[Federal Register Volume 67, Number 194 (Monday, October 7, 2002)]
[Rules and Regulations]
[Pages 62323-62325]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-25248]



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DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1437

RIN 0560-AG82


Noninsured Crop Disaster Assistance for Sea Grass and Sea Oats

AGENCY: Commodity Credit Corporation, USDA.

ACTION: Final rule.

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SUMMARY: This rule amends the Commodity Credit Corporation (CCC) 
regulations governing the Noninsured Crop Disaster Assistance Program 
(NAP) to add sea grass and sea oats as eligible crops as provided for 
in the Farm Security and Rural Investment Act of 2002 (2002 Act). The 
intended affect of this rule is to make producers of these crops 
eligible for disaster assistance under NAP.

EFFECTIVE DATE: October 7, 2002.

FOR FURTHER INFORMATION CONTACT: Steve Peterson, Chief, Noninsured 
Assistance Programs Branch (NAPB); Production, Emergencies, and 
Compliance Division (PECD); Farm Service Agency (FSA); United States 
Department of Agriculture, STOP 0517, 1400 Independence Avenue, SW, 
Washington, DC 20250-0517; telephone (202) 720-5172; e-mail [email protected]. 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).

SUPPLEMENTARY INFORMATION:

Notice and Comment

    Section 196 of the Federal Agriculture Improvement Act of 1996 
(1996 Act) is the statutory authority for NAP. Section 10101 of the 
2002 Act amended section 196 to provide for the new crop eligibility 
implemented by this rule. Section 161 of the 1996 Act requires that the 
provisions of Title I of the 1996 Act, which includes section 196, be 
issued without regard to the notice and comment provisions of 5 U.S.C. 
553 or the Statement of Policy of the Secretary of Agriculture 
effective July 24, 1971, (36 FR 13804) relating to notices of proposed 
rulemaking and public participation in rulemaking. These regulations 
are thus issued as final.

Executive Order 12866

    This final rule has been determined to be not significant under 
Executive Order 12866 and therefore has not been reviewed by the Office 
of Management and Budget (OMB).

Federal Assistance Programs

    The title and number of the Federal assistance program, as found in 
the Catalog of Federal Domestic Assistance, to which this final rule 
applies are:
    Noninsured Crop Disaster Assistance--10.451.

Regulatory Flexibility Act

    The Regulatory Flexibility Act is not applicable to this rule 
because neither the Secretary of Agriculture nor CCC are required by 5 
U.S.C. 553 or any other law to publish a notice of proposed rulemaking 
for the subject matter of this rule.

Environmental Assessment

    The environmental impacts of this 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 FSA's 
regulations for compliance with NEPA, 7 CFR part 799. FSA has concluded 
that this rule is categorically excluded from further environmental 
review and documentation as evidenced by the completion of an 
environmental evaluation. 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 12778

    The final rule has been reviewed in accordance with Executive Order 
12778. This final rule preempts State laws to the extent such laws are 
inconsistent with the provisions of this rule. The provisions of this 
rule are not retroactive. Before any judicial action may be brought 
concerning the provisions of this rule, the administrative remedies 
must be exhausted.

Executive Order 12372

    This program is not subject to the provisions of Executive Order 
12372, which require 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

    The provisions of Title II of the Unfunded Mandates Reform Act of 
1995 (UMRA) do not apply to this rule because neither the Secretary of 
Agriculture nor CCC are required by 5 U.S.C. 553 or any other law to 
publish a notice of proposed rulemaking for the subject matter of this 
rule. Also, the rule imposes no mandates as defined in UMRA.

Paperwork Reduction Act

    Section 196 of the 1996 Act requires that these regulations be 
issued without regard to the Paperwork Reduction Act. This means that 
the normal 60-day public comment period and OMB approval of the 
information collections required by this rule are not necessary before 
the regulations may be made effective. However, FSA will still request 
approval of the new information collections required by this rule.

Government Paperwork Elimination Act

    CCC and FSA are committed to compliance with the Government 
Paperwork Elimination Act (GPEA) and the Freedom to E-File Act, which 
require Government agencies in general, and FSA in particular, to 
provide the public the option of submitting information or transacting 
business electronically to the maximum extent possible. The forms and 
other information collection activities required by participation in 
the Noninsured Crop Disaster Assistance Program are not yet fully 
implemented in a way that would allow the public to conduct business 
with FSA electronically. Accordingly, applications for this program may 
be submitted at FSA offices by mail or FAX.

Background

    The Noninsured Crop Disaster Assistance Program is operated by FSA 
and CCC under the authority section 196 of the Federal Agriculture 
Improvement and Reform Act of 1996 (7 U.S.C. 7333) (the 1996 Act). The 
1996 Act requires that eligible program crops be crops that are used 
for food or fiber or that are specifically identified by the statute. 
Sea grass and sea oats were neither and therefore were not eligible. 
Section 10101 of the 2002 Act amended section 196 of the 1996 Act to 
specifically identify them as eligible crops.
    Section 196 of the 1996 Act provides that the Secretary of 
Agriculture shall operate a noninsured crop disaster assistance program 
to provide coverage equivalent to the catastrophic risk protection 
otherwise available under section 508(b) of the Federal Crop Insurance 
Act (7 U.S.C. 1508(b)). Coverage under section 196 is limited to crops 
that are commercial or agricultural in nature for which

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catastrophic risk protection under section 508(b) is not available and 
that are produced for food or fiber or are specifically included by the 
statute. Qualifying losses must be due to drought, flood, or other 
natural disaster, as determined by the Secretary. Among other 
requirements, the 1996 Act specifies that a producer shall submit an 
application for noninsured crop disaster assistance at a local office 
of the Department, that the application must be in such form and 
contain such information as the Secretary may specify and must be 
submitted not later than 30 days before the beginning of the coverage 
period. The coverage period is determined by the Secretary. There are 
also provisions in the law for acreage reports. Under the statute, 
differing qualifying loss thresholds are based on whether the crop was 
planted and failed or whether instead the crop could not be planted 
because of a qualifying condition. If all other conditions are met, 
payments will are determined by multiplying the amount by which the 
harvest is less than 50 percent of the established yield for the crop 
by 55 percent of the average market price for the crop (or any 
comparable coverage determined by the Secretary) by a payment rate that 
takes in other factors. Provisions are also made in the statute for 
yield determinations. Further details are set out in the final rule 
published on March 19, 2002, which was a major revision of the NAP 
regulations.
    The rule provides that sea oats and sea grass will be treated as 
value-loss crops and eligibility will be limited to ornamental plants 
grown for commercial sale and seeds and transplants produced for 
commercial sale as propagation stock. The rule provides that claims 
involving ornamental sea oat and see grass plants will be compensable 
in the same manner and subject to the same conditions as ornamental 
nursery stock under section 1437.305 of the existing regulations. For 
propagation stock (seed or transplant), claims will be compensable 
under new provisions set out in the rule. The limitations in the rule 
reflect the limited purpose of the statute and the limitations that 
apply to other crops under the same program. They include the 
requirement that an application for coverage be filed at least 30 days 
in advance of the coverage period. That rule establishes, among other 
things, the manner in which the beginning of the coverage period, and 
hence the last date for filing the application for coverage, is 
determined.
    This rule provides that sea oats and sea grass will be treated as 
``value loss'' crops, as opposed to field crops where the loss is not 
based on the loss of particular plants, but based on loss of an 
expected yield of a particular plot. As with ornamental crops, all 
plants that survive the disaster will be treated as not involving a 
compensable loss even though there may be some damage to the plant. 
This reflects the orientation of the program to actual yield, rather 
than quality, losses. In any event, gradations of loss to individual 
plants would be difficult (a difficulty not contemplated by the 
statute). It would also be imprecise. Further, in many cases, damaged 
plants can be rejuvenated.

List of Subjects in 7 CFR Part 1437

    Crop insurance, Nursery stock, Plants.

    For the reasons set out above, 7 CFR Part 1437 is amended as 
follows:

PART 1437--NONINSURED CROP DISASTER ASSISTANCE PROGRAM

    1. The authority citation for part 1437 continues to read as 
follows:

    Authority: 15 U.S.C. 714 et seq.; and 7 U.S.C. 7333.

Subpart A--General Provisions

    2. Amend Sec.  1437.4 by removing the word ``and'' at the end of 
paragraph (c)(4)(vi), removing the period at the end of paragraph 
(c)(4)(vii) and inserting a semicolon and the word ``and'' in its 
place, and adding paragraph (c)(4)(viii) to read as follows:


Sec.  1437.4  Eligibility.

* * * * *
    (c) * * *
    (4) * * *
    (viii) Sea grass and sea oats.

Subpart D--Determining Coverage Using Value

    3. Add section 1437.310 to read as follows:


Sec.  1437.310  Sea grass and sea oats.

    (a) Sea grass and sea oats are value loss crops and eligibility 
will be limited to ornamental plants grown for commercial sale and 
seeds and transplants produced for commercial sale as propagation 
stock.
    (b) An eligible commodity under this section intended for sale on a 
commercial basis as:
    (1) An ornamental plant can produce a claim in the event of a loss 
due to a qualifying condition only in the same manner and subject to 
the same conditions as ornamental nursery stock under Sec.  1437.305 
and such claims shall not, as such, be subject to the provisions of 
paragraphs (c) through (h) of this section, except to the extent that 
similar provisions apply to claims under Sec.  1437.305.
    (2) Propagation stock (seed or transplant) can produce a claim 
under this part but only in accord with the provisions that follow in 
this section and subject to other conditions on payment as may be 
imposed elsewhere in this part.
    (c) For purposes of a loss calculation arising under paragraph 
(b)(2) of this section, the value of:
    (1) Seed will be determined on a yield basis made in accordance 
with subpart B of this part and average market price established in 
accordance with Sec.  1437.11.
    (2) Transplant losses will be determined based on inventory that 
existed immediately before and after the disaster and average market 
price established in accordance with Sec.  1437.11.
    (d) Transplant producers must have up-to-date inventory and sales 
records and other documents, sufficient to document actual losses, as 
determined by CCC.
    (e) The land, waterbed, or facility in which the eligible commodity 
was located at the time of loss must:
    (1) Be owned or leased by the producer;
    (2) Have readily identifiable boundaries; and
    (3) Be managed and maintained using acceptable growing practices 
for the geographical region, as determined by CCC.
    (f) The producer must have control of the land, waterbed, or 
facility and must ensure adequate and proper:
    (1) Flood prevention;
    (2) Growing medium;
    (3) Fertilization or feeding;
    (4) Irrigation and water quality;
    (5) Weed control;
    (6) Pest and disease control;
    (7) Rodent and wildlife control; and
    (8) Over-winterization facilities, as applicable.
    (g) The eligible commodity must be:
    (1) Grown in a region or controlled environment conducive to 
successful production, as determined by CCC; and
    (2) Placed in the waterbed or facility in which the loss occurs and 
not be indigenous to the waterbed or facility.
    (h) Eligible commodities having any dollar value after the disaster 
shall be considered as having full value when making loss calculations. 
Also, damaged plants that do not have any value after the disaster but 
that can be rejuvenated or may, if not fully rejuvenated, reacquire 
value, shall be counted as worth full value as well.
    (i) In the crop year in which a notice of loss is filed, producers 
may be

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required, at the discretion of CCC, to provide evidence that the 
eligible commodity was produced in accordance with paragraphs (e), (f), 
and (g) of this section and other provisions of this part.

    Signed in Washington, DC, on September 20, 2002.
James R. Little,
Executive Vice President, Commodity Credit Corporation.
[FR Doc. 02-25248 Filed 10-4-02; 8:45 am]
BILLING CODE 3410-05-P