![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}
Tobacco Payment Program
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: April 17, 2003 (Volume 68, Number 74)]
[Rules and Regulations]
[Page 18833-18836]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17ap03-1]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR Part 1464
RIN 0560-AG96
Tobacco Payment Program
AGENCIES: Commodity Credit Corporation, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule implements the Tobacco Payment Program authorized by
the Agricultural Assistance Act of 2003. Section 205 of that Act
requires the Commodity Credit Corporation to provide assistance to
producers of tobacco. This rule is intended to implement this
legislative mandate. Other provisions of the Agricultural Assistance
Act of 2003 will be implemented under separate rules.
EFFECTIVE DATE: April 16, 2003.
FOR FURTHER INFORMATION CONTACT: Misty Jones at (202) 720-0200, or via
electronic mail at Misty_Jones@wdc.usda.gov.
SUPPLEMENTARY INFORMATION:
Notice and Comment
Section 217 of Title II of Division N of the Consolidated
Appropriations Resolution, 2003, (Pub. L. 108-7) (Agricultural
Assistance Act of 2003) requires that the regulations to implement this
program be promulgated without regard to the notice and comment
provisions of 5 U.S.C. 553, the Statement of Policy of the Secretary of
Agriculture relating to notices of proposed rulemaking and public
participation in rulemaking (36 FR 13804, July 24, 1971). Thus, this
rule is final as published.
Executive Order 12866
This final rule has been determined to be not significant under
Executive Order 12866 and has not been reviewed by the Office of
Management and Budget (OMB).
Federal Assistance Programs
This final rule applies to the following Federal assistance
programs, as found in the Catalog of Federal Domestic Assistance:
10.073--Crop Disaster Program.
Regulatory Flexibility Act
The Regulatory Flexibility Act does not apply to this rule because
CCC is not required by 5 U.S.C. 553 or any other law to publish a
notice of proposed rulemaking with respect to the subject of this rule.
Environmental Assessment
The environmental impacts of this proposed rule have been
considered in accordance with the provisions of the National
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., the
regulations of the Council on Environmental Quality (40 CFR parts 1500-
1508), and FSA's regulations for compliance with NEPA, 7 CFR part 799.
To the extent these authorities may apply, CCC has concluded that this
rule is categorically excluded from further environmental review as
evidenced by the completion of an environmental evaluation. No
extraordinary circumstances or other unforeseeable factors exist which
would require preparation of an environmental assessment or
environmental impact statement. A copy of the environmental evaluation
is available for inspection and review upon request.
Executive Order 12778
The final rule has been reviewed in accordance with Executive Order
12778. This final rule preempts State laws to the extent such laws are
inconsistent with it. This rule is not retroactive. Before judicial
action may be brought concerning this rule, all administrative remedies
must be exhausted.
Executive Order 12372
This program is not subject to 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).
Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) does
not apply to this rule because CCC is not required by 5 U.S.C. 553 or
any other law to publish a notice of proposed rulemaking for the
subject of this rule. Further, this rule contains no unfunded mandates
as defined in sections 202 and 205 of UMRA.
Small Business Regulatory Enforcement Fairness Act of 1996
Section 217(c) of the Agricultural Assistance Act of 2003 (``2003
Act''), Pub. L. 108-7, requires CCC to use the authority in section 808
of the Small Business Regulatory Enforcement Fairness Act of 1996, Pub.
L. 104-121 (SBREFA), to forgo the usual 60-day delay in the effective
date of major rules required by SBREFA (5 U.S.C. 801(a)(3)(A)(ii)).
This rule affects a number of agricultural producers who may have a
strong urgent need of the payments to be provided under it. For these
reasons and in accord with 5 U.S.C. 808(2), CCC has determined that
delay is contrary to public interest and this rule is effective upon
the date of filing for public inspection by the Office of the Federal
Register.
Paperwork Reduction Act
Section 217(c) of the Agricultural Assistance Act of 2003 requires
that these regulations be promulgated and the programs administered
without regard to 44 U.S.C. 35, the Paperwork Reduction Act. This means
that the information to be collected from the public to implement these
programs and the burden, in time and money, that the collection of the
information would have on the public do not have to be approved by the
Office of Management and Budget or be subject to the 60-day public
comment period required by 5 CFR 1320.8(d)(1).
Background
Section 205 of the Agricultural Assistance Act of 2003 directs the
Secretary of Agriculture to use funds of the Commodity Credit
Corporation (CCC) to provide assistance to persons associated with
certain 2002-crop tobaccos. Tobaccos with an established 2002 acreage
allotment or poundage quotas are eligible for payment. Eligible persons
include owners of the land with an established 2002 acreage allotment
or
[[Page 18834]]
quota, as well as growers, and in some cases, controllers of farms with
quotas or allotments. This rule promulgates regulations governing
payment eligibility in accord with the legislation.
As provided for by statute and set out by rule, each eligible kind
of tobacco will have its own fund. For each kind, the fund amount will
be based on multiplying the national quota or allotment (converted by a
formula to pounds) by 5.55 cents per pound. For flue-cured tobacco
(types 11-14) and for cigar filler tobacco (types 42-44 and 54-55), the
fund will be divided into two parts, one for eligible owners and the
other for eligible growers. The other eligible tobaccos ``pot'' will be
divided into three equal parts, one for eligible owners, the other for
eligible controllers and the remaining part for growers. The other
eligible tobaccos are burley tobacco (type 31), fire-cured tobacco
(types 21-23), dark air-cured tobacco (types 35-36), and Virginia sun-
cured tobacco (type 37). Eligible persons will share in the sub-
accounts based on basic or effective quota or allotment amounts as
specified in the rule (irrespective of the actual production amounts
that may or may not have occurred on a particular farm so long as the
participants meet other program rules for payment).
Similar programs have been provided for in the past in part 1400.
As with those programs, eligibility determinations will be made as of
July 1 of the calendar year that corresponds with the crop year covered
(2002 in this case). It is understood that, to the extent practicable,
Congress has intended that this program be run in the same manner as
its predecessors in part 1400. There is nothing in the history of this
statute to indicate a view to the contrary, as would be expected were
significant changes intended. This rule has been drafted accordingly.
The statute specifies which tobaccos are eligible for payment and the
factors for converting allotments to pounds. The statute sets a payment
date of June 1, 2003. Payments will be made in advance of that date, if
possible.
Cost/Benefit Assessment
Payments to eligible persons in 2003 are estimated to total $55
million dollars.
List of Subjects in 7 CFR Part 1464
Agricultural commodities, Acreage allotments, Marketing quotas,
Tobacco.
? For the reasons set out in the preamble, 7 CFR part 1464 is amended as
set forth below.
PART 1464--TOBACCO
? 1. The authority citation for 7 CFR part 1464 is revised to read as
follows:
Authority: 7 U.S.C. 1421, 1423, 1441, 1445, 1445-1, 1445-2; 15
U.S.C. 714b, 714c; Pub. L. 106-78, 113 Stat. 1135; Pub. L. 106-113,
113 Stat. 1501; Pub. L. 108-7, 117 Stat. 11.
? 2. Add subpart G to read as follows:
Subpart G--Tobacco Payment Program
Sec.
1464.601 Applicability and basic terms for payments.
1464.602 Administration.
1464.603 Eligibility.
1464.604 Definitions.
1464.605 Sign up.
1464.606 [Reserved]
1464.607 Payment benefits.
1464.608 Offsets and assignments.
1464.609 Misrepresentation and scheme or device.
1464.610 Cumulative liability.
1464.611 Estates, trusts, and minors.
1464.612 Death, incompetence, or disappearance.
1464.613 Appeals.
Subpart G--Tobacco Payment Program
Sec. 1464.601 Applicability and basic terms for payments.
This subpart sets forth the terms and conditions of the Tobacco
Payment Program (TOPP). Under this program CCC will make direct
payments on a farm relating to basic tobacco quotas or allotments
established for the 2002 crop year under part I of subtitle B of title
III of the Agricultural Adjustment Act of 1938 (7 U.S.C. 1311 et seq.)
for eligible tobaccos. Payments are subject to the availability of
funds and payment formulas set out in this part.
Sec. 1464.602 Administration.
This subpart shall be administered by the Executive Vice President,
CCC or his designee, under the general supervision of the Farm Service
Agency (FSA), Deputy Administrator for Farm Programs (Deputy
Administrator). The program shall be carried out in the field by State
and county FSA committees and FSA employees in accordance with this
subpart.
Sec. 1464.603 Eligibility.
For a person to be considered an eligible person for purposes of
this part, such person must own or control (in some cases only) a farm
for which on the status date a basic 2002 crop quota or allotment for
eligible tobacco was established under part I of subtitle B of title
III of the Agricultural Adjustment Act of 1938 (7 U.S.C. 1311 et seq.).
Also, growers of that tobacco are eligible for payments to the extent
provided for in this part.
Sec. 1464.604 Definitions.
The definitions set forth in this section shall apply to the
administration of TOPP under this subpart. The definitions in
Sec. Sec. 718.2 and 723.104 of this title also apply to TOPP. The
definitions in this section apply rather than the definitions in
Sec. Sec. 718.2 and 723.104 of this title to the extent that the
definitions in those sections differ. The following terms shall have
the following meanings:
Controller means that person or entity who, as determined by the
Deputy Administrator, controls the land used to produce eligible
tobacco and share in the risk of production.
Eligible person means an owner, or (as applicable) controller of a
farm for which a basic quota or allotment was established for the 2002
crop year under part I of subtitle B of title III of the Agricultural
Adjustment Act of 1938 to the extent otherwise provided in these rules.
Growers of that tobacco, as specified in this part, can also be
eligible for payment. For this TOPP, an eligible person's status, as
owner or controller or grower, will be determined as of July 1, 2002.
Eligible tobacco means each of the following kinds of tobacco:
Flue-cured tobacco (types 11, 12, 13 and 14), burley tobacco (type 31),
Virginia sun-cured tobacco (type 37), fire-cured tobacco (types 21-23),
dark air-cured tobacco (types 35-36), and cigar filler/binder tobacco
(types 42 through 44, 54 and 55).
Grower means for flue-cured tobacco and cigar binder tobacco, a
``producer,'' as defined below, for all other eligible tobaccos, as
``grower/tenant,'' as defined below.
Grower/tenant means a person or entity who provides labor to
produce tobacco and share in the risk of production.
Owner means with respect to a quota or allotment farm the person or
entity who owns the land for which the tobacco quota or allotment was
established for the 2002 crop as of the operative status date of July
1, 2002 provided for in this part.
Payment pounds means the pounds of tobacco for which a person is
eligible to be paid under this subpart.
Producer means a person or entity actively engaged in planting,
growing, harvesting, and/or marketing of tobacco, or who shares in the
risk of producing the crop.
Share in the risk of production means having a direct financial
stake in the success of the crop through a direct share in the actual
proceeds from the actual marketing of the crop which share is
conditional upon the success of
[[Page 18835]]
that marketing. Farm owners who cash-lease their farmland to a tobacco
producer for the right to grow tobacco on that land and receive payment
for such right regardless of whether or not a tobacco crop is marketed
are not considered to share in the risk of production. Farm laborers
who provide service in exchange for a wage and whose payment is not
subject to the marketing or the tobacco crop are not considered to
shared in the risk of production.
TOPP means the Tobacco Payment Program.
Sec. 1464.605 Sign up.
(a) To apply for TOPP funds, persons must submit an application to
the county FSA office by the date established by the Deputy
Administrator. Late applications may be accepted if approved by the
Deputy Administrator, if the lateness was the result of documented
hardship.
(b) Data furnished by the applicant will be used to determine
eligibility for program benefits. Furnishing the data is voluntary;
however, without it program benefits will not be provided.
Sec. 1464.606 [Reserved]
Sec. 1464.607 Payment benefits.
(a) Payment will only be made subject to the availability of funds
and only for eligible tobacco and for eligible persons who meet all
conditions of eligibility for whom monies are provided by the terms of
this section.
(b) The total national payment amount made available for each kind
of eligible tobacco for all claimants for that kind of tobacco, will be
computed by multiplying the 2002 crop national poundage amount for that
kind by 5.55 cents per pound.
(c) The national poundage amount of a kind shall be, for those
tobaccos for which poundage quotas were established for individual
farms, the national basic quota, in total, for all farms. For all other
tobaccos, the 2002 crop national poundage amount shall be determined by
multiplying the national basic acreage allotment for that kind of
tobacco by the following per acre conversion factors:
(1) For fire-cured tobacco (type 21) 1,746 pounds;
(2) For fire-cured tobacco (types 22-23) 2,676 pounds;
(3) For dark air-cured tobacco (types 35-36) 2,475 pounds; and
(4) For Virginia sun-cured tobacco (type 37) 1,502 pounds.
(d) Once the national payment amount is determined for the eligible
tobacco kind, it will for flue-cured tobacco (types 11-14) and for
cigar filler tobacco (types 42-44 and 54-55) be divided into two equal
parts, one for eligible owners and the other for eligible growers.
Shares in the sub-accounts will be determined using basic poundage
quota amounts for flue-cured tobacco and basic allotments for the cigar
filler types. For cigar filler type allotments, a conversion to pounds
will be made using the same conversion factor provided in paragraph (b)
of this section.
(e) For those eligible tobaccos not covered in paragraph (d) of
this section, the national payment amount fund as determined under
paragraph (b) of this section will be divided into three equal parts.
Those parts shall be: one for eligible owners; one for eligible
controllers; and one for eligible growers. Shares in each sub-account
will be determined for burley tobacco using:
(1) Basic poundage quota amounts for owners; and
(2) Effective quota amounts for controllers and growers.
(f) For all other tobaccos covered by paragraph (e) of this
section, shares in each sub-account will be determined using:
(1) Basic allotments for owners; and
(2) Effective allotment amounts for controllers and growers.
Allotments will be converted to pounds using the conversion factors in
paragraph (c) of this section. ``Effective quotas'' and ``effective
allotments'' means the amount of quota or allotment before any transfer
which, as determined by the Deputy Administrator, occurred after a
disaster.
(g) Growers who otherwise meet the terms of this part, will qualify
based on the full amount of the basic quota or effective quota or
allotment, as the case may be, for the kind involved, even though they
did not fully produce the operative pounds. Such growers must meet the
labor, active engagement in farming, and risk of production elements of
the ``grower'' definition of Sec. 1464.604, as applicable to their
kind of tobacco. The Deputy Administrator may provide other elements of
eligibility as necessary to accomplish the provisions of this part in
accord with the operative legislation.
(h) Payments will be made as soon as practicable.
(i) The amount of TOPP funds allocated to the eligible persons in
Georgia will be disbursed only if the State of Georgia agrees to use an
equal amount of funds (not to exceed $13,000,000) to make payments in
the same manner as provided for in this section.
(j) All payments under this part are subject to the eligibility of
funds. In the case where a payment to a farm is disputed the Deputy
Administrator may require that all interested parties agree to the
resolution of the dispute before any payment is made and may delay
payments to the farm until any such disputes are resolved. Also, as
determined appropriate to accomplish the goal that program payments be
made expeditiously in a manner that is administratively efficient, the
Deputy Administrator may properly exclude payments to a person who does
not file a timely claim and all payments may be made to those parties
whose claim to the payment is not challenged. Nothing in this section
shall, however, be construed to prevent the agency from denying any
payment to any person based upon a failure of that person to meet any
eligibility criteria set forth in this part.
Sec. 1464.608 Offsets and assignments.
(a) TOPP payments, or a portion thereof, shall be made without
regard to questions of title under State law and without regard to any
claim or lien against the crop, or proceeds thereof, in favor of the
owner or any other creditor. However, offsets and withholdings of TOPP
payments maybe taken in accordance with part 1403 of this chapter.
(b) TOPP payments may be assigned as provided in part 1404 of this
chapter.
Sec. 1464.609 Misrepresentation and scheme or device.
(a) A person who is determined to have misrepresented any fact with
the intention of affecting a TOPP program determination or received
payments as a result of such misrepresentation shall not be entitled to
payments and must refund all payments, plus interest in accordance with
7 CFR part 1403.
(b) A person determined to have knowingly adopted a scheme or
device that tends to defeat the purpose of the program, or made any
fraudulent representation shall refund all payments, plus interest
determined in accordance with 7 CFR part 1403 and shall not receive any
payment not yet made.
(c) Persons who are party to the TOPP application must refund any
excess or unearned TOPP payments to CCC, plus interest, made under such
application.
Sec. 1464.610 Cumulative liability.
The liability of any person for any penalty under this part or for
any refund to CCC or related charge arising in connection therewith
shall be in addition to any other liability of such
[[Page 18836]]
person under any civil or criminal fraud statute or any other provision
of law including, but not limited to, 18 U.S.C. 286, 287, 371, 641,
1001; 15 U.S.C. 714m; and 31 U.S.C. 3729.
Sec. 1464.611 Estates, trusts, and minors.
(a) Program documents executed by persons legally authorized to
represent estates or trusts will be accepted only if such persons
furnish evidence of the authority to execute such documents.
(b) A minor who is a producer shall be eligible for assistance
under this subpart only if such person meets one of the following
requirements:
(1) The right of majority has been conferred on the minor by court
proceedings or by statute;
(2) A guardian has been appointed to manage the minor's property
and has executed the applicable program documents; or
(3) A bond is furnished under which the surety guarantees any loss
incurred for which the minor would be liable had the minor been an
adult.
Sec. 1464.612 Death, incompetence, or disappearance.
In the case of death, incompetence, or disappearance of any person
who is eligible to receive assistance in accordance with this part,
such person or persons as specified in part 707 of this title may
receive such assistance.
Sec. 1464.613 Appeals.
Determinations made under this part may be appealed as provided in
parts 11 and 780 of this title.
Signed in Washington, DC, on April 7, 2003.
James R. Little,
Executive Vice President, Commodity Credit Corporation.
[FR Doc. 03-9319 Filed 4-16-03; 8:45 am]
BILLING CODE 3410-05-P