[Federal Register Volume 75, Number 88 (Friday, May 7, 2010)]
[Rules and Regulations]
[Pages 25103-25110]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-10800]



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  Federal Register / Vol. 75, No. 88 / Friday, May 7, 2010 / Rules and 
Regulations  

[[Page 25103]]



DEPARTMENT OF AGRICULTURE

Farm Service Agency

7 CFR Parts 760 and 783

Commodity Credit Corporation

7 CFR Part 1416

RIN 0560-AH96


Tree Assistance Program

AGENCY: Farm Service Agency and Commodity Credit Corporation, USDA.

ACTION: Final rule.

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SUMMARY: This rule implements specific requirements for the Tree 
Assistance Program (TAP) authorized by the Food, Conservation, and 
Energy Act of 2008 (the 2008 Farm Bill). TAP provides disaster 
assistance to eligible orchardists and nursery tree growers to replant 
or rehabilitate trees, bushes, and vines that were lost due to natural 
disaster. Orchardists and nursery tree growers who commercially raise 
trees, bushes, and vines for which there were mortality losses in 
excess of 15 percent, after adjustment for normal mortality, are 
eligible for TAP payments. Eligible losses must have occurred between 
January 1, 2008, and September 30, 2011. This rule specifies how the 
TAP payments are calculated and when producers may apply for benefits. 
This rule also removes regulations for prior tree disaster assistance 
programs.

DATES: Effective Date: May 7, 2010.

FOR FURTHER INFORMATION CONTACT: Steven Peterson, Branch Chief, 
Production, Emergencies and Compliance Division, Farm Service Agency 
(FSA), U.S. Department of Agriculture (USDA), Mail STOP 0517, 1400 
Independence Avenue, SW., Washington, DC 20250-0517. Telephone: (202) 
720-5172; e-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: This rule implements the specific requirements for TAP 
as authorized by the 2008 Farm Bill (Pub. L. 110-246). Sections 12033 
and 15101 of the 2008 Farm Bill authorize the Secretary of Agriculture 
(Secretary) to assist eligible orchardists and nursery tree growers 
that have incurred tree, bush, or vine mortality losses in excess of 15 
percent, adjusted for normal mortality, due to natural disaster. TAP is 
a cost-reimbursement program, which means that payments are calculated 
based on estimated actual costs to replace or rehabilitate lost or 
damaged trees, bushes, or vines. The replacement and rehabilitation 
activities must take place within 12 months after the application is 
approved. Payment is not made until the activities are completed.
    Amendments to the 2008 Farm Bill contained in the Consolidated 
Security, Disaster Assistance, and Continuing Appropriations Act, 2009 
(Pub. L. 110-329), an Act to Amend the Commodity Provisions of the 
Food, Conservation, and Energy Act of 2008 and for other purposes (Pub. 
L. 110-398), and the American Recovery and Reinvestment Act of 2009 
(Pub. L. 111-5, the Recovery Act) authorized minor changes in how TAP 
and the other standing disaster assistance programs are implemented. 
The basic core of the TAP is specified in the 2008 Farm Bill. The 
amendments extend the deadline for the required risk management ``buy-
in,'' discussed later in this document, exempt this rule from notice 
and comment rulemaking and Paperwork Reduction Act requirements, and 
allow the Secretary to provide equitable relief for producers who did 
not have risk management coverage.
    TAP will be similar in scope to the 2005 Hurricane Tree Assistance 
Program specified in regulations in 7 CFR part 1416 and to the previous 
TAP authorized by the Farm Security and Rural Investment Act of 2002 
(Pub. L. 107-171, commonly known as the 2002 Farm Bill) specified in 
regulations in 7 CFR part 783. The 2005 Hurricane TAP and TAP (as 
implemented by this rule) cover tree rehabilitation losses and 
practices that were not covered by the TAP authorized by the 2002 Farm 
Bill. The 2005 Hurricane TAP applied only in certain areas affected by 
hurricanes while this TAP and these regulations apply nationally. The 
previous programs were not subject to the adjusted gross income (AGI) 
limits and risk management purchase requirement that now apply to all 
the standing disaster programs authorized by the 2008 Farm Bill. TAP is 
now funded through the Agricultural Disaster Relief Trust Fund; the 
previous programs were limited to available funding. This rule 
implements the TAP regulations in 7 CFR part 760, subpart F, and 
removes the regulations for the previous two TAPs from 7 CFR part 783 
and part 1416, subpart H.

General Eligibility Requirements

    This rule implements the eligibility provisions for TAP, which is 
one of five Supplemental Agricultural Disaster Assistance programs 
authorized by the 2008 Farm Bill. Sections 12033 and 15101 of the 2008 
Farm Bill authorize the Secretary to assist producers who have had crop 
and livestock losses due to adverse weather. FSA provides assistance 
through five different programs:
     Livestock Indemnity Program (LIP--referred to as Livestock 
Indemnity Payments in the 2008 Farm Bill),
     Livestock Forage Disaster Program (LFP),
     Emergency Assistance for Livestock, Honey Bees, and Farm-
Raised Fish (ELAP),
     Supplemental Revenue Assistance Payments Program (SURE) 
(which covers losses to tree crops such as apples and citrus, but not 
the losses to trees covered by TAP), and
     Tree Assistance Program (TAP).
    This rule implements TAP in 7 CFR part 760, subpart F. The LIP 
final rule, which was published in the Federal Register on July 2, 2009 
(74 FR 31567-31578), revised 7 CFR part 760, subpart B, to provide the 
general eligibility requirements for all the Supplemental Agricultural 
Disaster Assistance programs including ELAP, LFP, LIP, SURE, and TAP. 
Subpart B specifies administration of the programs, general 
requirements to be an eligible producer, risk management purchase 
requirement, buy-in waivers, equitable relief, payment limitations, and 
other generally applicable requirements. Specific provisions for the 
other disaster assistance programs have been

[[Page 25104]]

implemented through separate rulemakings.
    TAP will be administered by FSA using funds from the Agricultural 
Disaster Relief Trust Fund established under section 902 of the Trade 
Act of 1974 (19 U.S.C. 2497a). The disaster assistance programs 
authorized by the 2008 Farm Bill are permanent or ``standing'' programs 
that have similar scope to the previous ad hoc programs. The programs 
are provided for in two separate places in the 2008 Farm Bill. First, 
there is section 12033, which adds a new section 531 to the Federal 
Crop Insurance Act (7 U.S.C. 1501-1524). Second, there is section 
15101, which adds sections 901 through 903 to the Trade Act of 1974. 
The provisions of the two sections as enacted are identical except that 
the provisions in Title XV of the 2008 Farm Bill contain the funding 
provisions for the program. Since then, there have been some 
amendments, but the two sections of the 2008 Farm Bill are considered 
to be interchangeable for the purposes of this rule, and an amendment 
to one is, as a practical matter, an amendment to the other.
    The final rule uses the words ``producer,'' ``participant,'' and 
``eligible orchardist or nursery tree grower.'' ``Producers'' may apply 
for TAP. ``Participants,'' who in most but not all cases are also 
``eligible orchardist or nursery tree growers,'' are those producers 
who meet the requirements to be eligible to receive TAP payments.

Payment Limitation

    The 2008 Farm Bill limits how much a participant may receive from 
the Supplemental Agricultural Disaster Assistance programs.
    In applying payment limitation for 2008 payments, subject to the 
provision of part 1400, no entity or individual can receive more than 
$100,000 per program year under TAP. This is an increase from the 
previous TAPs, which had a limit of $75,000 per year for payees who 
were considered separate payees under the part 1400 rules. For 2009 
through 2011 payments, no individual or legal entity (excluding a joint 
venture or general partnership) may receive, directly or indirectly, 
more than $100,000 per program year under TAP. (A separate payment 
limit of $100,000 applies to total benefits that one person or legal 
entity may receive from LIP, LFP, ELAP, and SURE.)
    For the purpose of determining payment limits, both indirect and 
direct benefits are counted by attribution. In the case of a legal 
entity, the same payment is attributed to the direct payee in the full 
amount, and to those that have an indirect interest in the entity 
commensurate with the amount of the interest. For example, under the 
attribution rules that apply to TAP, assume:
     Corporation A is in line to receive a $100,000 TAP 
payment,
     Corporation A is owned 50 percent by Individual A and 50 
percent by Corporation B, and
     Corporation B is owned 30 percent by Individual B and 70 
percent by Individual C.
    If so, Corporation A, for payment limitation purposes would be 
considered to have received $100,000 and Individual C (who owns 70 
percent of Corporation B, which owns half of Corporation A) would be 
considered to have indirectly benefitted by the amount of $35,000 (50 
percent times 70 percent of the $100,000). Even though no part of the 
$100,000 was actually paid to Individual C, the amount of $35,000 would 
count against individual C's overall payment limitation from TAP. 
Assuming Individual C was already at the maximum payment limit, 
Individual C would not have been eligible to receive $35,000; as a 
result, the payment to Corporation A would be reduced by $35,000.
    Additionally, a person or legal entity is limited to receiving 
payments on a cumulative total of 500 acres planted to trees, bushes, 
or vines that suffered losses occurring on or after January 1, 2008, 
but before October 1, 2011. The previous TAP authorized by the 2002 
Farm Bill had the same acreage limit.
    The amount of any payment for which a participant may be eligible 
under TAP may be reduced by any amount received by the participant for 
the same or any similar loss from any other USDA disaster assistance 
program.
    In applying the limitation on AGI for 2008 payments, an individual 
or entity is ineligible for payment under TAP if the individual's or 
entity's average AGI exceeds $2.5 million for 2007, 2006, and 2005, 
under the provisions in 7 CFR part 1400 in effect for 2008. For 2009 
through 2011 payments, the average AGI limitation provisions in 7 CFR 
part 1400 applicable to the Commodity Credit Corporation (CCC) 
commodity programs also apply to TAP. Specifically, for 2009 through 
2011, a person or legal entity with an average adjusted gross nonfarm 
income, as defined in 7 CFR 1400.3, that exceeds $500,000 for the 
relevant base period will not be eligible to receive payments from TAP. 
Likewise, if a person with an indirect interest in a legal entity has 
an average nonfarm AGI over $500,000, then the payment to the legal 
entity will be reduced as calculated based on the percent of that 
person's indirect interest in the legal entity receiving the payment. 
For example, continuing with the assumptions in the example above, if 
Individual B had an average AGI that was over the limit, then the 
payment to Corporation A will be reduced by 15 percent (Individual B's 
30 percent interest in Corporation B times Corporation B's 50 percent 
interest in Corporation A).
    Payment and average AGI limits will be determined under regulations 
specified in 7 CFR part 1400 for CCC commodity programs. TAP is an FSA 
program, but the CCC regulations in 7 CFR part 1400 are adopted for 
this program. The relevant AGI period for TAP and the other disaster 
assistance programs for 2008 payments is the 3 calendar years that 
precede the program year involved, namely, 2005, 2006, and 2007. 
However, beginning with 2009, the AGI period is the 3 taxable years 
preceding the most immediately preceding complete taxable year. Thus 
for 2009 TAP benefits the base period would be the same as for 2008 
benefits but would slide forward year by year in the subsequent years 
so that the base for 2010 benefits would be tax years 2006, 2007, and 
2008.
    The regulations in 7 CFR 1400.5 specify how payments will be 
attributed and how far the attribution will go. Attribution will be 
tracked through four levels of ownership in legal entities. The 2008 
Farm Bill removes the previous ``3 entity rule,'' so a person can now 
receive benefits attributed through an unlimited number of entities, 
subject to the payment limitation and the rules of attribution 
described in 7 CFR part 1400 and the text above. In addition to these 
limits, the 2008 Farm Bill imposes for TAP and other programs covered 
in part 760 certain special limitations on payments to individuals who 
are not citizens or to foreign corporations and these, which appear in 
the previously issued subpart B of part 763, are separate from the 
foreign person rules in 7 CFR part 1400. The limitations that apply in 
part 763 can be found specifically in 7 CFR 760.103(b).

Risk Management Purchase Requirement

    To be eligible for TAP payments, producers must meet the risk 
management purchase requirement. The requirement is specified in 7 CFR 
760.104. This is a new requirement; neither the 2005 Hurricane TAP nor 
the previous TAP required the purchase of crop insurance or NAP 
coverage.
    The risk management purchase requirement specifies that eligible 
participants must have purchased insurance for each insurable crop on 
the

[[Page 25105]]

farm and for purposes of this program an individual or entity's farm is 
deemed to include the entirety of their farming operations no matter 
where located, in all counties and all states. A few exceptions allowed 
by the 2008 Farm Bill are discussed later in this section. An 
``insurable commodity'' means an agricultural commodity for which the 
producer on the farm is eligible to obtain a policy or plan of 
insurance under the Federal Crop Insurance Act (FCIA) from the USDA's 
Risk Management Agency (RMA). A ``noninsurable commodity'' means a crop 
for which the eligible producers on a farm are eligible to obtain 
assistance through FSA's Noninsured Crop Disaster Assistance Program 
(NAP). In general, to be eligible for TAP payments, participants must 
have obtained crop insurance or NAP coverage, as may be applicable, for 
all of their crops.
    Producers who did not purchase required coverage are not eligible 
for benefits unless an exception applies. Certain waivers for 
``socially disadvantaged farmers and ranchers,'' as well as ``limited 
resource farmers and ranchers,'' and ``beginning farmers or ranchers'' 
are provided by the 2008 Farm Bill and specified in 7 CFR 760.107.
    For the 2008 crop year, otherwise eligible producers who paid a 
certain buy-in fee were provided an exemption from the risk management 
purchase requirement that would otherwise apply if the buy-in fee was 
paid by September 16, 2008. By an amendment to the 2008 Farm Bill, a 
second buy-in permitted participants to buy-in for the 2008 crop year 
from February 17, 2009, up to May 18, 2009, to meet the risk management 
purchase requirement; however, the participant had to agree to buy crop 
insurance or NAP for the next crop year for the crops to which the buy-
in applied. The 2008 buy-in fee was equal to the cost of the minimal 
catastrophic insurance coverage or NAP coverage, but did not, as with 
other buy-in exemptions in TAP, entitle the participant to such 
insurance or NAP coverage. Also, an amendment to the 2008 Farm Bill 
allows a 2009 crop buy-in if the 2009 Federal Crop Insurance 
Corporation (FCIC) sales closing date for a crop was prior to August 
14, 2008. The deadline for the 2009 crop buy-in was January 12, 2009. 
In addition to these provisions, section 531(g)(5) of FCIA (and the 
corresponding provisions of the Trade Act of 1974; 7 U.S.C. 1531(g) and 
19 U.S.C. 2497(g), respectively) have some more general provisions 
allowing the Secretary discretion to grant equitable relief to certain 
persons who lack coverage, as described below. The buy-in fees were 
different for 2008 and 2009.
    If a producer is ineligible or otherwise barred from the risk 
management insurance program or NAP because of past violations and 
those insurance programs would otherwise be available to that producer 
absent such violations, that producer will also be ineligible for TAP.
    Other circumstances preventing a producer from obtaining risk 
management coverage may be addressed on a case-by-case basis, and the 
Secretary or designee may determine a participant is eligible for TAP 
even if FCIA or NAP coverage was not timely obtained; 7 CFR 760.106, 
``Equitable Relief,'' provides for such relief. For example, equitable 
relief may, at USDA's discretion, be considered for participants who 
failed to meet the requirements of this rule because the 2008 Farm Bill 
was enacted after the closing date for purchasing the applicable 
insurance. Another example may be relief for a participant who made a 
late planting decision due to weather-related causes. Relief will not 
be considered or granted for producers who are in the RMA ineligibility 
tracking system as those persons by their own actions were unable to 
obtain insurance. Equitable relief is not an entitlement. A grant of 
such relief is discretionary in nature, and USDA's refusal to consider 
such relief or to grant a particular form of relief that is not 
specifically mandated by the 2008 Farm Bill or the program regulations 
will not be construed to be an adverse decision under either 7 CFR 
parts 11 or 780 (the common appeals regulations that apply to most FSA 
and CCC programs). There are, however, some cases in which the USDA 
National Appeals Division (NAD) has authority on its own to grant 
equitable relief and in all cases NAD, rather than FSA or CCC, decides 
the extent of its jurisdiction consistent with whatever authorities 
apply.
    If an RMA pilot or Adjusted Gross Revenue (AGR) insurance program 
was the only insurance available in that area for that crop, buying 
that insurance program for that crop will satisfy the risk management 
purchase requirement for that crop. However, producers are not required 
to purchase pilot or AGR insurance program coverage in order to meet 
the risk management purchase requirement. Rather, producers can elect 
not to obtain pilot or AGR insurance program coverage and meet the risk 
management purchase requirement by obtaining either NAP coverage or by 
paying the buy-in fee, as may be applicable.
    Producers who did not obtain risk management coverage for all 
eligible crops on a farm are ineligible for payment under TAP even if 
some crops had risk management coverage, unless an exception or waiver 
applies. The risk management purchase required for TAP eligibility 
refers to insurance on the crop and production, not on the underlying 
trees; further, the risk management purchase requirement includes crops 
that are not eligible for TAP. For example, if a producer's farm 
produces insured blueberries, insured apples, and corn, to be eligible 
for TAP payment the producer must either buy coverage on the corn or 
have made a ``buy-in,'' when such option was available as specified in 
7 CFR part 760, subpart B. Producers, who meet all the eligibility 
requirements, including risk management coverage, will qualify for 
payment. A producer who does not meet the risk management purchase 
requirement will not be eligible.

Eligible Losses and Eligible Producers for TAP

    The 2008 Farm Bill provisions require TAP cost share payments to be 
made for eligible losses due to natural disasters. TAP provides a 
payment based on 70 percent of the cost of replacing trees, bushes, and 
vines, and 50 percent of other costs including removing, pruning, or 
salvaging damaged trees, bushes, and vines, or preparing the land to 
plant new ones. The payment eligibility ``trigger'' is mortality losses 
in excess of 15 percent, adjusted for normal damage and mortality. 
Normal mortality losses are those associated with the normal upkeep of 
the orchard or nursery in the region. Damage losses are not eligible 
for payment unless the 15 percent mortality trigger is met. The 
eligible mortality must have occurred between January 1, 2008, and 
September 30, 2011, due to natural disaster, as determined by the 
Secretary or his designee, during the calendar year for which benefits 
are requested, including losses due to plant disease, insect 
infestation, drought, fire, freeze, flood, earthquake, and lightning. 
As the preceding sentence suggests, ``plant disease'' for this program 
is, under the terms of the 2008 Farm Bill, considered to be a natural 
disaster. Commercially-grown trees, vines, and bushes are eligible. All 
the provisions described in this paragraph, which are implemented in 
this rule, are provisions specified in the 2008 Farm Bill over which 
FSA has little or no discretion.
    The details in this rule on acceptable documentation of loss and 
the application process for payment are discretionary provisions. FSA 
based the

[[Page 25106]]

discretionary provisions of the program as specified in this rule on 
the rules and policies used for previous TAPs, because those rules and 
policies are known to the public and because they have worked well to 
provide benefits for the type of loss involved in this program.
    The scope of TAP is substantially similar to the previous TAPs, 
with the following exceptions:
     Payment limitation and the risk management purchase 
requirement from the 2008 Farm Bill apply; the previous programs had a 
lower payment limit and did not have a risk management purchase 
requirement.
     TAP payment is now calculated based on 70 percent of the 
qualifying loss (the loss above 15 percent in excess of normal 
mortality); the previous programs provided payment based on 75 percent 
of that amount.
     TAP now also includes a 50 percent payment for removing or 
rehabilitating trees, bushes, and vines that were damaged; the previous 
program in 7 CFR part 783 for the TAP authorized by the 2002 Farm Bill 
did not have this provision but the 2005 Hurricane TAP in 7 CFR part 
1416 included a 75 percent payment for such activities.
     Nursery tree losses are now eligible for TAP payments; the 
previous program in 7 CFR part 783 did not have this provision but the 
2005 Hurricane TAP in 7 CFR part 1416 did. Nursery trees include 
ornamental, fruit, nut, or Christmas trees produced for commercial 
sale.
     TAP is funded through the Agricultural Disaster Relief 
Trust Fund; the previous programs were limited to available funding.
    TAP payments will be calculated using cost share rates for the 
specific type of tree, bush, or vine lost or damaged and practice 
required to replant the stand or rehabilitate existing trees, bushes, 
or vines. The calculations will be made using FSA-approved categories 
of plants and practices. The categories will be the same as previous 
TAPs.
    The threshold for TAP payment eligibility is a mortality loss to a 
stand of trees, bushes, or vines in excess of 15 percent above normal 
mortality. That is the same loss threshold as the previous programs. 
Normal losses, losses below the 15 percent threshold, and losses due to 
causes other than natural disaster will not be eligible for payment. 
For example, if 80 percent of the trees in the stand are lost, and 
normal mortality in that area for that type of tree is 2 percent, then 
payment will be calculated on the loss above 17 percent, which would be 
63 percent. Payment would be equal to 70 percent of the costs to 
replace 63 percent of the original stand. If the stand was a total loss 
(100 percent loss), then payment would be equal to 70 percent of the 
costs to replace 83 percent of that stand (100 percent minus 17 
percent).
    The 2008 Farm Bill specifies that TAP is for losses due to 
``natural disaster,'' which the 2008 Farm Bill defines as ``plant 
disease, insect infestation, drought, fire, freeze, flood, earthquake, 
lightning, or other occurrence, as determined by the Secretary.'' An 
eligible ``other occurrence'' will be determined by FSA's Deputy 
Administrator for Farm Programs (Deputy Administrator) on behalf of the 
Secretary. FSA has the authority to determine the eligibility of tree, 
bush, or vine losses caused by or categorized as an ``other 
occurrence'' depending on the disaster event resulting in the loss. 
This is not a change from the previous TAPs. Loss claims will be 
verified based on a physical inspection of the loss by an FSA 
representative.
    Generally under this new TAP, eligible orchardists or nursery tree 
growers are producers who are considered to have planted the trees, 
bushes, or vines for commercial purposes for the annual production of a 
crop and who owned the stand of trees, bushes, or vines at the time the 
natural disaster occurred. The owner of the orchard will be considered 
to be the person who had planted the trees even though some of those 
trees might have been planted before the orchard was purchased. For 
clean-up expenses, such as pruning, the eligible producer may be a 
party who was leasing the trees at the time of the disasters. Also, the 
rule provides that in the event of a transfer of the eligible tree 
after the disaster, the successor may qualify for benefits in lieu of 
the preceding party if certain conditions are met. These rules appear 
to be consistent with the intent of the 2008 Farm Bill to provide 
benefits for all nurseries with otherwise qualifying losses and to 
provide for the continuing health of existing orchards that have 
suffered those losses.

Applying for TAP Payment; TAP Payment Calculations

    There are three basic steps for a producer to obtain a TAP payment. 
The first step is to file an application at the FSA county office 
within 90 calendar days of the disaster event or date upon which the 
loss of trees, bushes, or vines is apparent to the producer. Producers 
who suffered a potentially eligible loss before this rule was published 
in the Federal Register must provide an application to the FSA county 
office within 60 calendar days after this rule is published.
    The second step is a field visit to verify losses. After FSA 
receives the application, FSA staff will make a field visit and 
validate which practices are appropriate to address the losses. Upon 
verification, FSA will inform the producer of the approved eligible 
practices and estimated payment.
    The third step is to complete the approved practices. The practices 
must be completed within 12 months of FSA approval. Payment will be 
made after the practices are completed.
    Producers that suffer multiple losses during the calendar year may 
file multiple applications for payment. This rule specifies the 
documents that are required to show that practices are complete, such 
as receipts for labor costs, equipment rental, and purchases of 
seedlings or cuttings.
    The TAP payment will be calculated based on the actual costs of the 
approved practices, or the rates established by the Deputy 
Administrator for the practices, whichever compensation amount is 
lower. The payment rate for replanting and replacement of eligible 
trees (those which involve greater than a 15 percent loss adjusted for 
normal mortality), bushes, or vines is 70 percent of the producer's 
actual costs so long as that 70 percent does not exceed the FSA 
approved rate for the practices involved and if 70 percent of the 
actual cost exceeds that rate then the producer will receive the FSA 
rate and no more. The rate for rehabilitation of eligible trees, 
bushes, or vines is generally 50 percent of the cost of pruning, 
removal, and other costs incurred for salvaging the existing plants, or 
in the case of plant mortality, to prepare land for replanting but here 
also the 50 percent amount cannot exceed the maximum allowable FSA 
rate. The 50 percent is only payable, however, for losses that reflect 
a greater than 15 percent loss taking into account normal mortality and 
damage.
    A producer can be eligible for both categories of payment. For 
example, a producer who replaces lost trees can apply for both a 50 
percent cost share payment to remove the lost trees and prepare the 
land, and a 70 percent cost share for the seedlings and labor to plant 
the new ones. If, for example, not all the vines in a stand are lost, a 
producer can apply for the 70 percent cost share to replace lost vines 
and the 50 percent cost share to prune and rehabilitate less severely 
damaged ones. If a practice, such as site preparation, is needed to 
both replant and rehabilitate trees, bushes, or vines, the producer 
must document the expenses

[[Page 25107]]

attributable to replanting versus rehabilitation. If that is not 
possible because, for example, the activity took place several years 
ago and the contractor who performed the work cannot provide a detailed 
breakdown, the FSA county committee will pro-rate payment based on 
physical inspection of the loss, damage, replanting, and 
rehabilitation. Producers who did not plant the trees, bushes, or vines 
that were lost, but have a history of commercial production, can be 
eligible for the 50 percent cost share category to remove lost trees 
and rehabilitate the damaged ones.
    FSA, through the FSA State offices, will obtain recommendations 
from applicable State orchard and nursery organizations, State 
Cooperative Extension Services or, as applicable, the National 
Institute of Food and Agriculture, and other knowledgeable and credible 
sources, as FSA deems necessary and appropriate, to establish the 
normal mortality rate and damage rate for each type of tree, bush, or 
vine on a State-by-State basis. (Under the previous TAPs, normal 
mortality rates established for most eligible plant species were about 
one to three percent per year.)

SURE and TAP

    In some cases, losses that are not eligible under TAP may be 
eligible for SURE payments, and vice versa. The SURE program covers 
losses to tree, vine, and bush crops that were covered by insurance or 
NAP, while TAP provides cost reimbursement payments to offset the cost 
of replacing or rehabilitating lost or damaged trees, vines, and 
bushes. The two programs pay for different types of losses, but if 
there were any overlap, benefits could be adjusted as needed.
    The risk management purchase requirement for SURE includes some 
exceptions, such as not requiring risk management coverage for minor 
crops that do not apply to TAP. Therefore, risk management coverage 
that qualifies a producer for SURE may not qualify that same producer 
for TAP. If the risk management purchase does meet the requirements of 
both SURE and TAP, the producer may be eligible for payment under both 
programs.

Miscellaneous TAP Provisions

    All owners, stands, and losses must meet the eligibility 
requirements provided in this rule. False certifications can carry 
serious consequences. FSA will validate information provided on 
applications through random spot-checks.
    As specified in 7 CFR part 760 subpart B, participants receiving 
disaster assistance payments must keep records and supporting 
documentation for 3 years following the end of the year in which the 
application for payment was filed. This discretionary recordkeeping 
requirement is consistent with other FSA rules and programs, as well as 
with previous similar disaster assistance programs. Participants must 
allow FSA representatives to conduct a site inspection to verify that 
the TAP-funded practices have been completed.
    Section 760.110 specifies that the appeal regulations specified in 
7 CFR parts 11 and 780 apply. It also specifies that for all the new 
standing disaster programs, matters requiring FSA determinations that 
are not in response to, or result from, an individual disputable set of 
facts in a specific individual participant's application, are not 
matters that can be appealed under 7 CFR parts 11 or 780. These 
include, but are not limited to, general statutory or regulatory 
provisions that apply to similarly situated participants, national 
average payment prices, regions, crop definition, average yields, or 
similar items.
    As specified in 7 CFR part 760 subpart B, restrictions apply to TAP 
including, but not limited to, benefit ineligibility resulting from 
violations of the highly erodible land and wetland conservation 
provisions specified in 7 CFR part 12.

Notice and Comment

    The Consolidated Security, Disaster Assistance, and Continuing 
Appropriations Act, 2009 made the exemption from notice and comments 
provisions, contained in section 1601(c)(2) of the 2008 Farm Bill, 
applicable in implementing section 12033 of the 2008 Farm Bill. To the 
extent relevant, the exemption applies, we believe, to the 
corresponding provisions enacted in section 15101 since they are 
identical excerpt for the provisions for funding in 15101, which do not 
appear at all in section 12033. Otherwise, the provisions of the 
Consolidated Security, Disaster Assistance, and Continuing 
Appropriations Act, 2009 would have no meaning. Therefore, these 
regulations are exempt from the notice and comment requirements of the 
Administrative Procedures Act (5 U.S.C. 553), as specified in section 
1601(c)(2) of the 2008 Farm Bill, which requires that the regulations 
be promulgated and administered without regard to the notice and 
comment provisions of 5 U.S.C. 553 or the Statement of Policy of the 
Secretary of Agriculture effective July 24, 1971, (36 FR 13804) 
relating to notices of proposed rulemaking and public participation in 
rulemaking.

Effective Date

    In making this final rule exempt from notice and comment through 
section 1601(c)(2) of the 2008 Farm Bill, using the administrative 
procedure provisions in 5 U.S.C. 553, FSA finds that there is good 
cause for making this rule effective less than 30 days after 
publication in the Federal Register. This rule allows FSA to provide 
benefits to producers who suffered tree, bush, or vine losses caused by 
natural disasters. Therefore, to begin providing benefits to producers 
as soon as possible, this final rule is effective when published in the 
Federal Register.

Executive Order 12866

    This rule has been designated as not significant under Executive 
Order 12866 and has not been reviewed by the Office of Management and 
Budget.

Regulatory Flexibility Act

    This rule is not subject to the Regulatory Flexibility Act since 
FSA is not required to publish a notice of proposed rulemaking for this 
rule.

Environmental Evaluation

    In May 2007, FSA prepared a Final Programmatic Environmental 
Assessment (PEA) to evaluate the environmental consequences associated 
with implementing the changes to the Tree Assistance Program in 2005 
under Title X Subtitle C of the 2002 Farm Bill using funding authorized 
by Title III Section 3013 of the Emergency Supplemental Appropriations 
Act for Defense, the Global War on Terror, and Hurricane Recovery, 2006 
(Pub. L. 109-234). In consideration of the analysis documented in the 
PEA and the reasons outlined in the Finding of No Significant Impact 
(FONSI), which was published in the Federal Register on April 13, 2007 
(72 FR 18622-18623), consistent with the provisions of the National 
Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations 
of the Council on Environmental Quality (40 CFR parts 1500-1508), and 
FSA regulations for compliance with NEPA (7 CFR part 799), FSA has 
determined that the implementation of TAP consistent with the 
provisions of the 2008 Farm Bill, would not constitute a major Federal 
action that would significantly affect the quality of the human 
environment. Therefore, an environmental impact statement will not be 
prepared. The Final Programmatic Environmental Assessment (PEA) can be 
viewed at:

[[Page 25108]]

http://www.fsa.usda.gov/Internet/FSA_File/final_tap_ea5_2007.pdf 
and the FONSI can be viewed at: http://www.fsa.usda.gov/Internet/FSA_File/tap_fonsi.pdf.

Executive Order 12372

    This program is not subject to Executive Order 12372, which 
requires consultation with State and local officials. See the notice 
related to 7 CFR part 3015, subpart V, published in the Federal 
Register on June 24, 1983 (48 FR 29115).

Executive Order 12988

    This rule has been reviewed under Executive Order 12988. This rule 
is not retroactive and it does not preempt State or local laws, 
regulations, or policies unless they present an irreconcilable conflict 
with this rule. Before any judicial action may be brought regarding the 
provisions of this rule the administrative appeal provisions of 7 CFR 
parts 11 and 780 must be exhausted.

Executive Order 13132

    The policies contained in this rule do not have any substantial 
direct effect on States, on the relationship between the Federal 
Government and States, or on the distribution of power and 
responsibilities among the various levels of government. Nor does this 
rule impose substantial direct compliance costs on State and local 
governments. Therefore, consultation with the states is not required.

Executive Order 13175

    The policies contained in this rule do not impose substantial 
unreimbursed direct compliance costs on Indian tribal governments or 
have tribal implications that preempt tribal law.

Unfunded Mandates

    This rule contains no Federal mandates under the regulatory 
provisions of Title II of the Unfunded Mandate Reform Act of 1995 
(UMRA) for State, local, and tribal government or the private sector. 
In addition, FSA was not required to publish a notice of proposed rule 
making for this rule. Therefore, this rule is not subject to the 
requirements of sections 202 and 205 of the UMRA.

Federal Assistance Programs

    The title and number of the Federal assistance program in the 
Catalog of Federal Domestic Assistance to which this rule applies is 
10.082--Tree Assistance Program.

Paperwork Reduction Act

    The regulations in this rule are exempt from the requirements of 
the Paperwork Reduction Act (44 U.S.C. Chapter 35), as specified in 
section 1601(c)(2) of the 2008 Farm Bill, which provides that these 
regulations be promulgated and administered without regard to the 
Paperwork Reduction Act.

E-Government Act Compliance

    FSA is committed to complying with the E-Government Act, to promote 
the use of the Internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.

List of Subjects

7 CFR Part 760

    Dairy products, Indemnity payments, Pesticides and pests, Reporting 
and recordkeeping requirements.

7 CFR Part 783

    Disaster assistance, Reporting and recordkeeping requirements, 
Trees.

7 CFR Part 1416

    Agriculture, Citrus fruits, Disaster assistance, Fish, Livestock, 
Nursery stock.

0
For the reasons discussed above, the Farm Service Agency and Commodity 
Credit Corporation, USDA, amends 7 CFR parts 760, 783, and 1416 as 
follows:

PART 760--INDEMNITY PAYMENT PROGRAMS

0
1. The authority citation for part 760 continues to read as follows:

    Authority:  7 U.S.C. 4501; 7 U.S.C. 1531, 16 U.S.C. 3801, note, 
and 19 U.S.C. 2497; Title III, Pub. L. 109-234, 120 Stat. 474; Title 
IX, Pub. L. 110-28, 121 Stat. 211; and Sec. 748, Pub. L. 111-80, 123 
Stat. 2131.


0
2. Add Subpart F to read as follows:
Subpart F--Tree Assistance Program
Sec.
760.500 Applicability.
760.501 Administration.
760.502 Definitions.
760.503 Eligible losses.
760.504 Eligible orchardists and nursery tree growers.
760.505 Application.
760.506 Payment calculation.
760.507 Obligations of a participant.

Subpart F--Tree Assistance Program


Sec.  760.500  Applicability.

    (a) This subpart establishes the terms and conditions under which 
the Tree Assistance Program (TAP) will be administered under Titles XII 
and XV of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-
246, the 2008 Farm Bill).
    (b) Eligible orchardists and nursery tree growers will be 
compensated as specified in Sec.  760.506 for eligible tree, bush, and 
vine losses in excess of 15 percent mortality, or, where applicable, 15 
percent damage, adjusted for normal mortality and normal damage, that 
occurred in the calendar year for which benefits are being requested 
and as a direct result of a natural disaster.


Sec.  760.501  Administration.

    The program will be administered as specified in Sec.  760.102 and 
in this subpart.


Sec.  760.502  Definitions.

    The following definitions apply to this subpart. The definitions in 
parts 718 and 1400 of this title also apply, except where they conflict 
with the definitions in this section.
    Bush means, a low, branching, woody plant, from which at maturity 
of the bush, an annual fruit or vegetable crop is produced for 
commercial purposes, such as a blueberry bush. The definition does not 
cover plants that produce a bush after the normal crop is harvested 
such as asparagus.
    Commercial use means used in the operation of a business activity 
engaged in as a means of livelihood for profit by the eligible 
producer.
    County committee means the respective FSA committee.
    County office means the FSA or U.S. Department of Agriculture 
(USDA) Service Center that is responsible for servicing the farm on 
which the trees, bushes, or vines are located.
    Cutting means a piece of a vine which was planted in the ground to 
propagate a new vine for the commercial production of fruit, such as 
grapes, kiwi fruit, passion fruit, or similar fruit.
    Deputy Administrator or DAFP means the Deputy Administrator for 
Farm Programs, FSA, USDA, or the designee.
    Eligible nursery tree grower means a person or legal entity that 
produces nursery, ornamental, fruit, nut, or Christmas trees for 
commercial sale.
    Eligible orchardist means a person or legal entity that produces 
annual crops from trees, bushes, or vines for commercial purposes.
    FSA means the Farm Service Agency.
    Lost means, with respect to the extent of damage to a tree or other 
plant, that the plant is destroyed or the damage is such that it would, 
as determined by FSA, be more cost effective to replace the tree or 
other plant than to leave it in its deteriorated, low-producing state.
    Natural disaster means plant disease, insect infestation, drought, 
fire, freeze,

[[Page 25109]]

flood, earthquake, lightning, or other natural occurrence of such 
magnitude or severity so as to be considered disastrous, as determined 
by the Deputy Administrator.
    Normal damage means the percentage, as established for the area by 
the FSA State Committee, of trees, bushes, or vines in the individual 
stand that would normally be damaged during a calendar year for a 
producer.
    Normal mortality means percentage, as established for the area by 
the FSA State Committee, of expected lost trees, bushes, or vines in 
the individual stand that normally occurs during a calendar year for a 
producer. This term refers to the number of whole trees, bushes, or 
vines that are destroyed or damaged beyond rehabilitation. Mortality 
does not include partial damage such as lost tree limbs.
    Seedling means an immature tree, bush, or vine that was planted in 
the ground or other growing medium to grow a new tree, bush, or vine 
for commercial purposes.
    Stand means a contiguous acreage of the same type of trees 
(including Christmas trees, ornamental trees, nursery trees, and potted 
trees), bushes (including shrubs), or vines.
    State committee means the respective FSA committee.
    Tree means a tall, woody plant having comparatively great height, 
and a single trunk from which an annual crop is produced for commercial 
purposes, such as a maple tree for syrup, papaya tree, or orchard tree. 
Trees used for pulp or timber are not considered eligible trees under 
this subpart.
    Vine means a perennial plant grown under normal conditions from 
which an annual fruit crop is produced for commercial market for human 
consumption, such as grape, kiwi, or passion fruit, and that has a 
flexible stem supported by climbing, twining, or creeping along a 
surface. Perennials that are normally propagated as annuals such as 
tomato plants, biennials such as the plants that produce strawberries, 
and annuals such as pumpkins, squash, cucumbers, watermelon, and other 
melons, are excluded from the term vine in this subpart.


Sec.  760.503  Eligible losses.

    (a) To be considered an eligible loss under this subpart:
    (1) Eligible trees, bushes, or vines must have been lost or damaged 
as a result of natural disaster as determined by the Deputy 
Administrator;
    (2) The individual stand must have sustained a mortality loss or 
damage, as the case may be, loss in excess of 15 percent after 
adjustment for normal mortality or damage;
    (3) The loss could not have been prevented through reasonable and 
available measures; and
    (4) The trees, bushes, or vines, in the absence of a natural 
disaster, would not normally have required rehabilitation or replanting 
within the 12-month period following the loss.
    (b) The damage or loss must be visible and obvious to the county 
committee representative. If the damage is no longer visible, the 
county committee may accept other evidence of the loss as it determines 
is reasonable.
    (c) The county committee may require information from a qualified 
expert, as determined by the county committee, to determine extent of 
loss in the case of plant disease or insect infestation.
    (d) The Deputy Administrator will determine the types of trees, 
bushes, and vines that are eligible.
    (e) An individual stand that did not sustain a sufficient loss as 
specified in paragraph (a)(2) of this section is not eligible for 
payment, regardless of the amount of loss sustained.


Sec.  760.504  Eligible orchardists and nursery tree growers.

    (a) To be eligible for TAP payments, the eligible orchardist or 
nursery tree grower must:
    (1) Have planted, or be considered to have planted (by purchase 
prior to the loss of existing stock planted for commercial purposes) 
trees, bushes, or vines for commercial purposes, or have a production 
history, for commercial purposes, of planted or existing trees, bushes, 
or vines;
    (2) Have suffered eligible losses of eligible trees, bushes, or 
vines occurring between January 1, 2008, and September 30, 2011, as a 
result of a natural disaster or related condition;
    (3) Meet the risk management purchase requirement as specified in 
Sec.  760.104 or the waiver requirements in Sec. Sec.  760.105 or 
760.107; and
    (4) Have continuously owned the stand from the time of the disaster 
until the time that the TAP application is submitted.
    (b) A new owner of an orchard or nursery who does not meet the 
requirements of paragraph (a) of this section may receive TAP payments 
approved for the previous owner of the orchard or nursery and not paid 
to the previous owner, if the previous owner of the orchard or nursery 
agrees to the succession in writing and if the new owner:
    (1) Acquires ownership of trees, bushes, or vines for which 
benefits have been approved;
    (2) Agrees to complete all approved practices that the original 
owner has not completed; and
    (3) Otherwise meets and assumes full responsibility for all 
provisions of this part, including refund of payments made to the 
previous owner, if applicable.
    (c) A producer seeking payment must not be ineligible under the 
restrictions applicable to citizenship and foreign corporations 
contained in Sec.  760.103(b) and must meet all other requirements of 
subpart B of this part.
    (d) Federal, State, and local governments and agencies and 
political subdivisions thereof are not eligible for payment under this 
subpart.


Sec.  760.505  Application.

    (a) To apply for TAP, a producer that suffered eligible tree, bush, 
or vine losses that occurred:
    (1) During calendar years 2008, 2009, or 2010, prior to May 7, 
2010, must provide an application for payment and supporting 
documentation to FSA no later than July 6, 2010.
    (2) On or after May 7, 2010, must provide an application for 
payment and supporting documentation to FSA within 90 calendar days of 
the disaster event or date when the loss of trees, bushes, or vines is 
apparent to the producer.
    (b) The producer must submit the application for payment within the 
time specified in paragraph (a) of this section to the FSA 
administrative county office that maintains the producer's farm records 
for the agricultural operation.
    (c) A complete application includes all of the following:
    (1) A completed application form provided by FSA;
    (2) An acreage report for the farming operation as specified in 
part 718, subpart B, of this chapter;
    (3) Subject to verification and a loss amount determined 
appropriate by the county committee, a written estimate of the number 
of trees, bushes, or vines lost or damaged that is certified by the 
producer or a qualified expert, including the number of acres on which 
the loss occurred; and
    (4) Sufficient evidence of the loss to allow the county committee 
to calculate whether an eligible loss occurred.
    (d) Before requests for payment will be approved, the county 
committee:
    (1) Must make an eligibility determination based on a complete 
application for assistance;
    (2) Must verify actual qualifying losses and the number of acres 
involved by on-site visual inspection of the land and the trees, 
bushes, or vines;
    (3) May request additional information and may consider all

[[Page 25110]]

relevant information in making its determination; and
    (4) Must verify actual costs to complete the practices, as 
documented by the producer.


Sec.  760.506  Payment calculations.

    (a) Payment to an eligible orchardist or nursery tree grower for 
the cost of replanting or rehabilitating trees, bushes, or vines 
damaged or lost due to a natural disaster, in excess of 15 percent 
damage or mortality (adjusted for normal damage or mortality), will be 
calculated as follows:
    (1) For the cost of planting seedlings or cuttings, to replace lost 
trees, bushes, or vines, the lesser of:
    (i) 70 percent of the actual cost of the practice, or
    (ii) The amount calculated using rates established by the Deputy 
Administrator for the practice.
    (2) For the cost of pruning, removal, and other costs incurred for 
salvaging damaged trees, bushes, or vines, or in the case of mortality, 
to prepare the land to replant trees, bushes, or vines, the lesser of:
    (i) 50 percent of the actual cost of the practice, or
    (ii) The amount calculated using rates established by the Deputy 
Administrator for the practice.
    (b) An orchardist or nursery tree grower that did not plant the 
trees, bushes, or vines, but has a production history for commercial 
purposes on planted or existing trees and lost the trees, bushes, or 
vines as a result of a natural disaster, in excess of 15 percent damage 
or mortality (adjusted for normal damage or mortality), will be 
eligible for the salvage, pruning, and land preparation payment 
calculation as specified in paragraph (a)(2) of this section. To be 
eligible for the replanting payment calculation as specified in 
paragraph (a)(1) of this section, the orchardist or nursery grower who 
did not plant the stock must be a new owner who meets all of the 
requirements of Sec.  760.504(b) or be considered the owner of the 
trees under provisions appearing elsewhere in this subpart.
    (c) Eligible costs for payment calculation include costs for:
    (1) Seedlings or cuttings, for tree, bush, or vine replanting;
    (2) Site preparation and debris handling within normal 
horticultural practices for the type of stand being re-established, and 
necessary to ensure successful plant survival;
    (3) Pruning, removal, and other costs incurred to salvage damaged 
trees, bushes, or vines, or, in the case of tree mortality, to prepare 
the land to replant trees, bushes, or vines;
    (4) Chemicals and nutrients necessary for successful establishment;
    (5) Labor to plant seedlings or cuttings as determined reasonable 
by the county committee; and
    (6) Labor used to transplant existing seedlings established through 
natural regeneration into a productive tree stand.
    (d) The following costs are not eligible:
    (1) Costs for fencing, irrigation, irrigation equipment, protection 
of seedlings from wildlife, general improvements, re-establishing 
structures, and windscreens.
    (2) Any other costs not listed in paragraphs (c)(1) through (c)(6) 
of this section, unless specifically determined eligible by the Deputy 
Administrator.
    (e) Producers must provide the county committee documentation of 
actual costs to complete the practices, such as receipts for labor 
costs, equipment rental, and purchases of seedlings or cuttings.
    (f) When lost stands are replanted, the types planted may be 
different from those originally planted. The alternative types will be 
eligible for payment if the new types have the same general end use, as 
determined and approved by the county committee. Payments for 
alternative types will be based on the lesser of rates established to 
plant the types actually lost or the cost to establish the alternative 
used. If the type of plantings, seedlings, or cuttings differs 
significantly from the types lost, the costs may not be approved for 
payment.
    (g) When lost stands are replanted, the types planted may be 
planted on the same farm in a different location than the lost stand. 
To be eligible for payment, site preparation costs for the new location 
must not exceed the cost to re-establish the original stand in the 
original location.
    (h) Eligible orchardists or nursery tree growers may elect not to 
replant the entire eligible stand. If so, the county committee will 
calculate payment based on the number of qualifying trees, bushes, or 
vines actually replanted.
    (i) If a practice, such as site preparation, is needed to both 
replant and rehabilitate trees, bushes, or vines, the producer must 
document the expenses attributable to replanting versus rehabilitation. 
The county committee will determine whether the documentation of 
expenses detailing the amounts attributable to replanting versus 
rehabilitation is acceptable. In the event that the county committee 
determines the documentation does not include acceptable detail of cost 
allocation, the county committee will pro-rate payment based on 
physical inspection of the loss, damage, replanting, and 
rehabilitation.
    (j) The cumulative total quantity of acres planted to trees, 
bushes, or vines for which a producer may receive payment under this 
part for losses that occurred between January 1, 2008, and September 
30, 2011, will not exceed 500 acres.


Sec.  760.507  Obligations of a participant.

    (a) Eligible orchardists and nursery tree growers must execute all 
required documents and complete the TAP-funded practice within 12 
months of application approval.
    (b) Eligible orchardist or nursery tree growers must allow 
representatives of FSA to visit the site for the purposes of certifying 
compliance with TAP requirements.
    (c) Producers who do not meet all applicable requirements and 
obligations will not be eligible for payment.

PART 783--[REMOVED]

0
3. Under the authority of 7 U.S.C. 8201 et seq., 7 CFR part 783 is 
removed.

PART 1416--2006 EMERGENCY AGRICULTURAL DISASTER ASSISTANCE PROGRAMS

0
4. The authority citation of part 1416 continues to read as follows:

    Authority:  Title III, Pub. L. 109-234, 120 Stat. 474; 16 U.S.C. 
3801, note.

Subpart H--[Removed]

0
5. Subpart H, consisting of Sec. Sec.  1416.700 through 1416.705, is 
removed.

    Signed in Washington, DC, on May 3, 2010.
Jonathan W. Coppess,
Administrator, Farm Service Agency, and Executive Vice President, 
Commodity Credit Corporation.
[FR Doc. 2010-10800 Filed 5-6-10; 8:45 am]
BILLING CODE 3410-05-P