[Federal Register Volume 68, Number 200 (Thursday, October 16, 2003)]
[Proposed Rules]
[Pages 59548-59554]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-26174]


 ========================================================================
 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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 

  Federal Register / Vol. 68, No. 200 / Thursday, October 16, 2003 / 
Proposed Rules  

[[Page 59548]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. 00-035-2]
RIN 0579-AB19


Plum Pox Compensation

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: We are proposing to amend the plum pox compensation 
regulations to provide additional compensation to affected growers, 
under certain conditions. We are proposing 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. Such growers would be paid compensation 
for up to 2 additional years. We are also proposing 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 are proposing 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 proposed changes are necessary to provide adequate 
compensation to persons affected by the plum pox quarantine and 
eradication efforts associated with the quarantine.

DATES: We will consider all comments that we receive on or before 
December 15, 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. 00-035-2, 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. 00-035-2. If you use e-mail, 
address your comment to [email protected]. 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. 
00-035-2'' 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. Stephen Poe, Operations Officer, 
Program Support Staff, PPQ, APHIS, 4700 River Road Unit 134, Riverdale, 
MD 20737-1236; (301) 734-8247.

SUPPLEMENTARY INFORMATION:

Background

    Plum pox is an extremely serious viral disease of plants that can 
affect many Prunus (stone fruit) species, including plum, peach, 
apricot, almond, nectarine, and sweet and tart cherry. A number of wild 
and ornamental Prunus species may also be susceptible to this disease. 
Infection eventually results in severely reduced fruit production, and 
the fruit that is produced is often misshapen and blemished. In Europe, 
plum pox has been present for a number of years and is considered to be 
the most serious disease affecting susceptible Prunus varieties. Plum 
pox virus is transmitted locally by a variety of aphid species, as well 
as by budding and grafting with infected plant material, and spreads 
over longer distances through movement of infected budwood, nursery 
stock, and other plant parts.
    There are no known effective methods for treating trees or other 
plant material infected with plum pox, nor are there any known 
effective prophylactic treatments to prevent the disease from occurring 
in trees exposed to the disease due to their proximity to infected 
trees or other plant material. Without effective treatments, the only 
option for preventing the spread of the disease is the destruction of 
infected and exposed trees and other plant material.
    On March 2, 2000, as a result of the detection of plum pox in Adams 
County, PA, the Secretary of Agriculture published in the Federal 
Register (65 FR 11280-11281, Docket No. 00-001-1) a declaration of 
extraordinary emergency regarding plum pox that was effective on 
January 20, 2000. The declaration of extraordinary emergency was 
followed by an interim rule published in the Federal Register on June 
2, 2000 (65 FR 35261-35265, Docket No. 00-034-1), that established 
regulations quarantining a portion of Adams County, PA, due to the 
detection of plum pox in that region \1\ and restricting the interstate 
movement of certain articles from the quarantined area that present a 
risk of transmitting plum pox (e.g., trees, seedlings, root stock, 
budwood, branches, twigs, and leaves of susceptible Prunus spp.). That 
interim rule, which established a new ``Subpart-Plum Pox'' (7 CFR 
301.74 through 301.74-4), was promulgated on an emergency basis to 
prevent the spread of plum pox to noninfested areas of the United 
States.
---------------------------------------------------------------------------

    \1\ The particular strain of plum pox found in the quarantined 
area in Adams County, PA--the ``D'' strain--is not known to be 
transmitted by seed or fruit, and is not known to infect cherry.
---------------------------------------------------------------------------

    On September 14, 2000, we published in the Federal Register (65 FR 
55431-55436, Docket No. 00-035-1) another interim rule that established 
regulations to provide for the payment of compensation to owners of 
commercial stone fruit orchards and fruit tree nurseries who had stone 
fruit trees or nursery stock destroyed in order to control plum pox. 
Those compensation provisions, which were added to ``Subpart-Plum Pox'' 
as a new Sec.  301.74-5, were necessary to reduce the economic effect 
of the plum pox quarantine on affected commercial growers and nursery 
owners, thus ensuring the continued cooperation of growers and nursery 
owners with the

[[Page 59549]]

survey and eradication activities being conducted by the U.S. 
Department of Agriculture's (USDA's) Animal and Plant Health Inspection 
Service (APHIS) and the Pennsylvania Department of Agriculture (PDA).

Existing Compensation Regulations

    Under the regulations in Sec.  301.74-5 (referred to below as the 
regulations), owners of commercial stone fruit orchards and owners of 
fruit tree nurseries are eligible to receive compensation for losses 
associated with the destruction of trees in order to control plum pox 
and the prohibition on the movement or sale of nursery stock, 
respectively, if the losses result from an action performed pursuant to 
an emergency action notification (EAN) issued by APHIS.
    The regulations provide, among other things, that owners of 
commercial stone fruit orchards will be compensated on a per-acre basis 
at a rate based on the age of the trees destroyed and a 3-year 
prohibition on the replanting of host trees. The compensation to be 
paid by USDA is based on the loss in value of the destroyed orchard. 
The loss in value is calculated as the difference between the net 
present value (NPV) of the original (destroyed) orchard over a 25-year 
life cycle minus the NPV of the replanted orchard for its entire 
productive life of 25 years. To calculate the NPV of an orchard (both 
original and replanted orchards), we used discounted cash flow 
analysis, which takes into account the quantity, variability, and 
duration of the forecasted income stream over a specified income 
projection period. Each year's net income is discounted back to a 
present worth figure at the appropriate, market-derived discount rate. 
The valuation model can be expressed in the following equation form, 
where Y = net income, r = discount rate, and n = number of years in the 
discount period:
[GRAPHIC] [TIFF OMITTED] TP16OC03.004

    To calculate NPV using the above equation, we had to determine net 
income, discount rate, and the number of years in the discount period. 
Each of these inputs is discussed below.
    The rate of compensation to be paid by USDA is set at up to 85 
percent of the difference in value between the destroyed and 
replacement orchards as described above. The State of Pennsylvania has 
indicated that State funds will be used to make up the remaining 
difference in value. In no case will total USDA plus State compensation 
exceed 100 percent of the difference in value.
    Net income. To determine per-acre net income, we multiplied the 
yield (number of bushels) per acre by the price per bushel, then 
subtracted production costs. The estimation of net income is based on 
the 1995-1998 average Pennsylvania peach production, price, and yield 
data from the Pennsylvania Agricultural Statistics Service.

----------------------------------------------------------------------------------------------------------------
                                                            Peach price  ($/   Yield  (bushel/   Income  ($ per
                           Year                                  bushel)            acre)             acre)
----------------------------------------------------------------------------------------------------------------
1995......................................................             13.65             275.9             3,766
1996......................................................             16.50             254.5             4,199
1997......................................................             16.85             254.5             4,288
1998......................................................             15.85             236.4             3,747
                                                           -------------------
    1995-98 average.......................................             15.71             255.3             4,010
----------------------------------------------------------------------------------------------------------------

    The calculation of the variable costs of production is based on the 
following estimates:

----------------------------------------------------------------------------------------------------------------
            Type of cost                       Year incurred                              Costs
----------------------------------------------------------------------------------------------------------------
Land preparation...................  Year 0...........................  $395 per acre.
Planting...........................  Year 1...........................  $1,303 per acre.
Orchard maintenance during           Year 2...........................  $222 per acre.
 preproductive year.
Orchard maintenance during           Years 3-25.......................  $899/year per acre.
 productive years.
Harvest cost.......................  Years 4-25.......................  $1.75 per bushel.
----------------------------------------------------------------------------------------------------------------

    Discount rate. The discount rate used in the present value 
calculation is 12.5 percent, which is the risk-adjusted rate estimated 
to be appropriate in this situation.
    Number of years in discount period. The NPV was calculated using a 
life cycle approach. The revenues and costs were calculated over a 
period equal to the expected productive life of a replanted orchard, 
which, as noted previously, is 25 years.
    Using the information and methodology set forth in the preceding 
paragraphs, we arrived at the per-acre compensation rates set forth in 
Sec.  301.74-5(b)(1) of the current regulations. The amounts of 
compensation for destroyed trees range from $3,713 per acre for a 25-
year-old block of trees to $15,000 per acre for a 7-year-old block of 
trees. Finally, because compensation programs are intended, in part, to 
encourage the prompt execution of measures deemed necessary to control 
or eradicate plant pests, Sec.  301.74-5(b)(1) of the regulations 
provides that compensation payments will be reduced by 10 percent, plus 
any tree removal costs incurred by the State or USDA, if the trees 
subject to an EAN were not destroyed by the date specified on that 
order.
    The existing regulations also: (1) Provide that owners of fruit 
tree nurseries will be compensated for up to

[[Page 59550]]

85 percent of the net revenues lost from their first and second year 
crops as the result of the issuance of an EAN, and (2) stipulate 
procedures for applying for compensation and require that premises on 
which trees have been destroyed because of plum pox pursuant to an EAN 
issued by APHIS may not be replanted with susceptible Prunus species 
(Prunus species identified as regulated articles) for 3 years.

Proposed Changes to the Compensation Regulations

Extension of Prohibition of Replanting
    In December 2001, a science panel \2\ concluded that the 
prohibition on replanting host material at locations where orchards had 
been destroyed due to the presence of plum pox should be extended due 
to recent detections of plum pox-positive trees during the second year. 
As a result of these detections, replanting cannot occur at affected 
sites for an additional 3 years. Since the existing regulations in 
Sec.  301.74-5(d) do not make it clear that replanting should be banned 
in a regulated area until 3 years after the most recent detection of 
plum pox in that area, we are proposing to amend the regulations to 
clarify that fact.
---------------------------------------------------------------------------

    \2\ The science panel was composed of representatives of APHIS, 
PDA, USDA's Agricultural Research Service, and university 
scientists.
---------------------------------------------------------------------------

    As explained earlier in this document, the calculations on which 
the currently authorized rates of compensation are based were designed 
to account for a 3-year period during which growers could not replant 
Prunus species in quarantined areas. Given the detections of additional 
plum pox-positive trees, we believe it is necessary to provide 
additional compensation to growers since they will not be able to plant 
host species for additional years. The amount of additional 
compensation has been determined to be $828 per acre for a fourth 
fallow year and $736 per acre for a fifth fallow year. These amounts 
are based on extending the same formula we used to calculate the 
original 3-year compensation rate to apply to fourth and fifth fallow 
years.
    We are proposing to provide additional payments in those amounts to 
growers who have already received compensation payments, and to provide 
those same amounts to growers who are due compensation in the future.

    Note: APHIS does not intend to propose additional compensation 
in the future if additional plum pox positive trees are found and 
the ban on replanting must be extended further. The maximum amount 
of compensation per acre that a grower could receive under any 
circumstances would be the total payment due for 5 fallow years 
according to the age of the trees.

    The revised compensation rates are shown in proposed Sec.  301.74-
5(b)(1)(ii) in the rule portion of this document.

New Provisions for Direct Market Growers

    The current compensation regulations contain no provisions for 
``direct market growers.'' Direct market growers are growers who 
produce fruit and sell the fruit themselves for premium prices at 
farmers markets. Typically, the acreage involved in production for 
these purposes is small, and all of the fruit produced is for sale 
directly to consumers as tree-ripened fruit. None of the fruit produced 
on acreage devoted to direct market production is sold for processing 
or to packing houses, nor is it marketed wholesale.
    Direct market growers usually produce a wide variety of fruit (both 
species and varieties) to enable them to satisfy the needs of their 
customers through an extended marketing season. In the event these 
growers are not able to use their own fruit (e.g., as a result of their 
orchards being destroyed due to the presence of plum pox) they are 
normally precluded from obtaining fruit from other sources. The 
conditions under which these growers are eligible to sell their 
products at farmers markets usually require that sellers be the 
producers of the fruits and vegetables they are selling.
    We have reviewed information on production costs and revenues for 
direct market growers, and believe it is necessary to increase the 
rates of payment to these growers in order to fairly compensate them. 
The formulas used to calculate the original amount of compensation due 
to such growers would remain the same, and the discount rates would not 
be changed. The difference in payments for direct marketers versus 
other growers would be due primarily to the high value of sales by 
direct marketers, despite the fact that they bear additional costs that 
other growers do not. The net income for direct marketers are based on 
the income and cost figures presented in tables 1 and 2:

                                              Table 1.--Calculation of Income Per Acre for Direct Marketers
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         Peach price  ($ per   Yield  (bushel per
                              Year                                Price  ($ per pound)         bushel)                acre)         Income  ($ per acre)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1998............................................................                 $1.69                 81.13                 273.1               $22,156
1999............................................................                  1.66                 79.92                 321.3                25,678
2000............................................................                  1.65                 79.03                 378.0                29,873
                                                                 -----------------------
    3-year average..............................................                  1.67                 80.02                 324.1                25,902
--------------------------------------------------------------------------------------------------------------------------------------------------------


                           Table 2.--Variable Costs of Production for Direct Marketers
----------------------------------------------------------------------------------------------------------------
            Type of cost                       Year incurred                              Costs
----------------------------------------------------------------------------------------------------------------
Land preparation...................  Year 0...........................  $395 per acre.
Planting...........................  Year 1...........................  1,303 per acre.
Maintenance (pre-productive years).  Year 2...........................  222 per acre.
Maintenance (productive years).....  Years 3-25.......................  1,376 per year, per acre.
Harvest............................  Years 4-25.......................  1.75 per bushel, per year.
Marketing costs....................  Years 4-25.......................  21,304 per year.
----------------------------------------------------------------------------------------------------------------


[[Page 59551]]

    As with per-acre net income for all other growers, to determine 
per-acre net income for direct marketers, we multiplied the yield 
(number of bushels) per acre by the price per bushel, then subtracted 
production costs. The estimation of net income is based on data 
provided by a direct marketer for the 1998, 1999, and 2000 production 
seasons.
    Given the difference in net income between other growers and direct 
marketers, we are proposing to compensate direct marketers at the rates 
shown in proposed Sec.  301.74-5(b)(1)(i) in the rule portion of this 
document. Like the rates for other growers discussed earlier in this 
document, the rates for direct marketers would also include provisions 
to pay compensation for fourth and fifth fallow years if necessary.
    We propose to pay growers direct market rates of compensation only 
if the orchard owner grows fruit exclusively for sale in farmers 
markets or similar outlets as described in the proposed regulations. We 
would not pay compensation at direct marketer rates to growers who sell 
any portion of their harvest to wholesale markets, nor would we pay 
direct marketer compensation rates to growers who sell most of their 
fruit wholesale and who sell some of their fruit at roadside fruit 
stands or similar venues.

Additional Compensation for Destruction of Trees Less Than 1 Year Old

    The current regulations do not contain provisions for compensation 
for the destruction of trees less than 1 year old (known as ``0 year 
trees''). However, we have concluded that growers who have such trees 
destroyed because of plum pox deserve to be compensated for the loss of 
those trees and the revenue that might be expected from them. This is 
based on our determination that growers incur costs in ground 
preparation, the cost of nursery stock, and the expense of planting and 
maintaining these trees.
    After examining the economic information obtained from the 
Pennsylvania State University and the Pennsylvania State Adams County 
Cooperative Extension Service, we have concluded that a fair rate of 
compensation for these trees is $2,403 per acre for all growers, 
including direct marketers. This amount represents the 85 percent 
Federal share, and is the same for all growers because all growers, 
including direct marketers, incur similar costs for 0 year trees. 
Growers of 0 year trees would also be compensated for fourth and fifth 
fallow years, where applicable, at rates of $828 per acre for a fourth 
fallow year and $736 per acre for a fifth fallow year.
    Compensation will be paid using funds transferred to APHIS by the 
Commodity Credit Corporation of USDA. For any acres that are added to 
the plum pox quarantine program after September 30, 2004, the Federal 
share of compensation to be paid may change.

Benefits of Compensation

    The benefit of providing compensation is the increased likelihood 
that growers with infected orchards will participate in the plum pox 
eradication program. The use of compensation complements and supports 
the regulatory goal of preventing disease spread. More so than in other 
pest eradication programs, the specific characteristics of plum pox 
necessitate the use of compensation to obtain growers' cooperation in 
the control of the immediate disease outbreak and the ensuing national 
survey.
    Because the manner in which PPV spreads is not predictable, the 
eradication strategy necessarily calls for the destruction of trees 
that are asymptomatic. Growers, on their own, would not have the 
incentive to cut down trees that appear uninfected as would be 
necessary in an eradication program.
    Without government intervention, growers would opt to keep 
producing as long as trees remain symptom-free. The eradication 
strategy calling for the swift destruction of both diseased and exposed 
trees causes economic losses in addition to that resulting from the 
disease. For these reasons, the payment of compensation would reflect 
the incremental burdens of complying with regulatory requirements 
insofar as market forces would not otherwise impose similar costs.

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 the purposes of 
Executive Order 12866 and, therefore, has been reviewed by the Office 
of Management and Budget.
    We have prepared an economic analysis for this proposed 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 proposing to amend the plum pox compensation regulations to 
provide additional compensation to affected growers, under certain 
conditions. We are proposing 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. Such growers would be paid compensation for up to 2 
additional years. We are also proposing 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 are proposing 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 proposed changes are necessary to provide adequate compensation 
to persons affected by the plum pox quarantine and eradication efforts 
associated with the quarantine.
    This proposed rule would amend the regulations to provide 
additional compensation in the event a quarantine period is extended 
according to an EAN 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. We are 
proposing to increase 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. The maximum amount of compensation to be paid would be for 
5 fallow years. For orchards removed in 2002, we anticipate that only a 
3-year fallow period will be 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 the grower could earn from a replanted orchard after a 
fallow period. A longer fallow period results in higher compensation 
payments because of the

[[Page 59552]]

additional time it takes until growers have productive trees.
    The payment to commercial growers for 2 additional fallow years 
would be $828 per acre for the fourth year and $736 per acre for the 
fifth year ($1,564 total per acre). The total number of acres that 
would currently be 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 
would be required to wait before replanting. Table 7, page 15 
summarizes the range of payments. Payments to direct marketers for the 
first three fallow years would 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 three 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 would be compensated for up to 5 (total) fallow 
years. They would receive $1,710 per acre for a fourth year and $1,520 
per acre for a fifth 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 would 
increase by $264,472, assuming the fallow period does not need to be 
extended. A four year fallow period for direct marketers would result 
in payments of $11,882 per acre ($10,172 + $1,710). Total payments for 
26 acres would be $308,932. A five year fallow period for direct 
marketers would result in payments of $13,402 per acre 
($10,172+$1,710+$1,520). Total payments for 26 acres would be $348,452.
    This proposed rule also addresses the issue of trees less than one 
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 one 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 three year 
fallow period. There are at least 43 acres of zero year trees that have 
been removed as part of the plum pox eradication program; total 
payments to growers of zero year trees would increase by $103,329.
    As stated earlier in this document, these proposed changes 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 would, in all cases, 
benefit from adoption of this proposed rule.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action would 
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. 10.025 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 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.

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. 00-035-2. 
Please send a copy of your comments to: (1) Docket No. 00-035-2, 
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.
    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).
    Estimate of burden: Public reporting burden for this collection of 
information is estimated to average 0.6667 hours per response.
    Respondents: Owners of stone fruit orchards and fruit tree 
nurseries in Pennsylvania.
    Estimated annual number of respondents: 3.
    Estimated annual number of responses per respondent: 1.
    Estimated annual number of responses: 3.
    Estimated total annual burden on respondents: 2 hours. (Due to 
averaging, the total annual burden hours may not equal the product of 
the annual number of responses multiplied by the reporting burden per 
response.)
    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.

[[Page 59553]]

List of Subjects in 7 CFR Part 301

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

    Accordingly, we propose to amend 7 CFR part 301 as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

    1. The authority citation for part 301 would continue 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).

    2. In Sec.  301.74-5, paragraphs (a)(1), (b)(1), (c)(1), (c)(2) and 
(d) would be revised and a new paragraph (c)(3) would be added 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 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.

----------------------------------------------------------------------------------------------------------------
                                                                 Maximum           Maximum           Maximum
                                                              compensation       additional        additional
                                                              rate ($/acre,   compensation ($/  compensation ($/
                   Age of trees (years)                      equal to 85% of   acre, equal to    acre, equal to
                                                             loss in value)    85% of loss in    85% of loss in
                                                             based on 3-year   value) for 4th    value) for 5th
                                                              fallow period      fallow year       fallow year
----------------------------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------


[[Page 59554]]

    (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.

----------------------------------------------------------------------------------------------------------------
                                                                 Maximum           Maximum           Maximum
                                                              compensation       additional        additional
                                                              rate ($/acre,   compensation ($/  compensation ($/
                   Age of trees (years)                      equal to 85% of   acre, equal to    acre, equal to
                                                             loss in value)    85% of loss in    85% of loss in
                                                             based on 3-year   value) for 4th    value) for 5th
                                                              fallow period      fallow year       fallow year
----------------------------------------------------------------------------------------------------------------
Less than 1...............................................            $2,403              $828              $736
1.........................................................             4,805               828               736
2.........................................................             7,394               828               736
3.........................................................             9,429               828               736
4.........................................................            12,268               828               736
5.........................................................            14,505               828               736
6.........................................................            14,918               828               736
7.........................................................            15,000               828               736
8.........................................................            14,709               828               736
9.........................................................            14,383               828               736
10........................................................            14,015               828               736
11........................................................            13,601               828               736
12........................................................            13,136               828               736
13........................................................            12,613               828               736
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
----------------------------------------------------------------------------------------------------------------

* * * * *
    (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.
* * * * *

    Done in Washington, DC, this 10th day of October 2003.
Bill Hawks,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 03-26174 Filed 10-15-03; 8:45 am]
BILLING CODE 3410-34-P