[Federal Register Volume 69, Number 105 (Tuesday, June 1, 2004)]
[Rules and Regulations]
[Pages 30815-30818]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12266]



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 Rules and Regulations
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  Federal Register / Vol. 69, No. 105 / Tuesday, June 1, 2004 / Rules 
and Regulations  

[[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.

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

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.

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

    (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 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
--------------------------------------------------------------------------------------------------------------------------------------------------------
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

[[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
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
    (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