[Federal Register Volume 70, Number 190 (Monday, October 3, 2005)]
[Proposed Rules]
[Pages 57520-57523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19671]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 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. 70, No. 190 / Monday, October 3, 2005 / 
Proposed Rules  

[[Page 57520]]



DEPARTMENT OF AGRICULTURE

Commodity Credit Corporation

7 CFR Part 1437

RIN 0560 AH19


Noninsured Crop Disaster Assistance Program--Tropical Regions

AGENCY: Commodity Credit Corporation, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would change the handling of claims for 
specified ``tropical'' regions for the Noninsured Crop Disaster 
Assistance Program (NAP). The specified area includes Hawaii, Puerto 
Rico and specified additional areas. The proposed changes are intended 
to reduce the burden on program participants and ease program 
administration in the affected areas.

DATES: Comments on the proposed rule, or alternatives to this proposal, 
must be received on or before November 2, 2005 to be assured of 
consideration. Comments received after this date may be considered to 
the extent practicable. Comments on the information collections in this 
rule must be received on or before December 2, 2005 to be assured of 
consideration. Comments received after this date will be considered to 
the extent practicable.
     Electronic Mail: Send comments to [email protected].
     Fax: Submit comments by facsimile transmission to (202) 
690-3646.
     Mail: Send comments to John Newcomer, Program Specialist, 
Noninsured Crop Disaster Assistance Program, Farm Service Agency, 
United States Department of Agriculture (USDA), STOP 0517, Room 3638-S, 
1400 Independence Avenue, SW., Washington, DC 20250-0517.
     Hand Delivery or Courier: Deliver comments to the above 
address.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Comments may be inspected in the Office of the Branch Chief, 
Noninsured Assistance Program Branch, Room 3638-S, 1400 Independence 
Avenue, SW., Washington, DC 20250-0517. All comments will become a 
matter of public record, including the name, mailing address, and e-
mail address of the commenting party.

FOR FURTHER INFORMATION CONTACT: John Newcomer, phone: (202) 720-6157. 
Persons with disabilities who require alternative means for 
communication (Braille, large print, audiotape, etc.) should contact 
the USDA Target Center at (202) 720-2600 (voice and TDD).

SUPPLEMENTARY INFORMATION:

Background

    Current NAP regulation requires that when annual crops are planted 
multiple times in a crop year, individual planting periods must be used 
to determine planted acres, production and requisite loss. When 
multiple planting periods are used, producers pay multiple NAP service 
fees for that crop year. Because of the unique climate in tropical 
regions, planting periods there tend to be continuous. This proposed 
rule would make changes to reflect that difference and to provide 
special loss compensation provisions to address the special conditions 
in those areas. Also for tropical regions, as defined in the rule, the 
proposed rule provides for covered crops that ``prevented planting'' 
credit will not be allowed except in exceptional cases. Usually, 
plantings can still be made after the disaster condition has passed. 
Further, the rule provides that payable losses on covered crops will 
generally be limited to tropical storms and related types of events. 
This is because of general conditions in the region and the lack of 
resources in some tropical areas to assess other kinds of losses.
    The tropical region is identified in the rule to include Hawaii and 
Puerto Rico, Guam, the former Trust Territory of the Pacific Islands, 
the U.S. Virgin Islands, and American Samoa. Outside of Hawaii and 
Puerto Rico, the extension of NAP to these areas is discretionary under 
the authority of Title 48 of the United States Code, Chapter 10, 
Section 1469d(c). The extension of the program to those areas is, under 
the statute, subject to such additional limits on eligibility as are 
determined to be appropriate.
    The proposed rules would apply beginning with 2006 crops in the 
tropical region, as that region as defined in the rule, except for 
``value-loss'' crops as they are otherwise defined in subpart D of the 
existing program regulations. The ``value-loss'' crops are crops which 
do not lend themselves to calculations based on loss yields and 
include, as defined in subpart D, among others, crops like ornamental 
nursery crops and mushrooms. Essentially, under the proposed rule, for 
perennial crops all of the production for the crops in the ground at 
the time of the disaster event would be counted against the loss for 
that production so long as the production, whether before or after the 
disaster, takes place in the same calendar year. For other covered 
crops, all production for the plants which were in the ground at the 
time of the disaster, damaged or not, would be counted, whether that 
production was before or after the disaster, and irrespective of 
whether it was in the same crop year. That is, such production for 
those crops covers the full life of the plants that are in place when 
the disaster occurs (even if that production carries over into the next 
calendar year). For all covered crops, perennial and non-perennial, 
producers would be required to harvest all such countable production, 
report it accurately, and have it count in the calculation of whether 
there was, or was not, sufficient damage to allow for a payment. 
Irrespective of whether there is not a loss, producers with coverage 
would be required to keep records at all times of their acreage and 
production and file yearly reports. The rule provides that person 
failing to file proper reports may be ineligible for benefits and may 
be treated as having lower yields for future calculations of 
eligibility. For covered crops, the crop year would be the calendar 
year and coverage would be for all plants existing during the calendar 
year. Accordingly, since the rule proposes that the new provisions 
would begin with the ``2006 crops,'' the coverage of the rule would 
begin with those covered crops in the ground on or after January 1, 
2006. The rule would allow the agency to modify rules, to the extent 
otherwise permitted by law, if needed to provide for a reasonable 
transition to the new requirements.

[[Page 57521]]

Public Comments

    A 30 day comment period is allowed. Because this rule is expected 
to reduce paperwork for farmers, it has been determined to delay the 
effective date of the rule to allow for a longer comment period is 
unnecessary and contrary to the public interest. At the end of the 
comment period it will be determined whether the provisions should be 
made final.

Executive Order 12866

    This rule is issued in conformance with Executive Order 12866, was 
determined to be not significant, and was not reviewed by the Office of 
Management and Budget (OMB).

Regulatory Flexibility Act

    It has been determined that the Regulatory Flexibility Act is not 
applicable to this rule because CCC is not required to publish a notice 
of proposed rulemaking for the subject matter of this rule.

Environmental Assessment

    The environmental impacts of this rule have been considered 
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.

Executive Order 12988

    This rule has been reviewed in accordance with Executive Order 
12988. This rule preempts State and other local laws that are 
inconsistent with it. Before any legal action may be brought regarding 
a determination under this rule, the administrative appeal provisions 
set forth at 7 CFR parts 11 and 780 must be exhausted.

Executive Order 12372

    This program is not subject to the provisions of Executive Order 
12372, which require intergovernmental consultation with State and 
local officials. ``States'' for this purpose included the 50 States and 
other areas addressed in the rule. See the notice related to 7 CFR part 
3014, subpart V, published at 48 FR 29115 (June 24, 1983).

Unfunded Mandates Reform Act of 1995

    The rule contains no Federal mandates under the regulatory 
provisions of Title II of the Unfunded Mandates Reform Act of 1995 
(UMRA) for State, local, and tribal governments or the private sector. 
Thus, this rule is not subject to the requirements of sections 202 and 
205 of the UMRA.

Paperwork Reduction Act of 1995

    In accordance with the Paperwork Reduction Act of 1995, FSA intends 
to request approval by OMB of a revision to the information collection 
made by this proposed rule. Copies of the information collection may be 
obtained from Linda Turner, the Agency Information Collection 
Coordinator, by calling (202) 690-1855.
    Title: Noninsured Crop Disaster Assistance Program.
    OMB Control Number: 0560-0175.
    Type of Request: Revision of a Currently Approved Information 
Collection.
    Abstract: 7 U.S.C. 7333 specifies that the Secretary (of 
Agriculture) shall operate a noninsured crop disaster assistance 
program to provide coverage equivalent to the catastrophic risk 
protection otherwise available under 7 U.S.C. 1508(b). Producers must 
submit an application, pay a service fee, and provide annual records of 
crop acreage, yields, and production for each crop by the designated 
acreage reporting date for the crop and location, to be eligible for 
assistance.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 55 minutes per response.
    Respondents: Producers of crops and agricultural commodities 
(except livestock).
    Estimated Number of Respondents: 291,500.
    Estimated Number of Responses per Respondent: 6.
    Estimated Total Annual Burden on Respondents: 2,140,000.
    Proposed topics for comment include: (a) Whether the collection of 
information is necessary for the proper performance of the functions of 
the agency, including whether the information will have practical 
utility; (b) the accuracy of the agency's estimate of burden including 
the validity of the methodology and assumptions used; (c) ways to 
enhance the quality, utility, and clarity of the information collected; 
or (d) ways to minimize the burden of the collection of the information 
on those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology. Comments should be 
sent to John Newcomer, Farm Service Agency, United States Department of 
Agriculture (USDA), STOP 0517, Room 3638-S, 1400 Independence Avenue, 
SW., Washington, DC 20250-0517.

Executive Order 12612

    This rule does not have sufficient Federalism implications to 
warrant the preparation of a Federalism Assessment. This rule will not 
have a substantial direct effect on States or their political 
subdivisions or on the distribution of power and responsibilities among 
the various levels of government. ``States'' for this purpose included 
the 50 States and other areas addressed in the rule.

Government Paperwork Elimination Act

    FSA is committed to compliance with the Government Paperwork 
Elimination Act (GPEA) and the Freedom To E-File Act, which require 
Government agencies in general and FSA in particular to provide the 
public the option of submitting information or transacting business 
electronically to the maximum extent possible. The forms and other 
information collection activities required for participation in the 
program are available electronically for downloading or electronic 
submission through the USDA eForms Web site at http://forms.sc.egov.usda.gov/eforms.

Federal Assistance Programs

    The title and number of the Federal assistance program found in the 
Catalog of Federal Domestic Assistance to which this final rule applies 
is Noninsured Assistance, 10-451.

List of Subjects in 7 CFR Part 1437

    Agricultural commodities, Disaster assistance, Reporting and 
recordkeeping requirements.

    Accordingly, for the reasons set forth in the preamble, it is 
proposed that 7 CFR part 1437 be amended to read as follows:

PART 1437--NONINSURED CROP DISASTER ASSISTANCE PROGRAM

    1. The authority citation is revised to read as follows:

    Authority: 7 U.S.C. 7333; 15 U.S.C. 714 et seq.; and 48 U.S.C. 
1469.

    2. Add Subpart F to read as follows:
Subpart F--Determining Coverage in the Tropical Region
Sec.

[[Page 57522]]

1437.501 Applicability; definition of ``tropical region'' and other 
additional definitions.
1437.502 Coverage periods and fees for the tropical region.
1437.503 Covered losses and recordkeeping requirements for the 
tropical region.
1437.504 Notice of loss for covered tropical crops.
1437.505 Application for payment for the tropical region.

Subpart F--Determining Coverage in the Tropical Region


Sec.  1437.501  Applicability; definition of ``tropical region'' and 
additional definitions.

    (a) This subpart shall only apply to covered tropical crops in the 
tropical region for the 2006 and subsequent crops years, as those terms 
are defined in this subpart, and benefits under this part may be 
extended to those crops only to the extent that they are otherwise 
eligible for assistance under this part. Covered crops shall not apply 
to ``value loss'' crops, as defined elsewhere in this part. For those 
crops that are covered by this subpart, loss determinations for the 
program covered in this part shall be determined by the rules that 
otherwise apply to the program subject to the modifications provided by 
this subpart.
    (b) For purposes of this subpart:
    (1) Tropical region includes, as may be further limited by the 
Deputy Administrator: Hawaii, American Samoa, Guam, the U.S. Virgin 
Islands, Puerto Rico, and the former Trust Territory of the Pacific 
Islands (the Commonwealth of the Northern Mariana Islands, the Republic 
of the Marshall Islands, the Federated States of Micronesia, and the 
Republic of Palau).
    (2) 2006 and subsequent crops means those crops in the ground on or 
after January 1, 2006.
    (3) Covered tropical crops means those crops and commodities in the 
tropical region that are governed by this subpart those being all crops 
and commodities in the tropical region that are otherwise eligible for 
generating a benefit claim under this part, except for value-loss crops 
as defined elsewhere in this part.
    (c) To the extent determined necessary by the Deputy Administrator, 
the Deputy Administrator may adjust requirements for assistance so as 
to provide a fair transition from previous rules for crop covered by 
this subpart to those provisions which are provided for in this 
subpart.


Sec.  1437.502  Coverage periods and fees for the covered tropical 
crops.

    (a) The crop year for all covered tropical crops is the calendar 
year (January 1 through December 31).
    (b) The application closing date for all covered tropical crops is 
December 1 of the calendar year before the applicable crop year.
    (c) For covered tropical crops, per crop year, a maximum service 
fee of $100.00 is required for coverage of:
    (1) For annual and biennial crops, all plantings of the same crop 
planted during the crop year, as determined by CCC.
    (2) For perennial crops, all acreage of the crop existing during 
the crop year, as determined by CCC.
    (d)(1) Multiple planting periods and final planting dates are not 
applicable for covered tropical crops. However, nothing in this section 
shall prohibit assigning different production expectations to different 
fields.
    (2) The coverage period for perennial and other crops covered by 
this subpart begins on January 1 of the relevant crop year and ends on 
December 31 of that year.


Sec.  1437.503  Covered losses and recordkeeping requirements for 
covered tropical crops.

    (a) Prevented planting coverage is not available for covered 
tropical crops, other than in Hawaii and Puerto Rico, except as 
approved by the Deputy Administrator in special cases.
    (b) Except in Hawaii and Puerto Rico, or as otherwise approved by 
the Deputy Administrator in individual cases, eligible causes of loss 
for covered tropical crops will only include hurricanes, typhoons, and 
named tropical storms.
    (c) Producers who have applied for coverage for covered tropical 
crops must maintain for the full coverage period contemporaneous 
records. Contemporaneous records are those created at the time of 
planting and harvesting of the crop for which the application for 
coverage is filed and for such period of time as may follow the 
coverage period to the extent production during that additional period 
would count against a loss in the event that there was or could have 
been such a loss.
    (1) Producers may be selected on a random or targeted basis to 
check for compliance with this requirement and any other requirements 
that may apply to this program.
    (2) A failure to maintain acceptable contemporaneous records 
throughout the crop year may be treated by the Commodity Credit 
Corporation as grounds for ineligibility for benefits under this part.


Sec.  1437.504  Notice of loss for covered tropical crops.

    (a) The provisions of Sec.  1437.10(c) regarding late filed notice 
of loss do not apply to covered tropical crops.
    (b) Where a notice of loss for covered tropical crops is provided 
according to Sec.  1437.10, producers must provide records, as 
maintained according to Sec.  1437.503(c) required by this subpart, of 
the:
    (1) Number of acres or other basis of measurement, as applicable, 
of the crop from which production could be achieved existing on the day 
the eligible natural disaster occurred or, for prolonged natural 
disasters, such as a drought and similar damage where applicable, 
existing on the day the notice of loss is filed.
    (2) Amount, including zero, as applicable, of production harvested, 
before or after the disaster, from those crop plantings (damaged or 
undamaged) which were in existence on the farm at the time of the 
disaster including production from the covered plantings (in existence 
at the time of the loss event) that may occur after the loss event even 
when, to the extent provided for in paragraph (c) of this section, the 
harvest occurs after the end of the crop year. Crop acreage of the 
covered crop that is in existence at the time of the loss event that 
can be harvested after the eligible natural disaster must be harvested, 
or continue to be harvested, and the harvested acres and production 
reported to FSA according to this subpart, except that for perennial 
crops the requirement ends with the end of the crop year. For non-
perennial crops the obligation to harvest ends with the end of the 
life-cycle for the plantings that were in existence at the time of the 
loss event.
    (i) Except as otherwise determined by the Farm Service Agency, such 
production, before or after the loss event, will be taken into account 
in computing eligibilities.
    (ii) Production that must be reported under paragraph (b)(2)(i) of 
this section includes, except in the case of perennial plants, all 
production irrespective of whether the production occurs in the same 
crop year.
    (iii) For perennial plants, only production in the same crop year 
must be reported.
    (iv) All production that must be reported for covered tropical 
crops will, except as specified by the Deputy Administrator, be taken 
into account in the loss determinations made under this part. The 
producer is obligated to maximize that production. That is, harvesting 
and other production activities for the plants in the ground at

[[Page 57523]]

the time of the disaster must be undertaken or continue to be 
undertaken, to the maximum extent possible, for the full reporting 
period, that being the period for which production could count against 
a loss as indicated in this subpart.
    (3) Failure to keep sufficient records to allow the computations 
provided for in this subpart is grounds for denial of the claim.
    (c) Producers with coverage of a covered tropical crop for a crop 
year must, by the earlier of 90 calendar days after the crop year ends 
or the date a notice of loss is filed, file a certified report setting 
out the:
    (1) Collective acres of the crop acreage planted or in the ground 
during the crop year.
    (2) Total production harvested from the crop acreage for the full 
crop year in the case of a perennial plant and for the full life of the 
plants for other crops.
    (d) With respect to the report required in paragraph (c) of this 
section:
    (1) If a report is filed before the end of the crop year, an 
updated crop report must be filed within 90 days of the end of the crop 
year to supplement the original report;
    (2) If the report is for any annual or biennial crops where 
production continued or could have continued beyond the period covered 
in the reports otherwise filed under this section, an additional report 
of production must be filed within 30 days of the end of the last 
countable production for the covered crop or 30 days after the last 
date on which such production could have been obtained, whichever is 
later.
    (3) A failure to file an adequate report where a report is required 
by this section may result in the producer being treated as having a 
zero yield capability for the crop year involved for purposes of 
constructing a crop history. Alternatively, the Deputy Administrator 
may assign another sanction for that failure. In addition to other 
sanctions as may apply, a failure to file such reports may be grounds 
for denial of a claim. The Deputy Administrator may adjust crop 
histories as determined appropriate to create, to the extent 
practicable, a fair crop history for loss computation purposes.
    (4) Such reports as are provided for in this subsection must be 
filed for every crop year for which there is coverage, irrespective of 
whether a claim is filed for that year.
    (e) Unless otherwise specified by the Deputy Administrator, 
appraisals are not required of crop acreage for covered tropical crops 
on Guam, Virgin Islands, American Samoa, and the Commonwealth of the 
Northern Mariana Islands, the Republic of the Marshall Islands, the 
Federated States of Micronesia, and the Republic of Palau.
    (f) All crop acreage for covered tropical crops for which a notice 
of loss is filed must not be replanted or otherwise destroyed until 
authorized by CCC.


Sec.  1437.505  Application for payment for the tropical region.

    (a) For producers of covered tropical crops in Guam, Virgin 
Islands, American Samoa, and the Commonwealth of the Northern Mariana 
Islands, the Republic of the Marshall Islands, the Federated States of 
Micronesia, and the Republic of Palau, an application for payment must 
be filed at the same time as the filing of the notice of loss required 
under Sec. Sec.  1437.10 and 1437.504.
    (b) For producers in Puerto Rico and Hawaii, an application for 
payment for such crops must be filed by the later of:
    (1) The date on which the notice of loss is filed in accordance 
with Sec. Sec.  1437.10 and 1437.502(i), and
    (2) The date of the completion of the countable harvest of the 
specific crop acreage that existed at the time of loss for which the 
notice of loss was filed.

    Signed in Washington, DC, September 14, 2005.
James R. Little,
Executive Vice President, Commodity Credit Corporation.
[FR Doc. 05-19671 Filed 9-30-05; 8:45 am]
BILLING CODE 3410-05-U