[Federal Register Volume 69, Number 41 (Tuesday, March 2, 2004)]
[Rules and Regulations]
[Pages 9744-9747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4524]


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DEPARTMENT OF AGRICULTURE

Farm Service Agency

7 CFR Part 783

RIN 0560-AG83


Tree Assistance Program

AGENCY: Farm Service Agency, USDA.

ACTION: Final rule.

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SUMMARY: This rule provides for implementation, subject to the 
availability of funds, of the Tree Assistance Program (TAP) authorized 
by the Farm Security and Rural Investment Act of 2002 (2002 Act). TAP 
provides assistance to eligible orchardists to replant trees, bushes 
and vines that were grown for the production of an annual crop and were 
lost due to a natural disaster.

EFFECTIVE DATE: March 1, 2004.

FOR FURTHER INFORMATION CONTACT: Eloise Taylor, Production, Emergencies 
and Compliance Division, Farm Service Agency (FSA), United States 
Department of Agriculture (USDA), Stop 0517, 1400 Independence Avenue 
SW., Washington, DC 20250-0517. Telephone: (202) 720-9882; e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    Sections 10201-10205 of the 2002 Act (7 U.S.C. 8201 et seq.) 
authorized, but did not fund, a Tree Assistance Program (TAP) to 
provide payments to eligible tree, bush and vine owners who incurred 
losses due to natural disasters. The statute authorizes payments only 
for eligible owners who actually replant eligible trees, bushes and 
vines and who produce annual crops from trees, bushes or vines for 
commercial purposes. Nursery tree stock and Christmas trees are not 
covered under TAP because annual crops are not produced from nursery 
tree stock and Christmas trees. Instead, nursery tree stock and 
Christmas trees are the crops themselves. The statute also limits 
payments by specifying that qualifying acres for a person may not 
exceed 500 in number for all payments under TAP.
    Despite the lack of funding at the time, FSA published a proposed 
TAP rule on August 11, 2003 (68 FR 47499). The Agency received one 
timely-filed postcard containing one comment. The respondent was of the 
opinion that it would be easy for applicants to receive TAP benefits 
based on fraudulent claims.
    TAP must be implemented as authorized by Congress. The final rule 
sets forth the requirements for, and limitations on, receiving TAP 
benefits. Only applicants with qualifying losses on claims for which 
appropriations have been made will be paid. The amount of compensation 
will be based on actual costs. The agency safeguards are believed to be 
adequate.

Changes From the Proposed Rule

    Several revisions were made for greater clarity or effectiveness. 
The provision in the proposed rule indicating that, in lieu of payments 
in cash, qualifying losses may be compensated using seedlings 
sufficient to reestablish a stand, has been removed. FSA does not have 
seedlings available to be distributed for such a purpose.
    Clarifying changes have been made and greater flexibility has been 
added to the pro-ration provisions of the rule. In the event the total 
amount of claims as submitted exceeds the available funds, payments 
will be prorated. Such payment reductions shall be applied after the 
imposition of applicable per-person payment limitation provisions.
    A provision relating to a gross revenue test has been removed in 
the absence of a specific statutory provision for it. TAP is authorized 
by Title X of the 2002 Act, which does not have such a limit, unlike 
other farm programs

[[Page 9745]]

authorized by Title I of that act, which does have such a limit.
    Delaying this rule would serve no purpose. Accordingly, this rule 
is effective upon publication so that eligible applications may be 
acted upon.

Executive Order 12866

    This rule has been determined to be not significant under Executive 
Order 12866 and has not been reviewed by the Office of Management and 
Budget.

Regulatory Flexibility Act

    The Regulatory Flexibility Act is not applicable to this rule 
because the Farm Service Agency (FSA) is not required by 5 U.S.C. 553 
or any law to publish a notice of proposed rule making for the subject 
matter of this rule.

Environmental Evaluation

    The environmental impacts of this final 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 the FSA 
regulations for compliance with NEPA, 7 CFR parts 799, and 1940, 
subpart G. FSA completed an environmental evaluation and concluded the 
rule requires no further environmental review. 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 12988

    This rule has been reviewed in accordance with Executive Order 
12988. This rule preempts State laws to the extent such laws are 
inconsistent with it. Before judicial action may be brought concerning 
provisions of 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), 
requires Federal agencies to assess the effects of their regulatory 
actions on State, local, and tribal governments or the private sector. 
The rule contains no Federal mandates, as defined by title II of UMRA. 
Thus, this rule is not subject to the requirements of sections 202 and 
205 of UMRA.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995, FSA has 
submitted a request to OMB for the approval of the information 
collections required for the Tree Assistance Program and the 
application necessary for the proper functioning of the program.
    Part 783 is updated accordingly, and changes are made for clarity, 
structure and readability.

List of Subjects in 7 CFR Part 783

    Disaster assistance, Emergency assistance, Reporting and 
recordkeeping requirements.

0
For the reasons set forth in the preamble, 7 CFR part 783 is added as 
follows:

PART 783--TREE ASSISTANCE PROGRAM

Sec.
783.1 Applicability.
783.2 Administration.
783.3 Definitions.
783.4 Eligibility.
783.5 Application.
783.6 Benefits.
783.7 Obligations of a participant.
783.8 Multiple benefits.
783.9 Miscellaneous.

    Authority: 7 U.S.C. 8201 et seq.


Sec.  783.1  Applicability.

    This part governs and provides the requirements and authorities for 
administration of the Tree Assistance Program (TAP) of the Farm Service 
Agency. This program shall operate only to the extent funds are 
appropriated for this program. Payments will be limited to lost 
eligible trees, bushes or vines, and all claims are subject to the 
availability of funds.


Sec.  783.2  Administration.

    (a) The program will be administered under the general supervision 
and direction of the Administrator, Farm Service Agency (FSA), and the 
Deputy Administrator for Farm Programs, FSA. In the field, the 
regulations in this part will be administered by the FSA State and 
county committees.
    (b) State and county committees, and representatives and their 
employees, do not have authority to modify or waive any of the 
provisions of the regulations of this part.
    (c) The State committee shall take any action required by the 
regulations of this part that the county committee has not taken. The 
State committee shall also:
    (1) Correct, or require a county committee to correct any action 
taken by such county committee that is not in accordance with the 
regulations of this part; or
    (2) Require a county committee to withhold taking any action that 
is not in accordance with this part.
    (d) No provision or delegation to a State or county committee shall 
preclude the Deputy Administrator, FSA, or a designee, from determining 
any question arising under the program or from reversing or modifying 
any determination made by a State or county committee.
    (e) The Deputy Administrator may authorize State and county 
committees to waive or modify deadlines, except statutory deadlines, 
and other non-statutory requirements in cases where lateness or failure 
to meet such other requirements does not adversely affect operation of 
the program.
    (f) Data furnished by the applicants will be used to determine 
eligibility for program benefits. Although participation in TAP is 
voluntary, program benefits will not be provided unless the participant 
furnishes all requested data.


Sec.  783.3  Definitions.

    (a) The definitions in part 718 of this chapter apply to TAP except 
when they conflict with paragraph (b) of this section.
    (b) The following definitions apply to TAP:
    Cutting means a vine, which was planted in the ground for 
commercial production of grapes, kiwi fruit, or passion fruit or 
similar fruit as approved by the Deputy Administrator.
    County office means the FSA or USDA Service Center that is 
responsible for servicing the farm on which the trees, bushes or vines 
are located.
    Deputy Administrator means the Deputy Administrator for Farm 
Programs, FSA, or a designee.
    Eligible bush means, a low, branching, woody plant from which an 
annual fruit or vegetable crop is produced for commercial purposes, 
such as a blueberry bush.
    Eligible orchardist means an individual, or legal entity, including 
an Indian tribe as defined under the Indian Self-Determination and 
Education Assistance Act; an Indian organization or entity chartered 
under the Indian Reorganization Act; a tribal organization as defined 
under the Indian Self-Determination Education and Assistance Act; or, 
an economic enterprise as defined under the Indian Financing Act of 
1974, which owns a tree, bush or vine as defined in this part.

[[Page 9746]]

    Eligible tree means, a tall, woody plant having comparatively great 
height, as determined by the Deputy Administrator, and a single trunk 
from which an annual crop is produced for commercial purposes, such as 
maple tree for syrup, papaya tree, or orchard tree. Plantain and banana 
plants are also included. Trees used for pulp or timber are not 
considered eligible trees under this part.
    Eligible vine means a plant with a flexible stem supported by 
climbing, twining, or creeping along a surface and from which an annual 
fruit or vegetable crop is produced for commercial purposes, such as 
grape, kiwi fruit, or passion fruit.
    Individual stand means an area of trees, bushes or vines that are 
tended by an owner as a single operation, whether or not such trees, 
bushes or vines are planted in the same field or similar location. 
Trees, bushes or vines in the same field or similar area may be 
considered separate individual stands if the county committee 
determines that the trees, bushes or vines are susceptible to losses at 
significantly differing levels.
    Lost means with respect to the extent of damage to a tree or other 
plant that the damage is such that it would, as determined by FSA, be 
more economically beneficial to replace the plant rather than to leave 
it in its deteriorated, low producing state.
    Natural disaster means plant disease, insect infestation, drought, 
fire, freeze, flood, earthquake, lightning, or other natural occurrence 
of such magnitude or severity so as to be considered disastrous, as 
determined by FSA.
    Normal mortality means the percentage, as established by the State 
Committee, of lost trees, bushes or vines in the individual stand that 
normally occurs in a 12-month period.
    Program year means a calendar year for which funding is available.
    Seedling means a tree, bush or vine which was planted in the ground 
for commercial purposes.


Sec.  783.4  Eligibility.

    (a) To be considered an eligible loss:
    (1) Eligible trees, bushes or vines must have been located and lost 
as a result of natural disasters determined and announced by FSA as set 
forth in the TAP application.
    (2) The individual stand must have sustained a loss in excess of 15 
percent after adjustment for normal mortality;
    (3) The loss could not have been prevented through reasonable and 
available measures; and
    (4) The tree, bush or vine, in the absence of a qualifying 
disaster, would not normally have been rehabilitated or replanted 
within the 12-month period following the loss.
    (b)(1) The damage must be visible and obvious to the county 
committee except that if the damage is no longer visible, the county 
committee may accept other evidence of the loss as it determines is 
reasonable.
    (2) The county committee may require information from an expert in 
the case of plant disease or insect infestation.
    (c)(1) To be eligible for TAP benefits the eligible orchardist 
must:
    (i) Own the stand on which the claim for benefits is based;
    (ii) Have owned the stand at the time the natural disaster 
occurred;
    (iii) Have continuously owned the stand until the TAP application 
is submitted; and
    (iv) Not exceed or be in violation of any other limitations on 
payments.
    (2) Federal, State, and local governments and agencies and 
political subdivisions thereof are not eligible for benefits under this 
part.
    (d)(1) A new owner of an orchard is allowed to receive TAP benefits 
in an amount not to exceed those approved for the predecessor owner of 
the orchard and not paid to the predecessor owner, if the predecessor 
owner of the orchard agrees to the succession in writing and if the new 
owner:
    (i) Acquires ownership of trees, bushes or vines for which benefits 
have been approved;
    (ii) Agrees to complete all approved practices which the original 
owner has not completed; and
    (iii) Otherwise meets and assumes full responsibility for all 
provisions of this part, including refund of payments made to the 
previous owner, if applicable.
    (2) In the case of death, incompetence or disappearance of an 
eligible orchardist, successors may be eligible to receive TAP payments 
as specified in part 707 of this chapter.


Sec.  783.5  Application.

    (a) A complete application for TAP benefits and related supporting 
documentation must be submitted to the county office prior to the 
deadline FSA announces.
    (b) A complete application includes all of the following:
    (1) A form provided by FSA;
    (2) A written estimate of the number of trees, bushes or vines lost 
or damaged which is prepared by the owner or someone who is a qualified 
expert, as determined by the county committee;
    (3) The number of acres on which the loss was suffered; and
    (4) Sufficient evidence of the loss to allow the county committee 
to calculate whether an eligible loss occurred.
    (c) Before requests will be approved, the county committee:
    (1) Must make recommendations and an eligibility determination 
based on a complete application on those requests that it wants to 
refer to a higher approval official.
    (2) Must verify actual qualifying losses and the number of acres 
involved by on-site visual inspection of the land and trees, bushes or 
vines.
    (3) May request additional information and may consider all 
relevant information in making its determination, including its members 
own knowledge about the applicant's normal operations.


Sec.  783.6  Benefits.

    (a) Subject to the availability of TAP funds, an approved eligible 
orchardist shall be reimbursed in an amount not to exceed 75 percent of 
the eligible costs for the qualifying loss (that loss over and above 
the calculated 15% mortality). The payment shall be the lesser of the 
75% of actual costs for the replanting or the amount calculated using 
rates established by the State committee (not to exceed the maximum 
amount the Deputy Administrator establishes). The costs permitted shall 
only be approved for:
    (1) Seedlings or cuttings, for tree, bush or vine replanting;
    (2) Site preparation and debris handling within normal cultural 
practices for the type of individual stand being re-established and 
necessary to ensure successful plant survival;
    (3) Chemicals and nutrients necessary for successful establishment;
    (4) Labor to plant seedlings or cuttings as determined reasonable 
by the county committee; and
    (5) Labor used to transplant existing seedlings established through 
natural regeneration into a productive tree stand.
    (b) Costs for fencing, irrigation, irrigation equipment, protection 
of seedlings from wildlife, general improvements, re-establishing 
structures, windscreens and other costs as determined by the Deputy 
Administrator are not eligible for reimbursement benefits.
    (c) When lost stands are replanted, the types planted may be 
different than those originally planted if the new types have the same 
general end use, as the county committee determines and approves. 
Payments will be based on the lesser of rates established to plant the 
types actually lost or the cost to establish the alternative used. If 
the species of plantings, seedlings or cuttings differs significantly 
from the species lost then, except as the county

[[Page 9747]]

committee determines, the costs may not be reimbursed.
    (d) Eligible orchardists may elect not to replant the entire 
eligible stand. If so, the county committee shall calculate payment 
based on the number of qualifying trees, bushes or vines actually 
replanted.
    (e) The cumulative total quantity of acres planted to trees, bushes 
or vines for which a person may receive assistance at any time under 
this part shall not exceed 500 acres.
    (f) The cumulative amount of TAP benefits which any person, as 
defined in accordance with part 1400 of this title, may receive under 
this part shall not exceed $75,000.
    (g) In the event the total amount of claims submitted under this 
part during a sign-up period exceeds the applicable funds available for 
such period, such payments shall be reduced by a uniform national 
percentage or by such other method deemed appropriate by the Deputy 
Administrator. Such payment reductions shall be applied after the 
imposition of applicable payment limitation provisions.


Sec.  783.7  Obligations of a participant.

    (a) Eligible orchardists must execute all required documents and 
complete the TAP funded practice within 12 months of application 
approval.
    (b) If a person was erroneously determined to be eligible or 
becomes ineligible for all or part of a TAP benefit, the person and 
successor shall refund any payment paid under this part together with 
interest from the date of disbursement at a rate in accordance with 
part 1403 of this title.
    (c) Participants must allow representatives of FSA to visit the 
site for the purposes of certifying compliance with TAP requirements.


Sec.  783.8  Multiple benefits.

    Persons may not receive or retain payments for production losses 
from trees, vines and bushes under this part if they have been 
compensated under another program for the same loss. However, this 
restriction does not apply to emergency Federal loans or payments 
resulting from purchase of the additional coverage insurance, as 
defined in 7 CFR 400.651. However, in no case shall the total amount 
received from all sources exceed the amount of the owner's actual loss, 
unless the Deputy Administrator shall approve an exemption in writing.


Sec.  783.9  Miscellaneous.

    (a) Any payment or portion thereof due any person under this part 
shall be allowed without regard to questions of title under State law, 
and without regard to any claim or lien in favor of any person except 
agencies of the U.S. Government.
    (b) Persons shall be ineligible to receive or retain assistance 
under this program if they have:
    (1) Adopted any scheme or device intended to defeat the purpose of 
this program;
    (2) Made any fraudulent representation; or
    (3) Misrepresented any fact affecting a program determination.
    (c) TAP benefits paid to a person as a result of misrepresentation 
shall be refunded to FSA with interest and costs of collection. The 
party engaged in acts prohibited by this part and the party receiving 
payment and their successors shall be jointly and severally liable for 
any amount due. The remedies provided to FSA in this part shall be in 
addition to other civil, criminal, or administrative remedies which may 
apply.
    (d) Program documents executed by persons legally authorized to 
represent estates or trusts will be accepted only if such person 
furnishes evidence of the authority to execute such documents.
    (e) A minor who is an owner that has met all other eligibility 
criteria shall be eligible for TAP assistance if:
    (1) The minor establishes that the right of majority has been 
conferred on the minor by court proceedings or by statute; or
    (2) A guardian has been appointed to manage the minor's property 
and the applicable program documents are executed by the guardian; 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.
    (f) The regulations regarding reconsideration's and appeals at part 
11 of this title and part 780 of this chapter apply to this part.

    Signed in Washington DC on February 13, 2004.
Michael W. Yost,
Acting Administrator, Farm Service Agency.
[FR Doc. 04-4524 Filed 3-01-04; 8:45 am]
BILLING CODE 3410-05-P