FR Doc 04-12266

[Federal Register: June 1, 2004 (Volume 69, Number 105)]
[Rules and Regulations]
[Page 30815-30818]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jn04-1]

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Rules and Regulations
Federal Register
________________________________________________________________________

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having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.

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[[Page 30815]]

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 00-035-3]
RIN 0579-AB19

Plum Pox Compensation

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the plum pox compensation regulations to
provide additional compensation to affected growers, under certain
conditions. We are providing additional compensation to growers who
have already been paid compensation for 3 years of lost production, but
who are prohibited from replanting regulated articles for a total of
more than 3 years due to additional detections of plum pox in areas
already under quarantine. Such growers will be paid compensation for up
to 2 additional years. We are also providing additional compensation to
growers who are direct marketers of their fruit and growers who have
had trees that were less than 1 year old destroyed. We are taking these
actions in response to issues that have surfaced during our 2 years of
experience in managing the plum pox quarantine and paying compensation
to affected growers. These changes are necessary to provide adequate
compensation to persons affected by the plum pox quarantine and
eradication efforts associated with the quarantine.

DATES: Effective Date: July 1, 2004.

FOR FURTHER INFORMATION CONTACT: Mr. Stephen Poe, Operations Officer,
Program Support Staff, PPQ, APHIS, 4700 River Road Unit 134, Riverdale,
MD 20737-1236; (301) 734-8247.

SUPPLEMENTARY INFORMATION:

Background

On October 16, 2003, we published in the Federal Register (68 FR
59548-59554, Docket No. 00-035-2) a proposal to amend the plum pox
compensation regulations to provide additional compensation to affected
growers, under certain conditions. Specifically, we proposed to provide
additional compensation to growers who have already been paid under the
existing regulations, which provide for payments based on a 3-year
fallow period, but who are prohibited from replanting regulated
articles for a total of more than 3 years due to additional detections
of plum pox in areas already under quarantine. Under our proposal, such
growers would be paid compensation for up to 2 additional years. We
also proposed to provide additional compensation to growers who are
direct marketers of their fruit, and to provide compensation for
growers who have had trees that were less than 1 year old destroyed. We
proposed these actions in response to issues that have surfaced during
our 2 years of experience in managing the plum pox quarantine and
paying compensation to affected growers. We believe the proposed
changes are necessary to provide adequate compensation to persons
affected by the plum pox quarantine and eradication efforts associated
with the quarantine.
We solicited comments concerning our proposal for 60 days ending
December 15, 2003. We received 2 comments by that date. They were from
a stone fruit grower affected by the quarantine and a private citizen.
The grower encouraged us to adopt our proposal as a final rule. The
private citizen opposed the proposal but did not provide a rationale
for her position. We are not making any changes to our proposal in
response to the comments.
Therefore, for the reasons given in the proposed rule, we are
adopting the proposed rule as a final rule, without change.

Executive Order 12866 and Regulatory Flexibility Act

This rule has been reviewed under Executive Order 12866. The rule
has been determined to be not significant for the purposes of Executive
Order 12866 and, therefore, has not been reviewed by the Office of
Management and Budget.
We have prepared an economic analysis for this rule. The economic
analysis is summarized below. Copies of the full analysis are available
by contacting the person listed under FOR FURTHER INFORMATION CONTACT,
or may be viewed on the Internet at http://www.aphis.usda.gov/ppd/rad/plumpox.pdf
.

Summary of Economic Analysis

We are amending the plum pox compensation regulations to provide
additional compensation to affected growers, under certain conditions.
We will provide additional compensation to growers who have already
been paid 3 years worth of compensation but who are prohibited from
replanting regulated articles for a total of more than 3 years due to
recent detections of plum pox in areas already under quarantine. Such
growers will be paid compensation for up to 2 additional years. We are
also providing additional compensation to growers who are direct
marketers of their fruit, and providing compensation for growers who
have had trees of less than 1 year of age destroyed. These actions are
in response to our 2 years of experience in managing the plum pox
quarantine and paying compensation to affected growers. This action is
necessary to provide adequate compensation to persons affected by the
plum pox quarantine and eradication efforts associated with the
quarantine.
This rule provides additional compensation in the event a
quarantine period is extended according to an emergency action
notification issued by APHIS. The fallow period may be increased by 1
or 2 years depending on the proximity of the land to recent finds of
the plum pox virus. By delaying the time at which growers can replant,
the longer fallow period increases the loss to growers. This final rule
increases the amount of compensation to account for the longer fallow
period.
Plum pox has been detected in some areas near orchards that were
removed in the initial year of the eradication program. This has led to
a need for additional fallow years for those acres. A fallow period of
3 years from the last find is needed to conclude that plum pox has been
eradicated. APHIS will pay affected growers a maximum of 5 years of
compensation. For orchards removed in 2002, we anticipate that only a
3-year fallow period will be

[[Page 30816]]

needed if no further plum pox is discovered.
Compensation payments are based on calculating the difference
between the amount a grower could earn from the original orchard minus
the amount that they could earn from a replanted orchard after a fallow
period. A longer fallow period results in higher compensation payments
because of the additional time it takes until growers have productive
trees.
The per-acre payment to commercial growers for 2 additional fallow
years orchard will be $828 for the fourth year and $736 for the fifth
year ($1,564 total per acre). The total number of acres eligible for
additional payments because of the added fallow years is 1,400. The
estimated cost if all acres are eligible for 2 additional years is
$2,189,600.
Total additional payments for direct marketers range from $264,472
to $348,452, depending on the number of fallow years a direct marketer
will be required to wait before replanting. Table 7 on page 15 of the
full analysis summarizes the range of payments. Payments to direct
marketers for the first 3 fallow years will increase by $10,172 per
acre from the base amount that growers receive. Direct marketers were
eligible to receive the same payments as other growers so the $10,172
represents the additional payment. Because they are among the last
trees that have been removed, a 3-year fallow period should be
sufficient to demonstrate that plum pox has been eradicated. However,
in the event that additional fallow years are necessary due new
detections of plum pox, direct marketers will be compensated for up to
5 (total) fallow years. They will receive $1,710 for a 4th year and
$1,520 for a 5th year. There are approximately 26 acres of trees used
for direct marketing that have been removed as part of the plum pox
eradication program; total payments to direct marketers will increase
by $264,472, assuming the fallow period does not need to be extended. A
4-year fallow period for direct marketers will result in payments of
$11,882 per acre ($10,172 + $1,710). Total payments for 26 acres will
be $308,932. A 5-year fallow period for direct marketers will result in
payments of $13,402 per acre ($10,172 + $1,710 + $1,520). Total
payments for 26 acres will be $348,452.
This final rule also addresses the issue of trees less than 1 year
old. Some growers have received destruction orders for trees that had
been planted the same year. These trees did not go through one harvest
season and are sometimes referred to as zero year trees. The original
compensation program made no provision for these trees. However,
growers that have had trees less than 1 year old destroyed have
incurred costs. Based on input from cooperative extension agents and
Pennsylvania State University, we have concluded that a fair rate of
compensation for these trees is $2,403 per acre for a 3-year fallow
period.
As stated earlier in this document, the changes in payments of
compensation are necessary to provide adequate compensation to persons
affected by the plum pox quarantine and eradication efforts associated
with the quarantine. Persons affected by the quarantine will, in all
cases, benefit from adoption of this final rule.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action will
not have a significant economic 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. 10.028 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 final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule: (1) Preempts all State and local laws
and regulations that are inconsistent with this rule; (2) has no
retroactive effect; and (3) does not require administrative proceedings
before parties may file suit in court challenging this rule.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.), the information collection or recordkeeping requirements
included in this rule have been approved by the Office of Management
and Budget (OMB) under OMB control number 0579-0251.

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 rule, please contact Mrs. Celeste Sickles,
APHIS' Information Collection Coordinator, at (301) 734-7477.

List of Subjects in 7 CFR Part 301

Agricultural commodities, Plant diseases and pests, Quarantine,
Reporting and recordkeeping requirements, Transportation.

0
Accordingly, 7 CFR part 301 is amended as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

0
1. The authority citation for part 301 continues to read as follows:

Authority: 7 U.S.C. 7701-7772; 7 CFR 2.22, 2.80, and 371.3.
Section 301.75-15 also issued under Sec. 204, Title II, Pub. L.
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 also
issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 (7
U.S.C. 1421 note).

0
2. In Sec. 301.74-5, paragraphs (a)(1), (b)(1), (c)(1), (c)(2) and (d)
are revised, a new paragraph (c)(3) is added, and the OMB control
number citation at the end of the section is revised, to read as
follows:

Sec. 301.74-5 Compensation.

(a) * * *
(1) Owners of commercial stone fruit orchards. Owners of commercial
stone fruit orchards are eligible to receive compensation for losses
associated with the destruction of trees in order to control plum pox
pursuant to an emergency action notification issued by the Animal and
Plant Health Inspection Service (APHIS).
(i) Direct marketers. Orchard owners eligible for compensation
under this paragraph who market all fruit they produce under the
conditions described in this paragraph may receive compensation at the
rates specified in paragraph (b)(1)(i) of this section. In order to be
eligible to receive compensation at the rates specified in paragraph
(b)(1)(i) of this section, orchard owners must have marketed fruit
produced in orchards subsequently destroyed because of plum pox under
the following conditions:
(A) The fruit must have been sold exclusively at farmers markets or
similar outlets that require orchard owners to sell only fruit that
they produce;
(B) The fruit must not have been marketed wholesale or at reduced
prices in bulk to supermarkets or other retail outlets;
(C) The fruit must have been marketed directly to consumers; and
(D) Orchard owners must have records documenting that they have met
the requirements of this section, and

[[Page 30817]]

must submit those records to APHIS as part of their application
submitted in accordance with paragraph (c) of this section.
(ii) All other orchard owners. Orchard owners eligible for
compensation under this paragraph who do not meet the requirements of
paragraph (a)(1)(i) of this section are eligible for compensation only
in accordance with paragraph (b)(1)(ii) of this section.
* * * * *
(b) * * *
(1) Owners of commercial stone fruit orchards--(i) Direct
marketers. Owners of commercial stone fruit orchards who APHIS has
determined meet the eligibility requirements of paragraph (a)(1)(i) of
this section will be compensated according to the following table on a
per-acre basis at a rate based on the age of the trees destroyed. If
the trees were not destroyed by the date specified on the emergency
action notification, the compensation payment will be reduced by 10
percent and by any tree removal costs incurred by the State or the U.S.
Department of Agriculture (USDA). The maximum USDA compensation rate is
85 percent of the loss in value, adjusted for any State-provided
compensation to ensure total compensation from all sources does not
exceed 100 percent of the loss in value.

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Maximum compensation rate ($/ Maximum additional Maximum additional
acre, equal to 85% of loss compensation ($/acre, equal compensation ($/acre, equal
Age of trees (years) in value) based on 3-year to 85% of loss in value) for to 85% of loss in value) for
fallow period 4th fallow year 5th fallow year
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Less than 1................................................ $2,403 $828 $736
1.......................................................... 9,584 1,710 1,520
2.......................................................... 13,761 1,710 1,520
3.......................................................... 17,585 1,710 1,520
4.......................................................... 21,888 1,710 1,520
5.......................................................... 25,150 1,710 1,520
6.......................................................... 25,747 1,710 1,520
7.......................................................... 25,859 1,710 1,520
8.......................................................... 25,426 1,710 1,520
9.......................................................... 24,938 1,710 1,520
10......................................................... 24,390 1,710 1,520
11......................................................... 23,774 1,710 1,520
12......................................................... 23,080 1,710 1,520
13......................................................... 22,300 1,710 1,520
14......................................................... 21,422 1,710 1,520
15......................................................... 20,434 1,710 1,520
16......................................................... 19,323 1,710 1,520
17......................................................... 18,185 1,710 1,520
18......................................................... 17,017 1,710 1,520
19......................................................... 15,814 1,710 1,520
20......................................................... 14,572 1,710 1,520
21......................................................... 13,287 1,710 1,520
22......................................................... 12,066 1,710 1,520
23......................................................... 10,915 1,710 1,520
24......................................................... 9,620 1,710 1,520
25......................................................... 8,163 1,710 1,520
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(ii) All other orchard owners. Owners of commercial stone fruit
orchards who meet the eligibility requirements of paragraph (a)(1)(ii)
of this section will be compensated according to the following table on
a per-acre basis at a rate based on the age of the trees destroyed. If
the trees were not destroyed by the date specified on the emergency
action notification, the compensation payment will be reduced by 10
percent and by any tree removal costs incurred by the State or the U.S.
Department of Agriculture (USDA). The maximum USDA compensation rate is
85 percent of the loss in value, adjusted for any State-provided
compensation to ensure total compensation from all sources does not
exceed 100 percent of the loss in value.

[[Page 30818]]

14......................................................... 12,024 828 736
15......................................................... 11,361 828 736
16......................................................... 10,616 828 736
17......................................................... 9,854 828 736
18......................................................... 9,073 828 736
19......................................................... 8,272 828 736
20......................................................... 7,446 828 736
21......................................................... 6,594 828 736
22......................................................... 5,789 828 736
23......................................................... 5,035 828 736
24......................................................... 4,341 828 736
25......................................................... 3,713 828 736
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* * * * *
(c) * * *
(1) Claims by owners of stone fruit orchards who are direct
marketers. The completed application must be accompanied by:
(i) A copy of the emergency action notification ordering the
destruction of the trees and its accompanying inventory that describes
the acreage and ages of trees removed;
(ii) Documentation verifying that the destruction of trees has been
completed and the date of that destruction; and
(iii) Records documenting that the grower meets the eligibility
requirements of paragraph (a)(1)(i) of this section.
(2) Claims by owners of commercial stone fruit orchards who are not
direct marketers. The completed application must be accompanied by a
copy of the emergency action notification ordering the destruction of
the trees, its accompanying inventory that describes the acreage and
ages of trees removed, and documentation verifying that the destruction
of trees has been completed and the date of that destruction.
(3) Claims by owners of fruit tree nurseries. The completed
application must be accompanied by a copy of the order prohibiting the
sale or movement of the nursery stock, its accompanying inventory that
describes the total number of trees and the age and variety, and
documentation describing the final disposition of the nursery stock.
(d) Replanting. Trees of susceptible Prunus species (i.e., Prunus
species identified as regulated articles) may not be replanted on
premises within a contiguous quarantined area until 3 years from the
date the last trees within that area were destroyed because of plum pox
pursuant to an emergency action notification issued by APHIS.

(Approved by the Office of Management and Budget under control numbers
0579-0159 and 0579-0251)

Done in Washington, DC, this 25th day of May 2004.
W. Ron DeHaven,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 04-12266 Filed 5-28-04; 8:45 am]

BILLING CODE 3410-34-P