[Federal Register: August 11, 2003 (Volume 68, Number 154)]
[Proposed Rules]
[Page 47499-47502]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au03-22]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 47499]]
DEPARTMENT OF AGRICULTURE
Farm Service Agency
7 CFR Part 783
RIN 0560-AG83
Tree Assistance Program
AGENCY: Farm Service Agency, USDA.
ACTION: Proposed rule with request for comments.
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SUMMARY: This rule provides for implementation, subject to the
availability of funds, of the Farm Service Agency (FSA) Tree Assistance
Program (TAP) recently authorized by the Farm Security and Rural
Investment Act of 2002. The TAP program provides assistance to tree,
bush and vine owners who have trees, bushes or vines lost by a natural
disaster. As of this time, no funds have been appropriated for the
program.
DATES: Submit comments on this proposed rule and the information
collection requirements of this rule on or before October 10, 2003 in
order to be assured of consideration.
ADDRESSES: Comments should be mailed to Dan McGlynn, Deputy Director,
Production, Emergencies, and Compliance Division, Farm Service Agency
(FSA), United States Department of Agriculture, STOP 0517, 1400
Independence Avenue, SW., Washington, DC 20250-0517, telephone (202)
720-7641, or hand delivered to room 5754 South, at the address above
during normal business hours. All comments and supporting documents on
this rule may be viewed by contacting the information contact listed
below. Persons with disabilities who require alternative means for
communication (Braille, large print, audio tape, etc.) should contact
the USDA Target Center at (202) 720-2600 (voice and TDD). Comments may
be inspected in the Office of the Director, PECD, (FSA), USDA, Room
4752 South Building, Washington, DC, between 7:30 a.m. and 4:30 p.m.,
Monday through Friday, except holidays. All comments received,
including names and addresses, will become a matter of public record.
Comments on the information collection requirements of this proposed
rule must be sent to the addresses listed in the Paperwork Reduction
Act section of this proposed rule.
FOR FURTHER INFORMATION CONTACT: Dan McGlynn, (202) 720-7641.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This proposed rule has been determined to be not significant under
Executive Order 12866.
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
in accordance 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.
Title: Tree Assistance Program.
OMB Control Number: 0560-NEW.
Type of Request: Request for a reinstatement, with change, of a
previously approved collection for which approval has expired.
Abstract: The Tree Assistance Program provides assistance to owners
of trees, bushes and vines that were lost as a result of a natural
disaster. The information is collected to document a producer's
eligibility to receive such payments. Producers must certify to the
requirements contained in this rule and at 7 CFR part 783. The
information will be used by FSA to determine the program eligibility of
tree, bush and vine owners. FSA considers the information collected
essential to prudent eligibility determinations and payment
calculations. Without accurate information, payments could be made to
ineligible recipients, and the integrity and accuracy of the program
could be compromised.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 1 hour and 20 minutes per response.
Respondents: Farms.
Estimated Number of Respondents: 333.
Estimated Number of Responses per Respondent: 1.
Estimated Total Annual Burden on Respondents: 111 hours.
Comment is invited on: (a) Whether the collection of information is
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necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility; (b) the
accuracy of the agency's estimate of burden, including the validity of
the methodology and assumptions used; (c) ways to enhance the quality,
utility, and clarity of the information collected; and (d) ways to
minimize the burden of the collection of the information on those who
are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology. Comments should be sent to Dan
McGlynn, Deputy Director, Production, Emergencies, and Compliance
Division, Farm Service Agency (FSA), United States Department of
Agriculture, STOP 0517, 1400 Independence Avenue, SW., Washington, DC
20250-0517, or via electronic mail to: Dan_McGlynn@wdc.usda.gov.
Background and Discussion
Sections 10201-10205 of the Farm Security and Rural Investment Act
of 2002 (Pub. L. 107B171) authorize the appropriation of funds to carry
out 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 or rehabilitate eligible trees, bushes and vines and
who produce annual crops from trees for commercial purposes. The
statute defines ``trees'' to include vines and bushes.
Generally, TAP will be made available under the same or similar
terms as the TAP program outlined in the 1997 TAP program codified in
rules initially published on January 27, 1998, (63 FR 3791), based on
funds provided in Public Law 105-18. However, there are certain notable
differences. So far, Congress has left the time frame for damages to
trees, bushes and vines open. The rule reflects that lack of precision.
In the 1997 Act, owners were eligible for up to 100% of the cost to
replace or rehabilitate trees or vines adjusted for normal mortality.
In the 2002 Act, subject to a $75,000 per person limit, producers are
eligible for reimbursement only up to 75 percent of the replanting
costs for trees, bushes and vines in excess of a 15 percent loss,
adjusted for normal mortality. The definition of a natural disaster in
the 1997 program included flood, drought, hail, excessive moisture,
freeze, tornado, hurricane, earthquake, and excessive wind as
determined by the agency. The 2002 Act broadened the definition of a
natural disaster to also include plant disease and insect infestation.
Should funds be appropriated, payments would be provided for the
replacement of all qualifying losses of eligible trees, bushes or vines
within these limitations. The 1997 program provided payments to
eligible tree and vine owners; as indicated, the 2002 Act added bushes
to the eligibility criteria. Nursery tree stock and Christmas trees
will not be covered under the new TAP program 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
2002 Act also limits payments by specifying that qualifying acres for a
person may not exceed 500 in number. Again, however, while these
regulations are being promulgated in the event of a program
appropriation, there is not at this time such an appropriation. No
payments will be made until there is such an appropriation at which
time dates of coverage and other terms and conditions may be imposed as
needed in light of available funds.
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 record
keeping requirements.
For the reasons set forth in the preamble, Title 7 of the Code of
Federal Regulations part 783 is proposed to be revised as follows:
1. Revise part 783 to read as follows:
PART 783--TREE ASSISTANCE PROGRAM
Sec.
783.1 General.
783.2 Definitions.
783.3 Eligibility.
783.4 Application.
783.5 Benefits.
783.6 Obligations of an owner.
783.7 Multiple benefits.
783.8 Miscellaneous.
Authority: 7 U.S.C 8201 et seq.
Sec. 783.1 General.
(a) Purpose and Limitation. 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 or the
Secretary under other authority makes funds explicitly available for
purposes of this program. Otherwise, no payments shall be made under
this part.
(b) Administration. The TAP will be administered by the
Administrator of the United States Department of Agriculture, Farm
Service Agency (FSA), or a designee supervised by the Deputy
Administrator for Farm Programs, FSA (Deputy Administrator), and
carried out by FSA State and county committees.
(1) State and county committees do not have the authority to modify
or waive any provision of this regulation. The State committee shall
take any required action not taken by the county committee, correct
acts of a county committee which violate this regulation, or prevent a
county committee from taking action beyond what is allowed in this
regulation.
(2) The Deputy Administrator, or designee, may determine any TAP
issue and reverse or modify decisions a State or county committee
makes.
(3) This program will cover losses for damages to trees, bushes and
vines that occurred between dates announced by the Deputy
Administrator. The Deputy Administrator may waive or modify deadlines
or other requirements when doing so does not adversely affect the
program or when an exception to this regulation is necessary to achieve
the goals of the program and distribute benefits more equitably.
Sec. 783.2 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 terms, as defined, apply to TAP:
Bush means, a low branching woody plant from which an annual fruit
or vegetable crop is produced for commercial purposes, such as
blueberry bushes.
Cutting means, a vine, which was planted in the ground for
commercial production of grapes, kiwi fruit, or passion fruit.
Deputy Administrator means the Deputy Administrator for Farm
Programs of the Farm Service Agency of the Department of Agriculture or
his or her delegate.
County office means the FSA or USDA Service Center that is
responsible for servicing the farm or the county in which the trees,
bushes or vines are located.
Individual stand means an area of trees, bushes or vines, which 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
separate individual stands if the county committee determines that the
trees,
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bushes or vines are susceptible to losses at significantly differing
levels.
Lost means if the tree has been damaged to such an extent that it
would be more economically beneficial to replace it than to leave it in
its deteriorated, low producing, state, as determined by FSA.
Natural disaster means plant disease, insect infestation, drought,
fire, freeze, flood, earthquake, lightning, or other occurrence of such
magnitude or severity so as to be considered disastrous as determined
by the Deputy Administrator.
Normal mortality means the percentage of damaged or dead trees,
bushes or vines in the individual stand that normally occurs in a 12
month period established by the State Committee (STC).
Owner means an individual, or legal entity, including an Indian
tribe under the Indian Self-Determination and Education Assistance Act;
an Indian organization or entity chartered under the Indian
Reorganization Act; a tribal organization under the Indian Self-
Determination and Assistance Act; or, an enterprise under the Indian
Financing Act of 1974, who owns a tree, bush or vine as defined in this
part.
Program year means a calendar year for which funding is available.
Seedling means a tree, which was planted in the ground for
commercial purposes.
Tree means, a tall woody plant having comparatively great height
and a single trunk from which an annual fruit or vegetable 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 trees under this part.
Vine means, a plant with a flexible stem supported by climbing,
twining, or creeping along a surface from which an annual fruit or
vegetable crop is produced for commercial purposes, such as grape, kiwi
fruit, or passion fruit.
Sec. 783.3 Eligibility.
(a) Eligible loss. To be considered an eligible loss:
(1) Trees, bushes or vines must have been lost as a result of a
natural disaster;
(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 would not normally have been
rehabilitated or replanted within the 12-month period following the
loss.
(b)(1) Proof of damage. 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) County Committee (COC) may require information from an expert
in the case of plant disease or insect infestation.
(c)(1) Eligible owners. To be eligible for TAP payments the owner
must:
(i) Own the stand on which the claim for benefits is based;
(ii) Have owned it at the time the natural disaster occurred; and
(iii) Have continuously owned the stand until the TAP application
is submitted; and
(2) Notwithstanding paragraph (c) of this section, no person, as
defined in part 1400 of this title, with an annual gross revenue in
excess of $2.5 million for the preceding tax year will be eligible for
benefits under this part.
(3) Federal, State, and local governments and agencies and
political subdivisions thereof are not eligible for benefits under this
part.
(d)(1) Succession. A new owner is allowed to receive TAP benefits
in an amount not to exceed those approved for the predecessor and not
paid to the previous owner, if the previous owner 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 TAP applicant, successors may be eligible to receive the
payments instead as specified in part 707 of this chapter.
Sec. 783.4 Application.
(a) A complete application for TAP benefits and related supporting
documentation must be submitted to the county office prior to the
deadline that 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.
(4) Sufficient evidence of the loss to allow the county committee
to calculate whether an eligible loss occurred.
(c) Agency action. 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) Will 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. 783.5 Benefits.
(a) Subject to the availability of TAP funds, an approved owner
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
actual costs for the replanting or the amount calculated using rates
established by the county 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 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. 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
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significantly from the species lost, as the county committee
determines, the costs may not be reimbursed.
(d) Owners 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 shall not exceed 500
acres.
(f) The cumulative amount of TAP payments which any person, as
defined in accordance with part 1400 of this title, may receive shall
not exceed $75,000 per program year.
(g) If the total of all eligible TAP claims received exceeds the
available TAP funds, payments shall be reduced by a uniform national
percentage after the imposition of applicable payment limitation
provisions.
Sec. 783.6 Obligations of an owner.
(a) Eligible owners must execute all required documents, comply
with all applicable noxious weed laws, 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 payment, the person and/or
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. 783.7 Multiple benefits.
Persons eligible to receive payments under this part and another
program for the same loss, may receive benefits from only one program
and must choose which program benefits they want. If other benefits
become available after payment of TAP benefits the owner may refund the
TAP payment and receive the other program benefit. If the owner
purchased additional coverage insurance, as defined in 7 CFR 400.651,
or is eligible for assistance or emergency loans under another Federal
program for the same loss, the owner will be eligible for such
assistance. In no case shall the total amount received from all sources
exceed the amount of the owner's actual loss. Should the total amount
of benefits exceed the owner's actual loss, the TAP benefits will be
reduced accordingly.
Sec. 783.8 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 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 paragraph 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. 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.
(d) The regulations regarding reconsiderations and appeals at part
11 of this title and part 780 of this chapter apply to this part.
(e) In lieu of payments in cash, qualifying losses may be
compensated by seedlings sufficient to reestablish a stand.
(f) The Deputy Administrator may set such additional conditions and
limitations on eligibility as may be needed to reflect limited funding
or accomplish program objectives as deemed appropriate by the Deputy
Administrator, consistent with governing legislation.
Signed in Washington DC on August 5, 2003.
James R. Little,
Administrator, Farm Service Agency.
[FR Doc. 03-20345 Filed 8-8-03; 8:45 am]
BILLING CODE 3410-05-P