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###### Department of Agriculture

###### Farm Service Agency

# AGENCY:

Farm Service Agency, USDA.

# ACTION:

Notice of program implementation.

# SUMMARY:

This notice announces the availability of disaster relief for producers of citrus, selected tropical fruits, vegetables, fruits and nursery crops located in Florida counties that have received a Presidential disaster declaration for Hurricanes Charley, Frances, or Jeanne in order to reestablish producers' purchasing power in the following Presidentially-declared disaster counties, and any other such counties subsequently declared by the President: Alachua, Baker, Bay, Bradford, Brevard, Broward, Calhoun, Charlotte, Citrus, Clay, Collier, Columbia, DeSoto, Dixie, Duval, Escambia, Flagler, Franklin, Gadsden, Gilchrist, Glades, Gulf, Hamilton, Hardee, Hendry, Hernando, Highlands, Hillsborough, Holmes, Indian River, Jackson, Jefferson, Lafayette, Lake, Lee, Leon, Levy, Liberty, Madison, Manatee, Marion, Martin, Miami-Dade, Monroe, Nassau, Okaloosa, Okeechobee, Orange, Osceola, Palm Beach, Pasco, Pinellas, Polk, Putnam, Santa Rosa, Sarasota, Seminole, St. Johns, St. Lucie, Sumter, Suwannee, Taylor, Union, Volusia, Wakulla, Walton, and Washington.

# EFFECTIVE DATE:

October 28, 2004.

# FOR FURTHER INFORMATION CONTACT:

                        Eloise Taylor, Branch Chief, Compliance Branch, Production, Emergencies, and Compliance Division, Farm Service Agency (FSA), USDA, STOP 0517, 1400 Independence Avenue, SW., Washington, DC 20250-0517; phone: (202) 720-9882; fax: (202) 720-4941; e-mail:                         *Eloise.Taylor@usda.gov*.                    

# SUPPLEMENTARY INFORMATION:

## I. Background

Section 32 of the Agricultural Act of August 24, 1935, allows the Secretary of Agriculture to make payments to restore producers' purchasing power. This authority has been used in the past to provide assistance to producers in response to unusual market conditions that adversely affected producers. Similarly, the widespread and significant destruction that resulted in Florida from Hurricanes Charley, Frances, and Jeanne has adversely affected the purchasing power of certain producers of agricultural commodities in those counties listed in the summary paragraph of this notice. Accordingly, the Secretary of Agriculture has determined that assistance is appropriate under this authority, in these counties, for producers of crops of citrus, nursery, vegetables, fruits and selected tropical fruits. Payment rates under each program will be as announced by FSA.

### Notice and Comment

Because of the need to provide timely assistance to disaster affected producers, this program is effective immediately without regard to the provisions of 5 U.S.C. 553 and the Statement of Policy of the Secretary of Agriculture dated July 24, 1971 (36 FR 13804).

### Small Business Regulatory Enforcement Fairness Act

In accordance with 5 U.S.C. 808, because the payments provided under this notice need to be made to affected producers as timely as possible, it was determined that a delay for consultation, review, and comment on this notice would be impracticable and contrary to the public interest. Thus, this notice is effective immediately.

### Paperwork Reduction Act

A request for emergency clearance of the information collections associated with this notice was submitted to the Office of Management and Budget (OMB) under 5 CFR 1320.13 (a)(2)(iii), and has been approved by OMB and assigned OMB control number 0560-0247.

### Environmental Review

                    Due to the weather-related disasters requiring the Agency to provide immediate relief, sufficient time was not available to complete an environmental review prior to implementing this program. Therefore, an environmental assessment is being completed to consider the potential impacts of this proposed action on the human environment in accordance with the provisions of the National                           ( print page 63135)                        Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321,                     *et seq.*, the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and FSA's regulations for compliance with NEPA at 7 CFR part 799. A copy of the draft environmental assessment will be available after completion for review upon request.                

## II. Application Process

Producers wishing to receive benefits must submit an application to FSA at their local FSA Service Center during the signup periods, beginning as follows:

Florida Citrus Disaster Program—October 5, 2004.

Florida Nursery Disaster Program—October 20, 2004.

Florida Fruit and Vegetable Disaster Program—October 20, 2004.

Signup will end on such date as announced by FSA. Applications for assistance are available at local FSA Service Centers.

## III. Payment Limitation

(a) Consistent with the other crop disaster assistance programs of FSA and CCC, the total amount of payments made under this notice that a “person” may receive can not exceed $80,000. As set forth in the individual descriptions of each program, payment limitation rules in 7 CFR part 1400.301 will be used in applying this limit to specified portions of the payment made under this notice. Producers who receive payments for citrus, fruits, vegetables, tropical fruits, and/or nursery crops may receive no more than a combined $80,000 for payments subject to the payment limitation for any or all of the programs in this notice. This payment limitation is separate and distinct from all other Commodity Credit Corporation (CCC) and FSA program payment limitations.

(b) Adjusted gross income (AGI) rules in 7 CFR 1400.600 also apply to persons receiving payments under this notice with respect to that portion of the payment subject to the $80,000 limitation. Generally, these regulations provide that payments will not be available for persons whose adjusted gross income is $2.5 million or higher, unless 75 percent or more of their income is derived from farming, ranching, and forestry. These provisions do not apply to payments that are not subject to limitation. A portion of these payments are similar to the payments made under the Emergency Conservation Program (ECP), which pays for losses associated with weather damage that materially affects productive capacity and is required to return the land to productive agricultural uses. Accordingly, in determining whether or not to provide this assistance, the portion of the payment associated with clean-up and rehabilitation is not subject to AGI.

(c) The highly erodible land and wetland conservation rules in 7 CFR part 12 apply to this notice. 

(d) The controlled substance rules in 7 CFR 718 apply. 

## IV. Florida Citrus Disaster Program 

(a) Eligible producers are those producers who maintain groves of fruit being trees of citrus types approved by the Risk Management Agency (RMA), in its Florida Citrus Fruit Crop provisions, and as otherwise announced by FSA. Producers that had not marketed citrus in both 2003 and 2004 are not eligible for this assistance, except producers of groves that will be of fruit-bearing age for 2005, but were too immature to produce marketable fruit in 2003 or 2004, will be eligible for such assistance. For the purposes of this notice, a grove is defined as a contiguous acreage of the same citrus crop. 

(b) Citrus producers will be reimbursed on a per-acre basis for each eligible grove. Payment will be based on the severity of destruction as determined by the paths of the storms and damage estimates developed by FSA in cooperation with the Florida Department of Agriculture. Estimates take into account levels of loss generally correlating to the distance from the eyes of the hurricanes, the average production loss, tree loss and rehabilitation and cleanup costs. The levels of damage that will determine payment rates are as follows: 

Tier I—75 percent or greater crop loss and associated tree damage. 

Tier II—50 to 74 percent crop loss and associated tree damage. 

Tier III—35 to 49 percent crop loss and associated tree damage. 

Tier IV—15 percent and greater associated tree damage only. 

                    A copy of the map showing the loss tiers for citrus is available on the FSA Disaster Assistance Web site at                     *http://disaster.fsa.usda.gov*                     and at FSA Service Centers. Citrus producers who suffered citrus crop production losses and associated fruit-bearing tree damage, including related cleanup and rehabilitation costs, must provide to FSA a certified statement on an FSA approved form of the level of destruction, the number of acres in the disaster-affected grove, and the geographic location of the losses.                 

(c) If the actual level of loss is greater than the tier associated with the location band for the grove, based upon documentation submitted by the producer to FSA, FSA may assign the grove to a lower tier which represents a greater level of loss and a higher payment rate. 

(d) If the actual level of loss is less than the tier associated with the location band for the grove, the producer shall certify to the lower loss level on the application and a lower payment rate will be used by FSA based upon the tier rate associated with the lower loss level. 

(e) Payments will be calculated by multiplying the number of net acres in each tier times the applicable payment rate, as determined by FSA, times the producer's share of the loss. The number of net acres is determined by subtracting drainage ditches, canals, and other such land uses from the citrus acres planted in the grove. 

(f) The percentages of the payment for citrus crops that are subject to the payment limitation and AGI provisions are: 

Tier I—55 percent 

Tier II—60 percent 

Tier III—64 percent 

Tier IV—0 percent 

(g) The percentages of the payment for citrus crops that are not subject to the payment limitation and AGI provisions are: 

Tier I—45 percent 

Tier II—40 percent 

Tier III—36 percent 

Tier IV—100 percent 

## V. Florida Nursery Disaster Program 

(a) Commercial ornamental nursery and fernery producers are eligible for assistance for inventory losses for each nursery or fernery operation and clean-up costs for nursery operations. For a nursery to be considered a commercial nursery, it must be certified by the State of Florida. Eligible producers include producers of the following types of nursery stock and such stock as announced by FSA: 
    - Deciduous shrubs, broadleaf evergreens, coniferous evergreens, shade and flowering trees.
    - Stock for use as propagation in a commercial ornamental nursery operation.
    - Fruit or nut seedlings grown for sale as seed stock for commercial orchard operations growing fruit or nuts.

(b) Eligible nursery inventory does not include: 
    - Edible varieties.
    - Plants produced for reforestation purposes or for the purpose of producing a crop for which RMA does not provide insurance, or for which CCC does not provide assistance under the Non-insured Assistance Program (NAP).       ( print page 63136)      

(c) Losses will be determined on an individual-nursery basis. Production loss from one nursery will not be offset by production from another nursery operated by the same applicant. Payments are calculated by multiplying the difference between beginning and ending inventory value times 25 percent times the producer's share of the loss. The payment for production loss is subject to the $80,000 payment limitation and AGI provisions. 

(d) Producers are also eligible for a payment of $250 per acre for debris removal and associated costs from hurricane damage if they can document that these costs were equal to or greater than $250 per acre. None of the payment for cleanup is subject to the payment limitation and AGI provisions. Producers must provide the inventory value before the hurricane and the inventory value after the hurricane. The value of the inventory is the producer's wholesale price list, less the maximum customer discount they provide, not to exceed the prices in RMA's “Eligible Plant List and Price Schedule.” 

## VI. Florida Vegetable, Fruit and Tropical Fruit Disaster Program 

(a) Producers of vegetables, fruits and selected tropical fruit are eligible for assistance. Payments will be made on a per-acre basis, and are based on the type of planting application or method installed or completed on the date and time the hurricanes occurred in that area. 

(b) Plasticulture refers to production practices where the soil has been covered with plastic mulch, fumigated, fertilized, and with an irrigation system installed. For plasticulture losses, producers must have a loss that is 50 percent or greater of plastic or plant population, as applicable. Producers must also document that the necessary materials and procedures were followed to produce vegetables using any of the practices. Payments are calculated by multiplying the payment rate for each practice times the affected acres in the practice times the producer's share of that crop. A portion of the payment that is associated with production losses is subject to the $80,000 payment limitation and AGI provisions. The payment associated with debris removal and associated costs from hurricane damage are not subject to payment limitation or AGI. Plasticulture includes the following practices: 

(1) Practice I—the producer laid down new plastic, fumigated the soil, put in transplants and had a loss or removal of more than 50 percent of the plastic per acre requiring the replacement of preplant inputs and plastic. 

(2) Practice II—the producer laid down new plastic, fumigated the soil, but did not put in transplants and had a loss or removal of more than 50 percent of the plastic per acre requiring the replacement of preplant inputs and plastic; or the producer laid down new plastic with 50 percent or more loss in plant population and did not re-plant due to cultural or weather related limitations. 

(3) Practice III—the producer double-cropped with respect to the plastic and had a loss of greater than 50 percent of the plastic per acre; or the producer laid down new plastic with 50 percent or more loss in plant population and replanted. 

(c) Practice IV—The producer who plants conventional row crop fruits and vegetables must suffer a loss of 50 percent or more of the plant population. Payments are calculated by multiplying the number of acres affected by the loss times the payment rate times the producer's share of the crop. All payments are subject to the total payment limitation and AGI provisions. 

(d) Practice V—For tropical fruit producers, only those producers in Lee County or in Bands 1 or 2 designated under the Florida Citrus Program are eligible. Producers must have suffered a loss of 50 percent or more relative to their expected production, as defined in 7 CFR part 1480.3. Payments are calculated by multiplying the number of acres affected by the payment rate times the producer's share of the crop. The total payment is subject to the payment limitation and AGI provisions. 

## VII. Payment Conditions for All Programs 

(a) Actual losses or costs for any program must equal or exceed the payment amount received for that program. 

(b) Payment rates will be 5 percent less for producers who did not obtain Federal Crop Insurance, which is available from the Risk Management Agency, or on coverage from CCC under NAP. 

(c) Eligible producers who elected not to purchase insurance on an insurable crop, or NAP coverage on an uninsurable crop for which benefits are received under any of these programs, must purchase for the next available coverage period: 

(1) Crop insurance at least at the catastrophic level on that crop, although producers who are required to purchase a citrus insurance policy may elect to purchase a fruit or tree policy; 

(2) NAP coverage for the next available coverage period by paying the administrative fee and filing all required paperwork by the applicable State filing deadline. 

(d) If a producer who is required to purchase crop insurance or NAP for the applicable year fails to do so, the producer must refund the disaster payment. 

## VIII. Appeals 

Any person who is dissatisfied with a determination made with respect to these programs may make a request for reconsideration or appeal of such determination in accordance with the regulations set forth in 7 CFR parts 11 and 780. 

Signed in Washington, DC, on October 25, 2004. 

James R. Little, 

Administrator, Farm Service Agency. 

[FR Doc. 04-24290 Filed 10-28-04; 8:45 am] 

BILLING CODE 3410-05-P