B-142279 (2), DEC. 23, 1960

B-142279 (2), DEC. 23, 1960

TO THE SECRETARY OF AGRICULTURE:

BY LETTER OF DECEMBER 8, 1960, THE ASSISTANT SECRETARY FOR MARKETING AND FOREIGN AGRICULTURE REFERRED FOR OUR CONSIDERATION THE GROWER'S APPLICATION AND CERTIFICATION FILED BY MR. JAY WALTER OF AURORAVILLE, WISCONSIN, UNDER CRANBERRY PAYMENT PROGRAM AMM 181A.

UNDER THE TERMS OF THE PROGRAM, AUTHORIZED UNDER SECTION 32, PUBLICNO. 320, 74TH CONGRESS, AS AMENDED, 7 U.S.C. 612C, YOU OFFERED TO MAKE PAYMENTS, IN ACCORDANCE WITH PRESCRIBED CONDITIONS, TO CRANBERRY GROWERS WHO SUFFERED LOSS BY REASON OF THE NONMARKETABILITY OF THEIR 1959 CROP. ONE OF THE CONDITIONS IMPOSED WAS THAT AN APPLICATION FOR PAYMENT UNDER THE PROGRAM BE FILED ON OR BEFORE JULY 30, 1960. THE REASON FOR SUBMITTING THE MATTER OF MR. WALTER'S APPLICATION TO THIS OFFICE IS THAT ALTHOUGH HE HAS COMPLIED WITH THE SUBSTANTIVE REQUIREMENTS IMPOSED UNDER THE PROGRAM, SO FAR AS CONCERNS 11.5 BARRELS OF CRANBERRIES, CERTIFIED BY AN INSPECTOR ON JUNE 2, 1960, AS HAVING BEEN DESTROYED, HE DID NOT FILE HIS APPLICATION FOR PAYMENT UNTIL NOVEMBER 9, 1960, ON WHICH DATE HE FILED ALL REQUIRED DOCUMENTS INCLUDING INVOICES FOR ADVANCE AND FINAL PAYMENT. ALSO, NOVEMBER 9, 1960, WAS PRIOR TO THE DATE BY WHICH HIS INVOICE FOR FINAL PAYMENT WAS REQUIRED TO HAVE BEEN FILED BUT LATER THAN THE PRESCRIBED TIME FOR FILING FOR ADVANCE PAYMENT.

IT APPEARS THAT MR. WALTER IS A SMALL CRANBERRY PRODUCER WHO BECAUSE HE WAS NOT A MEMBER OF ONE OF THE STATE COOPERATIVES DID NOT RECEIVE AN APPLICATION FORM UNTIL AFTER JUNE 20, 1960, THE ORIGINAL DEADLINE FOR FILING. BUT THE DEADLINE FOR FILING WAS EXTENDED TO JULY 30, 1960, BY AMENDMENT NO. 1 TO THE PROGRAM, DATED JUNE 16, 1960; AND IT IS NOTED THAT COPIES OF THE PROGRAM TERMS AND CONDITIONS TOGETHER WITH AMENDMENTS AND FORMS WERE MAILED TO MR. WALTER ON JUNE 28, 1960. THERE WOULD THUS NOT APPEAR TO BE ANY SPECIFIC REASON, OTHER THAN A POSSIBLE FAILURE TO UNDERSTAND THE PRESCRIBED CONDITIONS, FOR MR. WALTER'S FAILURE TO MEET THE JULY 30 DEADLINE FOR FILING HIS APPLICATION.

SECTION 32, AS AMENDED, AUTHORIZES YOU TO EXPEND FUNDS APPROPRIATED THEREUNDER FOR THE PURPOSES SPECIFIED THEREIN "AT SUCH TIMES, IN SUCH MANNER, AND IN SUCH AMOUNTS AS (YOU FIND) WILL EFFECTUATE SUBSTANTIAL ACCOMPLISHMENT OF ANY ONE OR MORE OF THE PURPOSES OF THIS SECTION.' THE CRANBERRY PAYMENT PROGRAM TERMS AND CONDITIONS SET FORTH THE BASIS UPON WHICH YOU, IN THE EXERCISE OF THE BROAD DISCRETION GRANTED IN SECTION 32, AS AMENDED, DETERMINED THAT PAYMENTS WOULD BE MADE. THUS, WHILE THERE IS NO EXPRESS PROVISION AUTHORIZING YOU TO ISSUE REGULATIONS RELATING TO PROGRAMS INITIATED PURSUANT TO THE PROVISIONS OF SECTION 32, THE TERMS AND CONDITIONS PRESCRIBED ARE, OR PARTAKE OF THE NATURE OF, STATUTORY REGULATIONS AND, AS SUCH, ARE NOT ORDINARILY TO BE WAIVED BY ADMINISTRATIVE ACTION IN PARTICULAR INSTANCES.

HOWEVER, THE DEADLINES FOR FILING APPLICATION AND INVOICE FOR ADVANCE PAYMENT DO NOT APPEAR TO BE SIGNIFICANT IN TERMS OF MR. WALTER'S SUBSTANTIVE QUALIFICATION UNDER THE PROGRAM. THE DEADLINES WERE APPARENTLY ESTABLISHED AS A PROCEDURAL MATTER TO AID IN THE ADMINISTRATION OF THE PROGRAM AND, BY MAKING AN ADVANCE PAYMENT, TO ALLEVIATE THE FINANCIAL BURDENS INVOLVED; AND THERE HAS BEEN A SUBSTANTIAL COMPLIANCE BY MR. WALTER BOTH IN THE DESTRUCTION OF CRANBERRIES AND IN FILING INVOICE FOR FINAL PAYMENT. AND WE UNDERSTAND THAT THE NUMBER OF CRANBERRY GROWERS WHO MIGHT COME UNDER THE PROGRAM ARE RELATIVELY FEW IN NUMBER SO THAT IT MAY BE FEASIBLE TO ASCERTAIN WHETHER PAYMENT TO MR. WALTER WOULD BE PREJUDICIAL TO OTHERS WHO MAY BE SIMILARLY SITUATED.

ACCORDINGLY, UNDER THE FACTS AND CIRCUMSTANCES OF THIS PARTICULAR CASE, IF YOU ADMINISTRATIVELY DETERMINE THAT OTHER CRANBERRY GROWERS WILL NOT BE PREJUDICED THEREBY, THIS OFFICE WILL NOT OBJECT TO PAYMENT TO MR. WALTER UNDER THE PROGRAM IN SUCH AMOUNT AS IS OTHERWISE PROPER.

THE DOCUMENTS FURNISHED WITH THE ASSISTANT SECRETARY'S LETTER ARE RETURNED AS REQUESTED.