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Rules and Regulations Federal Register

25103 

Vol. 75, No. 88 

Friday, May 7, 2010 

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. 

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: 

Steve.Peterson@wdc.usda.gov. 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 

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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 

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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 buyin 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 weatherrelated 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. Commerciallygrown 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 

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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 

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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 TAPfunded 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: 

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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. 

■ 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 

■ 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. 

■ 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 

§ 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 § 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. 

§ 760.501 Administration. 

The program will be administered as 

specified in § 760.102 and in this 

subpart. 

§ 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, 

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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. 

§ 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. 

§ 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 

§ 760.104 or the waiver requirements in 

§§ 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 § 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. 

§ 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 

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25110 Federal Register / Vol. 75, No. 88 / Friday, May 7, 2010 / Rules and Regulations 

relevant information in making its 

determination; and 

(4) Must verify actual costs to 

complete the practices, as documented 

by the producer. 

§ 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 

§ 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 reestablished, 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. 

§ 760.507 Obligations of a participant. 

(a) Eligible orchardists and nursery 

tree growers must execute all required 

documents and complete the TAPfunded 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] 

■ 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 

■ 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] 

■ 5. Subpart H, consisting of 

§§ 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 

DEPARTMENT OF JUSTICE 

Bureau of Prisons 

28 CFR Part 540 

[BOP–1149] 

RIN 1120–AB49 

Inmate Communication With News 

Media: Removal of Byline Regulations 

AGENCY: Bureau of Prisons, Justice 

Department. 

ACTION: Interim final rule; technical 

correction. 

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