[Federal Register: July 8, 2003 (Volume 68, Number 130)]
[Proposed Rules]
[Page 40541-40553]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08jy03-16]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 373
9 CFR Part 60
[Docket No. 02-062-1]
RIN 0579-AB50
Cost-Sharing for Animal and Plant Health Emergency Programs
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule.
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SUMMARY: We are proposing new regulations that would establish criteria
to determine the Federal share of financial responsibility relative to
States and other cooperators in an emergency in which an animal or
plant pest or disease threatens the agricultural production of the
United States. The increasing frequency of new pest and disease
incursions, the variation in cost-sharing arrangements among past and
present emergency programs, and constraints on Federal and State
resources necessitate a more consistent and predictable approach to
cost allocation among program participants. The cost-sharing
arrangements provided in this proposed rule would apply to most
emergency program activities, including the payment of compensation,
that are authorized under the Plant Protection Act and the Animal
Health Protection Act. This would include funding provided to respond
to an emergency, as well as funding included in the annual budget
request for ongoing actions previously funded through emergency
authority. The intent of this proposal is to facilitate long-term
resource planning and funding decisions by both the Federal Government
and cooperators. Since infestations can have a national impact, as well
as affect State and local governments, industry, and producers, and
remedial actions will benefit all affected interests, there needs to be
a way to determine the appropriate allocation of responsibility in
combating these infestations. The purpose of this rulemaking is to
describe the criteria that would be used to determine the appropriate
levels of responsibility between the Federal Government and
cooperators.
DATES: We will consider all comments that we receive on or before
September 8, 2003.
ADDRESSES: You may submit comments by postal mail/commercial delivery
or by e-mail. If you use postal mail/commercial delivery, please send
four copies of your comment (an original and three copies) to: Docket
No. 02-062-1, Regulatory Analysis and Development, PPD, APHIS, Station
3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state
that your comment refers to Docket No. 02-062-1. If you use e-mail,
address your comment to regulations@aphis.usda.gov. Your comment must
be contained in the body of your message; do not send attached files.
Please include your name and address in your message and ``Docket No.
02-062-1'' on the subject line.
You may read any comments that we receive on this docket in our
reading room. The reading room is located in room 1141 of the USDA
South Building, 14th Street and Independence Avenue SW., Washington,
DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through
Friday, except holidays. To be sure someone is there to help you,
please call (202) 690-2817 before coming.
APHIS documents published in the Federal Register, and related
information, including the names of organizations and individuals who
have commented on APHIS dockets, are available on the Internet at
http://www.aphis.usda.gov/ppd/rad/webrepor.html.
FOR FURTHER INFORMATION CONTACT: Mr. Kevin Shea, Director, Policy and
Program Development, APHIS, 4700 River Road, Unit 116, Riverdale, MD
20737-1237; (301) 734-5136.
SUPPLEMENTARY INFORMATION:
Background
Emergency Program Authorities and Operations
The Plant Protection Act (7 U.S.C. 7701-7772) and the Animal Health
[[Page 40542]]
Protection Act (7 U.S.C. 8301-8317) assign to the Federal Government
responsibility to prevent the introduction, spread, and establishment
of plant pests, noxious weeds, and pests and diseases of livestock in
the United States.\1\ These Acts authorize the Secretary of Agriculture
(Secretary) to regulate animals and plants, their products, and other
articles in foreign and interstate commerce; to hold, treat, and
destroy such articles; and to cooperate with various entities,
including State and local governments and industry groups
(cooperators), to carry out programs to detect, control, and eradicate
pests and diseases. These Acts also provide the Secretary additional
regulatory and funding authority, including the payment of
compensation, in cases of pest and disease emergencies.
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\1\ The Plant Protection Act and the Animal Health Protection
Act give specific meaning to the terms ``plant pest'' and ``noxious
weed,'' and ``pest'' and ``disease'' of ``livestock.'' In this
Supplementary Information, we frequently use the term ``pests and
diseases'' or ``pests or diseases'' to encompass the terms found in
the Acts.
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The occurrence of pests or diseases that are either foreign to or
not widely prevalent in the United States poses a serious threat to the
health and economic viability of U.S. animal and plant resources. These
outbreaks are generally easier and less costly to control and eradicate
if action is taken immediately following detection. The Animal and
Plant Health Inspection Service (APHIS) of the U.S. Department of
Agriculture (USDA) provides national leadership in implementing the
Secretary's authorities, including emergency authorities, to detect,
control, and eradicate invasive pests and diseases. APHIS frequently
conducts these emergency programs in conjunction with affected States
and other cooperators.
Emergency Program Costs; Recent Trends; Constraints on Federal
Resources
The cost of activities carried out under emergency program
authorities to detect, control, and eradicate pests and diseases
generally has been shared by APHIS and the State(s). These cost-sharing
arrangements may also include industries, organizations, and groups
that benefit from or are affected by these animal and plant protection
activities. The allocation of emergency program costs among APHIS and
other cooperators has varied depending upon the particular pest or
disease, as well as other factors, such as the location of the outbreak
or occurrence. For example, cooperative programs for eradicating fruit
flies have historically operated on an equal cost-sharing basis with
the affected States. In the recent outbreak of plum pox virus, a new
pest in the United States, the State of Pennsylvania assumed a
significant portion of the financial obligation for the operational
program within the State, while APHIS contributed to the financing of
activities to guard against the spread of the pest to other stone fruit
producing States. However, in the case of Asian longhorned beetle
(ALB), APHIS has assumed most of the cost of the operational program.
A close examination of these programs reveals that cost allocations
have been implicitly based on at least three factors: The size of the
outbreak area, the area at risk beyond the initial outbreak, and the
nature of the pest. APHIS' actions to eradicate the plum pox virus and
ALB outbreaks were based on the technical feasibility in carrying out
each action (presented by the small size of the initial outbreak areas)
and the risk of spread to nonaffected areas in the absence of early and
rapid response by the Federal Government. The Federal share of costs
for both pest outbreaks has been greater than the cooperators' share as
the resources at risk in the nonaffected areas were much larger than
those in the affected areas. The nature of the pest is an additional
factor taken into consideration in determining the Federal cost share
level in an emergency program. As a proportion of the total cost, the
Federal share of the plum pox control program is smaller than the
Federal share of the ALB emergency program. This reflects the greater
responsibility of the Federal Government in safeguarding public
resources as the pest in the ALB case largely affects non-commercial,
urban trees and forests.
In recent years, the number of infestations, as well as the average
and total cost of eradication programs to the Federal Government have
increased significantly, as the following Table 1 illustrates:
Table 1.--Emergency Funding Transferred From the Commodity Credit Corporation
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FY 1981-86 FY 1987-92 FY 1993-98 FY 1999-2003
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Total funding ($ in millions)............................ 41 66 136 1,234
Average annual funding ($ in millions)................... 7 11 23 264
No. of pest infestations................................. 3 4 4 19
No. of times annual funding for an infestation was:
$10 million or more.................................. 1 1 5 27
$25 million or more.................................. 0 1 0 14
$50 million or more.................................. 0 0 0 7
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We believe that a better defined, more consistent approach to cost
sharing and the allocation of financial responsibility among the
Federal Government, State(s), and other cooperators would improve
planning and funding decisions in emergency programs. In response to
this need, and as explained in greater detail below, we are proposing
that predetermined cost-sharing percentages apply to certain emergency
program activities.
Emergency Program Activities Subject to Cost-Sharing
There are a number of activities conducted as part of an emergency
program, beginning with the detection of the pest or disease, that we
believe should be subject to a predetermined cost-sharing arrangement.
These would include such activities as:
[sbull] Delimiting surveys and diagnostics.
[sbull] Control or eradication operations (e.g., chemical,
biological, and/or mechanical treatment regimens, including animal,
plant, and product destruction and/or disposal).
[sbull] Research and methods development specific to outbreaks, if
such activities are anticipated to rapidly contribute to the success of
the control or eradication operations.
[sbull] Public information activities specific to outbreaks and
designed to contribute to the success of the control or eradication
operations.
[[Page 40543]]
[sbull] The payment of compensation.
Allocating the financial responsibility among the Federal
government, State(s), and other cooperators would depend on the nature
of the pest or disease, the extent of areas affected by the pest or
disease versus currently nonaffected, but potentially threatened areas,
the amount of time that has elapsed since the commencement of the
emergency program, and the ability of States and local cooperators to
conduct and/or fund the activities, as discussed later.
We believe that the costs for enforcement of regulations on
interstate and intrastate movements in conjunction with specific
emergency programs should be allocated directly to APHIS and the States
as appropriate. We recognize that in practice, however, these
activities may be indistinguishable from one another, and that these
activities could be subject to a predetermined cost-sharing arrangement
on a case-by-case basis. We also recognize that compensation payments
are sometimes used in conjunction with other emergency program
activities (e.g., to encourage expedited reporting of an infestation,
thereby contributing to control or eradication of the pest or disease).
As described in the following section, we invite comments on the
inclusion of the cost of these payments in a predetermined cost-sharing
arrangement.
Compensation
In some emergency programs, compensation payments are made to
producers and other persons for the destruction of animals and
materials affected by pest or disease, or for related cleaning and
disinfection costs. Since the Federal Government and States often share
the payment of these costs, our proposal to establish predetermined
cost-sharing arrangements for emergency programs would also apply to
compensation payments to producers and other affected persons. If the
emergency program includes the payment of compensation, then the cost-
sharing percentage would be applied either to the emergency program
costs in total (including payments of compensation) or to the
compensation and non-compensation components separately, at the
discretion of the Secretary.
By applying the proposed cost-sharing criteria to the payment of
compensation, this proposed rule, if implemented, could affect other
APHIS regulations that cover the payment of compensation and other
emergency program costs for specific animal and plant pests and
diseases. The rule portion of this document does not specify what those
potential changes would be. However, the final rule, if implemented,
would include any necessary changes to other APHIS regulations.
Factors Affecting the Federal Share of Emergency Program Costs
We have identified certain factors that we believe should influence
the relative levels of Federal and cooperator support in emergency
program activities covered by our proposal.
Priority Pests and Diseases
Of particular concern are highly contagious, virulent diseases,
such as foot-and-mouth disease, and other pests or diseases that can
spread rapidly, and quickly affect production, markets, and/or the
environment over a large area. Also of concern are pests or diseases
that, while not contagious (or as contagious), affect human health with
resulting effects on the marketing of agricultural products. Full,
immediate, and sustained application of Federal resources generally is
required to eliminate these pests and diseases or minimize their
effects. Our proposed rule, as discussed below, would refer to these
pests and diseases as ``priority pests and diseases.'' We believe that
the following pests and diseases would likely fall into this category:
[sbull] Foot-and-mouth disease
[sbull] Hog cholera (classical swine fever)
[sbull] Highly pathogenic avian influenza
[sbull] Exotic Newcastle disease
[sbull] Rinderpest
[sbull] African swine fever
[sbull] Contagious bovine pleuropneumonia
[sbull] Lumpy skin disease
[sbull] Bovine spongiform encephalopathy
[sbull] Downy mildew of corn
[sbull] Wheat rust
The Extent of Affected Versus Nonaffected Areas
Pest and disease outbreaks usually (if inspection, monitoring, and
surveillance programs are effective) begin at only one or a few loci.
The Federal government has a statutory responsibility under the Plant
Protection Act and the Animal Health Protection Act to protect
susceptible animal, plant, and environmental resources that are free of
the pest or disease by preventing its interstate spread and taking
actions to eliminate the outbreak. When a pest or disease outbreak
occurs, program specialists conduct assessments of its potential rate
of spread and consequences. We believe that the Federal share of
emergency program costs should be higher in situations where the areas
or resources affected by the pest or disease occurrence are small, but
the nonaffected areas or resources at risk are high. While there are
innumerable such scenarios, we believe that the nonaffected areas or
resources at risk in these situations should be at least 10 times
greater than the affected areas or resources. Nonaffected areas or
resources at risk would include those areas where the pest or disease
could spread within 1 year in the absence of any action to control or
eradicate the pest or disease. For larger outbreaks in which many
States are affected (particularly States with commercial interests) and
participating in the emergency program, the Federal share of program
costs should be lower.
Timing of Emergency Program Operations--Financial Resources of
Cooperators
Long-standing relationships between APHIS and State and industry
cooperators usually enable an effective programmatic response to
serious outbreaks. However, cooperator contributions are frequently in-
kind or intangible, especially in the early stages of a program. States
or other cooperators may lack financial resources of the magnitude
required, or they may lack the capability to quickly access those
resources.
In situations where the success of detection, control, or
eradication operations is especially time sensitive and program
objectives may be achieved in a relatively short period of time,
leading to lower total program costs, we believe that the Federal
government should be prepared to provide more financial support early
in the program to ensure a timely and cost-effective response to a pest
or disease occurrence. We also believe that even in emergency programs
of longer anticipated duration, for reasons stated above, our
cooperators may not be able to provide their full share during the
program's early stages. In these situations, we would expect that
cooperator contributions would increase after the emergency program has
been in operation for several years.
As we have said, we believe that the Federal government has a
responsibility to take leadership in rapidly responding to a pest or
disease occurrence. We are committed to carrying out that
responsibility. We also believe that States and other cooperators have
and should continue to share in that responsibility. In that regard, it
is our desire that our cooperators continue to develop the capacity,
including funding, to be full participants in emergency programs.
We intend to continue to work with our cooperators to develop
emergency response capabilities, including
[[Page 40544]]
commitment and capacity for cost sharing. In recent years, APHIS has
worked with States to develop Standards for State Animal Health
Emergency Management Systems. These standards include a standard
addressing the adequacy of funding mechanisms and the sufficiency of
funding to meet animal health emergency needs. APHIS and the States
should work toward achieving performance goals for the development of
the standards and tie financial support of State involvement in a given
program activity to meeting these goals. We intend to carry out similar
efforts to help strengthen Federal and State plant health emergency
management systems.
Cost-Sharing Percentages
We believe that, as a starting point, the Federal share of covered
emergency program costs should be up to 50 percent. We believe that the
following factors could cause an increase in this percentage:
[sbull] If higher Federal involvement in the early stages of an
emergency program would lead to lower total program costs.
[sbull] If the areas or value of resources at risk (e.g.,
nonaffected areas) are very large compared to the affected area.
[sbull] If a State or other cooperator lacks financial resources.
[sbull] If the emergency involves a priority pest or disease.
We also believe that if the pest or disease directly affects one or
more State commercial interests within the affected area, then the
Federal share would be slightly lower.
Duration of Programs
We propose that Federal funding would continue for no more than 10
years for new emergency programs or 5 years for programs already
underway, unless the Secretary determines that Federal payments for a
longer period are necessary. We would also provide that if the same
pest or disease occurs in a location that is geographically separate
from the original outbreak, or reoccurs in the area of the original
outbreak following a prescribed time period after eradication is
completed, as determined by a USDA scientific assessment, then it could
be considered a new outbreak and subject to new cost-sharing and
program duration requirements.
Proposed Rule
Based on the general principles just discussed, we are proposing
regulations that would establish criteria to determine the Federal
share of emergency program costs relative to States and other
cooperators. The regulations would be in two new parts in the Code of
Federal Regulations (CFR), one part in the plant-related provisions of
title 7, chapter III, and one part in the animal-related provisions of
title 9, chapter I, subchapter B.
The two new parts, ``Cost Sharing for Plant Health Emergency
Programs'' to appear at 7 CFR part 373, and ``Cost Sharing for Animal
Health Emergency Programs'' to appear at 9 CFR part 60, would be
constructed similarly: Each would contain a section that provides
definitions for specific terms used in the part; a section that
authorizes the Administrator of APHIS, USDA (Administrator) to assign
``priority'' status to certain pests and diseases; a section that
provides criteria for determining the Federal share of emergency
program costs; a section on funding shortfalls and other funding
adjustments among cooperating parties; a section on activities not
subject to cost-sharing; and a section that clarifies the authority of
the Secretary to implement agreements with respect to funding
responsibilities of APHIS and other cooperators in carrying out an
emergency program. These two parts are almost identical in structure
and content except that 7 CFR part 373 would cover emergency program
activities carried out under the authority of the Plant Protection Act,
and 9 CFR part 60 would cover emergency program activities carried out
under the authority of the Animal Health Protection Act.
Definitions
Both 7 CFR part 373 and 9 CFR part 60 would begin with a definition
section, Sec. 373.1 and Sec. 60.1, respectively. The terms defined in
each section would be the same: Administrator, commencement of the
emergency program, cooperator(s), emergency program, emergency program
costs, Federal base percentage, OMB, Secretary, and State.
Proposed Sec. Sec. 373.1 and 60.1 would define Administrator as
the Administrator of the Animal and Plant Health Inspection Service,
United States Department of Agriculture, or any person authorized to
act for the Administrator.
In proposed Sec. Sec. 373.1 and 60.1, the term commencement of the
emergency program would refer to the date that the Secretary determines
an emergency exists or the date that emergency funding is approved,
whichever comes first.
In proposed Sec. 373.1, a cooperator(s) would refer to a State or
political subdivision of a State, a domestic organization or
association, or other person who participates in an emergency program
with the Federal government. To parallel the statutory language found
in the Animal Health Protection Act, proposed Sec. 60.1 would vary
slightly from Sec. 373.1 by also referring to Indian tribes.
In proposed Sec. 373.1, an emergency program would refer to those
activities carried out under the authority of the Plant Protection Act
in connection with an emergency, including delimiting surveys; testing
and related diagnostic activities; regulatory enforcement; chemical,
biological, mechanical, and other detection, control, and eradication
activities, including destruction and disposal of plants, plant
products, and other articles; the payment of compensation; and
research, methods development, and public information activities
carried out specifically in connection with an emergency. The proposed
definition of emergency program in Sec. 60.1 would parallel the
proposed definition of emergency program in Sec. 373.1 except that
Sec. 60.1 would refer to the authority of the Animal Health Protection
Act instead of the Plant Protection Act.
Proposed Sec. Sec. 373.1 and 60.1 would define emergency program
costs as financial, personnel, and other resources necessary to carry
out an emergency program, without regard to the entity or individual
that provides the resources or the manner in which they are provided.
Proposed Sec. Sec. 373.1 would define Federal base percentage as
the initial percentage share of emergency program costs the Secretary
is authorized to pay in connection with an emergency involving a plant
pest or noxious weed, while proposed Sec. 60.1 would define the same
term as the initial percentage share of emergency program costs the
Secretary is authorized to pay in connection with an emergency
involving a pest or disease of livestock.
In proposed Sec. Sec. 373.1 and 60.1, OMB would refer to the
Office of Management and Budget of the United States Government.
Proposed Sec. Sec. 373.1 and 60.1 would define State as each of
the States of the United States, the District of Columbia, Puerto Rico,
the Northern Mariana Islands, Guam, the Virgin Islands of the United
States, or any other territory or possession of the United States.
Finally, proposed Sec. Sec. 373.1 and 60.1 would define Secretary
as the Secretary of Agriculture of the United States or any officer or
employee of the United States Department of Agriculture authorized to
act for the Secretary.
Priority Pests and Diseases
In proposed Sec. 373.2, the Administrator would be authorized to
[[Page 40545]]
designate certain plant pests and noxious weeds as priority plant pests
and noxious weeds. In making such a determination, the Administrator
would consider the degree of contagion and the human health and market
effects of the plant pest or noxious weed and other relevant factors.
The Administrator may notify the public from time to time, through
publication of a list in the Federal Register, of the priority plant
pests and noxious weeds. Proposed Sec. 60.2 would contain a similar
provision providing the Administrator with the authority to designate
certain pests and diseases of livestock as priority pests and diseases
of livestock. Assuming the final rule is implemented, we intend to
publish a notice that would list those pests, noxious weeds, and
diseases that we consider to be priority pests and diseases at the time
of publication of the final rule.
Federal Share of Emergency Program Costs
Proposed Sec. Sec. 373.3 and 60.3 would set forth criteria and
cost-sharing percentages that would be used to determine the Federal
share of emergency program costs. Both sections are almost identical in
construction, other than referring to plant pests or noxious weeds (in
the case of proposed Sec. 373.3) or pests or diseases of livestock (in
the case of proposed Sec. 60.3).
Proposed Sec. 373.3(a) would provide that, in connection with an
emergency involving a plant pest or noxious weed and upon agreement of
the States or political subdivisions of States, domestic organizations
or associations, or other persons to participate in an emergency
program, the Secretary would be authorized to pay, subject to the
availability of funding, emergency program costs as provided under
proposed Sec. 373.3(b). Paragraph (a) of Sec. 373.3 would also
provide that such payments could be made for no more than 10 years (or,
for emergency programs currently underway, for no more than 5 years
after the effective date of the final rule), unless the Secretary
determines that payments for a longer period are necessary. However, if
the same pest or disease occurs in a location that is geographically
separate from the original outbreak, or reoccurs in the area of the
original outbreak following a prescribed time period after eradication
is completed, as determined by a USDA scientific assessment, then it
could be considered a new outbreak and subject to new cost-sharing and
program duration requirements. Proposed Sec. 60.3(a) would provide the
same requirements. However, in order to parallel the statutory language
found in the Animal Health Protection Act, Sec. 60.3(a) would vary
slightly from Sec. 373.3(a) by also referring to Indian tribes among
the list of cooperators.
Proposed Sec. Sec. 373.3(b) and 60.3(b) set forth the basic
criteria for determining the Federal share of costs in an emergency
program. In connection with an emergency involving a plant pest or
noxious weed (in the case of proposed 7 CFR part 373), or a pest or
disease of livestock (in the case of proposed 9 CFR part 60), the
Secretary could make payments of Federal funds of up to 50 percent of
emergency program costs. We would refer to this percentage figure as
the ``Federal base percentage.'' Further, the Secretary, in
consultation with the Office of Management and Budget (OMB), could
increase or decrease the Federal share of emergency program costs
relative to the Federal base percentage as follows:
[sbull] Timing of program and its effect on total program costs. If
the Secretary determines that a higher level of Federal involvement in
the early stages of an emergency program would lead to lower total
emergency program costs, then the Secretary, in consultation with OMB,
could increase the Federal share of emergency program costs by up to 30
percent above the Federal base percentage during the first 8 months
after commencement of the emergency program, and could increase the
Federal share of emergency program costs by up to 15 percent above the
Federal base percentage from the ninth month through the 24th month
after commencement of the emergency program.
[sbull] The extent of affected versus nonaffected areas. If the
Secretary determines that the area or value of resources at risk in the
United States is at least 10 times greater than the area or value of
resources covered by the emergency program, then the Secretary, in
consultation with OMB, could increase the Federal share of emergency
program costs by up to 20 percent above the Federal base percentage.
The area or value of resources at risk in the United States would
include those areas where the pest or disease could spread within 1
year in the absence of any action to control or eradicate the pest or
disease. We invite comment on the criteria that would be used in making
such a determination.
[sbull] Lack of financial resources. If the Secretary determines
that a State or other cooperator lacks the financial resources required
to cover its share of emergency program costs, or lacks the capability
to quickly access those resources, then the Secretary, in consultation
with OMB, could increase the Federal share of emergency program costs
by up to 10 percent above the Federal base percentage during the first
24 months after commencement of the emergency program. In order to
qualify for this additional Federal funding, the cooperator would have
to demonstrate either that a funding body, such as the State
legislature, was unable to meet in time to provide the necessary
resources, or that the affected State or local area was experiencing a
significant and unexpected reduction in resources. We invite comment on
the proposed criteria for determining a cooperator's lack of financial
resources, as well as the need for and effect of limiting this higher
Federal share in the case of a priority pest or disease to the first 24
months of the emergency program.
[sbull] Commercial interest. If the Secretary determines that the
pest or disease directly affects one or more State commercial interests
within the area covered by the emergency program, then the Secretary,
in consultation with OMB, could reduce the Federal share of emergency
program costs by up to 3 percent under the Federal base percentage.
[sbull] Priority pests and diseases. If the emergency involves a
priority plant pest or noxious weed (in the case of proposed 7 CFR part
373) or a priority pest or disease of livestock (in the case of
proposed 9 CFR part 60), then the Secretary, in consultation with OMB,
could pay up to 100 percent of the total emergency program costs
authorized under proposed part 373 or proposed part 60 during the first
24 months after commencement of the emergency program. We invite
comment on the need for and effect of limiting this higher Federal
share in the case of a priority pest or disease to the first 24 months
of the emergency program.
[sbull] Certain emergency program activities. We believe that
particular emergency situations may necessitate deviation from the
cost-sharing percentages just discussed, either for an entire emergency
program or for particular activities of an emergency program.
Therefore, we are proposing that the Secretary may determine, in
consultation with OMB and the cooperating entities, that an emergency
program or certain activities within that emergency program be excluded
from the percentage calculations provided under proposed Sec. Sec.
373.3(b) and 60.3(b) or, alternatively, be subject to a different
Federal share of emergency program costs. We expect that such authority
would be exercised infrequently.
[sbull] Percentages are cumulative. Any applicable percentage
changes to the Federal share of emergency program
[[Page 40546]]
costs, as just discussed, would be cumulative, but could not exceed 100
percent of total emergency program costs authorized under proposed 7
CFR part 373 or proposed 9 CFR part 60.
[sbull] Payment of compensation. If the emergency program includes
the payment of compensation, then the cost-sharing percentage would be
applied either to the emergency program costs in total (including
payments of compensation) or to the compensation and non-compensation
components separately, at the discretion of the Secretary.
The funding percentages provided in proposed Sec. Sec. 373.3 and
60.3 would serve as guidelines for the Federal government, States, and
other cooperator participants to facilitate long-term cooperator
resource planning and funding decisions, and may vary slightly in
actual application. The Federal share percentages would not be
dependent on the source of funds (e.g., transfers from the Commodity
Credit Corporation, annual appropriations, user fees). Traditionally,
however, the source of Federal funds in the event of an emergency is
the Commodity Credit Corporation.
Proposed Sec. Sec. 373.3(c) and 60.3(c) would provide that the
Federal share of emergency program costs, as determined under proposed
Sec. Sec. 373.3(b) and 60.3(b), would be subject to periodic review by
the Secretary, in consultation with OMB, as conditions warrant.
We recognize the uncertainties inherent in formulating the specific
percentages and thresholds in our proposed cost-sharing arrangements,
and we invite comment and suggestions on alternatives to those proposed
here. We also recognize that implementing predetermined cost-sharing
arrangements such as we are proposing is a complex undertaking,
involving many entities and a variety of legal authorities and
organizational capabilities. We solicit your comments on the length of
time necessary to implement these arrangements. We anticipate that a
minimum of 60 days would be necessary to implement these arrangements
once the applicable requirements are published as a final rule.
Shortfalls in Obligations and Other Funding Adjustments
Proposed Sec. Sec. 373.4 and 60.4 would provide that the cost
allocation assigned to the Federal government and each cooperator would
be based on cumulative funding over the duration of the emergency
program. Should the Federal government or any cooperator fail to
provide adequate program funding to meet their funding obligation for a
given year, then such funding shortfall would have to be made up prior
to the end of the emergency program. Similarly, should the shortfall in
funding by the Federal government or any cooperator require other
parties to provide funding that exceeds their obligation in any given
year, then those parties making excess payments in one year would have
the latitude to reduce their payments in subsequent years in an amount
that equals the amount of excess payment.
Proposed Sec. Sec. 373.4 and 60.4 would also provide that, to the
extent that actual funding levels change, the difference (plus or
minus) would be applied to the calculation of cumulative funding as
soon as practicable. In addition, if approved by APHIS in consultation
with cooperators, any in-kind payment (i.e., in the form of services,
equipment, etc.) provided by a cooperator could be counted towards
their funding obligation if the in-kind payment represents an expense
that is not a normal program cost to the cooperator and directly
affects emergency program objectives.
Activities Not Subject to Cost Sharing
Under proposed Sec. Sec. 373.5 and 60.5, certain activities
conducted by APHIS and other Federal entities that relate to the
control and eradication of pests and diseases would not be subject to
the cost-sharing requirements in this proposal. Specifically, the
Federal government would provide full funding and cost-sharing criteria
would not apply to control and eradication activities that do not
directly affect the targeted area, pest, or disease that is the focus
of the emergency program. For example, this would include national
surveys and diagnostics; research not specific to the outbreak; public
awareness not related to the outbreak; control and eradication programs
in other countries; preclearance of passengers, cargo and means of
conveyance; and port-of-entry inspection of passengers, cargo and means
of conveyance.
Implementing Agreements
As discussed previously under proposed Sec. Sec. 373.3(a) and
60.3(a), the payment of Federal funds by the Secretary for emergency
program costs would depend, in part, upon the ``agreement'' of the
States or other cooperators to participate in the emergency program.
Proposed Sec. Sec. 373.6 and 60.6 would provide that the Secretary
may, as a condition of providing the Federal funding pursuant to
proposed Sec. 373.3 (in the case of emergencies involving plant pests
and noxious weeds) or Sec. 60.3 (in the case of emergencies involving
pests and diseases of livestock), enter into agreements with
cooperating entities. Such agreements would cover the particular
responsibilities of the cooperating parties, including funding
obligations, in conducting the emergency program.
Executive Order 12866 and Regulatory Flexibility Act
This proposed rule has been reviewed under Executive Order 12866.
The rule has been determined to be significant for purposes of
Executive Order 12866 and, therefore, has been reviewed by OMB.
Below is an economic analysis for the proposed rule that would
establish criteria for determining the share of financial
responsibility of the Federal government, States, and other cooperators
should an outbreak of an animal or plant pest or disease occur in the
United States. The economic analysis provides a cost-benefit analysis
as required by Executive Order 12866, as well as an analysis of the
potential economic effects of this proposed rule on small entities, as
required by the Regulatory Flexibility Act.
Under the Plant Protection Act (7 U.S.C. 7701-7772) and the Animal
Health Protection Act (7 U.S.C. 8301-8317), the Secretary of
Agriculture is authorized to regulate plants and animals, their
products, and other articles in foreign and interstate commerce; to
hold, treat, and destroy such articles; and to cooperate with various
entities, including State and local governments and industry groups
(cooperators), to carry out programs to detect, control, and eradicate
plant pests, noxious weeds, and pests and diseases of livestock. These
Acts also provide the Secretary additional regulatory and funding
authority, including the payment of compensation, in cases of pest and
disease emergencies.
Economic Analysis
The Federal Government, primarily through APHIS, has the statutory
responsibility to prevent the introduction, spread and establishment of
pests or diseases of plants and animals in the United States. APHIS
frequently conducts prevention, detection, control and eradication
programs in conjunction with State counterparts. In a cooperative
arrangement, the program funding is generally shared by APHIS and the
State, where each party is financially responsible for a portion of the
program
[[Page 40547]]
costs. The funding allocations in these arrangements have varied
depending upon the specific pest or disease and its location. There
appears to be a lack of consistent basis for determining how the
financial responsibility between the Federal Government and its
cooperator is allocated. This has raised questions regarding the
appropriate Federal role in light of the large increase in emergency
funding transfers by APHIS over the past few years.
This proposed rule sets forth specific cost-sharing percentages to
apply to certain emergency program activities, including the payment of
compensation. Greater certainty about cost-sharing would facilitate
improved planning and funding decisions by the Federal government and
its cooperators regarding future plant and animal pest and disease
emergency programs.
Need for Regulation
The public good aspect of pest and disease management suggests that
prevention, detection, control, and eradication programs are most
effectively delivered under governmental guidance. These governmental
actions confer direct benefits to affected entities and the public at
large. Without such actions by the Federal Government, States, and
other cooperators, it is unlikely that affected individuals could or
would take sufficient actions to prevent the establishment and spread
of exotic pests and diseases of plants and livestock.
Some animal pests and diseases threaten not only livestock but also
wildlife populations that inhabit public land. Certain animal pests and
diseases may also be transmitted to humans. Because of the interstate
movement of livestock and poultry through marketing and distribution
channels, animal pests and diseases are further able to spread rapidly
beyond a localized area. Rapid response by the Federal Government,
States, and other cooperators at the first sign of a pest or disease
outbreak is critical to prevent widespread losses. Greater funding
certainty would be one way to enhance the timeliness and effectiveness
of responses to pest or disease outbreaks.
APHIS, from its inception over 30 years ago, has participated in a
variety of emergency programs with cooperators to detect, control, and
eradicate pests and diseases of plants and animals. In the early 1990s,
emergency programs involving new pest and disease outbreaks were
largely associated with fruit fly incursions. When a pest was
introduced into the United States on several occasions in the same
geographical locations, such as Mediterranean fruit fly (Medfly) in
Florida and California, Federal and State roles became more defined
with each reintroduction. Memoranda-of-understanding as well as work
plans and cost-sharing formulas were agreed upon on an annual basis.
However, since the mid-1990's, there has been a dramatic increase in
the number of new pest and disease occurrences beginning with the
discovery of Karnal bunt in 1995. The cost to the Federal government
has correspondingly risen as it responds to these emergency outbreaks.
Given today's highly mobile environment and global agricultural
economy, the threat to U.S. agricultural and nonagricultural resources
from new pest and disease incursions is ever present. The need for a
more consistent and predictable cost allocation approach among program
participants is warranted in a world of constrained resources.
Recent occurrences of the highly contagious foot-and-mouth (FMD)
disease in the United Kingdom and other countries demonstrate the need
for advanced planning to minimize delays in eradicating an outbreak of
serious livestock diseases such as FMD. The specific cost-sharing
percentages between the Federal government and its cooperators as set
forth in this proposed rule would eliminate uncertainty in program
funding allocations, which could delay eradication activities. The
fixed-formula approach to cost-sharing as set forth in this proposed
rule would make resource planning decisions simpler for all parties and
lessen the chances for delays in eradication.
Economic Impact
The intent of the proposed rule is to lessen funding uncertainties
in conducting emergency programs. An examination of the funding of past
emergency programs reveals that cost allocations have often been based
implicitly on three factors: The size of the outbreak, the area at risk
beyond the initial outbreak, and the commercial interest at stake. The
specific percentages for cost sharing as provided for in this proposed
rule incorporate these implicit elements. Particular pest or disease
outbreaks may necessitate deviations from these percentages. As
compared to the current flexible cost arrangement, some redistribution
of costs among cooperators may occur due to the greater specificity in
cost-sharing percentages. The most significant change in this proposed
rule would be the provision that stipulates that the amount of Federal
contribution should be based on a specified duration of an infestation
or disease occurrence. The Federal government would be less obligated
financially for emergency programs that are extended in time.
This proposed rule specifies a base Federal share of up to 50
percent (i.e., Federal base percentage). If the funding is for an
emergency situation which has occurred within the previous 8 months, an
additional allotment of up to 30 percent could be added to the Federal
base percentage. For emergency programs that are 9 months to 2 years in
duration, the Federal contribution could be increased by up to 15
percent above the Federal base percentage. A deduction of up to 3
percent could be applied in situations where the pest or disease
affects one or more commercial interests within an area covered by the
emergency program.
Pest and disease outbreaks may occur in States that lack the
resources or the incentive to make large expenditures. Further
consideration may be given to States that are financially unable to
contribute. In such cases, the Federal share may increase by up to 10
percent. Up to 20 percent could also be allotted by the Federal
government in situations where the pest or disease threat outside the
outbreak area may be significant. Such was the case with the recent
outbreak of the Asian longhorned beetle, which affected urban trees in
New York and Illinois. Should this pest spread to forest trees in the
affected States and beyond, the impact could be economically and
environmentally devastating.
The application of the cost-sharing percentages as specified in
this proposed rule is anticipated to increase the costs to the Federal
government in the first 2 years of a pest or disease outbreak because
of the Federal additional share (i.e., up to 30 percent and 15 percent)
paid, but may lower costs in subsequent years. Table 2 shows that in FY
1999, APHIS spent about $46 million in emergency funds for three pest
outbreaks that would have been subject to the cost-sharing provisions
as proposed in this rule. The actual Federal share comprised 55 percent
of total program costs. Cooperators contributed the remaining 45
percent of overall program costs ($37 million). Due to the detection of
citrus canker in the previous year, under the proposed rule, the
Federal cost share in FY 1999 would have been slightly higher by 2
percent. For FY 2000, the overall Federal contribution to emergency
programs, if allocated according to the criteria specified in this
proposed rule, would have been lower by nearly $12 million, and the
Federal cost-share would have fallen by about 5 percent. In FY 2001,
the cost savings
[[Page 40548]]
would have been larger. Applying the Federal cost-share rate according
to the criteria specified in the proposed rule would have saved about
$64 million in FY 2001, lowering the overall Federal share from 78
percent (the actual cost share percentage in that year) to 58 percent.
The adoption of the proposed rule is anticipated to yield savings
to the Federal Government in future years largely due to the limits
placed on Federal financial contributions to long-term emergency
programs, especially those involving commodities with commercial
interests. As an emergency situation dissipates, a greater share of the
funding of these extended programs should appropriately be assumed by
the affected States and other cooperators who, with time, would be in a
better position to obtain the necessary resources to address a long-
term pest or disease situation.
Additionally, the increased program effectiveness that is expected
to result from more reliable State participation and funding certainty
would yield economic and environmental benefits over the long run.
These gains are expected to balance the costs to State cooperators from
redistribution.
Table 2.--Distribution of the Federal Share in Emergency Programs, Actual and Under Proposed Rule
($ millions) \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Actual federal share Federal
---------------------------------------- Actual non- Total Proposed share Savings
Program Federal program Federal under under
Operations Compensation Total share cost percentage proposed proposed
share rule rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
FY 1999
--------------------------------------------------------------------------------------------------------------------------------------------------------
ALB 2, 3............................................. 9,010 0 9,010 2,572 11,582 75 8,687 324
Citrus canker........................................ 25,000 0 25,000 22,441 47,441 57 27,041 -2,041
Medfly............................................... 11,935 0 11,935 12,353 24,288 47 11,415 520
--------------
Total............................................ 45,945 0 45,945 37,366 83,311 ........... 47,143 -1,198
% of total........................................... ........... .............. 55% ........... ......... ........... 57% .........
------------------------------------------------------
FY 2000
--------------------------------------------------------------------------------------------------------------------------------------------------------
ALB 2, 3............................................. 16,180 0 16,180 1,555 17,735 60 10,641 5,539
Belgian sheep........................................ 1,400 700 2,100 0 2,100 77 1,617 483
Citrus canker........................................ 81,821 9,000 90,821 53,981 144,739 57 82,501 8,320
Pierce's disease..................................... 22,289 0 22,289 32,423 54,712 62 33,921 -11,632
Plum pox virus....................................... 3,653 13,200 16,853 6,800 23,653 62 14,665 2,188
Scrapie 3............................................ 11,791 1,200 12,991 0 12,991 47 6,106 6,885
--------------
Total............................................ 137,134 24,100 161,234 94,696 255,930 ........... 149,451 11,783
% of total........................................... ........... .............. 63% ........... ......... ........... 58% .........
------------------------------------------------------
FY 2001
--------------------------------------------------------------------------------------------------------------------------------------------------------
ALB 2, 3............................................. 51,698 0 51,698 2,654 54,352 60 32,611 19,087
Belgian sheep........................................ 1,578 0 1,578 0 1,578 62 978 600
Bovine TB 4.......................................... 14,524 45,600 60,124 10,400 70,524 47 33,146 26,978
Citrus canker........................................ 59,574 57,872 117,446 41,235 158,681 62 98,382 19,064
Chronic wasting disease.............................. 701 1,950 2,651 2,200 4,851 72 3,493 -842
Karnal bunt.......................................... 1,223 6,100 7,323 2,000 9,323 47 4,382 2,941
Plum pox virus....................................... 2,112 0 2,112 2,500 4,612 62 2,859 -747
Rabies............................................... 4,200 0 4,200 8,886 13,086 52 6,805 -2,605
--------------
Total............................................ 135,610 111,522 247,132 69,875 317,007 ........... 182,657 64,475
% of total........................................... ........... .............. 78% ........... ......... ........... 58% .........
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Unless otherwise indicated, Federal expenditures for emergency programs are based on transfer funds from the CCC. These figures represent funds
available for use in a fiscal year.
\2\ ALB = Asian longhorned beetle.
\3\ The actual Federal share included funds from CCC transfers and agency-level appropriated funds available for emergency activities.
\4\ TB = Tuberculosis.
Economic Effects on Small Entities
The Regulatory Flexibility Act requires that agencies specifically
consider the economic effect of their rules on small entities. The
Small Business Administration (SBA) has established guidelines for
determining when establishments are to be considered small under the
Act. This proposed rule is not expected to directly affect commercial
entities as defined by the SBA.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action would
not have a significant impact on a substantial number of small
entities.
Executive Order 12372
This program/activity is listed in the Catalog of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials. (See 7 CFR part 3015, subpart V.)
Executive Order 12988
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. If this proposed rule is adopted: (1) All State
and local laws and regulations that are inconsistent with
[[Page 40549]]
this rule will be preempted; (2) no retroactive effect will be given to
this rule; and (3) administrative proceedings will not be required
before parties may file suit in court challenging this rule.
Executive Order 13132
We have reviewed this proposed rule under Executive Order 13132 and
determined that it does not have sufficient federalism implications to
warrant the preparation of a federalism assessment. The provisions
contained in this proposed rule would not have a substantial direct
effect on States or their political subdivisions, or on the
distribution of power and responsibilities among the various levels of
government.
The Administrator has examined the federalism implications of the
requirements in this proposal, i.e., criteria for determining the
Federal share of emergency program costs relative to States and other
cooperators in the event of animal or plant pest or disease outbreak in
the United States. The Administrator believes that this action adheres
to Constitutional principles for the exercise of Federal power and is
clearly authorized by statutory authorities delegated to APHIS.
This proposed action focuses primarily on the criteria and cost-
sharing percentages that would be used to determine the Federal share
of emergency program costs. The proposed rule does not absolutely
impose any new compliance costs on States or local governments or
require that States or local governments incur new costs in support of
emergency programs to prevent, detect, control, or eradicate disease.
APHIS already conducts cooperative control and eradication programs
in conjunction with State counterparts and other cooperators. In a
cooperative arrangement, program funding is generally shared by APHIS
and the State, with each party being financially responsible for a
portion of the program costs. The cost-sharing arrangements generally
have been the result of case-by-case negotiations between APHIS and
cooperators. The funding allocations in these arrangements have varied
depending on the specific pest or disease and its location. We believe
that establishing criteria, including predetermined percentages of the
Federal share of program costs, will foster greater certainty about
emergency program cost sharing and facilitate improved planning and
funding decisions by the Federal government and its cooperators.
State and local governments have the opportunity to comment on this
proposed rule, and we encourage them to submit comments on federalism
concerns or any other issues.
Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, tribal
governments, and the private sector. Under section 202 of the UMRA,
APHIS generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures by State, local, or tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any one year. When such a statement is needed for a
rule, section 205 of the UMRA generally requires APHIS to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, more cost-effective, or least burdensome alternative that
achieves the objectives of the rule.
We do not expect, based on historical data, that this proposed rule
would contain Federal mandates (under the regulatory provisions of
Title II of the UMRA) that may result in new expenditures by State,
local, and tribal governments, in the aggregate, or by the private
sector, of $100 million or more in any one year. Thus, this proposed
rule is not subject to the requirements of sections 202 and 205 of the
UMRA.
Paperwork Reduction Act
In accordance with section 3507(d) of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the information collection or
recordkeeping requirements included in this proposed rule have been
submitted for approval to the Office of Management and Budget (OMB).
Please send written comments to the Office of Information and
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington,
DC 20503. Please state that your comments refer to Docket No. 02-062-1.
Please send a copy of your comments to: (1) Docket No. 02-062-1,
Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700
River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance
Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue
SW., Washington, DC 20250. A comment to OMB is best assured of having
its full effect if OMB receives it within 30 days of publication of
this proposed rule.
The Secretary of Agriculture may, as a condition of providing
Federal funding under proposed 7 CFR part 373 and proposed 9 CFR part
60, enter into agreements with States and other cooperating entities.
Such agreements would specify the particular responsibilities,
including funding obligations, of the Federal Government and
cooperators in conducting the emergency program. Such agreements also
could impose other information collection and recordkeeping
requirements on affected States or other cooperating entities. We are
therefore asking OMB to approve, for 3 years, our use of this
information collection.
We are soliciting comments from the public (as well as affected
agencies) concerning our proposed information collection and
recordkeeping requirements. These comments will help us:
(1) Evaluate whether the proposed information collection is
necessary for the proper performance of our agency's functions,
including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the
proposed information collection, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the information collection on those who
are to respond (such as through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology; e.g., permitting electronic
submission of responses).
Note: Our estimate below shows a minimal burden of 1 hour total
because the need for States or other cooperating entities to enter
into such agreements, as described above, would be at the
Secretary's discretion. Further, the scope and nature of the
potential information collection or recordkeeping burden, if any,
would depend on the particular agreement. Therefore, we currently
are not collecting information until the Secretary enters into such
agreements with cooperators. At that time, we will describe any
specific burden, as well as the estimated number of respondents and
estimated burden accordingly based on the number of expected
respondents.
Estimate of burden: Public reporting burden for this collection of
information is estimated to average 1.0 hour per response.
Respondents: States and other cooperating entities who enter into
agreements with the Secretary of Agriculture in connection with an
emergency program involving a plant
[[Page 40550]]
pest or noxious weed or a pest or disease of livestock.
Estimated annual number of respondents: 1.
Estimated annual number of responses per respondent: 1.
Estimated annual number of responses: 1.
Estimated total annual burden on respondents: 1 hour.
Copies of this information collection can be obtained from Mrs.
Celeste Sickles, APHIS' Information Collection Coordinator, at (301)
734-7477.
Government Paperwork Elimination Act Compliance
The Animal and Plant Health Inspection Service is committed to
compliance with the Government Paperwork Elimination Act (GPEA), which
requires Government agencies in general to provide the public the
option of submitting information or transacting business electronically
to the maximum extent possible. For information pertinent to GPEA
compliance related to this proposed rule, please contact Mrs. Celeste
Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.
List of Subjects
7 CFR Part 373
Indemnity payments, Plant diseases and pests, Plant products,
Plants (Agriculture).
9 CFR Part 60
Animal diseases and pests, Indemnity payments, Livestock, Poultry
and poultry products.
Accordingly, we propose to amend 7 CFR chapter III by adding a new
part 373, and to amend 9 CFR chapter I, subchapter B, by adding a new
part 60 to read as follows:
PART 373--COST SHARING FOR PLANT HEALTH EMERGENCY PROGRAMS
Sec.
373.1 Definitions.
373.2 Priority plant pests and noxious weeds.
373.3 Federal share of emergency program costs.
373.4 Shortfall in obligations and other funding adjustments.
373.5 Activities not subject to cost sharing.
373.6 Implementing agreements.
Authority: 7 U.S.C. 7701-7772; 7 CFR 2.22, 2.80, and 371.3.
Sec. 373.1 Definitions.
Administrator. The Administrator of the Animal and Plant Health
Inspection Service, United States Department of Agriculture, or any
person authorized to act for the Administrator.
Commencement of the emergency program. The date that the Secretary
determines an emergency exists or the date that emergency funding is
approved, whichever comes first.
Cooperator(s). A State or political subdivision of a State, a
domestic organization or association, or other person who participates
in an emergency program with the Federal Government.
Emergency program. Activities carried out under the authority of
the Plant Protection Act (7 U.S.C. 7701-7772) in connection with an
emergency, including delimiting surveys; testing and related diagnostic
activities; regulatory enforcement; chemical, biological, mechanical,
and other detection, control, and eradication activities, including
destruction and disposal of plants, plant products, and other articles;
the payment of compensation; and research, methods development, and
public information activities carried out specifically in connection
with an emergency.
Emergency program costs. Financial, personnel, and other resources
necessary to carry out an emergency program, without regard to the
entity or individual that provides the resources or the manner in which
they are provided.
Federal base percentage. The initial percentage share of emergency
program costs the Secretary is authorized to pay in connection with an
emergency involving a plant pest or noxious weed.
OMB. The Office of Management and Budget of the United States
Government.
Secretary. The Secretary of Agriculture of the United States or any
officer or employee of the United States Department of Agriculture
authorized to act for the Secretary.
State. Each of the States of the United States, the District of
Columbia, Puerto Rico, the Northern Mariana Islands, Guam, the Virgin
Islands of the United States, or any other territory or possession of
the United States.
Sec. 373.2 Priority plant pests and noxious weeds.
The Administrator may identify certain plant pests and noxious
weeds as priority plant pests and noxious weeds. In making such an
identification, the Administrator shall consider the degree of
contagion and the human health and market effects of the plant pest or
noxious weed and other relevant factors. The Administrator may notify
the public from time to time, through publication of a list in the
Federal Register, of the priority plant pests and noxious weeds.
Sec. 373.3 Federal share of emergency program costs.
(a) General. In connection with an emergency involving a plant pest
or noxious weed and upon agreement of the States or political
subdivisions of States, domestic organizations or associations, or
other persons to participate in an emergency program, the Secretary may
pay, subject to the availability of funding, emergency program costs as
provided in paragraph (b) of this section. Unless the Secretary
determines that payments for a longer period are necessary, such
payments may be made for no more than 10 years for any emergency
program, or, for emergency programs begun prior to [effective date of
final rule], for no more than 5 years after that date. However, if the
same plant pest or noxious weed occurs in a location that is
geographically separate from the original outbreak, or reoccurs in the
area of the original outbreak following a prescribed time period after
eradication is completed, as determined by a USDA scientific
assessment, then it could be considered a new outbreak and subject to
new cost-sharing and program duration requirements.
(b) Determining Federal share of costs. In connection with an
emergency involving a plant pest or noxious weed, the Secretary may
make payments of Federal funds of up to 50 percent (i.e., Federal base
percentage) of emergency program costs. Further, the Secretary, in
consultation with OMB, may increase or decrease the Federal share of
emergency program costs relative to the Federal base percentage as
follows:
(1) Timing of program and its effect on total program costs. If the
Secretary determines that a higher level of Federal involvement in the
early stages of an emergency program would lead to lower total
emergency program costs, then the Secretary, in consultation with OMB,
may increase the Federal share of emergency program costs by up to 30
percent above the Federal base percentage during the first 8 months
after commencement of the emergency program, and may increase the
Federal share of emergency program costs by up to 15 percent above the
Federal base percentage from the ninth month through the 24th month
after commencement of the emergency program.
(2) The extent of affected versus nonaffected areas. If the
Secretary determines that the area or value of resources at risk in the
United States is at least 10 times greater than the area or
[[Page 40551]]
value of resources covered by the emergency program, then the
Secretary, in consultation with OMB, may increase the Federal share of
emergency program costs by up to 20 percent above the Federal base
percentage. The area or value of resources at risk in the United States
includes those areas where the plant pest or noxious weed could spread
within 1 year in the absence of any action to control or eradicate the
pest or disease.
(3) Lack of financial resources. If the Secretary determines that a
State or other cooperator lacks the financial resources required to
cover its share of emergency program costs, or lacks the capability to
quickly access those resources, then the Secretary, in consultation
with OMB, may increase the Federal share of emergency program costs by
up to 10 percent above the Federal base percentage during the first 24
months after commencement of the emergency program. To qualify for this
additional Federal funding, the cooperator must demonstrate either that
a funding body, such as the State legislature, is unable to meet in
time to provide the necessary resources, or that the affected State or
local area is experiencing a significant and unexpected reduction in
resources.
(4) Commercial interest. If the Secretary determines that the plant
pest or noxious weed directly affects one or more State commercial
interests within the area covered by the emergency program, then the
Secretary, in consultation with OMB, may reduce the Federal share of
emergency program costs by up to 3 percent under the Federal base
percentage.
(5) Priority plant pests and noxious weeds. If the emergency
involves a priority plant pest or noxious weed, as provided in Sec.
373.2 of this part, then the Secretary, in consultation with OMB, may
pay up to 100 percent of the total emergency program costs authorized
under this part during the first 24 months after commencement of the
emergency program.
(6) Certain emergency program activities. The Secretary may
determine, in consultation with OMB and the cooperating entities listed
in paragraph (a) of this section, that an emergency program or certain
activities within that emergency program be excluded from the
percentage calculations provided in this paragraph, or, alternatively,
be subject to a different Federal share of emergency program costs.
(7) Percentages are cumulative. Any applicable percentage changes
to the Federal share of emergency program costs, as provided in
paragraphs (b)(1) through (b)(6) of this section may be cumulative, but
may not exceed 100 percent of total emergency program costs authorized
under this part.
(8) Payment of compensation. If the emergency program includes the
payment of compensation, then the cost-sharing percentage will be
applied either to the emergency program costs in total (including
payments of compensation) or to the compensation and non-compensation
components separately, at the discretion of the Secretary.
(c) Periodic review. The Federal share of emergency program costs,
as determined under paragraph (b) of this section, is subject to
periodic review by the Secretary, in consultation with OMB, as
conditions warrant.
Sec. 373.4 Shortfall in obligations and other funding adjustments.
(a) The cost allocation assigned to the Federal Government and each
cooperator is to be based on cumulative funding over the duration of
the emergency program. Should the Federal Government or any cooperator
fail to provide adequate program funding to meet their funding
obligation for a given year, then such funding shortfall must be made
up prior to the end of the emergency program. Similarly, should the
shortfall in funding by one or more parties require other parties to
provide funding that exceeds their obligation in any given year, then
those parties making excess payments in one year will have the latitude
to reduce their payments in subsequent years in an amount that equals
the amount of excess payment.
(b) To the extent that actual funding levels change, the difference
(plus or minus) is to be applied to the calculation of cumulative
funding as soon as practicable. In addition, if approved by APHIS in
consultation with cooperators, any in-kind payment (i.e., in the form
of services, equipment, etc.) provided by a cooperator will be counted
towards their funding obligation if the in-kind payment represents an
expense that is not a normal program cost to the cooperator and
directly affects emergency program objectives.
Sec. 373.5 Activities not subject to cost sharing.
The Federal Government will provide full funding and cost-sharing
criteria will not apply to control and eradication activities that do
not directly affect the targeted area, pest, or disease that is the
focus of the emergency program. This would include, for example,
national surveys and diagnostics; research not specific to the
outbreak; public awareness not related to the outbreak; control and
eradication programs in other countries; preclearance of passengers,
cargo and means of conveyance; and port-of-entry inspection of
passengers, cargo and means of conveyance.
Sec. 373.6 Implementing agreements.
The Secretary may, as a condition of providing the Federal funding
pursuant to Sec. 373.3, enter into agreements with cooperating
entities. Such agreements will specify the particular responsibilities,
including funding responsibilities, of the Federal Government and
cooperators in conducting the emergency program.
PART 60--COST SHARING FOR ANIMAL HEALTH EMERGENCY PROGRAMS
Sec.
60.1 Definitions.
60.2 Priority pests and diseases of livestock.
60.3 Federal share of emergency program costs.
60.4 Shortfall in obligations and other funding adjustments.
60.5 Activities not subject to cost sharing.
60.6 Implementing agreements.
Authority: 7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.
Sec. 60.1 Definitions.
Administrator. The Administrator of the Animal and Plant Health
Inspection Service, United States Department of Agriculture, or any
person authorized to act for the Administrator.
Commencement of the emergency program. The date that the Secretary
determines an emergency exists or the date that emergency funding is
approved, whichever comes first.
Cooperator(s). A State or political subdivision of a State, a
domestic organization or association, Indian tribe, or other person who
participates in an emergency program with the Federal Government.
Emergency program. Activities carried out under the authority of
the Animal Health Protection Act in connection with an emergency,
including delimiting surveys; testing and related diagnostic
activities; regulatory enforcement; chemical, biological, mechanical,
and other detection, control, and eradication activities, including
destruction of animals, animal products, and other articles; the
payment of compensation; and research, methods development, and public
information activities carried out specifically in connection with an
emergency.
Emergency program costs. Financial, personnel, and other resources
[[Page 40552]]
necessary to carry out an emergency program, without regard to the
entity or individual that provides the resources or the manner in which
they are provided.
Federal base percentage. The initial percentage share of emergency
program costs the Secretary is authorized to pay in connection with an
emergency involving a pest or disease of livestock.
OMB. The Office of Management and Budget of the United States
Government.
Secretary. The Secretary of Agriculture of the United States or any
officer or employee of the United States Department of Agriculture
authorized to act for the Secretary.
State. Each of the States of the United States, the District of
Columbia, Puerto Rico, the Northern Mariana Islands, Guam, and the
Virgin Islands of the United States, or any other territory or
possession of the United States.
Sec. 60.2 Priority pests and diseases of livestock.
The Administrator may identify certain pests and diseases of
livestock as priority pests and diseases of livestock. In making such
an identification, the Administrator shall consider the degree of
contagion and the human health and market effects of the pest or
disease of livestock and other relevant factors. The Administrator may
notify the public from time to time, through publication of a list in
the Federal Register, of the priority pests and diseases of livestock.
Sec. 60.3 Federal share of emergency program costs.
(a) General. In connection with an emergency involving a pest or
disease of livestock and upon agreement of the States or political
subdivisions of States, domestic organizations or associations, Indian
tribes, or other persons to participate in an emergency program, the
Secretary may pay, subject to the availability of funding, emergency
program costs as provided in paragraph (b) of this section. Unless the
Secretary determines that payments for a longer period are necessary,
such payments may be made for no more than 10 years for any emergency
program, or, for emergency programs begun prior to [effective date of
final rule] for no more than 5 years after that date. However, if the
same pest or disease of livestock occurs in a location that is
geographically separate from the original outbreak, or reoccurs in the
area of the original outbreak following a prescribed time period after
eradication is completed, as determined by a USDA scientific
assessment, then it could be considered a new outbreak and subject to
new cost-sharing and program duration requirements.
(b) Determining Federal share of costs. In connection with an
emergency involving a pest or disease of livestock, the Secretary may
make payments of Federal funds of up to 50 percent (i.e., Federal base
percentage) of emergency program costs. Further, the Secretary, in
consultation with OMB, may increase or decrease the Federal share of
emergency program costs relative to the Federal base percentage as
follows:
(1) Timing of program and its effect on total program costs. If the
Secretary determines that a higher level of Federal involvement in the
early stages of an emergency program would lead to lower total
emergency program costs, then the Secretary, in consultation with OMB,
may increase the Federal share of emergency program costs by up to 30
percent above the Federal base percentage during the first 8 months
after commencement of the emergency program, or, alternatively, may
increase the Federal share of emergency program costs by up to 15
percent above the Federal base percentage from the ninth month through
the 24th month after commencement of the emergency program.
(2) The extent of affected versus nonaffected areas. If the
Secretary determines that the area or value of resources at risk in the
United States is at least 10 times greater than the area or value of
resources covered by the emergency program, then the Secretary, in
consultation with OMB, may increase the Federal share of emergency
program costs by up to 20 percent above the Federal base percentage.
The area or value of resources at risk in the United States includes
those areas where the pest or disease of livestock could spread within
1 year in the absence of any action to control or eradicate the pest or
disease.
(3) Lack of financial resources. If the Secretary determines that a
State or other cooperator lacks the financial resources required to
cover its share of emergency program costs, or lacks the capability to
quickly access those resources, then the Secretary, in consultation
with OMB, may increase the Federal share of emergency program costs by
up to 10 percent above the Federal base percentage during the first 24
months after commencement of the emergency program. To qualify for this
additional Federal funding, the cooperator must demonstrate either that
a funding body, such as the State legislature, is unable to meet in
time to provide the necessary resources, or that the affected State or
local area is experiencing a significant and unexpected reduction in
resources.
(4) Commercial interest. If the Secretary determines that the pest
or disease of livestock directly affects one or more State commercial
interests within the area covered by the emergency program, then the
Secretary, in consultation with OMB, may reduce the Federal share of
emergency program costs by up to 3 percent under the Federal base
percentage.
(5) Priority pests or diseases of livestock. If the emergency
involves a priority pest or disease of livestock, as provided in Sec.
60.2 of this part, then the Secretary, in consultation with OMB, may
pay up to 100 percent of the total emergency program costs authorized
under this part during the first 24 months after commencement of the
emergency program.
(6) Certain emergency program activities. The Secretary may
determine, in consultation with OMB and the cooperating entities listed
in paragraph (a) of this section, that an emergency program or certain
activities within that emergency program be excluded from the
percentage calculations provided in this paragraph, or, alternatively,
be subject to a different Federal share of emergency program costs.
(7) Percentages are cumulative. Any applicable percentage changes
to the Federal share of emergency program costs, as provided in
paragraphs (b)(1) through (b)(6) of this section, may be cumulative,
but may not exceed 100 percent of total emergency program costs
authorized under this part.
(8) Payment of compensation. If the emergency program includes the
payment of compensation, then the cost-sharing percentage will be
applied either to the emergency program costs in total (including
payments of compensation) or to the compensation and non-compensation
components separately, at the discretion of the Secretary.
(c) Periodic review. The Federal share of emergency program costs,
as determined under paragraph (b) of this section, is subject to
periodic review by the Secretary, in consultation with OMB, as
conditions warrant.
Sec. 60.4 Shortfall in obligations and other funding adjustments.
(a) The cost allocation assigned to the Federal Government and each
cooperator is to be based on cumulative funding over the duration of
the emergency program. Should the Federal Government or any cooperator
fail to provide adequate program funding to meet their funding
obligation for a given year, then such funding shortfall must
[[Page 40553]]
be made up prior to the end of the emergency program. Similarly, should
the shortfall in funding by one or more parties require other parties
to provide funding that exceeds their obligation in any given year,
then those parties making excess payments in one year will have the
latitude to reduce their payments in subsequent years in an amount that
equals the amount of excess payment.
(b) To the extent that actual funding levels change, the difference
(plus or minus) is to be applied to the calculation of cumulative
funding as soon as practicable. In addition, if approved by APHIS in
consultation with cooperators, any in-kind payment (i.e., in the form
of services, equipment, etc.) provided by a cooperator will be counted
towards their funding obligation if the in-kind payment represents an
expense that is not a normal program cost to the cooperator and
directly affects emergency program objectives.
Sec. 60.5 Activities not subject to cost sharing.
The Federal Government will provide full funding and cost-sharing
criteria will not apply to control and eradication activities that do
not directly affect the targeted area, pest, or disease that is the
focus of the emergency program. This would include, for example,
national surveys and diagnostics; research not specific to the
outbreak; public awareness not related to the outbreak; control and
eradication programs in other countries; preclearance of passengers,
cargo and means of conveyance; and port-of-entry inspection of
passengers, cargo and means of conveyance.
Sec. 60.6 Implementing agreements.
The Secretary may, as a condition of providing the Federal funding
pursuant to Sec. 60.3, enter into agreements with cooperating
entities. Such agreements will specify the particular responsibilities,
including funding responsibilities, of the Federal Government and
cooperators in conducting the emergency program.
Done in Washington, DC, this 1st day of July 2003.
Bill Hawks,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 03-17042 Filed 7-7-03; 8:45 am]
BILLING CODE 3410-34-P