[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