05-6364. Tree Assistance Program, Forest Timber Program, Pecan Tree Program; Notice of Fund Availability and Proposed Fund Availability

AGENCY:

Commodity Credit Corporation, Farm Service Agency, USDA.

ACTIONS:

Notice of fund availability and proposed fund availability.

SUMMARY:

This document announces assistance under the Farm Service Agency's Tree Assistance Program (TAP) regulations in 7 CFR part 783 as authorized by the Military Construction and Appropriations Act, 2005. The first part of this notice announces the availability of assistance for claims under TAP related to Orchardists and Forest Land Owners. The second part proposes funding for special Tree Assistance Program benefits with respect to Pecan Tree Producers. The provisions in this notice for orchard and forest timber assistance are final. For pecan tree assistance, a period is allowed for comments since it is proposed that “other appropriate activities” allowed for assistance would only include those related to pruning and tree rehabilitation. This notice is intended to provide notice to those producers who may qualify for this assistance, and provide conditions for eligibility required by the Act under which it is funded.

DATES:

1. Comments: For special assistance for pecan tree producers, comments on this notice must be received by May 2, 2005.

2. Applications: Unless otherwise announced by the Farm Service Agency, orchard and forest land assistance applications may be submitted when available from the local Farm Service Agency office through April 14, 2005.

ADDRESSES:

Interested persons are invited to submit written comments concerning the provisions in this notice for special assistance for pecan tree producers. Comments should reference the volume, date and page number of this issue of the Federal Register. Comments may be submitted by any of the following methods:

E-Mail: Send comments to: [e-mail].

Fax: Submit comments by facsimile transmission to [phone].

Mail: Send comments the on the special assistance for pecan tree producers provisions in this notice to Eloise Taylor, Chief, Compliance Branch, Production, Emergencies and Compliance Divisions, FSA/USDA, Stop 0517, 1400 Independence Avenue SW., Washington, DC 20250-0517.

Hand Delivery or Courier: Deliver comments to 1400 Independence Avenue SW., Washington, DC 20250-0517, room 3645-S during normal business hours.

Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.

All comments and supporting documents on this notice may be viewed by contacting the information contact listed below. All comments received, including names and addresses, will become a matter of public record.

FOR FURTHER INFORMATION CONTACT:

Helen Mathew, telephone [phone]. Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at [phone] (voice and TDD).

SUPPLEMENTARY INFORMATION:

Background

The current TAP as codified in regulations in 7 CFR Part 783 was authorized by section 10201 et seq of the Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171, 7 U.S.C. 8201 et seq.) (the 2002 Act), to assist eligible orchardists, as defined in that Act, to replant trees, bushes and vines grown for the production of an annual crop but lost due to a natural disaster. Orchardists are defined in the 2002 Act to be persons who produce annual crops from trees for commercial purposes. However, the 2002 Act did not provide TAP funding and the 2002 Act TAP has been operated only to the extent that funding has been provided for limited purposes in subsequent legislation. Regulations governing the 2002 Act TAP were published at 69 FR 9744, March 2, 2004. Enactments funding the 2002 Act TAP have included the Consolidated Appropriations Act, 2004 (Pub. L. 108-199) (for certain losses to fruit trees due to wild fires in California and an ice storm in New York), and the Emergency Supplemental Appropriations Act, 2003 (Pub. L. 108-83) (for certain fire blight losses in Michigan). Notice of the availability of funds and limitations related to those enactments were provided in notices, like this one, published in the Federal Register (69 FR 11584, March 11, 2004; 69 FR 20589, April 16, 2004; 69 FR 29686, May 25, 2004).

This notice announces assistance under the 2002 Act TAP, as provided for in section 101 of Division B of the Military Construction, Appropriations and Emergency Hurricane Supplemental Appropriations Act, 2005 (Pub. L. 108-324, 118 Stat. 1220, October 13, 2004) (the 2004 Act). The 2004 Act provides for making TAP assistance available for eligible orchardists and for eligible forest land owners (who must, under the 2004 Act, produce periodic crops of timber from trees for commercial purposes) for losses that occurred in the period beginning December 1, 2003, and ending December 31, 2004. The 2002 Act itself provides, normally, where there is funding made available, for the claims of orchardists. The provisions regarding forest land owners (who produce periodic crops of timber from trees for commercial purposes) expand eligibility but only for losses in the time period indicated and only with a dollar limit, for the total claims under the forest land program, of $15 million. In both cases, the losses must meet the criteria set out above and the additional criteria of the existing regulations. Funding is provided from the Commodity Credit Corporation (CCC). For orchardists, no limit is set on the CCC funds that may be utilized for claims that otherwise fit the statutory criteria of the 2004 Act, and other eligibility conditions. For claims of forest land owners, as indicated, only $15 million is allowed. A rulemaking exception is provided for the Section 101 provisions in the 2004 Act by Section 101(g) of Division B.

In addition, Section 111 of Division B of the 2004 Act sets out special provisions with respect to pecan trees. That section provides that “in addition to amounts provided in this Act for the tree assistance program, $8,500,000, shall be made available to the Secretary of Agriculture, to remain available until expended, to provide assistance under the tree assistance program * * * to pecan tree producers in counties declared a disaster by the President of the United States who suffered tree loss or damage due to damaging weather related to any hurricane or tropical storm of the 2004 hurricane season: Provided, that the funds made available under this section shall also be made available to cover costs associated with pruning, rehabilitation, and other appropriate activities as determined by the Secretary.” Section 105 of Division B provides that the funds and facilities of the CCC be used to carry out Sections 101 and 111. Because of the language of Section 111 and because the pecan tree provisions go beyond the normal cost-coverage of the 2002 Act TAP, it has been determined to be in the public interest to seek comments on these special pecan tree provisions. It has been determined however, subject to comment, that since the pecan tree funding is to be in addition to that provided elsewhere, actual tree losses in the period covered in Section 101 will be considered under Section 101. However, FSA has determined, subject to comment, that “other appropriate activities” will be limited to those related to pruning and rehabilitation, given the nature of the enactment, and that the normal qualifying loss rules and reimbursement limits apply since the pecan tree provisions have been included as part of the tree assistance program. However, claimants can petition for inclusion of other claims. Further, because of the nature of the relief, it has been determined under 5 U.S.C. 808 to be contrary to the public interest to delay implementation of the pecan tree provisions pending Congressional review of regulations. Instead, upon the closure of the comment period, claims will be handled as proposed subject to such modifications or extensions as the Deputy Administrator may announce. Further information will be available from the relevant county offices of the Farm Service Agency.

Set out below are the general conditions for these “programs” although they are in essence subprograms of the 2002 Act TAP. Basically, all of the normal 2002 Act TAP limitations apply. Under TAP regulations, as published, claims are limited to the lesser of the established practice rates or 75 percent of the actual costs for eligible replantings, and reimbursement cannot exceed the reasonable cost of the replantings as determined by FSA. These same standards will be applied to the special pecan tree provisions in this notice. Also, the special pecan tree provisions will be subject to a 75 percent reimbursement rate and cannot exceed the reasonable cost of the work performed as estimated by FSA. Additional specifications are set out below and, as indicated, comment is requested on the provisions that deal with pecan tree.

As noted below, reference is made to payments made under a special program operated for 2004 hurricane losses under Section 32 of the Act of August 24, 1935. In relation to those payments and this notice, there is a difference in treatment for, on the one hand, the orchard claims and the forest land claims, and on the other, the special pecan tree provisions. That difference comes from the legislation. Basically, a person who received Section 32 monies under the hurricane program, for any purpose, cannot receive orchard or forest land claims under this notice. For pecan tree producers under the special pecan tree provisions, that disqualification will only apply if the Section 32 payment was for the same loss. Accordingly, and subject to comment with respect to the pecan tree provisions, notice is given of the availability of limited 2002 Act TAP benefits as follows:

I. Application Process

No payment may be made except upon a timely application for payment as provided for in this notice. Producers wishing to receive benefits under any of these programs must submit an application to FSA at their local FSA Service Center during the signup period by, with respect to the relief for orchardists and forest land owners, April 14, 2005, and for pecan producers seeking compensation under the special pecan provisions by the Date announced by the Deputy Administrator for Farm Programs of the Farm Service Agency (“Deputy Administrator”). With respect to the special pecan provisions, to be assured of consideration an application for assistance must be submitted by May 31, 2005. Dates may be extended by announcement of the Deputy Administrator. Applications for assistance will be available at local FSA Service Centers.

II. Eligibility Provisions

(a) Limitations. The payment limitations and other conditions for eligibility provided for in 7 CFR part 783 shall apply as shall any other conditions for payment as the Deputy Administrator may deem appropriate in implementing these programs.

(1) Persons receiving benefits at any time under the 2002 Act TAP program and its subprograms cannot receive a total payment over time, irrespective of the year, of more than $75,000 or its equivalent (counting in the value in the case of provided seedlings). Thus for example, to the extent that a person has already received funds under the 2002 Act TAP for fire blight losses in Michigan those payments will reduce that person's eligibility under this notice for further 2002 Act TAP program payments.

(2) All payments under this notice are subject to the availability of funds, and the percentage limitation on reimbursable costs provided for in the 2002 Act TAP regulations or in this notice.

(3) No person can receive program benefits on more than 500 acres over the life of the 2002 TAP provisions. Thus, for example, if a person received 2002 TAP benefits on 500 fire blight acres in the Michigan subprogram, that person would not be eligible for payments under this notice.

(4) A “Person” shall be as defined in 7 CFR part 1400.

(5) As provided in the 2002 Act, claims relating to tree losses are coverable only to the extent that the loss exceeds 15% after taking into account normal mortality. In the case of pecan trees and the allowances for pruning and rehabilitation, costs may only be paid to the extent that the expenses are for damage to trees where the damage is greater than 15% taking into account normal tree damage.

(6) No claim may be paid under this notice except for losses related to a natural disaster.

(7) Definitions and terms of the 2002 Act TAP will govern on qualifying natural disasters subject to other conditions in the 2004 Act and this notice.

(b) Prohibition on duplicate payments. Producers who receive payments under any other program for the same loss are not eligible for payment under this program. For example:

(1) Producers who received payment for specific procedures under the FSA Emergency Conservation Program (ECP) provided for in 7 CFR part 701 are not eligible for payments for the same procedures under the 2002 Act TAP and this notice.

(2) Producers who receive payments for timber losses under any program administered by the Forest Service, either authorized by the 2004 Act or otherwise, are not eligible for payments on the same losses under TAP and this notice.

(3) Orchardists and forest land owners who received payments of any kind for any loss, tree related or not, under Section 32 of the Act of August 24, 1935, with respect to 2004 hurricane losses are not eligible for a TAP payment under this notice.

(4) Claims under the pecan tree provisions at paragraph (f) of this section may be allowed despite a payment being received by the same producer under the Section 32 program so long as the payment was not for the same loss. However, pecan tree claims made under the orchard provision (the normal TAP provisions of Section 101 of Division B of the 2004 Act), will not be eligible for payment, as applies to other orchardists, as provided in paragraph (3) of this section, with respect to 2004 hurricane losses.

(c) Additional restrictions. All of the normal 2002 Act TAP restrictions apply. Thus, the highly erodible land conservation and wetland conservation rules in 7 CFR part 12, the controlled substance rules in 7 CFR part 718, and the mortality requirements of § 783.4(a)(2) of 7 CFR part 783 apply to this notice as indicated above and as modified with respect to the special pecan tree provisions. Additional limits apply as are, or may be, provided for by regulation or by the Deputy Administrator acting under those regulations.

(d) Eligible dates for orchardists. For eligible orchardists, as defined in the 2002 Act TAP regulations, who otherwise meet the existing eligibility criteria in the existing 2002 Act TAP regulations for replantings of lost trees, claims may be made under this notice for losses that were due to natural disasters and that occurred in the period beginning December 1, 2003, and ending December 31, 2004, for replantings that otherwise qualify for assistance under the 2002 Act TAP regulations and the provisions of this notice.

(e) Eligible dates for forest land owners. For eligible forest land owners, claims that would otherwise qualify under the existing TAP regulations may be paid under this notice for losses due to natural disasters that occurred in the period beginning December 1, 2003, and ending December 31, 2004, for replantings that otherwise qualify under the 2002 Act TAP regulations and the provisions of this notice.

(1) Total claims by all claimants under this paragraph shall not exceed $15 million and shall be made using the funds of the Commodity Credit Corporation. If eligible claims exceed available funds, then either the proration provisions of 7 CFR 783.6(g) will apply or some other method of adjusting claims shall be established by the Deputy Administrator.

(2) Forest land owners need not be “orchardists” as defined in the 2002 Act TAP regulations. However, to be eligible, forest land owners must produce periodic crops of timber from trees for commercial purposes. Compensation may only be for losses that were due to natural disasters and that occurred in the period beginning December 1, 2003 and ending December 31, 2004.

(f) Pecan tree assistance. Funds may be paid under this notice to eligible pecan tree producers in counties declared a disaster by the President who produced pecan trees for commercial use and suffered tree loss or damage due to damaging weather related to any hurricane or tropical storm of the 2004 hurricane seasons.

(1) Funds under paragraph (f) are limited to $8.5 million from funds of the Commodity Credit Corporation. If eligible claims exceed available funds, § 783.6(g) of 7 CFR part 783 will apply unless some other method of adjusting claims is provided for by the Deputy Administrator. Persons submitting claims under the special provisions for pecan trees in this paragraph may petition for additional coverage of claims that they believe meet the statutory criteria set out above.

(2) Funds may be used to cover costs associated with pruning, rehabilitation and related costs.

(3) To be eligible, the producer and the loss must otherwise meet the eligibility criteria for orchardists in the TAP regulations at 7 CFR part 783, and the other limitations set out in this notice, except as specified in this notice.

(4) The Deputy Administrator may allow exceptions to procedures regarding the special pecan tree provisions of this paragraph II.(f) of this notice as may be determined appropriate based on comments received on this notice.

(5) Payments for tree damage may only be made for tree damage which exceeds more than 15%, after accounting for normal tree damage.

(6) Persons receiving payment cannot exceed the higher of 75% of the actual amount spent on the eligible losses by the claimant for eligible damage or the reasonable cost, as determined by the Farm Service Agency, of the measures undertaken on the eligible damage. “Eligible damage” means the damage in excess of the qualifying amount.

III. Appeals

Any person who is dissatisfied with a determination made with respect to these programs may make a request for reconsideration or appeal of such determination in accordance with the regulations set forth in 7 CFR parts 11 and 780. A reserve may be created to handle claims to payments that extend beyond the conclusion of the application period, but claims shall not be payable once the available funding is expended.

IV. Paperwork Reduction Act

The information collections associated with TAP have been approved by the Office of Management and Budget (OMB) under 5 CFR 1320.13(a)(2)(iii) and were assigned OMB control number 0560-0247.

V. Environmental Review

The environmental impacts of this rule have been considered consistent with the provisions of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and the FSA regulations for compliance with NEPA, 7 CFR part 799. FSA has initiated the completion of an environmental assessment (EA) to determine the potential impacts of this action upon the human and natural environments. A copy of the draft EA will be made available to the public upon its completion.

Signed in Washington, DC, March 25, 2005.

Thomas B. Hofeller,

Acting Administrator, Farm Service Agency.