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2005 Cottonseed Payment Program
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[Federal Register: October 31, 2006 (Volume 71, Number 210)]
[Rules and Regulations]
[Page 63665-63668]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31oc06-1]
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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.
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DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR 1427
RIN 0560-AH63
2005 Cottonseed Payment Program
AGENCIES: Commodity Credit Corporation, USDA.
ACTION: Final rule.
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SUMMARY: This final rule implements a portion of the Emergency
Supplemental Appropriations Act for Defense, the Global War on Terror,
and Hurricane Recovery of 2006 to provide assistance to producers and
first-handlers of the 2005 crop of cottonseed in counties which were
declared a natural disaster area by the President of the United States,
and contiguous counties, due to Hurricanes Katrina, Ophelia, Rita,
Wilma or a related condition in 2005.
DATES: This rule is effective October 31, 2006.
FOR FURTHER INFORMATION CONTACT: Chris Kyer, phone: (202) 720-7935; e-
mail: chris.kyer@wdc.usda.gov.
SUPPLEMENTARY INFORMATION:
Discussion of Final Rule
Section 3015(a) of Subtitle A of Title III of Pub. L. 109-234
states, ``The Secretary shall use $15,000,000 of the funds of the
Commodity Credit Corporation to provide assistance to producers and
first-handlers of the 2005 crop of cottonseed in hurricane-affected
counties.'' (Title III, Subtitle A, 120 Stat. 477, June 15, 2006)
(``2006 Act''). This rule provides the Commodity Credit Corporation
(CCC) regulations for implementation of the 2005 Cottonseed Payment
Program authorized by this provision.
Assistance under the 2005 Cottonseed Payment Program is provided
under the same terms and conditions, generally, as it was for the 2004
Cottonseed Payment Program. However, section 3015(b)(2) of the 2006 Act
states that, for the 2005 program, funds will be distributed ``* * *
based on cottonseed production during the most recent year for which a
disaster payment specifically for cottonseed was not authorized.'' (120
Stat. 477) The most recent year for which a disaster payment
specifically for cottonseed was not authorized was the 2003 cottonseed
production year. Accordingly, this rule provides that 2003 cottonseed
production will be used as a basis for payments provided under the 2005
Cottonseed Payment Program.
Also, as provided in section 3015(b)(2) of the 2006 Act, payment
calculations for the 2005 Cottonseed Payment Program will differ from
those used for the 2004 Cottonseed Payment Program. The 2004 program
payments were based upon a loss attributable to the disaster. The 2005
Cottonseed Payment Program shall be based solely upon production during
the most recent year for which a disaster payment specifically for
cottonseed was not authorized (the 2003 crop), without requiring proof
of a loss.
Another difference from the 2004 program is that this rule
clarifies which counties are eligible for assistance. This rule clearly
defines the term ``hurricane affected counties'' for the 2005 program
as those counties designated as a disaster area resulting from
Hurricanes Katrina, Ophelia, Rita, Wilma, or a related condition, and
contiguous counties thereof, meaning counties directly adjoining the
primary disaster county.
Executive Order 12866
This rule has been determined to be ``Significant'' under Executive
Order 12866 and has been reviewed by the Office of Management and
Budget (OMB).
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 for the subject of this rule.
Environmental Assessment
The environmental impacts of this rule have been considered
consistent 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 NEOA, 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 foreseeable 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 12988
The rule has been reviewed in accordance with Executive Order
12988. 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
set forth at 7 CFR part 11 and 780 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 19115 (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.
Paperwork Reduction Act of 1995
Section 3034(b)(3) of the 2006 Act requires that this rule be
implemented and administered without regard to the Paperwork Reduction
Act. Therefore, the normal 60-day public comment period and OMB
approval do not apply to the information collections required by this rule.
E-Government Act Compliance
CCC is committed to complying with the E-Government Act to promote the
[[Page 63666]]
use of the Internet and other information technologies to provide
increased opportunities for citizen access to Government information
and services, and for other purposes. For information pertinent to E-
GOV compliance related to this rule, please contact the person named
above under the information contact section.
List of Subjects in 7 CFR Part 1427
Agriculture, Cottonseed.
? For the reasons set out in the preamble, 7 CFR part 1427 is amended as
set forth below.
PART 1427--COTTON
? 1. The authority citation for 7 CFR part 1427 is revised to read as
follows:
Authority: 7 U.S.C. 7231-7236; 15 U.S.C. 714b, 714c; Pub. L.
108-324, Pub. L. 108-447, Pub. L. 109-234.
Subpart H--2005 Cottonseed Payment Program
? 2. Add subpart H as follows:
Subpart H--2005 Cottonseed Payment Program
Sec.
1427.1300 Applicability.
1427.1301 Administration.
1427.1302 Definitions.
1427.1303 Eligible cottonseed.
1427.1304 Eligible applicants (first handlers).
1427.1305 Payment application and deadline.
1427.1306 Available funds.
1427.1307 Applicant payment quantity.
1427.1308 Total payment quantity.
1427.1309 Payment rate.
1427.1310 Payment calculation and form.
1427.1311 Liability of first handler.
Sec. 1427.1300 Applicability.
(a) Subject to the availability of funds, this subpart sets forth
the terms and conditions under which the Commodity Credit Corporation
(CCC) will provide payments under the cottonseed payment program for
the 2005 crop year of cottonseed. Additional terms and conditions may
be set forth in the application or other forms which must be executed
to participate in the cottonseed payment program.
(b) Payments shall be available only as provided in this subpart
and only with respect to 2005 crop cottonseed in hurricane-affected
counties according to Sec. 1427.1303 of this part.
Sec. 1427.1301 Administration.
(a) The cottonseed payment program shall be administered by the
Executive Vice President, CCC, or a designee and carried out by
employees of the Farm Service Agency (FSA).
(b) Representatives and employees of FSA have no authority to
modify or waive any of the provisions of the regulations in this subpart.
(c) The Executive Vice President, CCC, or a designee, may determine
any question arising under the program or reverse or modify any
determination made by any FSA official or employee.
(d) The Deputy Administrator for Farm Programs, FSA, may specify,
waive or modify deadlines and other program requirements where lateness
or failure to meet such other requirements do not affect adversely the
operation of the cottonseed payment program.
(e) A representative of CCC may execute cottonseed payment program
applications and related documents only under the terms and conditions
determined and announced by CCC.
(f) Payment applications and related documents not executed in
accordance with the terms and conditions determined and announced by
CCC, including any purported execution outside of the dates authorized
by CCC, shall be null and void except as otherwise provided in this subpart.
Sec. 1427.1302 Definitions.
The definitions in this section shall apply to the cottonseed
payment program in this subpart. The terms defined in Sec. 1427.3,
Subpart A, Nonrecourse Cotton Loan and Loan Deficiency Payment shall
also be applicable to this subpart.
Application period means a period, as announced by CCC, during
which applications for payments under the Cottonseed Payment Program
must be received to be considered for payment.
Cottonseed means the seed from any varieties of upland cotton and
extra long staple (ELS) cotton produced and ginned in the United States.
Gin means a person (i.e., an individual, partnership, association,
corporation, cooperative marketing association, estate, trust, State or
political subdivision or agency thereof, or other legal entity) that
removes cotton seed from cotton lint in commercial quantities.
Hurricane-affected county means a county declared a natural
disaster or included in the geographic area covered by a natural
disaster declaration related to Hurricane Katrina, Hurricane Ophelia,
Hurricane Rita, Hurricane Wilma, a related condition, or a county
contiguous to such a county.
Lint means cotton lint as contained in bales of cotton ordinarily
marketed as cotton and excludes any linters, raw motes, re-ginned
motes, cleaned motes, and any other gin waste or byproduct not
traditionally defined as cotton lint.
Ton means a unit of weight equal to 2,000 pounds avoirdupois
(907.18 kilograms).
Sec. 1427.1303 Eligible cottonseed.
To be eligible for payments under this subpart, cottonseed must:
(a) Have been produced from cotton grown in a hurricane-affected
county as defined in section 1427.1302 during the 2005-crop production
period.
(b) Have been the result of ginning 2005-crop cotton by the applicant.
(c) Not have been destroyed or damaged in any amount at the gin by
fire, flood, or other events such that its loss or damage was
compensated by any other local, State, or Federal government or private
or public insurance or disaster relief payments.
Sec. 1427.1304 Eligible applicants (first handlers).
(a) An eligible applicant shall be a first handler of cottonseed or
a gin that has an eligible payment quantity as determined under Sec.
1427.1307. This is the gin(s) that ginned 2005 crop cotton for the
producer except if the 2005 gin is no longer in business to the extent
the company has no means to apply for payment on behalf of producers
and distribute funds, the current gin becomes the applicant. Only an
eligible first handler shall be eligible to file an application for
payment in this subpart.
(b) Applicants must comply with the terms and conditions set forth
in this subpart issued by CCC, and sign and submit an accurate, legible,
and complete Cottonseed Payment Program Application and Certification.
(c) Applicants signing the cottonseed payment application or
receiving payment in this subpart must share and distribute any payment
with the producer of the cotton that was the basis for the cottonseed
payment to the extent that the effect of the loss of 2005 crop
cottonseed was borne by the producer rather than the gin. To the extent
that such funds shall be shared with and distributed to the producer by
the gin pursuant to this subpart, those funds will be considered to
have been received by the applicant on behalf of such producers.
Sec. 1427.1305 Payment application and deadline.
(a) Payments in this subpart shall be made available only to
eligible first handlers of cottonseed based on information provided on
a Cottonseed Payment Program Application and Certification.
(b) The application deadline shall be 45 calendar days after the
rules in this subpart become effective. A further
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extension of application time may be announced by CCC. Payment
applications must be received by the program application deadline
announced by CCC. Applications received after such application deadline
will not be accepted for payment.
(c) The Cottonseed Payment Program Application and Certifications
may be obtained from the CCC as announced by press release. In order to
participate in the cottonseed payment program in this subpart, first
handlers of cottonseed must execute and submit to CCC according to
announced instructions the Cottonseed Payment Program Application and
Certification.
Sec. 1427.1306 Available funds.
The total available program funds for the 2005-crop cottonseed
program provided for in this subpart shall be $15 million.
Sec. 1427.1307 Applicant payment quantity.
(a) The applicant's payment quantity of cottonseed will be
calculated by the applicant and submitted on the Cottonseed Payment
Application and Certification for approval by CCC.
(1) An applicant must be an eligible gin to which a producer
delivered 2005 cotton and the applicant's payment eligibility will be
based on the determination of the total amount of 2003 crop lint
deliveries by cotton producers in eligible counties.
(2) The 2003 crop lint delivery determination will be made by the
applicant for each eligible county producer by producer, based upon
producer certification, ginning records, or other relevant information
as applicable. If the producer delivered 2003 crop cotton to a gin(s)
different from the gin that received 2005 crop deliveries, the 2005 gin
shall contact the other gins for production information or obtain other
proof of the eligible quantity from the cotton producer so as to make
or verify the calculation called for in paragraph (a) of this section.
(3) If the producer delivered cotton to more than one 2005 gin,
each gin shall be an applicant. If the producer did not deliver cotton
to the same gins in 2003, the applicants shall divide the total 2003
production, obtained according to paragraph (a)(2) of this section,
equally between each applicant gin.
(4) If the producer did not grow any 2005 crop cotton in the
eligible county, the applicant shall not apply for payment on behalf of
the producer.
(5) If the producer grew 2005 crop cotton but did not produce 2003
crop cotton, the producer shall be considered a new producer. In this
case, the applicant shall compute an assumed 2003 lint delivery amount
by multiplying the 2003 USDA National Agricultural Statistics Service
(NASS) county average yield for the applicable county times the
producer's 2005 cotton acreage in the eligible county. Proof of cotton
acreage may be obtained by the applicant from producer certification,
FSA county office acreage reports, or crop insurance records. If the
NASS county average yield is not computed for the applicable county,
the applicant shall use the NASS county average yield for the nearest
cotton producing county with the highest NASS county average yield.
(b) The applicant's lint eligibility will be calculated
individually with respect to all eligible cotton producers and those
individual eligibilities for the gin will then be added together to
determine the total lint eligibility of the gin.
Sec. 1427.1308 Total payment quantity.
(a) The total quantity of 2005-crop cottonseed eligible in this
subpart shall be based on the total payment quantity of cottonseed as
determined under this subpart for which timely applications are filed.
Eligible cottonseed for which no application is received according to
the announced application instructions shall not be included in the
total payment quantity of cottonseed.
(b) The total payment quantity of cottonseed (ton-basis) shall be
calculated by CCC by multiplying the weight of cotton lint (ton-basis)
for which payment is requested by all applicants, as approved by CCC,
by the Olympic average of estimated pounds of cottonseed per pound of
ginned cotton lint, excluding the highest and lowest years' production,
as determined by CCC for the 5 years preceding the 2005 crop.
Sec. 1427.1309 Payment rate.
The payment rate (dollars per ton) for the purpose of calculating
payments made available in accordance in this subpart shall be
determined by CCC by dividing the total available program funds, less
an amount reserved for approved corrections, by the total eligible
payment quantity of cottonseed. However, in no event may the total
payment to an eligible applicant exceed the national average price of
2005 crop cottonseed as determined by CCC, or $98 per ton, multiplied
by the applicant's total eligible payment quantity.
Sec. 1427.1310 Payment calculation and form.
(a) Payment in accordance in subpart shall be determined for
individual applicants by multiplying:
(1) The payment rate as determined in subpart Sec. 1427.1309 by
(2) The eligible payment quantity of the applicant was determined
in Sec. 1427.1308 and other provisions in this part.
(b) After receipt of the application for payment, CCC will issue
payments to the applicant by electronic funds transfer to the
applicant's account except that applicants may request payment be made
by mailed check.
Sec. 1427.1311 Liability of first handler.
(a) If any person makes any erroneous or fraudulent representation
in obtaining a cottonseed payment in this part, or in connection with
such a payment engages in a scheme or device that tends to defeat the
purposes of this program, the person shall be liable to CCC for the
amount of the payment and interest on such payment as determined by
CCC. Such remedy will be in addition to whatever additional remedies
may be allowed by law.
(b) If more than one person executes a program payment application
with CCC on the same quantity and payments are made there under, each
such person shall be jointly and severally liable for any violation of
the terms and conditions for any payment made to anyone under that
application or for any refund due from any person signing that
application. Such liability shall remain until payment in full is made
of any such refund and its related charges.
(c) If a person receives a program payment in excess of the amount
authorized in this subpart, that person shall refund to CCC an amount
equal to the excess payment, plus interest thereon, as determined by CCC.
(d) For three years after the date of the application for 2005-crop
payments, the applicant shall keep records, including records
supporting the quantity of cottonseed for which payment was requested,
and furnish such information and reports relating to the application to
CCC as requested. Such records shall be available at all reasonable
times for an audit or inspection by authorized representatives of CCC,
United States Department of Agriculture, or the Comptroller General of
the United States. Failure to keep, or make available, such records may
result in refund to CCC of all payment received, plus interest thereon,
as determined by CCC. In the event of a controversy concerning
payments, records must be kept for such longer period as may be
specified by CCC until such controversy is resolved. Destruction of
records at any time is at the risk of the applicant.
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Signed in Washington, DC, on October 25, 2006.
Thomas B. Hofeller,
Acting Executive Vice President, Commodity Credit Corporation.
[FR Doc. E6-18249 Filed 10-30-06; 8:45 am]
BILLING CODE 3410-05-P