[Federal Register Volume 70, Number 61 (Thursday, March 31, 2005)]
[Notices]
[Pages 16477-16480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6364]


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DEPARTMENT OF AGRICULTURE

Farm Service Agency

Commodity Credit Corporation


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.

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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: [email protected].
    Fax: Submit comments by facsimile transmission to (202) 720-4941.
    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.

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FOR FURTHER INFORMATION CONTACT: Helen Mathew, telephone (202) 720-
9878. Persons with disabilities who require alternative means for 
communication (Braille, large print, audiotape, etc.) should contact 
USDA's TARGET Center at (202) 720-2600 (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

[[Page 16479]]

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 Sec.  
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, Sec.  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

[[Page 16480]]

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.
[FR Doc. 05-6364 Filed 3-30-05; 8:45 am]
BILLING CODE 3410-05-P