[Federal Register Volume 71, Number 173 (Thursday, September 7, 2006)]
[Rules and Regulations]
[Pages 52738-52740]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-14736]


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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: Final rule.

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SUMMARY: This rule changes how the Commodity Credit Corporation (CCC) 
handles certain claims under the Noninsured Crop Disaster Assistance 
Program (NAP) for ``tropical'' regions, including Hawaii, Puerto Rico 
and other specified areas. The changes will reduce the burden on the 
affected program participants and ease program administration in the 
affected areas.

EFFECTIVE DATE: January 1, 2006.

FOR FURTHER INFORMATION CONTACT: Frances Williams, Program Specialist, 
Noninsured Crop Disaster Assistance Program, Farm Service Agency, 
United States Department of Agriculture (USDA), STOP 0517, Room 3648-S, 
1400 Independence Avenue, SW., Washington, DC 20250-0517. Telephone: 
202-690-0700. Electronic Mail: [email protected]. 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

    A proposed rule published on October 3, 2005 proposed changes for 
handling certain but not all claims for assistance in certain defined 
``tropical regions'' (including Hawaii and Puerto Rico) under the 
Noninsured Crop Disaster Assistance Program (NAP) program administered 
by CCC under rules found at 7 CFR Part 1437. The comment period for the 
rule ended on November 2, 2005, and no comments were received. The 
background and need for the rule were described in the preamble to the 
proposed rule. The new regulations, as proposed, are adopted by final 
rule with minor clarifying changes. This final rule is made effective 
as of January 1, 2006, since, as contemplated in the proposed rule, the 
rule was to be effective with all covered crops planted as of that 
date. Provision is made in the rule itself for adjustments as may be 
needed between the old and new rules. It is understood, however, that 
the changes in 7 CFR 1437 are, in all cases, advantageous to producers. 
If not, any producer with a claim arising from a policy issued before 
the date of publication of this final rule who would have profited from 
the old policy may apply for relief.
    In the preamble to the proposed rule it was indicated that the 
source of authority for extending the rule to certain tropical regions 
was 48 U.S.C. 1469d. However, the NAP program has been since inception 
extended to those regions. NAP was first provided for in crop insurance 
legislation that allowed for crop insurance in such regions and allowed 
NAP as an alternative to catastrophic crop insurance coverage where 
such coverage is not available. It remains the case, even though the 
statutory authority for NAP has changed, that NAP is to be available 
where conventional federal crop insurance catastrophic insurance is not 
available and the authority for federal crop insurance continues to 
include an allowance for federal crop insurance in the areas covered by 
this NAP rule. That noted, on review, the provisions of the rule which 
provide for different treatment in certain tropical areas as opposed to 
others have been found to be justified because of differing 
agricultural conditions and no change has been made in the rule in this 
regard.

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 FSA regulations 
for compliance with NEPA, 7 CFR 799. FSA has concluded that this rule 
is categorically excluded from further environmental review and 
documentation. No extraordinary circumstances or other unforeseeable 
factors exist which would require preparation of an environmental 
assessment or environmental impact statement.

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

    The information collection burden for NAP is by OMB under 5 CFR 
1320 and

[[Page 52739]]

assigned OMB Control Number 0560-0175. In the proposed rule (70 FR 
57520, 57521) the Agency provided an estimate of the effect this rule 
would have on the information collection requirements of the NAP 
program and requested public comment on whether the collection of 
information is necessary for the proper performance of the functions of 
the agency, whether the information will have practical utility, the 
accuracy of the agency's burden estimate, ways to enhance the quality, 
utility, and clarity of the information collected, and ways to minimize 
the burden. No comments were received.

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 
are Noninsured Assistance, 10-451.

List of Subjects in 7 CFR Part 1437

    Agricultural commodities, Disaster assistance, Reporting and 
recordkeeping requirements.

0
Accordingly, for the reasons set forth in the preamble, 7 CFR part 1437 
is amended as follows:

PART 1437--NONINSURED CROP DISASTER ASSISTANCE PROGRAM

0
1. The authority citation for part 1437 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.


0
2. Add Subpart F to read as follows:
Subpart F--Coverage in the Tropical Region
Sec.
1437.501 Applicability; definition of ``tropical region'' and 
additional definitions
1437.502 Coverage periods and fees for covered tropical crops.
1437.503 Covered losses and recordkeeping requirements for covered 
tropical crops.
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. 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 and payment 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. The rules that otherwise apply include, but are not 
limited to, limitations on payments that appear elsewhere in this part.
    (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 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) 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 covered tropical crops.

    (a) The crop year for all covered tropical crops is the calendar 
year (January 1 through December 31 beginning in 2006 through 
subsequent years).
    (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 county per crop year, a maximum 
service fee of $100.00 is required of the producer for coverage of:
    (1) With respect to annual and biennial crops, all plantings of the 
same crop planted during the crop year, as determined by CCC.
    (2) With respect to 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 on 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. In this regard:
    (1) Producers may be selected on a random or targeted basis for 
compliance review 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 CCC as grounds of 
ineligibility for benefits under this part.

[[Page 52740]]

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 maintained 
according to Sec.  1437.503(c) 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. In this regard:
    (i) Except as otherwise determined by FSA, 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 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 calendar days from 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, an appropriate 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 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 harvest for the specific crop 
acreage that existed at the time of loss for which the notice of loss 
was filed.

    Signed in Washington, DC, August 23, 2006.
Thomas B. Hofeller,
Acting Executive Vice President, Commodity Credit Corporation.
 [FR Doc. E6-14736 Filed 9-6-06; 8:45 am]
BILLING CODE 3410-05-P