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CFR Citation: 7 CFR Part 301

Docket ID: [Docket No. 00-035-3]

RIN ID: RIN 0579-AB19

NOTICE: RULES

ACTION: Plant-related quarantine, domestic:

DOCUMENT ACTION: Final rule.

SUBJECT CATEGORY: Plum Pox Compensation

DATES: Effective Date: July 1, 2004.

DOCUMENT SUMMARY: We are amending the plum pox compensation regulations to provide additional compensation to affected growers, under certain conditions. We are providing additional compensation to growers who have already been paid compensation for 3 years of lost production, but who are prohibited from replanting regulated articles for a total of more than 3 years due to additional detections of plum pox in areas already under quarantine. Such growers will be paid compensation for up to 2 additional years. We are also providing additional compensation to growers who are direct marketers of their fruit and growers who have had trees that were less than 1 year old destroyed. We are taking these actions in response to issues that have surfaced during our 2 years of experience in managing the plum pox quarantine and paying compensation to affected growers. These changes are necessary to provide adequate compensation to persons affected by the plum pox quarantine and eradication efforts associated with the quarantine.

SUMMARY: Plum pox compensation,

SUPPLEMENTAL INFORMATION

On October 16, 2003, we published in the Federal Register (68 FR 5954859554, Docket No. 000352) a proposal to amend the plum pox compensation regulations to provide additional compensation to affected growers, under certain conditions. Specifically, we proposed to provide additional compensation to growers who have already been paid under the existing regulations, which provide for payments based on a 3year fallow period, but who are prohibited from replanting regulated articles for a total of more than 3 years due to additional detections of plum pox in areas already under quarantine. Under our proposal, such growers would be paid compensation for up to 2 additional years. We also proposed to provide additional compensation to growers who are direct marketers of their fruit, and to provide compensation for growers who have had trees that were less than 1 year old destroyed. We proposed these actions in response to issues that have surfaced during our 2 years of experience in managing the plum pox quarantine and paying compensation to affected growers. We believe the proposed changes are necessary to provide adequate compensation to persons affected by the plum pox quarantine and eradication efforts associated with the quarantine.

We solicited comments concerning our proposal for 60 days ending December 15, 2003. We received 2 comments by that date. They were from a stone fruit grower affected by the quarantine and a private citizen. The grower encouraged us to adopt our proposal as a final rule. The private citizen opposed the proposal but did not provide a rationale for her position. We are not making any changes to our proposal in response to the comments.

Therefore, for the reasons given in the proposed rule, we are adopting the proposed rule as a final rule, without change. Executive Order 12866 and Regulatory Flexibility Act

This rule has been reviewed under Executive Order 12866. The 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.

We have prepared an economic analysis for this rule. The economic analysis is summarized below. Copies of the full analysis are available by contacting the person listed under FOR FURTHER INFORMATION CONTACT, or may be viewed on the Internet at http://www.aphis.usda.gov/ppd/rad/plumpox.pdf .

Summary of Economic Analysis

We are amending the plum pox compensation regulations to provide additional compensation to affected growers, under certain conditions. We will provide additional compensation to growers who have already been paid 3 years worth of compensation but who are prohibited from replanting regulated articles for a total of more than 3 years due to recent detections of plum pox in areas already under quarantine. Such growers will be paid compensation for up to 2 additional years. We are also providing additional compensation to growers who are direct marketers of their fruit, and providing compensation for growers who have had trees of less than 1 year of age destroyed. These actions are in response to our 2 years of experience in managing the plum pox quarantine and paying compensation to affected growers. This action is necessary to provide adequate compensation to persons affected by the plum pox quarantine and eradication efforts associated with the quarantine.

This rule provides additional compensation in the event a quarantine period is extended according to an emergency action notification issued by APHIS. The fallow period may be increased by 1 or 2 years depending on the proximity of the land to recent finds of the plum pox virus. By delaying the time at which growers can replant, the longer fallow period increases the loss to growers. This final rule increases the amount of compensation to account for the longer fallow period.

Plum pox has been detected in some areas near orchards that were removed in the initial year of the eradication program. This has led to a need for additional fallow years for those acres. A fallow period of 3 years from the last find is needed to conclude that plum pox has been eradicated. APHIS will pay affected growers a maximum of 5 years of compensation. For orchards removed in 2002, we anticipate that only a 3year fallow period will be
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needed if no further plum pox is discovered.

Compensation payments are based on calculating the difference between the amount a grower could earn from the original orchard minus the amount that they could earn from a replanted orchard after a fallow period. A longer fallow period results in higher compensation payments because of the additional time it takes until growers have productive trees.

The peracre payment to commercial growers for 2 additional fallow years orchard will be $828 for the fourth year and $736 for the fifth year ($1,564 total per acre). The total number of acres eligible for additional payments because of the added fallow years is 1,400. The estimated cost if all acres are eligible for 2 additional years is $2,189,600.

Total additional payments for direct marketers range from $264,472 to $348,452, depending on the number of fallow years a direct marketer will be required to wait before replanting. Table 7 on page 15 of the full analysis summarizes the range of payments. Payments to direct marketers for the first 3 fallow years will increase by $10,172 per acre from the base amount that growers receive. Direct marketers were eligible to receive the same payments as other growers so the $10,172 represents the additional payment. Because they are among the last trees that have been removed, a 3year fallow period should be sufficient to demonstrate that plum pox has been eradicated. However, in the event that additional fallow years are necessary due new detections of plum pox, direct marketers will be compensated for up to 5 (total) fallow years. They will receive $1,710 for a 4th year and $1,520 for a 5th year. There are approximately 26 acres of trees used for direct marketing that have been removed as part of the plum pox eradication program; total payments to direct marketers will increase by $264,472, assuming the fallow period does not need to be extended. A 4year fallow period for direct marketers will result in payments of $11,882 per acre ($10,172 + $1,710). Total payments for 26 acres will be $308,932. A 5year fallow period for direct marketers will result in payments of $13,402 per acre ($10,172 + $1,710 + $1,520). Total payments for 26 acres will be $348,452.

This final rule also addresses the issue of trees less than 1 year old. Some growers have received destruction orders for trees that had been planted the same year. These trees did not go through one harvest season and are sometimes referred to as zero year trees. The original compensation program made no provision for these trees. However, growers that have had trees less than 1 year old destroyed have incurred costs. Based on input from cooperative extension agents and Pennsylvania State University, we have concluded that a fair rate of compensation for these trees is $2,403 per acre for a 3year fallow period.

As stated earlier in this document, the changes in payments of compensation are necessary to provide adequate compensation to persons affected by the plum pox quarantine and eradication efforts associated with the quarantine. Persons affected by the quarantine will, in all cases, benefit from adoption of this final rule.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

Executive Order 12372

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.028 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 final 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

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the information collection or recordkeeping requirements included in this rule have been approved by the Office of Management and Budget (OMB) under OMB control number 05790251.

Government Paperwork Elimination Act Compliance

The Animal and Plant Health Inspection Service is committed to compliance with the Government Paperwork Elimination Act (GPEA), which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. For information pertinent to GPEA compliance related to this rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 7347477. List of Subjects in 7 CFR Part 301

Agricultural commodities, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Transportation.
Accordingly, 7 CFR part 301 is amended as follows:
PART 301DOMESTIC QUARANTINE NOTICES
1. The authority citation for part 301 continues to read as follows:

Authority: 7 U.S.C. 77017772; 7 CFR 2.22, 2.80, and 371.3.

Section 301.7515 also issued under Sec. 204, Title II, Pub. L. 106113, 113 Stat. 1501A293; sections 301.7515 and 301.7516 also issued under Sec. 203, Title II, Pub. L. 106224, 114 Stat. 400 (7 U.S.C. 1421 note).
2. In Sec. 301.745, paragraphs (a)(1), (b)(1), (c)(1), (c)(2) and (d) are revised, a new paragraph (c)(3) is added, and the OMB control number citation at the end of the section is revised, to read as follows:
Sec. 301.745 Compensation.
(a) * * *
(1) Owners of commercial stone fruit orchards. Owners of commercial stone fruit orchards are eligible to receive compensation for losses associated with the destruction of trees in order to control plum pox pursuant to an emergency action notification issued by the Animal and Plant Health Inspection Service (APHIS).
(i) Direct marketers. Orchard owners eligible for compensation under this paragraph who market all fruit they produce under the conditions described in this paragraph may receive compensation at the rates specified in paragraph (b)(1)(i) of this section. In order to be eligible to receive compensation at the rates specified in paragraph (b)(1)(i) of this section, orchard owners must have marketed fruit produced in orchards subsequently destroyed because of plum pox under the following conditions:
(A) The fruit must have been sold exclusively at farmers markets or similar outlets that require orchard owners to sell only fruit that they produce;
(B) The fruit must not have been marketed wholesale or at reduced prices in bulk to supermarkets or other retail outlets;
(C) The fruit must have been marketed directly to consumers; and (D) Orchard owners must have records documenting that they have met the requirements of this section, and
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must submit those records to APHIS as part of their application submitted in accordance with paragraph (c) of this section. (ii) All other orchard owners. Orchard owners eligible for compensation under this paragraph who do not meet the requirements of paragraph (a)(1)(i) of this section are eligible for compensation only in accordance with paragraph (b)(1)(ii) of this section.
* * * * *
(b) * * *
(1) Owners of commercial stone fruit orchards(i) Direct marketers. Owners of commercial stone fruit orchards who APHIS has determined meet the eligibility requirements of paragraph (a)(1)(i) of this section will be compensated according to the following table on a peracre basis at a rate based on the age of the trees destroyed. If the trees were not destroyed by the date specified on the emergency action notification, the compensation payment will be reduced by 10 percent and by any tree removal costs incurred by the State or the U.S. Department of Agriculture (USDA). The maximum USDA compensation rate is 85 percent of the loss in value, adjusted for any Stateprovided compensation to ensure total compensation from all sources does not exceed 100 percent of the loss in value.
Maximum compensation rate ($/ Maximum additional Maximum additional acre, equal to 85% of loss compensation ($/acre, equal compensation ($/acre, equal Age of trees (years) in value) based on 3year to 85% of loss in value) for to 85% of loss in value) for fallow period 4th fallow year 5th fallow year Less than 1................................................ $2,403 $828 $736 1.......................................................... 9,584 1,710 1,520 2.......................................................... 13,761 1,710 1,520 3.......................................................... 17,585 1,710 1,520 4.......................................................... 21,888 1,710 1,520 5.......................................................... 25,150 1,710 1,520 6.......................................................... 25,747 1,710 1,520 7.......................................................... 25,859 1,710 1,520 8.......................................................... 25,426 1,710 1,520 9.......................................................... 24,938 1,710 1,520 10......................................................... 24,390 1,710 1,520 11......................................................... 23,774 1,710 1,520 12......................................................... 23,080 1,710 1,520 13......................................................... 22,300 1,710 1,520 14......................................................... 21,422 1,710 1,520 15......................................................... 20,434 1,710 1,520 16......................................................... 19,323 1,710 1,520 17......................................................... 18,185 1,710 1,520 18......................................................... 17,017 1,710 1,520 19......................................................... 15,814 1,710 1,520 20......................................................... 14,572 1,710 1,520 21......................................................... 13,287 1,710 1,520 22......................................................... 12,066 1,710 1,520 23......................................................... 10,915 1,710 1,520 24......................................................... 9,620 1,710 1,520 25......................................................... 8,163 1,710 1,520 (ii) All other orchard owners. Owners of commercial stone fruit orchards who meet the eligibility requirements of paragraph (a)(1)(ii) of this section will be compensated according to the following table on a peracre basis at a rate based on the age of the trees destroyed. If the trees were not destroyed by the date specified on the emergency action notification, the compensation payment will be reduced by 10 percent and by any tree removal costs incurred by the State or the U.S. Department of Agriculture (USDA). The maximum USDA compensation rate is 85 percent of the loss in value, adjusted for any Stateprovided compensation to ensure total compensation from all sources does not exceed 100 percent of the loss in value.
Maximum compensation rate ($/ Maximum additional Maximum additional acre, equal to 85% of loss compensation ($/acre, equal compensation ($/acre, equal Age of trees (years) in value) based on 3year to 85% of loss in value) for to 85% of loss in value) for fallow period 4th fallow year 5th fallow year Less than 1................................................ $2,403 $828 $736 1.......................................................... 4,805 828 736 2.......................................................... 7,394 828 736 3.......................................................... 9,429 828 736 4.......................................................... 12,268 828 736 5.......................................................... 14,505 828 736 6.......................................................... 14,918 828 736 7.......................................................... 15,000 828 736 8.......................................................... 14,709 828 736 9.......................................................... 14,383 828 736 10......................................................... 14,015 828 736 11......................................................... 13,601 828 736 12......................................................... 13,136 828 736 13......................................................... 12,613 828 736 [[Page 30818]]
14......................................................... 12,024 828 736 15......................................................... 11,361 828 736 16......................................................... 10,616 828 736 17......................................................... 9,854 828 736 18......................................................... 9,073 828 736 19......................................................... 8,272 828 736 20......................................................... 7,446 828 736 21......................................................... 6,594 828 736 22......................................................... 5,789 828 736 23......................................................... 5,035 828 736 24......................................................... 4,341 828 736 25......................................................... 3,713 828 736 * * * * *
(c) * * *
(1) Claims by owners of stone fruit orchards who are direct marketers. The completed application must be accompanied by: (i) A copy of the emergency action notification ordering the destruction of the trees and its accompanying inventory that describes the acreage and ages of trees removed;
(ii) Documentation verifying that the destruction of trees has been completed and the date of that destruction; and
(iii) Records documenting that the grower meets the eligibility requirements of paragraph (a)(1)(i) of this section.
(2) Claims by owners of commercial stone fruit orchards who are not direct marketers. The completed application must be accompanied by a copy of the emergency action notification ordering the destruction of the trees, its accompanying inventory that describes the acreage and ages of trees removed, and documentation verifying that the destruction of trees has been completed and the date of that destruction. (3) Claims by owners of fruit tree nurseries. The completed application must be accompanied by a copy of the order prohibiting the sale or movement of the nursery stock, its accompanying inventory that describes the total number of trees and the age and variety, and documentation describing the final disposition of the nursery stock. (d) Replanting. Trees of susceptible Prunus species (i.e., Prunus species identified as regulated articles) may not be replanted on premises within a contiguous quarantined area until 3 years from the date the last trees within that area were destroyed because of plum pox pursuant to an emergency action notification issued by APHIS. (Approved by the Office of Management and Budget under control numbers 05790159 and 05790251)

Done in Washington, DC, this 25th day of May 2004. W. Ron DeHaven,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 0412266 Filed 52804; 8:45 am]
BILLING CODE 341034P

FOR FURTHER INFORMATION CONTACT Mr. Stephen Poe, Operations Officer, Program Support Staff, PPQ, APHIS, 4700 River Road Unit 134, Riverdale, MD 207371236; (301) 7348247.