[Federal Register Volume 77, Number 23 (Friday, February 3, 2012)]
[Rules and Regulations]
[Pages 5381-5385]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2448]


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

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 301

[Docket No. APHIS-2011-0004]
RIN 0579-AD58


Plum Pox Compensation

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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

SUMMARY: We are amending the plum pox regulations to provide for the 
payment of compensation to eligible owners of non-fruit-bearing 
ornamental tree nurseries and to increase the amount of compensation 
that may be paid to eligible owners of commercial stone fruit orchards 
and fruit tree nurseries whose trees are required to be destroyed in 
order to prevent the spread of plum pox. We are also providing updated 
instructions for the submission of claims for compensation. These 
changes are necessary to provide adequate compensation to persons who 
are economically affected by the plum pox quarantine and the associated 
State and Federal eradication efforts. This action will assist our 
efforts to eradicate plum pox in the United States.

DATES: This interim rule is effective upon February 3, 2012. We will 
consider all comments that we receive on or before April 3, 2012.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov/#!documentDetail;D=APHIS-2011-0004-0001.
     Postal Mail/Commercial Delivery: Send your comment to 
Docket No. APHIS-2011-0004, Regulatory Analysis and Development, PPD, 
APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-
1238.
    Supporting documents and any comments we receive on this docket may 
be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2011-
0004 or in our reading room, which is located in room 1141 of the USDA 
South Building, 14th Street and Independence Avenue SW., Washington, 
DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through 
Friday, except holidays. To be sure someone is there to help you, 
please call (202) 690-2817 before coming.

FOR FURTHER INFORMATION CONTACT: Dr. S. Anwar Rizvi, Plum Pox National 
Program Manager, PPQ, APHIS, 4700 River Road Unit 26, Riverdale, MD 
20737-1231; (301) 734-4313.

SUPPLEMENTARY INFORMATION:

Background

    Plum pox is an extremely serious viral disease of plants that can 
affect many Prunus (stone fruit) species, including plum, peach, 
apricot, almond, nectarine, and sweet and tart cherry. A number of wild 
and ornamental Prunus species may also be susceptible to this disease. 
Infection eventually results in severely reduced fruit production, and 
the fruit that is produced is often misshapen and blemished. In Europe, 
plum pox has been present for a number of years and is considered to be 
the most serious disease affecting susceptible Prunus varieties. Plum 
pox is transmitted locally by various aphid species, as well as by 
budding and grafting with infected plant material, and spreads over 
longer distances through movement of infected budwood, nursery stock, 
and other plant parts.
    There are no known effective methods for treating trees or other 
plant material infected with plum pox, nor are there any known 
effective prophylactic treatments to prevent the disease from occurring 
in trees that are exposed to the disease due to their proximity to 
infected trees. Without effective treatments, the only option for 
preventing the spread of the disease is the destruction of infected and 
exposed trees.
    The first documented case of plum pox in the United States was 
detected in an Adams County, PA, orchard in 1999. In 2006, additional 
detections were made in New York and Michigan. Through cooperative 
Federal/State efforts, plum pox has been eradicated in Pennsylvania and 
Michigan. Currently, portions of Niagara, Orleans, and Wayne Counties, 
NY, are the only areas in the United States quarantined because of plum 
pox.
    The regulations in Subpart--Plum Pox (7 CFR 301.74 through 301.74-
5), referred to below as the regulations, quarantine areas of the 
United States where plum pox has been detected and restrict the 
interstate movement of regulated articles (e.g., trees, seedlings, root 
stock, budwood, branches, twigs, and leaves of susceptible Prunus spp.) 
from quarantined areas to prevent the spread of plum pox virus (PPV) 
into uninfected areas of the United States.
    In addition to the quarantine and interstate movement restrictions 
in the regulations, Sec.  310.74-5 also provides for the payment of 
compensation to eligible owners of commercial stone fruit orchards, 
including direct marketers, and fruit tree nurseries. Compensation 
payments are provided to eligible orchard owners to mitigate losses 
associated with the destruction of trees in order to control plum pox 
pursuant to an emergency action notification (EAN) issued by the U.S. 
Department of Agriculture's (USDA) Animal and Plant Health Inspection 
Service (APHIS). Payments are also provided to eligible nursery owners 
to mitigate the net revenue losses associated with the prohibition on 
the movement or sale of nursery stock as a result of the issuance of an 
EAN by APHIS with respect to regulated articles within the nursery in 
order to control plum pox.
    The compensation provisions of Sec.  301.74-5 were established to 
reduce the economic effect of the plum pox quarantine on affected 
commercial growers and nursery owners, thus ensuring their continued 
cooperation with the survey and eradication activities being conducted 
by APHIS and State plant health agencies. The availability of 
compensation played an important role in the successful eradication of 
plum pox from Adams County, PA. Affected owners of commercial stone 
fruit orchards and fruit tree nurseries in the quarantined areas of New 
York are eligible for, and have received, compensation payments in 
connection with the destruction of trees and the resulting loss in 
income

[[Page 5382]]

associated with the ongoing eradication efforts in that State.
    The compensation provisions for commercial stone fruit orchards and 
fruit tree nurseries were promulgated in 2000 following the 
establishment of the plum pox quarantine and regulations. Subsequently, 
in 2004 we amended the regulations to provide for the payment, under 
certain circumstances, of compensation to direct market growers, who we 
defined as growers who produce fruit and sell the fruit themselves for 
premium prices at farmers markets. The 2004 rule also added provisions 
for the payment of compensation for stone fruit trees destroyed at less 
than 1 year of age. Since that 2004 final rule, we have not made any 
adjustments to the compensation provisions of the regulations.

Increased Payment Amounts

    Due to changes in management practices by stone fruit growers and 
direct marketers and in fruit tree nurseries, along with the effects of 
inflation and increases in the prices for the products of commercial 
stone fruit orchards and nurseries containing stone fruit trees, the 
compensation amounts in Sec.  310.74-5 no longer accurately reflect the 
economic losses experienced by grove owners, direct marketers, and 
nursery owners who are subject to an EAN issued by APHIS in order to 
prevent the spread of plum pox. Further, the State/Federal eradication 
program has adopted the recommendations of plum pox experts to remove 
all potentially exposed host trees within a 500-meter radius from an 
infected tree, so it has become increasingly necessary to update the 
plum pox compensation rates to reflect current market conditions and 
thereby ensure the continued cooperation of business operations 
affected by the eradication program. Therefore, in this interim rule, 
we are amending Sec.  301.74-5 to raise the payment amounts found in 
paragraph (b) of that section.
    The current amounts of compensation for owners of commercial stone 
fruit orchards, including direct marketers, are presented in two tables 
in Sec.  310.74-5(b)(1). Depending on the age of the trees and based on 
a 3-year fallow period, those amounts range from $2,403 to a maximum of 
$25,859 per acre for direct marketers and $15,000 per acre for all 
other orchard owners. The new compensation amounts, which are also 
dependent on the age of the tree and based on a 3-year fallow period, 
will range from a minimum of $3,302 for all growers to a maximum of 
$29,743 per acre for direct marketers and $18,519 per acre for all 
other orchard owners. We have based the amount of the increased 
compensation on the recommendations of a panel composed of APHIS and 
State representatives, industry representatives, and university 
scientists. The increased amounts are derived from increasing the 
calculated price per bushel and taking into account the increased costs 
of production and of land preparation. The initial regulatory 
flexibility analysis prepared for this rule, which may be viewed on the 
Regulations.gov Web site (see ADDRESSES above for instructions for 
accessing Regulations.gov), provides a detailed explanation of the 
methodology is used to calculate the updated compensation rates. The 
methodology used is the same as that used to determine the original 
compensation rates.
    We are also amending the regulations in Sec.  301.74-5(b)(2) to 
increase the amount of compensation that may be paid to eligible owners 
of fruit tree nurseries for net revenues lost from their first and 
second year crops as the result of the issuance of an EAN. We are doing 
so by increasing the average price per tree, which is one of the 
factors considered in the formula for arriving at the amount of 
compensation to be paid.
    The average price per tree for a first year crop (trees that were 
expected to be sold in the year during which the EAN was issued) has 
been $4.65 for all tree types, and the average price per tree for a 
second year crop (trees that would be expected to be sold in the year 
following the year during which the EAN was issued) has been $4.65 for 
plum and apricot trees and $3.30 for peach and nectarine trees. In this 
rule, we are setting the average price per tree at $5.22 for plum and 
apricot trees and $3.69 for peach and nectarine trees for both first 
and second year crops. We based these changes on the adjusted base 
price for a field-grown 18-inch fruit or nut tree found in the Eligible 
Plant List (a listing of insurable plants approved by USDA's Risk 
Management Agency) and Plant Price Schedule (a schedule of prices for 
insurable nursery plants) for the 2011 and Succeeding Crop Years 
Nursery Crop Insurance Program.

Eligible Nurseries

    As discussed above, owners of fruit tree nurseries may be eligible 
to receive compensation for net revenue losses associated with the 
prohibition on the movement or sale of nursery stock as a result of the 
issuance of an EAN by APHIS with respect to regulated articles within 
the nursery in order to control plum pox. While the regulations are 
specific to fruit tree nurseries, studies have proven that non-fruit-
bearing ornamental trees are susceptible to plum pox and may serve as 
host material for the virus. As such, they represent a risk to 
eradication efforts and are included in the list of regulated articles 
in Sec.  301.74-2 of the regulations. Currently, three varieties of 
non-fruit-bearing ornamental trees have been verified as host material 
for plum pox: Purpleleaf plum varieties, dwarf flowering almond 
varieties, and sandcherry varieties. Because nurseries containing non-
fruit-bearing ornamental trees may be subject to the same prohibitions 
on the movement or sale of nursery stock as those containing fruit 
trees, we are amending the regulations to provide that owners of non-
fruit-bearing ornamental tree nurseries are eligible for compensation.
    Paragraph (a) of Sec.  301.74-5 describes the individuals who are 
eligible to receive compensation from USDA to mitigate losses or 
expenses incurred because of the plum pox quarantine and emergency 
actions. In this rule, we are adding a new paragraph (a)(3) to state 
that the owner of a non-fruit-bearing ornamental tree nursery will be 
eligible to receive compensation for net revenue losses associated with 
the prohibition on the movement or sale of nursery stock as a result of 
the issuance of an EAN by APHIS with respect to regulated articles 
within the nursery in order to control plum pox.
    Paragraph (b) of Sec.  301.74-5 sets out the amounts that eligible 
individuals may receive upon approval of their claims. In this rule, we 
are adding a new paragraph (b)(3) that provides that the owner of a 
non-fruit-bearing ornamental tree nursery will be eligible to receive 
compensation for up to 85 percent of the net revenue losses associated 
with the prohibition on the movement or sale of nursery stock as a 
result of the issuance of an EAN with respect to regulated articles 
within the nursery in order to control plum pox. This is consistent 
with the existing provisions in Sec.  301.74-5(b)(2) regarding the 
payment of compensation to eligible owners of fruit tree nurseries. Net 
revenues will be calculated using an average price of $10.80 per tree 
or shrub. This amount is based on the average base prices for two- and 
five-gallon container-grown deciduous trees and shrubs from the Plant 
Price Schedule used in the Nursery Crop Insurance Program cited above.

Application Forms

    The current regulations provide a mailing address in Pennsylvania 
from which the form for submitting a claim

[[Page 5383]]

for compensation may be obtained and to which the completed form must 
be submitted. Because plum pox has been eradicated in Pennsylvania, our 
Pennsylvania State office will no longer process compensation claims. 
Therefore, we are amending the regulations to provide alternative 
instructions for the submission of claims. Specifically, we are 
providing a link to the APHIS Web site where individuals seeking to 
file a claim will find the mailing address, telephone number, and email 
address for the National Director of the Plum Pox Eradication Program 
from whom the form for submitting a claim for compensation may be 
obtained and subsequently submitted. Federal and State officials with 
the plum pox eradication program will also be able to provide this 
information in person to affected growers, direct marketers, and 
nursery owners in the quarantined area.

Immediate Action

    Immediate action is necessary to reduce the economic effect of the 
plum pox quarantine on affected commercial stone fruit growers and 
nursery owners, thus ensuring the continued cooperation of growers and 
nursery owners with the survey and eradication activities being 
conducted by the State of New York and APHIS.
    Under these circumstances, the Administrator has determined that 
prior notice and opportunity for public comment are contrary to the 
public interest and that there is good cause under 5 U.S.C. 553 for 
making this action effective less than 30 days after publication in the 
Federal Register.
    We will consider comments we receive during the comment period for 
this interim rule (see DATES above). After the comment period closes, 
we will publish another document in the Federal Register. The document 
will include a discussion of any comments we receive and any amendments 
we are making to the rule.

Executive Order 12866 and Regulatory Flexibility Act

    This interim rule has been determined to be not significant for the 
purposes of Executive Order 12866 and, therefore, has not been reviewed 
by the Office of Management and Budget.
    In accordance with 5 U.S.C. 603, we have performed an initial 
regulatory flexibility analysis, which is summarized below, regarding 
the economic effects of this rule on small entities. The full analysis 
may be viewed on the Regulations.gov Web site (see ADDRESSES above for 
instructions for accessing Regulations.gov) or obtained from the person 
listed under FOR FURTHER INFORMATION CONTACT.
    The current compensation rates were established in 2000 and 2004 
during the initial plum pox outbreak in Pennsylvania. Earnings by stone 
fruit farmers and nurseries have since changed due to inflation and 
changes in management practices. This revision of the plum pox 
compensation rates will help ensure compliance with the quarantine and 
provide an incentive for maintaining 500-meter buffers around positive 
sites, as recommended by USDA plum pox experts and in contrast to the 
50-meter buffers that have been used by some growers.
    The revised compensation rates are based on the same methodology as 
was used to determine the current rates. USDA compensates for up to 85 
percent of the difference in value between destroyed and replanted 
orchards. The compensation rate depends on the year in an orchard's 
life cycle that destruction of the trees occurs. Assuming a 3-year 
fallow period following the destruction of an orchard, the revised 
compensation payments range from $3,302 to $18,519 per acre, when the 
farmer sells to processors or wholesalers; and $3,302 to $29,743 per 
acre, when the farmer sells directly to consumers (such as at farmers' 
markets).
    Owners of fruit tree nurseries and non-fruit-bearing tree nurseries 
who meet the eligibility requirements will be compensated by USDA for 
up to 85 percent of the net revenues lost from their crops. The lost 
net revenues for non-fruit-bearing tree nurseries will be calculated 
using an average price of $10.80 per tree or shrub. The lost net 
revenues for fruit tree nurseries will be calculated using an average 
price per tree at $5.22 for plum and apricot trees and $3.69 for peach 
and nectarine trees for both first and second year crops.
    To date, a total of 11 peach growers and 12 nursery owners in the 
quarantined areas in New York have been compensated for the destruction 
of PPV-infected and -exposed trees and nursery stock. Most, if not all, 
of the affected farms and nurseries are considered to be small 
entities, based on the Small Business Administration standard of annual 
receipts of not more than $750,000 and national sales data. These 
businesses will directly benefit from the higher compensation rates, 
and eradication of the disease will be more effectively achieved.

Executive Order 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule: (1) Preempts all State and local laws and 
regulations that are inconsistent with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

Paperwork Reduction Act

    This interim rule contains no information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

List of Subjects in 7 CFR Part 301

    Agricultural commodities, Plant diseases and pests, Quarantine, 
Reporting and recordkeeping requirements, Transportation.

    Accordingly, we are amending 7 CFR part 301 as follows:

PART 301--DOMESTIC QUARANTINE NOTICES

0
1. The authority citation for part 301 continues to read as follows:

    Authority:  7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, 
and 371.3.
    Section 301.75-15 issued under Sec. 204, Title II, Public Law 
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 
issued under Sec. 203, Title II, Public Law 106-224, 114 Stat. 400 
(7 U.S.C. 1421 note).


0
2. Section 301.74-5 is amended as follows:
0
a. By adding a new paragraph (a)(3) to read as set forth below.
0
b. By revising the tables in paragraphs (b)(1)(i) and (b)(1)(ii) to 
read as set forth below.
0
c. In paragraph (b)(2)(i)(B), by removing the figure ``$4.65'' and 
adding the words ``$5.22 for plum and apricot trees and $3.69 for peach 
and nectarine trees'' in its place.
0
d. In paragraph (b)(2)(ii)(B), by removing the words ``$4.65 for plum 
and apricot trees and $3.30'' and adding the words ``$5.22 for plum and 
apricot trees and $3.69'' in their place.
0
e. By adding a new paragraph (b)(3) to read as set forth below.
0
f. By revising paragraph (c) introductory text to read as set forth 
below.
0
g. In the heading of paragraph (c)(3), by adding the words ``and owners 
of non-fruit-bearing ornamental tree nurseries'' after the word 
``nurseries''.

[[Page 5384]]

Sec.  301.74-5  Compensation.

    (a) * * *
    (3) Owners of non-fruit-bearing ornamental tree nurseries. The 
owner of a non-fruit-bearing ornamental tree nursery will be eligible 
to receive compensation for net revenue losses associated with the 
prohibition on the movement or sale of nursery stock as a result of the 
issuance of an emergency action notification by APHIS with respect to 
regulated articles within the nursery in order to control plum pox.
    (b) * * *
    (1) * * *
    (i) * * *

----------------------------------------------------------------------------------------------------------------
                                         Maximum compensation      Maximum additional       Maximum additional
                                        rate ($/acre, equal to   compensation ($/acre,    compensation ($/acre,
         Age of trees (years)           85% of loss in value)   equal to 85% of loss in  equal to 85% of loss in
                                        based on 3-year fallow   value) for 4th fallow    value) for 5th fallow
                                                period                    year                     year
----------------------------------------------------------------------------------------------------------------
Less than 1..........................                   $3,302                     $954                     $842
1....................................                   11,639                    1,936                    1,721
2....................................                   16,327                    1,936                    1,721
3....................................                   20,725                    1,936                    1,721
4....................................                   26,222                    1,936                    1,721
5....................................                   28,820                    1,936                    1,721
6....................................                   29,592                    1,936                    1,721
7....................................                   29,743                    1,936                    1,721
8....................................                   29,196                    1,936                    1,721
9....................................                   28,581                    1,936                    1,721
10...................................                   27,889                    1,936                    1,721
11...................................                   27,110                    1,936                    1,721
12...................................                   26,234                    1,936                    1,721
13...................................                   25,248                    1,936                    1,721
14...................................                   24,140                    1,936                    1,721
15...................................                   22,892                    1,936                    1,721
16...................................                   21,489                    1,936                    1,721
17...................................                   20,054                    1,936                    1,721
18...................................                   18,582                    1,936                    1,721
19...................................                   17,070                    1,936                    1,721
20...................................                   15,513                    1,936                    1,721
21...................................                   13,905                    1,936                    1,721
22...................................                   12,382                    1,936                    1,721
23...................................                   10,955                    1,936                    1,721
24...................................                    9,638                    1,936                    1,721
25...................................                    8,442                    1,936                    1,721
----------------------------------------------------------------------------------------------------------------

     (ii) * * *

----------------------------------------------------------------------------------------------------------------
                                         Maximum compensation      Maximum additional       Maximum additional
                                        rate ($/acre, equal to   compensation ($/acre,    compensation ($/acre,
         Age of trees (years)           85% of loss in value)   equal to 85% of loss in  equal to 85% of loss in
                                        based on 3-year fallow   value) for 4th fallow    value) for 5th fallow
                                                period                    year                     year
----------------------------------------------------------------------------------------------------------------
Less than 1..........................                   $3,302                     $954                     $842
1....................................                    6,959                    1,072                      953
2....................................                   10,090                    1,072                      953
3....................................                   12,737                    1,072                      953
4....................................                   16,263                    1,072                      953
5....................................                   17,929                    1,072                      953
6....................................                   18,423                    1,072                      953
7....................................                   18,519                    1,072                      953
8....................................                   18,167                    1,072                      953
9....................................                   17,771                    1,072                      953
10...................................                   17,325                    1,072                      953
11...................................                   16,823                    1,072                      953
12...................................                   16,259                    1,072                      953
13...................................                   15,625                    1,072                      953
14...................................                   14,911                    1,072                      953
15...................................                   14,107                    1,072                      953
16...................................                   13,204                    1,072                      953
17...................................                   12,279                    1,072                      953
18...................................                   11,331                    1,072                      953
19...................................                   10,356                    1,072                      953
20...................................                    9,352                    1,072                      953
21...................................                    8,314                    1,072                      953
22...................................                    7,330                    1,072                      953
23...................................                    6,408                    1,072                      953
24...................................                    5,554                    1,072                      953
25...................................                    4,777                    1,072                      953
----------------------------------------------------------------------------------------------------------------


[[Page 5385]]

* * * * *
    (3) Owners of non-fruit-bearing ornamental tree nurseries. Owners 
of non-fruit-bearing ornamental tree nurseries who meet the eligibility 
requirements of paragraph (a)(3) of this section will be compensated 
for up to 85 percent of the net revenues lost from their crop as the 
result of the issuance of an emergency action notification. Net 
revenues will be calculated using an average price of $10.80 per tree 
or shrub.
    (c) How to apply. The form necessary to submit a claim for 
compensation may be obtained from the National Director of the Plum Pox 
Eradication Program contact listed at http://www.aphis.usda.gov/plant_health/plant_pest_info/plum_pox/index.shtml. Claims for trees or 
nursery stock destroyed on or before February 3, 2012 must be received 
within 60 days after February 3, 2012. Claims for trees or nursery 
stock destroyed after February 3, 2012 must be received within 60 days 
after the destruction of the trees or nursery stock. Claims must be 
submitted as follows:
* * * * *

    Done in Washington, DC, this 30th day of January 2012.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2012-2448 Filed 2-2-12; 8:45 am]
BILLING CODE 3410-34-P