethanol production, and create new

markets for oilseed crops, particularly

soybeans, through the stimulation of

biodiesel production. Impacts of the

program were estimated under two

scenarios, a low-impact scenario with

no other significant policy changes that

would increase biofuels demand, and a

high-impact scenario, with other policy

and program changes in addition to the

program that collectively would

substantially increase demand for

ethanol and biodiesel. Incentive

payments during FYs 2001–2002 for the

program are expected to range from

about $57 million under a low-impact

scenario to about $164.2 million under

a high-impact scenario.

Under the low-impact scenario,

average farm prices for corn are

projected to increase by 1 cent per

bushel in marketing year 2000/01 and

increase by 2 cents per bushel in 2001/

02. For soybeans, average farm prices

are projected to remain unchanged in

marketing year 2000/01 and increase by

1 cent per bushel in marketing year

2001/02. CCC outlays (including direct

payments under the program) for feed

grains and soybeans are projected to

decrease by $258 million during FYs

2001–2002.

Under the high-impact scenario,

average farm prices for corn are

projected to increase by 1 and 4 cents

per bushel in marketing years 2000/01

and 2001/02 respectively. Soybean farm

prices are projected to increase by 1 and

4 cent per bushel in marketing years

2000/01 and 2001/02, respectively. CCC

outlays (including direct payments

under the program) for feed grains and

soybeans are projected to decrease by

$355 million during FYs 2000–2002.

Under the low-impact scenario,

ethanol production is projected to reach

about 1.730 billion gallons by 2002,

about 95 million gallons higher than the

baseline level. Biodiesel fuel production

is projected to reach about 7 million

gallons, 5 million gallons above base

levels. Under the high-impact scenario,

ethanol production is projected to reach

about 1.940 billion gallons by 2002, or

about 305 million gallons above

baseline levels. Biodiesel fuel

production is projected to reach about

14 million gallons, 12 million gallons

above the baseline levels.

The small increases in feed costs

resulting from the program would not be

sufficient to significantly affect livestock

and poultry production. Thus, no

impacts are expected on consumer

prices for meat and poultry products.

Ethanol and biodiesel processors

benefit from the program by having

reduced production costs. Providing

more supply with reduced production

costs is expected to increase net returns

for participating processors. Minimal

effects are expected on ethanol and

biodiesel market prices as these prices

are largely determined by fossil-based

liquid fuel prices. Increased ethanol and

biodiesel production is expected to

substitute for Methyl Tertiary Butyl

Ether (MTBE) and imported oil, helping

to achieve the Administration’s goals for

reducing MTBE use and increasing

energy security.

List of Subjects in 7 CFR Part 1424

Administrative practice and

procedure, Energy—bioenergy,

Reporting and recordkeeping

requirements.

For the reasons stated in the

preamble, 7 CFR Part 1424 Chapter XIV

67614 Federal Register / Vol. 65, No. 219 / Monday, November 13, 2000 / Rules and Regulations

is amended by adding Part 1424 as set

forth below.

PART 1424—BIOENERGY PROGRAM

Sec.

1424.1 Applicability.

1424.2 Administration.

1424.3 Definitions.

1424.4 General eligibility rules.

1424.5 Application process.

1424.6 Eligibility determinations.

1424.7 [Reserved]

1424.8 Payment amounts.

1424.9 Reports required.

1424.10 Succession and control of facilities

and production

1424.11 Maintenance and inspection of

records.

1424.12 Appeals.

1424.13 Misrepresentation and scheme or

device.

Authority: 15 U.S.C. 714 c (e); Section 5(e)

of the Commodity Credit Corporation Charter

Act.

§ 1424.1 Applicability.

This part establishes the Bioenergy

Program (Program). It sets forth the

terms and conditions a bioenergy

producer must meet to obtain payments

from the Commodity Credit Corporation

(CCC) for eligible bioenergy production.

Additional terms and conditions are set

forth in Form CCC–850, Bioenergy

Program Agreement.

§ 1424.2 Administration.

(a) On behalf of CCC, the Farm

Service Agency (FSA) will administer

the provisions of this part under the

general direction and supervision of the

Deputy Administrator, Commodity

Operations (Deputy Administrator),

FSA.

(b) The Deputy Administrator or a

designee may authorize a waiver or

modification of deadlines and other

program requirements in cases where

lateness or failure to meet such other

requirements does not adversely affect

the operation of the Program, and may

set such additional requirements as will

facilitate the operation of the program.

§ 1424.3 Definitions.

The definitions set forth in this

section shall be applicable for all

purposes of program administration

under this subpart.

Agreement means the Bioenergy

Program Agreement, Form CCC–850.

Application means the Bioenergy

Program Application, Form CCC–850–

A.

ATF is the Bureau of Alcohol,

Tobacco and Firearms of the

Department of the Treasury.

Biodiesel is a nontoxic, biodegradable

replacement for or additive to petroleum

diesel derived from the oils and fats of

plants and animals and manufactured in

the United States. Chemically, biodiesel

is described as a mono alkyl ester.

Biodiesel producer is a producer that

produces and sells biodiesel who is also

registered and in good standing with

Environmental Protection Agency under

Clean Air Act Amendment of 1990, Title

II, Section 211(b).

Bioenergy means ethanol and

biodiesel produced from eligible

commodities.

Eligible commodity means barley,

corn, grain sorghum, oats, rice, wheat,

soybeans, sunflower seed, canola,

crambe, rapeseed, safflower, sesame

seed, flaxseed, mustard seed, and

cellulosic crops, such as switchgrass

and short rotation trees, grown on farms

for the purpose of producing ethanol

and or biodiesel or any other

commodity or commodity by-product as

determined and announced by CCC

used in ethanol and biodiesel

production which is produced in the

United States and its territories.

Eligible producer means a bioenergy

producer who has been determined by

CCC to be eligible to receive Program

payments and has entered into an

Agreement with CCC.

Ethanol is anhydrous ethyl alcohol

manufactured in the United States and

sold:

(1) For fuel use and which has been

rendered unfit for beverage use in a

manner and which is produced at a

facility approved by the ATF for the

production of ethanol for fuel, or

(2) As denatured ethanol used by

blenders and refiners which has been

rendered unfit for beverage use.

Ethanol producer is a producer that

has authority from the ATF to produce

ethanol.

FSA means the Farm Service Agency,

USDA.

FY means fiscal year beginning each

October 1 and ending September 30 of

the following year.

Gallon Conversion factor shall be:

(1) 2.5 bushels, unless otherwise

determined through review of an

individual Program participant by CCC,

of ethanol produced per bushel of corn

used in ethanol production;

(2) 1.4 bushels, unless otherwise

determined through review of an

individual Program participant by CCC,

of biodiesel per bushel of soybeans used

in biodiesel production; or

(3) As determined by CCC for other

eligible commodities.

KCCO means Kansas City Commodity

Office.

Producer is a legal entity (individual,

partnership, cooperative, or corporation,

etc.) who is a commercial bioenergy

producer making application under this

program.

Quarter means the respective time

periods of October 1 through December

31, January 1 through March 31, April

1 through June 30, and July 1 through

September 30 of each FY, as applicable.

USDA means the United States

Department of Agriculture.

§ 1424.4 General eligibility rules.

To obtain Program payments, a

producer must do all of the following:

(a) Obtain an Agreement, Form CCC–

850, from the KCCO, Contract

Reconciliation Division, STOP 8758,

P.O. Box 419205, Kansas City, Missouri

64141–6205 or via the internet at:

www.fsa.usda.gov/daco/bioenergy/

bioenergy.htm;

(b) Submit a completed Agreement,

Form CCC–850, to CCC no later than

October 1 of each year or a later date,

if announced by CCC, to KCCO,

Contract Reconciliation Division, STOP

8758, P.O. Box 419205, Kansas City,

Missouri 64141–6205;

(c) Be assigned an Agreement number

by KCCO indicating the producer is

eligible for program payments;

(d) Maintain records indicating:

(1) Commodities for which it seeks

payment;

(2) The quantity of bioenergy

produced from an eligible commodity

by location during the quarter FY to

date compared to the same time period

in the previous FY; and

(3) The quantity of eligible

commodity used to produce the

bioenergy stated in paragraph (d)(2) of

this section during the quarter FY to

date compared to the same time period

in the previous FY;

(e) Furnish CCC such certification,

and access to such records, as CCC

considers necessary to verify

compliance with Program provisions;

(f) Make Application submissions in

accordance with § 1424.9;

(g) If not purchasing raw commodity

input, be able to prove to CCC’s

satisfaction that both the producer’s net

purchases of eligible commodities and

net production of bioenergy increased as

compared to such production at all

locations during the relevant base

period. Except as otherwise provided for

by CCC, the increase in production must

equal or exceed that amount of energy

production which would be calculated

using the gross amount of agricultural

commodities which forms the basis of

the payment and the conversion factor

set out in § 1424.2. Example: A producer

that purchases soy oil from a soybean

crushing plant for further refinement

into biodiesel must be able to prove to

CCC’s satisfaction that both soy oil

purchases and biodiesel production

increased for the applicable quarter;

Federal Register / Vol. 65, No. 219 / Monday, November 13, 2000 / Rules and Regulations 67615

(h) Certify the accuracy and

truthfulness of the information provided

in their Agreement on Form CCC–850;

and

(i) Allow verification by CCC of all

information provided. Refusal to allow

CCC or any other agency of USDA to

verify any information provided will

result in a determination of ineligibility.

(j) Meet all other conditions for

payment which are set out in the

Agreement or in these regulations or

otherwise.

§ 1424.5 Application process.

To receive payments under this

program during a FY, an eligible

producer must:

(a) Have an approved Agreement in

accordance with § 1424.4(b) and an

Agreement number assigned by KCCO

under § 1424.4(c);

(b) Obtain an Application, Form CCC–

850–A, from the KCCO, Contract

Reconciliation Division, STOP 8758,

P.O. Box 419205, Kansas City, Missouri

64141–6205 or via the internet at:

www.fsa.usda.gov/daco/bioenergy/

bioenergy.htm;

(c) Submit applications for each

quarter. Submit the last quarterly

application of the FY within 30 calendar

days of the end of the FY for which

payment is requested. If the actual

deadline is a non-workday, the deadline

will be the next business day;

(d) Submit other relevant documents

as required by CCC for the specific

commodity; and

(e) Certify with respect to the

accuracy and truthfulness of the

information provided.

§ 1424.6 Eligibility determinations.

(a) Applicants will, after Agreements

are submitted, if:

(1) Determined eligible, receive

notification of eligibility;

(2) Determined ineligible, be notified

in writing of ineligibility for program

participation and reason for the

determination; or

(3) Additional information is needed

for CCC to determine eligibility, be

contacted for additional supporting

documentation.

(b) Applicants will, after Applications

are submitted, if:

(1) Determined eligible, receive

payment;

(2) Determined ineligible, be notified

in writing of ineligibility for payment

and reason for determination; or

(3) Additional information is needed

for CCC to determine eligibility, be

contacted for additional supporting

documentation.

§ 1424.7 [Reserved]

§ 1424.8 Payment amounts.

(a) Eligible producer may be paid the

amount specified in this section, subject

to the availability of funds. Funds shall

be considered available only to the

extent determined appropriate by CCC.

Unless otherwise determined by CCC,

that amount shall be no more than $150

million in FY 2001 and no more than an

additional $150 million in FY 2002.

(b) Eligible producer must sign an

agreement to participate. Such an

agreement must be signed during the

designated sign-up period. Thereafter,

producers must file a report of their

production at all locations for the

program year to date through the

respective quarter for each such report.

Such reports must comply with the

terms of the agreement and these

regulations.

(c) Persons will be eligible for

payments only to the extent that their

production of eligible energy from

eligible inputs is, for the program year

to date, as compared to the comparable

portion of the previous year, in excess

of their total comparable production at

all locations. Producers will not be paid

twice for the same increase and any

decline in relative production between

quarters will require a comparable

refund as specified below. That is, for

example, if a producer were to be paid,

at the end of the first quarter, for an

increase of 500 units of energy

production, but by the end of the second

quarter that producer’s production, for

the year to date, was down to a net

increase for the year of 450 units, then

a refund would be due for the loss of the

corresponding 50 units of net extra

production. For these purposes unless

CCC shall agree otherwise in order to

facilitate the program, ‘‘all locations’’ for

these and other purposes within these

regulations shall mean any and all

locations in which the producer had an

interest now (in the current FY) or in

the previous FY, irrespective of whether

the producer still has such an interest in

that facility. Eligibility determinations

will be made on the basis of aggregating

production figures from all such

locations and shall include production

by all persons at those locations for the

current and preceding FY, not just the

production of the producer. Also, the

CCC may in the program agreement

require that the producer certify the

amount of the actual increased use of

agricultural commodities for energy

production at all such locations for the

relevant period and make adjustment in

the formulaic payments that would

otherwise be made to the producer if

there is a difference between that

certification and the amount of

increased commodity use as calculated

under the formula.

(d) The submitted agreements filed

during the sign-up period will require

that the applicant set out the expected

increase in production and other

information as the agency may demand.

Based on expected commodity prices,

following the formula set out in this

section, all such submissions will be

assigned an expected value. Should the

total expected value of all such

agreements exceed the available

funding, then a proration factor will be

developed to factor the agreements

down to the funding made available by

CCC.

(e) Subject to the provisions of this

section and conditions specified in the

Agreement, a producer’s payment

eligibility shall be adjusted at the end of

each quarter, and figured as follows:

(1) the extra production in energy

from eligible inputs will be converted to

gross payable bushels (or other

applicable agricultural unit) by, unless

otherwise determined by CCC:

(i) Allowing, as applicable, 1 bushel

of corn for each increase of 2.5 gallons

of ethanol;

(ii) Allowing, as applicable, 1 bushel

of soybeans for each increase of 1.4

gallons of biodiesel production;

(iii) Such other method for other

eligible agricultural commodities as

CCC deems appropriate.

(2) The gross payable bushels, or other

gross units, calculated under paragraph

(e)(1) of this section shall then be

converted to a net payable bushel (or

other unit amount) by:

(i) For producers whose annual

bioenergy production is less than 65

million gallons, allowing 1 net payable

bushel for every 2.5 gross payable

bushels of corn or soybeans, or by

allowing a similar conversion in the

event that there are other eligible

agricultural commodities involved in

the calculation;

(ii) For producers whose annual

bioenergy production is equal to or

more than 65 million gallons, allowing

1 net payable bushel for every 3.5 gross

payable bushels of corn or soybeans, or

by allowing a similar conversion in the

event that there are other eligible

commodities involved;

(3) The net payable bushel (or other

unit) agricultural commodity amount

calculated under paragraph (e)(2) of this

section, shall be then converted to a

gross payment by multiplying that

commodity amount by the per unit

value for the commodity determined as

follows:

(i) For those agricultural commodities

with established terminal market prices,

67616 Federal Register / Vol. 65, No. 219 / Monday, November 13, 2000 / Rules and Regulations

the CCC will use the applicable terminal

market price for the last day of the

program quarter announced daily by the

KCCO, FSA, adjusted by the county

average differential for the county in

which the plant is located and the

applicable quality factors determined by

CCC. For this purpose the terminal

market and differential used by CCC in

determining different values for

different locations will, to the extent

practical, be the same as that used for

producers under other major CCC

commodity programs for determining

marketing loan gains and other matters.

(ii) For those agricultural

commodities that do not, as determined

by CCC, have acceptable established

terminal prices, the price shall be as

determined by CCC based on such

market data as appears to be appropriate

for a fair evaluation.

(4) The gross payment calculated

under paragraph (e)(3) of this section

shall be reduced to a net payment by

multiplying the gross payment figure by

the proration factor determined under

paragraph (d) of this section.

(5) Subject to other provisions of this

section, producers shall be paid the net

current payment, if positive, determined

for the first quarter.

(6) After the first quarter, adjustments

shall be made based on changes in

production. New or renewed increases

shall be paid using the formula set out

above using current per unit values.

Refunds, when due, shall be due at the

per unit values at which they were paid

unless CCC determines otherwise.

(7) If despite or in the absence of a

proration under paragraph (d) of this

section funds shall not be sufficient to

cover payments due for any quarter then

CCC shall prorate, or further prorate, the

claims in such manner as CCC deems

fit.

(8) No producer may receive more

than five percent of the available

funding for this program and

determinations of payment eligibility

shall take that limit into account.

§ 1424.9 Reports required.

Once an eligible producer has

submitted an Agreement, Form CCC–

850, that producer shall file information

for each bioenergy producing facility

quarterly through the end of the

applicable FY as specified by CCC.

§ Sec. 1424.10 Succession and control of

facilities and production.

A person who obtains a facility which

is under contract under this part may

request permission to succeed to the

program contract and CCC may grant

such request if it is determined that

permitting such succession would serve

the purposes of the program. As

determined to be appropriate, CCC may

require the consent of the original party

to such succession and likewise CCC

may terminate a contract and demand a

full refund of payments made if a

contracting party loses control of a

facility whose increased production is

the basis of a program payment or

otherwise fails to retain the ability to

assure that all program obligations and

requirements will be met.

§ 1424.11 Maintenance and inspection of

records.

For the purpose of verifying

compliance with the requirements of

this part, each eligible producer shall

make available at one place at all

reasonable times for examination by

representatives of USDA, all books,

papers, records, contracts, scale tickets,

settlement sheets, invoices, written

price quotations, or other documents

related to the program that is within the

control of such entity for not less than

3 years from the payment date.

§ 1424.12 Appeals.

(a) Any producer who is subject to an

adverse determination made under this

part shall have a right to appeal the

determination by filing a written request

with the Deputy Administrator at the

following address: Deputy

Administrator, Commodity Operations,

Farm Service Agency, United States

Department of Agriculture, STOP 0550,

1400 Independence Avenue, SW.,

Washington, DC 20250–0550.

(b) Any producer who believes that

they have been adversely affected by a

determination under this part must seek

review with the Deputy Administrator

within thirty days of such

determination, unless provided with

notice by FSA which provides a

different time for appealing.

(c) Any producer who believes that

they have been adversely affected by a

determination by the Agency, must seek

review with the Deputy Administrator

before any other review may be

requested within the Agency.

§ 1424.13 Misrepresentation and scheme

or device.

(a) A producer shall be ineligible to

receive payments under this program if

CCC determines the producer:

(1) Adopted any scheme or device

which tends to defeat the purpose of the

program in this part;

(2) Made any fraudulent

representation; or

(3) Misrepresented any fact affecting a

program determination.

(b) Any funds disbursed pursuant to

this part to a producer engaged in a

misrepresentation, scheme, or device, or

to any other person as a result of the

bioenergy producer’s actions, shall be

refunded with interest together with

such other sums as may become due,

plus damages as may be determined by

CCC.

(c) Interest charged under this part

shall at the rate of interest which the

United States Treasury charges CCC for

funds, as of the date CCC made such

funds available. Such interest shall

accrue from the date such payments

were made available to the date of

repayment or the date interest increases

as determined in accordance with

applicable regulations.

(d) CCC may waive the accrual of

interest and or damages if CCC

determines that the cause of the

erroneous determination was not due to

any action of the bioenergy producer.

(e) Any producer or person engaged in

an act prohibited by this section and

any producer or person receiving

payment under this part shall be jointly

and severally liable for any refund due

under this part and for related charges.

(f) The remedies provided in this part

shall be in addition to other civil,

criminal, or administrative remedies

which may apply.

(g) Late payment interest shall be

assessed on all refunds in accordance

with the provisions of, and subject to

the rates prescribed in, 7 CFR part 1403.

(h) Other limitations may apply.

Signed in Washington, DC, on November 7,

2000.

Parks Shackelford,

Executive Vice President, Commodity Credit

Corporation.

[FR Doc. 00–28969 Filed 11–7–00; 4:08 pm]

BILLING CODE 3410–05–U

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103 and 214

[INS 1946–98]

RIN 1115–AF29

Delegation of the Adjudication of

Certain Temporary Agricultural Worker

(H–2A) Petitions, Appellate and

Revocation Authority for Those

Petitions to the Secretary of Labor

AGENCY: Immigration and Naturalization

Service, Justice.

ACTION: Final rule; delay of effective

date.

SUMMARY: The Immigration and

Naturalization Service (Service) is

delaying the effective date of a final rule