Federal Register Notices
[Federal
Register: March 1, 2010 (Volume 75, Number 39)]
[Rules and Regulations]
[Page 9087-9093]
From the Federal Register Online via GPO Access
[wais.access.gpo.gov]
[DOCID:fr01mr10-2]
DEPARTMENT OF AGRICULTURE
Foreign Agricultural Service
7 CFR Part 1580
RIN 0551-AA80
Trade Adjustment Assistance for Farmers
AGENCY: Foreign Agricultural Service, USDA.
ACTION: Interim rule.
SUMMARY: This interim rule immediately
implements the Trade Adjustment Assistance (TAA)
for Farmers program as reauthorized by the
American Recovery and Reinvestment Act of 2009 (ARRA)
and provides for the opening of a 30-day comment
period. The ARRA modified the TAA for
Farmers program as established by Subtitle C of
Title I of the Trade Act of 2002, which amended
the Trade Act of 1974. The rule establishes the
procedures by which producers of raw
agricultural commodities can petition for
certification, apply for technical assistance,
and receive cash benefits for the development
and implementation of approved business
adjustment plans. The Foreign Agricultural
Service (FAS) is issuing this interim rule and
providing for the opening of an interim
rule comment period to ensure that an adequate
opportunity to comment is provided all
interested parties. After closure of the interim
rule comment period and after consideration is
provided to all comments received during the
interim rule comment period, this rule will be
adopted as final with or without change by
publication in the Federal Register.
DATES: Effective Date: March 1, 2010.
Comment Date: Comments should be received on or before March
31, 2010, to be assured consideration.
ADDRESSES: Comments should be mailed or
delivered to The Trade Adjustment Assistance for
Farmers Staff, Import Policies and Export
Reporting Division, Office of Trade Programs,
Foreign Agricultural Service, 1400 Independence
Avenue, SW., STOP 1021, Washington, DC
20250-1021. Comments can also be e-mailed to
tradeadjustment@fas.usda.gov. Comments
received may be inspected between 10 a.m. and 4
p.m. in Suite 100, 1250 Maryland Avenue, SW.,
Washington, DC 20034.
FOR FURTHER INFORMATION CONTACT: The Trade
Adjustment Assistance for Farmers Staff, Import
Policies and Export Reporting Division, Office
of Trade Programs, Foreign Agricultural Service,
1400 Independence Avenue, SW., STOP 1021; or by
e-mail at
tradeadjustment@fas.usda.gov; or by
telephone at (202) 720-0638; or by fax at (202)
720-8461.
SUPPLEMENTARY INFORMATION:
Background
The American Recovery and Reinvestment Act of 2009 (Pub. L.
111-5) reauthorizes and modifies the Trade
Adjustment Assistance (TAA) for Farmers program
and provides both technical assistance and cash
benefits to producers as established by Subtitle
C of Title I of the Trade Act of 2002 (Pub. L.
107-210), which amended the Trade Act of 1974.
The statute authorizes an appropriation of not
more than $90 million per year for the 2009 and
2010 fiscal years, and $22.5 million for the
period beginning October 1, 2010 and ending
December 31, 2010 to carry out the program;
including the U. S. Department of Agriculture
(USDA) salaries and expenses.
Under this rule, a group of producers may petition the
Administrator (FAS) for trade adjustment
assistance during the petition period announced
in the Federal Register. Petitioners must submit
data on either the national average price, or
quantity of production, or value of production,
or cash receipts for the agricultural commodity
for the most recent marketing year for which
data are available and the three preceding
marketing years. FAS will first review the
petition for
appropriateness, completeness, and timeliness,
before publishing a notice in the Federal
Register that it has been accepted. The Economic
Research Service (ERS) will then conduct a
market study to verify the decline in the
national average price, or quantity of
production, or value of production, or cash
receipts for the petitioned commodity, and to
assess possible causes, taking into due account
any special factors which may have affected
prices, including imports, exports, production,
changes in consumer preferences, weather
conditions, diseases, and other relevant issues.
ERS will report its findings to the
Administrator (FAS) who will review and
determine whether or not to certify the
petitioning group's eligibility for trade
adjustment assistance.
Upon certification of the petition, producers have 90 days to
contact the Farm Service Agency (FSA) to apply
for assistance. As soon as producers are found
eligible, they may receive; (1) Training
specifically tailored to their needs by the
National Institute of Food and Agriculture (NIFA);
and under certain circumstances (2) travel and
per diem payments to help offset costs incurred
to attend initial training. Depending on the
commodity and the region, the training package
may include technical publications in print or
on-line, group seminars and presentations,
one-on-one meetings, and assistance in the
development of business adjustment plans.
Producers who satisfy
personal and farm income limits; complete the
designated technical training; and develop and
implement approved business plans are eligible
for TAA for Farmers cash benefits. During the
36-month period following certification of the
petition by the Administrator (FAS), a producer
may receive not more than $12,000 for the
development and implementation of business plans
approved under the TAA for Farmers program. If
the funding authorized by Congress is
insufficient to pay 100 percent of all TAA for
Farmers obligations during the fiscal year, the
payments provided for business plan development
and implementation will be reduced
proportionately, as determined by the
Administrator (FAS).
Discussion of Comments
FAS received sixteen comments on the proposed rule (74 FR
42799, August 25, 2009) during the proposed rule
comment period which ran from August 25, 2009
through September 24, 2009. The comments focused
on the following areas:
Payment Limitations and Adjusted Gross Income
Three respondents expressed concern with limitations
currently capped at $65,000 per year for
counter-cyclical and Average Crop Revenue
Election (ACRE) payments, and recommended
removing these limits for cash payments under
the TAA for Farmers program. Respondents also
recommended removing the average Adjusted Gross
Income (AGI) requirement. Section 296 of the
Trade Act of 1974, as amended, specifically
mandates limitations on assistance based on
individual counter-cyclical, ACRE, and average
AGI requirements as they are defined in the Food
Security Act of 1985 (the 1985 Act). Therefore,
these regulatory limits are being retained. FAS
further refined these provisions by inserting
language that clarifies the differences that
exist in counter-cyclical, ACRE, and average AGI
requirements for certified petitions for the
2008 crop year, and certified petitions for
subsequent crop years.
The interim rule incorporates revisions to Sec.
1580.301(d)(1) and (2) as contained in the
proposed rule. The revision is for clarity and
is consistent with the statutory authority for
TAA for
Farmers. The statute provides that producers
must demonstrate compliance that their average
AGI does not exceed limits set forth in the 1985
Act. The average AGI provisions of the 1985 Act
which are administered by the Commodity Credit
Corporation pursuant to the regulations in 7 CFR
part 1400 provide an average AGI limit of $2.5
million for 2008 crop programs and, for 2009 and
subsequent crops, limits of $500,000 for nonfarm
average AGI and $750,000 farm average
AGI. The proposed rule addressed the average AGI
limits for 2009 and subsequent crops but did not
include any reference to the $2.5 million
average AGI limit applicable to 2008 crops. The
interim rule at Sec. 1580.301(d)(1) and
(2) is amended so that the average AGI limits
are
specified for all crop years that might be
certified for TAA for Farmers.
For purposes of clarity, the interim rule incorporates
revisions to the payment limitation provisions
in Sec. 1580.301(e) as contained in the
proposed rule. The statutory authority for TAA
for Farmers provides that the total amount of
payments made to a producer during any crop
year may not exceed the limitations applicable
to counter-cyclical payments and ACRE payments.
For 2008 and 2009 and subsequent crop years, the
payment limitation is $65,000. However, the
proposed rule was not clear that the ACRE
limitation is only effective for the 2009 and
subsequent crop commodities. The interim rule is
therefore amended at Sec. 1580.301(e) to
identify the payment limitation regulations
applicable to the 2008 crop separately from
regulations applicable to 2009 and subsequent
crop commodities.
Specialty Crops
One respondent inquired if this program is specific to
specialty crops and if processors are eligible
for program benefits. The purpose of TAA for
Farmers is to assist producers of raw
agricultural commodities, aquaculture products,
or wild-caught aquatic species, adjust to
imports by providing technical assistance and
cash benefits, and preparing and implementing
business adjustment plans. The interim rule
leaves unchanged the eligibility requirements to
exclude
processors since the statute specifically limits
program benefits to producers of raw
agricultural commodities.
Length of Intensive Training
One respondent suggested that the Intensive Technical
Assistance offered by NIFA be a minimum of 16
hours to accommodate the needs that would vary
from applicant to applicant. The respondent felt
that training must be at least 16 hours so that
important information is covered that helps
producers make the required adjustments in their
agricultural businesses. The interim rule leaves
the Intensive Technical Assistance training
unchanged to provide the Administrator
flexibility in developing a series of
comprehensive courses to meet the needs of an
individual producer and their particular
circumstances.
Further Revisions
In addition to the changes made in response to the comments
listed above, FAS made additional changes in the
interim rule by adding three new definitions
that were not included in the proposed rule,
namely "County price maintained by the
Secretary,'' "Deputy Administrator,''
and" NIFA.''
The definition of "County price maintained by the Secretary''
was added for consistency with the statute that
provides for use of such price by producers to
establish their eligibility, and to clarify that
a maintained price might be obtained from any
USDA agency that records commodity prices for
the purpose of program administration. The
proposed rule provided for use of prices
"maintained by FSA,'' but the new definition and
revised rule allows for the use of prices
maintained
by other USDA agencies in addition to prices
maintained by FSA. This definition is consistent
with the interim rule provision at Sec.
1580.301(c)(3)(ii), under which a producer may
establish benefit
eligibility if there has been a decrease in the
commodity price based on the county price,
maintained by the Secretary on the date the
petition was filed, compared to the county price
for the 3 preceding marketing years.
The interim rule incorporates a definition of "Deputy
Administrator,'' and adds a new provision at
Sec. 1580.501(e) that provides authority
for the Deputy Administrator of FSA to waive or
modify non-statutory deadlines or other
requirements where lateness to meet requirements
by applicants does not adversely affect the
operation of the program. This definition and
authority were included in the interim rule
governing the previous TAA program and are
included in this interim rule to provide FSA
flexibility in administering the application and
payment processes for TAA for Farmers
applicants.
The interim rule incorporates a definition of "NIFA,'' the
National Institute of Food and Agriculture which
was previously known as the Cooperative State
Research, Education, and Extension Service (CSREES).
This agency was renamed effective October 1,
2009 and the
definition is included for clarity because the
name change is thought not to be commonly known
by prospective program applicants. The
definition of CSREES has been deleted because
the name of the agency has been changed.
Upon further consideration of the proposed rule, FAS also
made some other revisions and clarifications in
the interim rule. The definition of ``Average
price received by the producer'' was modified to
remove the requirement that prices received by
the producer be ``not weighted
by production.'' This change was made to reflect
the likelihood that prices received by the
producer at the point of first sale would be
established based on current production levels,
and thus would be weighted.
In Sec. Sec. 1580.201(d) and 1580.203(a) the word
"accepted'' was changed to ``filed'' to conform
to the term usage in the statute.
Clarification was made to Sec. 1580.301(c)(3)(ii) to
define the date on which a petition is filed as
the date on which the Administrator (FAS)
accepts a petition for consideration as
published
in the Federal Register, and add a provision
that if county prices are not available from
within USDA, prices from other verifiable
sources may be used.
Upon further consideration of the proposed rule, FAS also
decided not to conduct hearings with respect to
appeals of adverse determinations. This change
was made to minimize the potential burden upon
the applicant and expedite FAS' review in making
a final determination.
Executive Order 12866
The Office of Management and Budget (OMB) designated this
rule as significant under Executive Order 12866
and, therefore, it has been reviewed by OMB. A
cost-benefit assessment for the proposed rule
has been prepared and is available from the
information contact cited above.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) requires agencies to
prepare an analysis of the economic impact of
any rule that is subject to notice and comment
rulemaking, unless the agency certifies that the
rule will not have a significant economic impact
on a substantial number of small entities. The
RFA does not apply to interim rules. As such,
neither a regulatory flexibility analysis nor a
certification is required at this time. FAS will
prepare and publish its regulatory flexibility
analysis or certification when this rule is
finalized.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995, FAS
has previously received approval from the OMB
with respect to the information collection
required to support this program. The
information collection is described below:
Title: Trade Adjustment Assistance for Farmers.
OMB Control Number: 0551-0040.
Executive Order 12988
This rule has been reviewed under Executive Order 12988. The
provisions of this rule would not have
preemptive effect with respect to any State or
local laws, regulations, or policies which
conflict with such provision or which otherwise
impede their full implementation. The rule would
not have retroactive effect. Before any judicial
action may be brought regarding this rule, all
administrative remedies must be exhausted.
National Environmental Policy Act
The Administrator (FAS) has determined that this action will
not have a significant effect on the quality of
the human environment. Therefore, neither an
Environmental Assessment nor an Environmental
Impact Statement is necessary for this rule.
Executive Orders 12372, 13083 and 13084, and the
Unfunded Mandates Reform Act (Pub. L. 104-4)
These Executive Orders and Public Law 104-4 require
consultation with State and local officials and
Indian tribal governments. This rule does not
impose an unfunded mandate or any other
requirement on State, local or tribal
governments. Accordingly, these programs are not
subject to the provisions of Executive Order
12372, Executive Order 13083, and Executive
Order 13084, or the Unfunded Mandates Reform
Act.
Executive Order 12630
This Order requires careful evaluation of governmental
actions that interfere with constitutionally
protected property rights. This rule would not
interfere with any property rights and,
therefore, does not need to be evaluated on the
basis of the criteria outlined in Executive
Order 12630.
List of Subjects in 7 CFR Part 1580
Agricultural commodity imports; Reporting and recordkeeping
requirements; and trade adjustment assistance.
0
For reasons set out in the preamble, 7 CFR part
1580 is revised to read as follows:
Title 7--Agriculture
PART 1580--TRADE ADJUSTMENT ASSISTANCE FOR
FARMERS
Sec.
1580.101 General statement.
1580.102 Definitions.
1580.201 Petitions for trade adjustment
assistance.
1580.202 Hearings, petition reviews, and
amendments.
1580.203 Determination of eligibility and
certification by the
Administrator (FAS).
1580.301 Application for trade adjustment
assistance.
1580.302 Technical assistance and services.
1580.303 Adjustment assistance payments.
1580.401 Subsequent year petition
recertification.
1580.501 Administration.
1580.502 Maintenance of records, audits, and
compliance.
1580.503 Recovery of overpayments.
1580.504 Debarment, suspension, and penalties.
1580.505 Appeals.
1580.506 Judicial review.
1580.602 Paperwork Reduction Act assigned
number.
Authority: 19 U.S.C. 2401.
Sec. 1580.101 General statement.
This part provides regulations for the Trade Adjustment
Assistance (TAA) for Farmers program as
authorized by the Trade Act of 1974, amended by
Subtitle C of Title I of the Trade Act of 2002
(Pub. L. 107-210), and re-authorized and
modified by the American Recovery and
Reinvestment Act of 2009 (Pub. L. 111-5). The
regulations establish procedures by which a
group of producers of raw agricultural
commodities or fishermen (jointly referred to as
"producers'') can petition for certification of
eligibility and through which individual
producers covered by a certified petition can
apply for technical assistance and cash benefits
for the development and implementation of
approved business adjustment plans.
Sec. 1580.102 Definitions.
As used in the part, the following terms mean:
Agricultural commodity means any commodity in its raw or
natural state; found in chapters 1, 3, 4, 5, 6,
7, 8, 10, 12, 14, 23, 24, 41, 51, and 52 of the
Harmonized Tariff Schedule of the United States
(HTS).
Articles like or directly competitive generally means
products falling under the same HTS number used
to identify the agricultural commodity in the
petition. A ``like'' product means substantially
identical in inherent or intrinsic
characteristics, and the term "directly
competitive'' means articles that are
substantially equivalent for commercial purposes
(i.e., adapted to the same uses and essentially
interchangeable therefore). For fishery
products, competition could be either from
farm-raised or wild-caught products.
Authorized representative means an entity that represents a
group of agricultural commodity producers or
fishermen.
Average price received by the producer means the average of
the 3 marketing year prices per unit received by
the producer from the first level of sales for
the commodity.
Cash receipts mean the value of commodity marketing during
the calendar year, irrespective of the year of
production, as calculated by the Economic
Research Service of the USDA.
Certification of eligibility means the date on which the
Administrator (FAS) announces in the Federal
Register or by Department news release,
whichever comes first, a certification of
eligibility to apply for trade adjustment
assistance.
Contributed importantly means a cause which is important, but
not necessarily more important than any other
cause.
County price maintained by the Secretary means a daily price
obtained from a USDA agency for the commodity
and producer location, except that weekly or
monthly prices may be used if daily prices are
unavailable.
Department means the U.S. Department of Agriculture.
Deputy Administrator means the Deputy Administrator for Farm
Programs of the Farm Service Agency (FSA).
Family member means an individual to whom a producer is
related as spouse, lineal ancestor, lineal
descendent, or sibling, including:
(1) Great grandparent;
(2) Grandparent;
(3) Parent;
(4) Children, including legally adopted children;
(5) Grandchildren;
(6) Great grandchildren;
(7) Sibling of the family member in the farming operation;
and
(8) Spouse of a person listed in paragraphs (1) through (7)
of this definition.
Filing period means the dates during which petitions may be
submitted, as published in the Federal Register.
FSA means the Farm Service Agency of the U.S. Department of
Agriculture.
Group means three or more producers who are not members of
the same family.
Impacted area means one or more States of the United States.
Marketing year means the marketing season or year designated
by the Administrator (FAS) with respect to an
agricultural commodity. In the case of an
agricultural commodity that does not have a
designated marketing year, a calendar year will
be used.
National average price means the average price paid to
producers for an agricultural commodity in a
marketing year as determined by the National
Agricultural Statistics Service (NASS) of the
U.S. Department of Agriculture, or the National
Marine Fisheries Service of the
National Oceanic and Atmospheric Administration,
when available, or when unavailable, as
determined by the Administrator (FAS).
NIFA means the National Institute of Food and Agriculture,
the Federal agency within the U.S. Department of
Agriculture which administers the Federal
agricultural extension programs.
Producer means a person who shares in the risk of producing
an agricultural commodity and is entitled to a
share of the commodity for marketing; including
an operator, a sharecropper, or a person who
owns or rents the land on which the commodity is
produced; or a person who
reports gain or loss from the trade or business
of fishing on the person's annual Federal income
tax return for the taxable year that most
closely corresponds to the marketing year with
respect to which a petition is filed.
Raw or natural state means unaltered by any process other
than cleaning, grading, coating, sorting,
trimming, mixing, conditioning, drying,
dehulling, shelling, chilling, cooling,
blanching, irradiating, or fumigating.
State Cooperative Extension Service means an organization
established at the land-grant college or
university under the Smith-Lever Act of May 8,
1914, as amended (7 U.S.C. 341-349); section
209(b) of the Act of October 26, 1974, as
amended (D.C. Code, through section
31-1719(b)); or section 1444 of the National
Agricultural Research, Extension, and Teaching
Policy Act of 1977, as amended (7 U.S.C. 3221).
United States means the 50 States of the United States, the
District of Columbia, and Puerto Rico.
Value of production means the value of commodities produced
during the crop year calculated as production
times the marketing year average price. This may
be equal to cash receipts when the crop year for
the commodity runs from January through
December.
Sec. 1580.201 Petitions for trade
adjustment assistance.
(a) A group of producers in the United States or its
authorized representative may file a petition
for trade adjustment assistance.
(b) Filings may be written or electronic, as provided for by
the Administrator (FAS), and submitted to FAS no
later than the last day of the filing period
announced in the Federal Register. Petitions
received after this date will be returned to the
sender.
(c) Petitions shall include the following information.
(1) Name, business address, phone number, and e-mail address
(if available) of each producer in the group, or
its authorized representative. The petition
shall identify a contact person for the
group.
(2) The agricultural commodity and its Harmonized Tariff
Schedule of the United States (HTS) number.
(3) The production area represented by the group or its
authorized representative. The petition shall
indicate if the group is filing on behalf of all
producers in the United States, or if it is
filing solely on behalf of all producers in a
specifically identified impacted area. In the
latter case, at least one member of the group
must reside in each State within the impacted
area.
(4) The beginning and ending dates for the marketing year
upon which the petition is based. A petition may
be filed for only the most recent full marketing
year for which data are available for national
average prices, or quantity of production, or
value of production, or cash receipts.
(5) A justification statement explaining why the petitioners
should be considered eligible for adjustment
assistance.
(6) Supporting information justifying the basis of the
petition, including required data for the
petitioned marketing year and the previous 3
marketing years.
(i) Whenever possible, the petitioners shall use national
average data compiled by the National
Agricultural Statistics Service (NASS) or the
National Marine Fisheries Service (NMFS), to
determine national average prices, or quantity
of production, or value of production, or cash
receipts. If NASS or NMFS has not compiled such
data for the commodity, the petitioners shall
provide alternative data for the marketing year
under review and for the previous 3 marketing
years, and identify the source of the data. In
such cases the Administrator (FAS) shall
determine if the alternative data is acceptable.
(ii) If the petition is filed on behalf of producers in a
specifically identified impacted area, the
petitioners shall provide the national average
prices or county prices if applicable, or
quantity
of production or value of production, or cash
receipts for the petitioned commodity in the
impacted area for the marketing year under
review and for the previous 3 marketing years,
and identification of the data source.
(iii) The Administrator (FAS) may request petitioners to
provide records to support their data.
(d) Once the petition is received, the Administrator (FAS)
shall determine if it meets the requirements of
Sec. 1580.201(c) of this part, and if so,
publish notice in the Federal Register that a
petition has been filed and that an
investigation is being initiated. The notice
shall identify the agricultural commodity,
including any like or directly competitive
commodities, the marketing year being
investigated, the data being used, and the
production area covered by the petition. The
notice may also announce the scheduling of a
public hearing, if requested by the petitioner.
If the petition does not meet the requirements
of Sec. 1580.201(c) of this part, the
Administrator
(FAS) shall notify as soon as practicable the
contact person or the authorized representative
for the group of the deficiencies.
Sec. 1580.202 Hearings, petition
reviews, and amendments.
(a) If the petitioner, or any other person found by the
Administrator (FAS) to have a substantial
interest in the proceedings, submits not later
than 10 days after the date of publication of
notice
in the Federal Register under Sec.
1580.201(d) of this part, a request in writing
for a hearing, the Administrator (FAS) shall
provide for a public hearing and afford such
interested person an opportunity to be present,
to produce evidence, and to be heard.
(b) If the petitioner or any other person having an interest
in the proceedings takes issue with any of the
information published in the Federal Register
concerning the petition, such person may submit
to the Administrator (FAS) their comments in
writing or electronically for consideration by
the Administrator (FAS) not later than 10 days
after the date of publication of notice in the
Federal Register under Sec. 1580.201(d) of this
part.
(c) A producer or group of producers that resides outside of
the State or region identified in the petition
filed under paragraph (a) of this section, may
file a request to become a party to that
petition not later than 15 days after the date
that the notice is published in the Federal
Register under Sec. 1580.201(d) of this
part. The Administrator (FAS) may amend the
original petition to expand the impacted area
and include the additional filer, or consider it
a separate filing.
(d) The Administrator (FAS) shall publish in the Federal
Register as soon as practicable any changes to
the original notice resulting from any actions
taken under this section.
Sec. 1580.203 Determination of
eligibility and certification by the
Administrator (FAS).
(a) As soon as practicable after the petition has been filed,
but in any event not later than 40 days after
that date, the Administrator (FAS) shall certify
a group of producers as eligible to apply for
adjustment assistance under this chapter if the
Administrator (FAS) determines:
(1) At least one of the following:
(i) The national average price of the agricultural commodity
produced by the group during the most recent
marketing year for which data are available is
less than 85 percent of the average of the
national average price for the commodity in the
3 marketing years preceding such marketing year;
or
(ii) The quantity of production of the agricultural commodity
produced by the group during such marketing year
is less than 85 percent of the average of the
quantity of production of the commodity produced
by the group in the 3 marketing years preceding
such marketing year; or
(iii) The value of production of the agricultural commodity
produced by the group during such marketing year
is less than 85 percent of the average value of
production of the commodity produced by the
group in the 3 marketing years preceding such
marketing year; or
(iv) The cash receipts for the agricultural commodity
produced by the group during such marketing year
are less than 85 percent of the average of the
cash receipts for the commodity produced by the
group in the 3 marketing years preceding such
marketing year;
(2) The volume of imports of articles like or directly
competitive with the agricultural commodity
produced by the group in the marketing year with
respect to which the group files the petition
increased compared to the average volume of such
imports during the 3 marketing years preceding
such marketing year; and
(3) The increase in such imports contributed importantly to
the decrease in the national average price, or
quantity of production, or value of production,
or cash receipts for, the agricultural
commodity.
(b) In any case in which there are separate classes of goods
within an agricultural commodity, the
Administrator (FAS) shall treat each class as a
separate commodity in determining:
(1) Group eligibility;
(2) The national average price, or quantity of production, or
value of production, or cash receipts; and
(3) The volume of imports.
(c) Upon making a determination, whether affirmative or
negative, the Administrator (FAS) shall promptly
publish in the Federal Register a summary of the
determination, together with the reasons for
making the determination.
(d) In addition, the Administrator (FAS) shall notify
producers covered by a certification how to
apply for adjustment assistance. Notification
methods may include direct mailings to known
producers, messages to directly affected
producer groups and organizations, electronic
communications, Web site notices on the
Internet, use of broadcast print media, and
transmittal through local USDA offices.
(e) Whenever a group of agricultural producers is certified
as eligible to apply for assistance, the
Administrator (FAS) shall notify NIFA, the
Agricultural Marketing Service, and FSA who will
assist in informing other producers about the
TAA for Farmers program and how they may apply
for trade adjustment assistance.
Sec. 1580.301 Application for trade
adjustment assistance.
(a) Only producers covered by a certification of eligibility
under Sec. 1580.203 of this title, may
apply for adjustment assistance.
(b) An eligible producer may submit an application for
adjustment assistance by submitting to FSA a
designated application form at any time after
the certification date but not later than 90
days after the certification date. If the 90-day
application period ends on a weekend or legal
holiday, the producer may apply the following
business day.
(c) When submitting an application, the producer shall
provide sufficient documentation to establish
that:
(1) The producer produced the agricultural commodity in the
marketing year for which the petition is filed
and in at least 1 of the 3 marketing years
preceding that marketing year;
(2) There has been a decrease in the quantity of the
agricultural commodity produced by the producer
in the marketing year for which the petition is
certified from the most recent prior marketing
year preceding that marketing year for which
data is available; or
(3) There has been a decrease in the price of the
agricultural commodity based on:
(i) The price received for the agricultural commodity by the
producer during the marketing year with respect
to which the petition is filed from the average
price for the commodity received by the
producer in the 3 marketing years preceding that
marketing year; or
(ii) The effective posted county price maintained by the
Secretary for the agricultural commodity on the
date on which the Administrator (FAS) accepts a
petition for consideration as published in the
Federal Register from the average effective
posted county level price for the
commodity in the 3 marketing years preceding
that date. If USDA prices are not available,
prices from verifiable sources, including
universities, cooperatives, or local markets,
may be used.
(4) If a petition is certified with respect to a commodity
not produced by the producer every year, the
producer may establish the average price
received by the producer for the commodity in
the 3 marketing years preceding the year in
which the petition is filed by using annual
price data for the 3 most recent marketing years
in which the producer produced the commodity.
(5) The producer must certify that the producer has not
received cash benefits under the Trade
Adjustment Assistance for Workers or Trade
Adjustment Assistance for Firms programs; or TAA
for Farmers benefits based on the production of
an agricultural commodity covered by another TAA
for Farmers petition.
(d) The producer must certify that:
(1) For petitions certified for 2008 crops, their compliance
with person determinations set forth in part
1400 of this title, subpart B and average
adjusted gross income limitation requirements
set forth in subpart G, effective July 18, 1996.
(2) For petitions certified for 2009 and subsequent crops,
their average gross nonfarm income and average
adjusted gross farm income meet requirements set
forth in part 1400 of this title, subpart F, and
payment limitation requirements set forth in
part 1400 of this title, subparts A and B,
effective December 29, 2008; and,
(e) The total amount of payments made to a producer for which
the application was approved may not exceed the
limitations on payments applicable to:
(1) For petitions certified for 2008 crops, counter-cyclical
payments, set forth in part 1400 of this title,
subpart A, effective July 18, 1996.
(2) For petitions certified for 2009 and subsequent crops,
the counter-cyclical payments, including the
Average Crop Revenue Election (ACRE) set forth
in part 1400 of this title, subparts A and B,
effective December 29, 2008; and
(f) If requested by FSA, a producer must provide
documentation regarding average adjusted gross
income and payment limitations.
Sec. 1580.302 Technical assistance
and services.
(a) Initial Technical Assistance: A producer covered by a
certification who has been determined by FSA to
meet the requirements of Sec. 1580.301 of
this part, is eligible to receive Initial
Technical Assistance through NIFA to be
completed within 180 days of petition
certification. Such assistance shall include
information regarding:
(1) Improving the yield and marketing of that agricultural
commodity, and
(2) The feasibility and desirability, of substituting one or
more agricultural commodities for that
agricultural commodity.
(b) Intensive Technical Assistance: Upon completion of
Initial Technical Assistance, a producer is
eligible to participate in Intensive Technical
Assistance. Intensive Technical Assistance shall
consist of:
(1) A series of courses to further assist the producer in
improving the competitiveness of producing the
agricultural commodity certified under Sec.
1580.203 of this part, or another agricultural
commodity, and
(2) Assistance in developing an initial business plan based
on the courses completed under paragraph (a) of
this section.
(c) During Intensive Technical Assistance: NIFA shall deliver
and the producer shall be required to attend a
series of Intensive Technical Assistance
workshops relevant to the circumstances of the
producer.
(d) Initial Business Plan: Upon completion of the Initial and
Intensive Technical Assistance, the producer
shall be required to develop an Initial Business
Plan recommended by NIFA and approved by the
Administrator (FAS) before receiving an
adjustment assistance payment. The Initial
Business Plan will:
(1) Reflect the skills gained by the producer through the
courses described in paragraph (c) of this
section; and
(2) Demonstrate how the producer will apply those skills to
the circumstances of the producer.
(e) Upon approval of the Initial Business Plan, the producer
will receive an amount not to exceed $4,000 to
implement the Initial Business Plan or develop a
Long-Term Business Adjustment Plan.
(f) A producer who completes the Intensive Technical
Assistance and whose Initial Business Plan has
been approved shall be eligible, in addition to
the amount under paragraph (e) of this section,
for assistance in developing a Long-Term
Business Adjustment Plan.
(g) Long-Term Business Adjustment Plan: The Long-Term
Business Adjustment Plan shall:
(1) Include steps reasonably calculated to materially
contribute to the economic adjustment of the
producer to changing market conditions;
(2) Take into consideration the interests of the workers
employed by the producer; and
(3) Demonstrate that the producer will have sufficient
resources to implement the business plan.
(h) Upon recommendation by NIFA and approval of the
producer's Long-Term Business Adjustment Plan by
the Administrator (FAS), the producer shall be
entitled to receive an amount not to exceed
$8,000 to implement their Long-Term Business
Adjustment Plan.
(i) The Initial Business Plan and Long-Term Business
Adjustment Plan must be completed and approved
within 36 months after a petition is certified.
(j) A producer shall not receive a combined total of more
than $12,000 for the Initial Business Plan and
the Long Term Business Adjustment Plan in the
36-month period following petition
certification.
(k) The Administrator (FAS) may authorize supplemental
assistance necessary to defray reasonable
transportation and subsistence expenses incurred
by a producer in connection with the initial
technical assistance, if such initial technical
assistance is provided at facilities that are
not within normal commuting distance of the
regular place of residence of the producer. NIFA
and FSA will work with the producer and the
Administrator (FAS) to facilitate application
for and proper payment of reasonable allowable
supplemental expenses. The Administrator (FAS)
will not authorize payments to a producer:
(1) For subsistence expenses that exceed the lesser of:
(i) The actual per diem expenses for subsistence incurred by
a producer; or
(ii) The prevailing per diem allowance rate authorized under
Federal travel regulations; or
(2) For travel expenses that exceed the prevailing mileage
rate authorized under the Federal travel
regulations.
Sec. 1580.303 Adjustment assistance
payments.
(a) If the Administrator (FAS) determines that insufficient
appropriated fiscal year funds are available to
provide maximum cash benefits to all eligible
applicants, after having deducted estimated
transportation and substance payments and
administrative and technical assistance costs,
the Administrator (FAS) shall prorate cash
payments to producers for the approved initial
and long-term business plans.
(b) Any producer who may be entitled to a payment may assign
their rights to such payment in accordance with
7 CFR part 1404 or successor regulations as
designated by the Department.
(c) In the case of death, incompetency, disappearance, or
dissolution of a producer that is eligible to
receive benefits in accordance with this part,
such producer or producers specified in 7
CFR part 707 may receive such benefits.
Sec. 1580.401 Subsequent year
petition recertification.
(a) Prior to the anniversary of the petition certification
date:
(1) Groups or authorized representatives that provided the
data to justify their initial petition shall
provide the Administrator (FAS) data for the
most recent marketing year, and
(2) The Administrator (FAS) shall make a determination with
respect to the re-certification of petitions for
the subsequent year by applying criteria as set
forth in Sec. 1580.203 of this part for
the most recent marketing year.
(b) The Administrator (FAS) will promptly publish in the
Federal Register the determination with the
reasons for the determination.
(c) If a petition is re-certified, only eligible producers
who did not receive training and cash benefits
under this program may apply.
Sec. 1580.501 Administration.
(a) The petition process will be administered by FAS. FAS
will publish in the Federal Register the filing
dates for commodity groups to file petitions.
(b) FSA will administer the producer application and payment
process.
(c) State and county FSA committees and representatives do
not have the authority to modify or waive any of
the provisions of this part.
(d) The technical assistance process and the recommendation
for approval of all producer business plans will
be under the general supervision of NIFA. NIFA
may award the technical assistance and services
to a state cooperative extension service.
(e) The Deputy Administrator may, in consultation with the
Administrator, FAS, authorize the State and
County committees to waive or modify
non-statutory deadlines or other program
requirements in cases where lateness or failure
to meet such other requirements by applicants
does not adversely affect the operation of the
program.
Sec. 1580.502 Maintenance of
records, audits, and compliance.
(a) Producers making application for benefits under this
program must maintain accurate records and
accounts that will document that they meet all
eligibility requirements specified herein, as
may be requested. Such records and accounts must
be retained for 2 years after the date of the
final payment to the producer under this
program.
(b) At all times during regular business hours, authorized
representatives of the U.S. Department of
Agriculture or any agency thereof, the
Comptroller General of the United States shall
have access to the premises of the producer in
order to inspect, examine, and make
copies of the books, records, and accounts, and
other written data as specified in paragraph (a)
of this section.
(c) Audits of certifications of average adjusted gross income
may be conducted as necessary to determine
compliance with the requirements of this
subpart. As a part of this audit, income tax
forms may be requested and if requested, must be
supplied. If a producer has submitted
information to FSA, including a certification
from a certified public accountant or attorney,
that relied upon information from a form
previously filed with the Internal Revenue
Service, such
producer shall provide FSA a copy of any amended
form filed with the Internal Revenue Service
within 30 days of the filing.
(d) If requested in writing by the U.S. Department of
Agriculture or any agency thereof, or the
Comptroller General of the United States, the
producer shall provide all information and
documentation the reviewing authority determines
necessary to verify any information or
certification provided under this subpart,
including all documents referred to in Sec.
1580.301(c) of this part, within 30 days.
Acceptable production documentation may be
submitted by facsimile, in person, or by mail
and may include copies of receipts, ledgers,
income statements, deposit slips, register
tapes, invoices for custom harvesting, records
to verify production costs, contemporaneous
measurements, truck scale tickets, fish tickets,
landing reports, and contemporaneous diaries
that are determined acceptable. Failure to
provide necessary and accurate information to
verify compliance, or failure to comply with
this part's requirements, will result in
ineligibility for all program benefits subject
to this part for the year or years subject to
the request.
Sec. 1580.503 Recovery of
overpayments.
(a) If the Administrator (FAS) determines that any producer
has received any payment under this program to
which the producer was not entitled, or has
expended funds received under this program for
purpose that was not approved by the
Administrator (FAS) such producer will be
liable to repay such amount. The Administrator
(FAS) may waive such repayment if it is
determined that:
(1) The payment was made without fault on the part of the
producer; and
(2) Requiring such repayment would be contrary to equity and
good conscience.
(b) Unless an overpayment is otherwise recovered, or waived
under paragraph (a) of this section, the
Administrator (FAS), shall recover the
overpayment as a debt following the procedures
in 7 CFR part 3. The requirement for demand and
notice and opportunity for a hearing under the
debt collection procedures in 7 CFR part 3 shall
satisfy the notice and hearing requirements
under 19 U.S.C. 2401f(c), and the appeal
procedures in Sec. 1580.505 of this part
shall not apply to collection of overpayments
Sec. 1580.504 Debarment, suspension,
and penalties.
(a) Generally. The regulations governing Governmentwide
Debarment and Suspension (Nonprocurement), 7 CFR
part 3017, and Government Requirements for
Drug-Free Workplace (Financial Assistance), 7
CFR part 3021, apply to this part.
(b) Additional specific suspension and debarment provision
for this program. In addition to any other
debarment or suspension of a producer under
paragraph (a) of this section, in connection
with this program, if the Administrator (FAS) or
a court of competent jurisdiction, determines
that a producer:
(1) Knowingly has made, or caused another to make, a false
statement or representation of a material fact,
or
(2) Knowingly has failed, or caused another to fail, to
disclose a material fact; and, as a result of
such false statement or representation, or of
such nondisclosure, such producer has received
any payment under this program to which the
producer was not entitled, the Administrator
(FAS) shall suspend and debar such producer from
any future payments under this program, as
provided in 19 U.S.C. 2401f(b).
(c) Criminal penalty. Whoever makes a false statement of a
material fact knowing it to be false, or
knowingly fails to disclose a material fact, for
the purpose of obtaining or increasing for
himself or for any other producer any payments
authorized to be furnished under this program
shall be fined not more that $10,000 or
imprisoned for not more than 1 year, or both.
Sec. 1580.505 Appeals.
(a) A producer adversely affected by a determination with
respect to their application for trade
adjustment assistance under Sec. 1580.301
of this part or with respect to the receipt of
technical
assistance or payments under Sec. 1580.302
of this part may file a notice of appeal within
30 days of the date that the notification of the
adverse determination was sent.
(b) A producer may not seek judicial review of any adverse
decision under this paragraph without receiving
a final determination pursuant to this
paragraph.
Sec. 1580.506 Judicial review.
Any producer aggrieved by a final agency determination under
this part may appeal to the U.S. Court of
International Trade for a review of such
determination in accordance with its rules and
procedures.
Sec. 1580.602 Paperwork Reduction
Act.
The information collection requirements contained in this
part have been approved by the Office of
Management and Budget (OMB) under the provisions
of 44 U.S.C. Chapter 35 and been assigned OMB
control number 0551-0040.
Dated: February 22, 2010.
John D. Brewer,
Administrator, Foreign Agricultural Service.
[FR Doc. 2010-3984 Filed 2-26-10; 8:45 am]
BILLING CODE 3410-10-P
