[Federal Register: March 19, 2002 (Volume 67, Number 53)]
[Rules and Regulations]
[Page 12446-12458]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19mr02-2]
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DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR Part 1437
RIN 0560-AG20
Noninsured Crop Disaster Assistance Program
AGENCY: Commodity Credit Corporation, USDA.
ACTION: Interim rule.
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SUMMARY: The Commodity Credit Corporation (CCC) amends the regulations
with respect to the Noninsured Crop Disaster Assistance Program (NAP).
This interim rule amends the NAP regulations to remove area
requirements, announce new requirements regarding the filing of
applications, payment of service fees, and reporting of crop acreage,
yield, and production. These regulatory amendments are designed to
improve the overall operation of the program and to conform the
regulations with changes to the program made in recent legislation.
DATES: The rule is effective March 19, 2002. Comments must be received
by April 18, 2002, to be assured of consideration.
ADDRESSES: Comments should be addressed to Steve Peterson, Chief,
Noninsured Assistance Programs Branch (NAPB); Production, Emergencies,
and Compliance Division (PECD); Farm Service Agency (FSA); United
States Department of Agriculture, STOP 0517, 1400 Independence Avenue,
SW., Washington, DC 20250-0517; e-mail Steve_Peterson@wdc.fsa.usda.gov.
FOR FURTHER INFORMATION CONTACT: Steve Peterson, Chief, Noninsured
Assistance Programs Branch (NAPB); Production, Emergencies, and
Compliance Division (PECD); Farm Service Agency (FSA); United States
Department of Agriculture, STOP 0517, 1400 Independence Avenue, SW,
Washington, DC 20250-0517; telephone (202) 720-5172; facsimile (202)
690-3646; e-mail StevePeterson@wdc.fsa.usda.gov.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This rule is issued in conformance with Executive Order 12866 and
has been determined to be economically significant and therefore has
been reviewed by the Office of Management and Budget (OMB). A summary
of the Cost-Benefit Assessment follows the Background section.
Regulatory Flexibility Act
It has been determined that the Regulatory Flexibility Act is not
applicable to this rule because neither FSA nor the CCC is required by
5 U.S.C. 533 or any other provision of law to publish a notice of
proposed rulemaking with respect to the subject matter of this rule.
Environmental Evaluation
It has been determined by an environmental evaluation that this
action will have no significant impact on the quality of the human
environment. Therefore, neither an environmental assessment nor an
environmental impact statement is needed.
Executive Order 12988
The rule has been reviewed in accordance with Executive Order
12988. The provisions of this rule preempt State laws to the extent
such laws are inconsistent with the provisions of this rule. Before any
judicial action may be brought concerning the provisions of this rule,
the administrative remedies must be exhausted.
Executive Order 12372
This program is not subject to the provisions of Executive Order
12372, which require intergovernmental consultation with State and
local officials. See the Notice related to 7 CFR Part 3015, subpart V,
published at 49 FR 29115 (June 24, 1983). Unfunded Mandates Reform Act
of 1995 (UMRA)
This rule contains no Federal mandates under the regulatory
provisions of Title II of the UMRA for State, local, and tribal
governments or the private sector. Thus, this rule is not subject to
the requirements of sections 202 and 205 of the UMRA.
Paperwork Reduction Act
This rule amends current regulations to reference changes to NAP
made by amendments to section 196 of the Federal Agriculture
Improvement and Reform Act of 1996 (1996 Act). The Paperwork Reduction
Act generally requires a 60-day public comment period and OMB review of
the information collections before regulations may be promulgated.
However, section 161 of the 1996 Act provided that the Secretary issue
regulations without regard to the Paperwork Reduction Act. A separate
notice announcing a 60-day comment period will be published and OMB
approval sought under the provisions of 44 U.S.C. chapter 35.
[[Page 12447]]
Executive Order 12612
It has been determined that this rule does not have sufficient
Federalism implications to warrant the preparations of a Federalism
Assessment. The provisions contained in this rule will not have a
substantial direct effect on States or their political subdivisions, or
on the distribution of power and responsibilities among the various
levels of Government.
Federal Assistance Programs
This program is listed in the Catalog of Federal Domestic
Assistance under No. 10.450.
Background
This rule re-writes, in their entirety, the Noninsured Crop
Disaster Assistance Program (NAP) regulations to improve the overall
administration of the program and to conform with statutory amendments
to section 196 of the Federal Agriculture Improvement and Reform Act of
1996 made in section 109 of the Agricultural Risk Protection Act of
2000 (Pub. L. 106-224; June 20, 2000) (``ARPA 2000''). Section
171(b)(2)(g) of ARPA 2000 specified that the amendments to NAP would
not be effective until the 2001 crop year. Also, prior to enactment of
ARPA 2000, section 101 of the Omnibus Consolidated Appropriations Act,
2000 (Pub. L. 106-113; November 29, 1999) provided that beginning with
the 1999 crop year CCC should provide up to $20 million to eligible
producers without regard to the regulatory requirement for area crop
losses. CCC put into place procedures to identify and provide
assistance to producers who would have been eligible for assistance if
not for the area crop loss requirement.
The changes made to NAP by ARPA 2000 were significant and involved
major changes in the way producers will qualify or retain eligibility
for NAP. There, the NAP statute was amended to remove the area crop
loss requirement entirely. In addition, the statute has been amended to
require an application and collection of a service fee. Producers now
must apply for NAP no later than the application closing date announced
by the Secretary. Additionally, producers must now pay a service fee of
$100 per crop per administrative county, or $300 per producer per
administrative county, up to a maximum, for all counties for the
producer, of $900. Service fees for limited resource producers may be
waived. CCC will use the definition of limited resource farmer provided
in FCIC regulations found at 7 CFR 457.8 for the purpose of defining
limited resource producers. Typically, under current regulations,
limited resource producers have an annual gross income of $20,000 or
less from all sources for the last 2 years, or farm less than 25 acres
with most of their income of $20,000 or less per year coming from
farming. This criteria, for NAP purposes, is subject to change as 7 CFR
457.8 is amended. Because of the timing involved, for certain 2001 and
2002 crops, special time periods have been created for submission of
the application for NAP coverage and service fees. To maintain
eligibility for 2001 and 2002 crops, producers who otherwise would be
late in filing the application must apply and pay the service fee
within 30 days of publication of this rule. NAP continues to require
crop reporting as a condition of eligibility. Every year producers must
provide records of crop acreage, yields, and production.
As a condition of eligibility, NAP benefits are earned only when a
loss or prevented planting occur as a result of an eligible loss
condition (disaster) as opposed to some other reason. It is a
producer's responsibility to show that the producer's claimed loss or
prevented planting was the result of an eligible cause. Accordingly,
for clarification purposes, this rule better describes (without any
change to policy) those loss conditions and crops for which benefits
under this part might be exacted. For example, a definition of
``controlled environment'' has been added; the definition of ``natural
disaster'' has been removed and the term is discussed under Sec. 1437.9
``Causes of Loss;'' sections were added discussing several crops for
which coverage is available; and generally, language in various
sections have been amended for clarity. Effective for the 2002 and
succeeding crop years the exclusion of unseeded forage on Federal- and
State-owned land as an eligible crop is removed.
Cost-Benefit Assessment
NAP expenditures for crop years 1996 through 1998 averaged about
$43 million per year. Outlays generally occur in the fiscal year
following the crop year. The President's budget baseline (prior to
enactment of Public Law 106-224) assumed the NAP program would cost $90
million each year. Outlays have never reached that expectation, in part
due to generally favorable weather conditions throughout the U.S. and
to the reluctance of producers to report acreage and production when
the area loss threshold had not been triggered. But that very
reluctance to report makes it difficult for the area loss threshold to
trigger.
The 2000 Act, by removing the area trigger requirement, removed
this impediment. That is, if a producer has the requisite crop loss (50
percent or more), the producer will be eligible to receive NAP
benefits. The producer no longer has to farm in an area where the yield
for the crop had to fall below 65 percent of the expected area yield to
receive a payment.
Participation in the 1999 Crop Disaster Program (CDP) provides some
insight into the cost of the NAP program. The CDP provided payments to
producers who suffered a 35-percent crop loss. Eligible crops include
insurable crops (crops eligible for crop insurance) and non-insurable
crops (crops eligible for NAP). Total claims for the CDP program were
about $2 billion (before application of the payment limit and before
the national factor). Out of the $2 billion, about $375 million was
paid out for crops that are eligible for NAP; the remaining funds went
to crops that were eligible for crop insurance.
The CDP paid producers for quantity losses in excess of 35 percent
at 65 percent of the market price. The NAP program pays producers for
quantity losses in excess of 50 percent at 55 percent of the market
price. When the CDP applications were screened for those producers
meeting the more restrictive loss requirements and adjustments were
made in the payment rates, the $375 million in benefits for non-insured
crops under CDP dropped to about $150 million under the NAP.
The number of NAP participants ranged from a low of about 6,500 in
1997 to a high of over 25,000 in 1996. More than 50,000 producers
received CDP benefits for crops eligible for NAP. Each producer
received, on average, payments for about two crops. If 75,000 producers
were to enroll in the new NAP, averaging two crops per producer, about
$15 million would be collected annually in service fees.
The total cost of NAP would be $147 million annually ($162 million
in benefits less the $15 million in service fees). Compared with
projected NAP outlays in the President's Budget of $90 million, CCC
outlays would increase by $57 million annually. Compared with average
NAP outlays of $43 million in fiscal years 1997 to 1999, CCC outlays
would increase by $104 million annually. The outlays would partially
offset lower income due to the weather-related crop losses. Farm income
would increase by a like amount.
The above cost projections assume that unseeded forage on Federal
and State lands is eligible for NAP benefits.
[[Page 12448]]
It is estimated that 62 million acres of unseeded forage on Federal and
State lands would become eligible under the new rule. If 10 percent of
these acres could not be grazed due to a natural disaster, CCC outlays
would increase by $12 million.
This rule is issued as an interim rule and will be effective while
comments are being received. As this rule implements provisions of the
Federal Agriculture Improvement and Reform Act of 1996, section 161 of
that Act exempts this rule from prior comment. Likewise section 172 of
ARPA 2000 suggests quick implementation. Delay in implementing the new
statutory law would be contrary to the public interest and law.
Likewise, as to 5 U.S.C. 808 it has been determined for the same
reasons that a lay-over for Congressional review would be contrary to
public interest. Similarly, for those amendments not compelled by
recent statutory changes, the improvement of the program should benefit
the overall administration of the program and corrections based on
comments can be made as needed. Accordingly, it has been determined
that it would be contrary to the public interest to withhold those
changes and those changes likewise are made effective immediately. All
of the corrections and amendments are set out in the full text of 7 CFR
part 1437 in this interim rule. Comments, favorable and unfavorable,
are solicited on all aspects of the rule.
List of Subjects in 7 CFR Part 1437
Agricultural commodities, Disaster Assistance, Reporting and record
keeping requirements.
For the reasons set out above, 7 CFR part 1437 is revised to read
as follows:
PART 1437--NONINSURED CROP DISASTER ASSISTANCE PROGRAM
Subpart A--General Provisions
Sec.
1437.1 Applicability.
1437.2 Administration.
1437.3 Definitions.
1437.4 Eligibility.
1437.5 Coverage period.
1437.6 Application for coverage and service fee.
1437.7 Records.
1437.8 Unit division.
1437.9 Causes of loss.
1437.10 Notice of loss and application for payment.
1437.11 Average market price and payment factors.
1437.12 Crop definition.
1437.13 Multiple benefits.
1437.14 Payment and income limitations.
1437.15 Miscellaneous provisions.
Subpart B--Determining Yield Coverage Using Actual Production History
1437.101 Actual production history.
1437.102 Yield determinations.
1437.103 Determining payments for low yield.
1437.104 Honey.
1437.105 Maple sap.
1437.106-1437.200 [Reserved]
Subpart C--Determining Coverage for Prevented Planted Acreage
1437.201 Prevented planting acreage.
1437.202 Determining payments for prevented planting.
1437.203-1437.300 [Reserved]
Subpart D--Determining Coverage Using Value
1437.301 Value loss.
1437.302 Determining payments.
1437.303 Aquaculture, including ornamental fish.
1437.304 Floriculture.
1437.305 Ornamental nursery.
1437.306 Christmas tree crops.
1437.307 Mushrooms.
1437.308 Ginseng.
1437.309 Turfgrass sod.
1437.310-1437.400 [Reserved]
Subpart E--Determining Coverage of Forage Intended for Animal
Consumption
1437.401 Forage.
1437.402 Carrying capacity.
1437.403 Determining payments.
1437.404 Information collection requirements under the Paperwork
Reduction Act; OMB control number.
Authority: 15 U.S.C. 714 et seq.; and 7 U.S.C. 7333.
Subpart A--General Provisions
Sec. 1437.1 Applicability.
(a) The Noninsured Crop Disaster Assistance Program (NAP) is
intended to provide eligible producers of eligible crops coverage
equivalent to the catastrophic risk protection level of crop insurance.
NAP is designed to help reduce production risks faced by producers of
commercial crops or other agricultural commodities. NAP will reduce
financial losses that occur when natural disasters cause a catastrophic
loss of production or where producers are prevented from planting an
eligible crop.
(b) The provisions contained in this part are applicable to
eligible producers and eligible crops for which catastrophic coverage
under section 508(b) the Federal Crop Insurance Act (7 U.S.C. 1508(b)),
as amended, or its successors, is not available.
(c) The regulations of this part are applicable to the 2001 and
subsequent crop years.
Sec. 1437.2 Administration.
(a) NAP is administered under the general supervision of the
Executive Vice-President, CCC (who also serves as Administrator, Farm
Service Agency), and shall be carried out by State and county FSA
committees (State and county committees).
(b) State and county committees, and representatives and their
employees, do not have authority to modify or waive any of the
provisions of the regulations of this part.
(c) The State committee shall take any action required by the
regulations of this part that the county committee has not taken. The
State committee shall also:
(1) Correct, or require a county committee to correct, any action
taken by such county committee that is not in accordance with the
regulations of this part; or
(2) Require a county committee to withhold taking any action that
is not in accordance with this part.
(d) No provision or delegation to a State or county committee shall
preclude the Executive Vice-President, CCC, or a designee, from
determining any question arising under the program or from reversing or
modifying any determination made by a State or county committee.
(e) The Deputy Administrator may authorize State and county
committees to waive or modify deadlines (except statutory deadlines) in
cases where lateness to file does not adversely affect operation of the
program.
Sec. 1437.3 Definitions.
The definitions and program parameters set out in this section
shall be applicable for all purposes of administering the Noninsured
Crop Disaster Assistance Program provided for in this part. Although
the terms defined in part 718 of this title and part 1400 of this
chapter shall also be applicable, the definitions set forth in this
section shall govern for all purposes of administering the Program.
Actual Production History (APH) means the farm's operative
production history established in accordance with subpart B of this
part.
Administrative county office means the county FSA office designated
to make determinations, handle official records, and issue payments for
the producer in accordance with 7 CFR part 718.
Animal Unit Days (AUD) means an expression of expected or actual
stocking rate for pasture or forage.
Application Closing Date means the last date, as determined by CCC,
producers can submit an application for coverage for noninsured crops
for the specified crop year.
Catastrophic coverage means a catastrophic risk protection (CAT)
level
[[Page 12449]]
of crop insurance available in accordance with section 508(b) of the
Federal Crop Insurance Act, as amended.
Catastrophic loss means--
(1) Loss, as the result of an eligible cause of loss, that entails
as determined by CCC:
(i) Prevented planting of greater than 35 percent of the intended
crop acreage; a yield loss of greater than 50 percent of the approved
yield; or value loss of greater than 50 percent of the pre-disaster
value; or
(ii) AUD loss of greater than 50 percent of the expected AUD.
(2)The quantity will not be reduced for any quality consideration
unless a zero value is established.
Controlled environment means, with respect to those crops for which
a controlled environment is expected to be provided, including but not
limited to ornamental nursery, aquaculture (including ornamental fish),
and floriculture, an environment in which everything that can
practicably be controlled with structures, facilities, growing media
(including but not limited to water, soil, or nutrients) by the
producer, is in fact controlled by the producer.
Crop year means the calendar year in which the crop is normally
harvested or in which the majority of the crop would have been
harvested. For value loss and other specific commodities, see the
applicable subpart and section of this part. For crops for which
catastrophic coverage is available, the crop year will be as defined by
such coverage.
Fiber means a slender and greatly elongated natural plant filament,
e.g. cotton, flax, etc. used in manufacturing, as determined by CCC.
Final planting date means the date which marks the end of the
planting period for the crop and in particular the last day, as
determined by CCC, the crop can be planted to reasonably expect to
achieve 100 percent of the expected yield in the intended harvest year
or planting period.
Food means a material consisting essentially of protein,
carbohydrates, and fat used in the body to sustain growth, repair, and
vital processes including the crops used for the preparation of food,
as determined by CCC.
Good farming practices means the cultural practices generally used
for the crop to make normal progress toward maturity and produce at
least the individual unit approved yield. These practices are normally
those recognized by Cooperative State Research, Education, and
Extension Service as compatible with agronomic and weather conditions.
Harvested means the producer has removed the crop from the field by
hand, mechanically, or by grazing of livestock. The crop is considered
harvested once it is removed from the field and placed in a truck or
other conveyance or is consumed through the act of grazing. Crops
normally placed in a truck or other conveyance and taken off the crop
acreage, such as hay are considered harvested when in the bale, whether
removed from the field or not.
Industrial crop means a commercial crop, or other agricultural
commodity utilized in manufacturing. Industrial crops include caster
beans, chia, crambe, crotalaria, cuphea, guar, guayule, hesperaloe,
kenaf, lesquerella, meadowfoam, milkweed, plantago, ovato, sesame and
other crops specifically designated by CCC.
Intended Use means for a crop or a commodity, the end use for which
it is grown and produced.
Multiple planted means the same crop is planted and harvested
during two or more distinct planting periods in the same crop year, as
determined by CCC.
Normal harvest date means the date harvest of the crop is normally
completed in the administrative county, as determined by CCC.
Seed crop means propagation stock commercially produced for sale as
seed stock for eligible crops.
Seeded forage means forage on acreage mechanically seeded with
forage vegetation at regular intervals, at least every 7 years, in
accordance with good farming practices.
T-Yield means the yield which is based on the county expected yield
of the crop for the crop year and is used on an adjusted or unadjusted
basis to calculate the approved yield for crops covered under the NAP
when less than four years of actual, assigned, or appraised yields are
available in the APH data base.
Transitional yield means an estimated yield of that name provided
in the Federal Crop Insurance Corporation (FCIC) actuarial table which
is used to calculate an average/approved APH yield for crops insured
under the Federal Crop Insurance Act when less than four years of
actual, temporary, and/or assigned yields are available on a crop by
county basis.
Sec. 1437.4 Eligibility.
(a) Noninsured crop disaster assistance for low yield or prevented
planting is available to producers of eligible commercial crops or
other agricultural commodities, as determined by CCC, for which:
(1) Catastrophic coverage is not available; or
(2) Catastrophic coverage is available in the administrative
county, however, the eligible commercial crop or other agricultural
commodity is affected by an eligible cause of loss, as determined by
CCC, that is not covered by the catastrophic coverage.
(b) Noninsured crop disaster assistance for low yields or prevented
planting is available only when loss of the crop occurs as a result of
an eligible cause of loss, as determined by CCC.
(c) When other conditions are met, NAP may be available for an
eligible loss of:
(1) Any commercial crop grown for food, excluding livestock and
their by-products;
(2) Any commercial crop planted and grown for livestock
consumption, including but not limited to grain and forage crops;
except for the 2001 and preceding crop years assistance for forage
produced on Federal- and State-owned lands is available only for seeded
forage.
(3) Any commercial crop grown for fiber, excluding trees grown for
wood, paper, or pulp products; and
(4) Any commercial production of:
(i) Aquacultural species (including ornamental fish);
(ii) Floricultural crops;
(iii) Ornamental nursery plants;
(iv) Christmas tree crops;
(v) Turfgrass sod;
(vi) Industrial crops; and
(vii) Seed crops.
Sec. 1437.5 Coverage period.
(a) The coverage period is the time during which coverage is
available against loss of production of the eligible crop as a result
of natural disaster.
(b) The coverage period for annual crops, including annual forage
crops, begins the later of 30 calendar days after the date the
application for coverage is filed; or the date the crop is planted, not
to exceed the final planting date; and ends on the earlier of the date
harvest is complete; the normal harvest date of the crop in the area;
the date the crop is abandoned; or the date the crop is destroyed.
(c) Except as otherwise specified in this part, the coverage period
for biennial and perennial crops begins 30 calendar days after the
application closing date; and ends as determined by CCC.
(d) Except as otherwise specified in this part, the coverage period
for value loss crops, including ornamental nursery, aquaculture,
Christmas tree crops, ginseng, and turfgrass sod; and other eligible
crops, including
[[Page 12450]]
floriculture and mushrooms begins 30 calendar days after the
application closing date; and ends the last day of the crop year, as
determined by CCC.
(e) The coverage period for honey begins 30 calendar days after the
application closing date and ends the last day of the crop year, as
determined by CCC.
(f) The coverage period for maple sap begins 30 calendar days after
the application closing date and ends on the earlier of the date
harvest is complete; or the normal harvest date.
(g) For biennial and perennial forage crops the coverage period
begins the later of 30 calendar days after the application closing
date; for first year seedings, the date the crop was planted; or the
date following the normal harvest date. The coverage ends on the normal
harvest date of the subsequent year.
Sec. 1437.6 Application for coverage and service fee.
(a) With respect to each crop, commodity or acreage, producers must
file an application for coverage under this part no later than the
application closing date.
(b) The service fee must be paid at the time of the application.
The service fee is $100 per crop per administrative county, up to $300
per producer per administrative county, but not to exceed $900 per
producer.
(c) The service fee will be applied per administrative county by
crop definition and planting period, as determined by CCC.
(d) Limited resource farmers may request that the service fee be
waived and must request such a waiver prior to, or at the same time the
application for coverage is filed. For this purpose, a ``limited
resource farmer'' shall be given the meaning assigned by 7 CFR 457.8.
(e) For 2001 and 2002 crops for which the application closing date
would normally have been established prior to March 19, 2002, or
established within 60 calendar days after March 19, 2002, producers
must within 30 calendar days after March 19, 2002:
(1) Submit a 2001 or 2002 crop application for coverage, as
applicable, and pay the applicable service fee; and
(2) Certify the 2000 and 2001 crop year production for the crop, if
applicable.
(f) For 2001 and 2002 crops which have suffered damage or loss,
producers must, in addition to paragraph (e)(1) of this section, have
complied with all requirements of this part prior to its revision on
March 19, 2002, (and contained in the 7 CFR, parts 1200 to 1599,
edition revised as of January 1, 2002) including having filed a timely:
(1) Report of acreage;
(2) Notice of loss; and
(3) Application for payment.
Sec. 1437.7 Records.
(a) Producers must maintain records of crop acreage, acreage
yields, and production for the crop for which an application for
coverage is filed in accordance with Sec. 1437.5. For those crops or
commodities for which it is impractical, as determined by CCC, to
maintain crop acreage, yields or production, producers must maintain
records, in addition to the available records required by this section,
as may be required in subparts C, D and E, of this part. Producers must
retain records of the production and acreage yield for a minimum of 3
years for each crop for which an application for coverage is filed in
accordance with Sec. 1437.6. Producers may be selected on a random or
targeted basis and be required to provide records acceptable to CCC to
support the certification provided. For each crop for which producers
file an application for payment in accordance with Sec. 1437.10 that is
harvested, producers must provide documentary evidence of production,
acceptable to CCC, and the date harvest was completed. Such documentary
evidence must be filed not later than the application closing date for
the crop in the subsequent crop year. Records of a previous crop year's
production for inclusion in the actual production history database used
to calculate an approved yield for the current crop year must be
certified by the producer no later than the application closing date
for the crop in the current crop year. Production data provided after
the application closing date in the current crop year for the crop may
be included in the actual production history data base for the
calculation of subsequent approved yield calculations if accompanied by
acceptable records of production as determined by CCC. Records of
production acceptable to CCC may include:
(1) Commercial receipts, settlement sheets, warehouse ledger
sheets, or load summaries if the eligible crop was sold or otherwise
disposed of through commercial channels provided the records are
reliable or verifiable as determined by CCC; and
(2) Such documentary evidence such as contemporaneous measurements,
truck scale tickets, and contemporaneous diaries, as is necessary in
order to verify the information provided if the eligible crop has been
fed to livestock, or otherwise disposed of other than through
commercial channels, provided the records are reliable or verifiable as
determined by CCC. If the crop will be disposed of through retail
sales, such as: roadside stands, u-pick, etc. and the producer will not
be able to certify acceptable records of production, the producer must
request an appraisal of the unit acreage prior to harvest of the crop
acreage.
(b) Producers must provide verifiable evidence, as determined by
CCC, of:
(1) An interest in the commodity produced or control of the crop
acreage on which the commodity was grown at the time of disaster; and
(2) The authority of the applicable individual to execute program
documents.
(c) Reports of acreage planted or intended but prevented from being
planted must be provided to CCC at the administrative FSA office for
the acreage no later than the date specified by CCC for each crop and
location. Reports of acreage filed beyond the date specified by CCC for
the crop and location may, however, be considered timely filed if all
the provisions of 7 CFR 718.103 are met. In the case of a crop-share
arrangement, all producers will be bound by the acreage report filed by
the landowner or operator unless the producer files a separate acreage
report prior to the date specified by CCC for the crop and location.
Reports of acreage planted or intended and prevented from being planted
must include all of the following information:
(1) Number of acres of the eligible crop in the administrative
county (for each planting in the event of multiple planting) in which
the producer has a share;
(2) Zero acres planted when the producer's crop for which an
application for coverage was filed, is not planted;
(3) The producer's share of the eligible crop at the time an
application for coverage was filed;
(4) The FSA farm serial number;
(5) The identity of the crop, practices, intended uses, and for
forage crops, the predominant species or type and variety of the
vegetation;
(6) The identity of all producers sharing in the crop;
(7) The date the crop was planted or planting was completed,
including the age of the perennial crops; and
(8) The acreage intended but prevented from being planted.
(d) Producers receiving a guaranteed payment for planted acreage,
as opposed to receiving a payment only upon delivery of the production
must provide documentation of any written or verbal contract or
arrangement with the buyer to CCC. Net production, as determined
[[Page 12451]]
by CCC, may be adjusted upward by the amount of production
corresponding to the amount of the contract payment received.
(e) Producers must provide documentation of any salvage value
received by or made available for the quantity of the crop or commodity
that cannot be marketed or sold in any market, as determined by CCC and
any value received by or made available for a secondary use of the crop
or commodity.
(f) Producers requesting payment under this part must maintain
records which substantiate gross revenue for the tax year preceding the
crop year for which coverage is requested.
(g) Producers requesting a waiver of service fees as a limited
resource producer must maintain records which substantiate annual gross
income for the two tax years preceding the crop year for which coverage
is requested.
Sec. 1437.8 Unit division.
Except as determined by CCC, a unit shall be all acreage of the
eligible crop in the administrative county operated by the same
producer(s). In cases where the owners of land are also producers,
units shall be further divided based on ownership interest of the land.
Sec. 1437.9 Causes of loss.
(a) To be eligible for benefits under this part, crops must be
damaged or prevented from being planted by drought, flood or other
natural disasters and conditions related thereto. Not all named perils
are eligible causes of loss for all crops. Eligible causes of loss
include:
(1) Damaging weather occurring prior to or during harvest,
including but not limited to drought, hail, excessive moisture, freeze,
tornado, hurricane, excessive wind, or any combination thereof;
(2) Adverse natural occurrence occurring prior to or during
harvest, such as earthquake, flood, or volcanic eruption; and
(3) A related condition, including but not limited to heat, insect
infestation, or disease, which occurs as a result of an adverse natural
occurrence or damaging weather occurring prior to or during harvest,
that directly causes, accelerates, or exacerbates the destruction or
deterioration of an eligible crop, as determined by the Secretary.
(b) Ineligible causes of loss include but are not limited to:
(1) Factors or circumstances that are not the result of an eligible
cause of loss affecting specific crop or commodity;
(2) The negligence or malfeasance of the producer;
(3) The failure of the producer to reseed to the same crop in those
areas and under such circumstances where it is customary to reseed;
(4) Failure of the producer to follow good farming practices, as
determined by CCC;
(5) Water contained or released by any governmental, public, or
private dam or reservoir project, if an easement exists on the acreage
affected for the containment or release of the water;
(6) Failure or breakdown of irrigation equipment or facilities; or
(7) Except for tree crops and perennials, inadequate irrigation
resources at the beginning of the crop year;
(8) A loss of inventory (or yield as applicable) of aquiculture
(including ornamental fish), floriculture or ornamental nursery
stemming from drought or any failure to provide water, soil, or growing
media to such crop for any reason;
(9) Any failure to provide a controlled environment or exercise
good nursery practices where such controlled environment or practices
are a condition of eligibility under this part.
Sec. 1437.10 Notice of loss and application for payment.
(a) At least one producer having a share in the unit must provide a
notice of loss to CCC in the administrative FSA office for the unit,
within:
(1) For prevented planting claims, 15 calendar days after the final
planting date,
(2) For low yield claims and allowable value loss, the earlier of:
(i) 15 calendar days after the damaging weather or adverse natural
occurrence, or date loss of the crop or commodity becomes apparent for
low yield claims; and
(ii) 15 calendar days after the normal harvest date.
(b) For each crop for which a notice of loss is filed, producers
must provide the following information:
(1) Crop by type or variety, as applicable;
(2) The cause of the crop damage;
(3) Date the loss occurred, as applicable;
(4) Date the damage or loss became apparent;
(5) The existence of a guaranteed payment through a contract or
agreement for planted acreage as opposed to delivery of production, if
one exists;
(6) Type of crop loss occurred, e.g. prevented planting or low
yield;
(7) Practices employed to grow the crop, e.g. irrigated or non-
irrigated;
(8) For prevented planting:
(i) Total acreage intended to be planted to the crop in the
administrative county;
(ii) Total acreage planted by the producer to the crop in the
administrative county;
(iii) Whether a purchase, delivery, or arrangement for purchase or
delivery was made for seed, chemicals, fertilizer, etc; and
(iv) What and when land preparation measures, e.g. cultivation,
etc. were completed and indicate what has been done or will be done
with the acreage, e.g. abandoned, replanted, etc.
(9) For low yield:
(i) Total acreage planted by the producer to the crop in the
administrative county;
(ii) Total acreage of the crop in the administrative county
affected;
(iii) What and when land preparation measures and practices, e.g.
cultivation, planting, irrigated, etc. were completed before and after
the loss; and
(iv) What will be done with the affected crop acreage, e.g.
harvested, destroyed and replanted to a different crop, abandoned, etc.
(10) Any such other information requested by CCC to establish the
loss.
(c) A notice of loss provided beyond the time specified in
paragraph (a) of this section may be considered timely filed if, at the
discretion of CCC, provided at such time to permit an authorized CCC
representative the opportunity to:
(1) Verify the information on the notice of loss by inspection of
the specific acreage or crop involved; and
(2) Determine, based on information obtained by inspection of the
specific acreage or crop involved, that an eligible cause of loss, as
opposed to other circumstance, caused the claimed damage or loss.
(d) Crop acreage that will not be harvested, i.e. acreage that is
to be abandoned or destroyed or in the case of forage acreage intended
to be mechanically harvested but grazed, must be left intact and
producers must request, in the administrative FSA office for the
acreage, a crop appraisal and release of crop acreage by a FCIC- or
CCC-approved loss adjustor:
(1) Prior to destruction or abandonment of the crop acreage; or
(2) No later than the normal harvest date, as determined by CCC.
(e) Producers must apply for payments prior to the earlier of the:
(1) Date an application for coverage is filed for the crop for the
subsequent crop year; or
(2) Application closing date for the crop for the subsequent crop
year.
[[Page 12452]]
Sec. 1437.11 Average market price and payment factors.
(a) An average market price will be used to calculate assistance
under this part and will be:
(1) A dollar value per the applicable unit of measure of the
eligible crop;
(2) Determined on a harvested basis without the inclusion of
transportation, storage, processing, marketing, or other post-harvest
expenses, as determined by CCC;
(3) Comparable with established FCIC prices; and
(4) Determined, as practicable, for each intended use of a crop
within a State for a crop year.
(b) For these purposes, where needed, an Animal-unit-days (AUD)
value will be based on the national average price of corn and the daily
requirement of 13.6 megacalories of net energy for maintenance of 1
animal unit.
(c) Payment factors will be used to calculate assistance for crops
produced with significant and variable harvesting expenses that are not
incurred because the crop acreage was prevented planted or planted but
not harvested, as determined by CCC.
(d) An adjusted market price will be calculated based on the
provisions in this section and others as may apply. A final payment
price will be determined by multiplying, as appropriate, the average
market price by the applicable payment factor (i.e. harvested,
unharvested, or prevented planting) by 55 percent or, by multiplying
the applicable AUD (as adjusted, if adjusted) by 55 percent.
Sec. 1437.12 Crop definition.
(a) For the purpose of providing benefits under this part, CCC
will, at its discretion, define crops as specified in this section.
(b) CCC may separate or combine types and varieties as a crop when
specific credible information as determined by CCC is provided showing
the crop of a specific type or variety has a significantly different or
similar value when compared to other types or varieties, as determined
by CCC.
(c) CCC may recognize two or more different crops planted on the
same acreage intended for harvest during the same crop year as two or
more separate crops. The crop acreage may include a crop intended for
harvest before planting of a succeeding crop or a succeeding crop
interseeded with the preceding crop prior to intended harvest of the
preceding crop. The acreage must be in an area where the practice is
recognized as a good farming practice, as determined by CCC, and all
crops are recognized by CCC as able to achieve the expected yield, as
determined by CCC.
(d) CCC may consider crop acreage that is harvested more than once
during the same crop year from the same plant as a single crop. The
acreage must be in an area where the practice is recognized as a good
farming practice, as determined by CCC.
(e) CCC may consider each planting period of multiple planted
acreage as a separate crop. The acreage must be in an area where the
practice is recognized as a good farming practice, as determined by
CCC.
(f) CCC may define forage as separate crops according to the
intended method of harvest, either mechanical harvest or grazed.
(g) Forage acreage intended to be grazed may be further defined as
warm and cool season forage crops.
(h) Forage acreage intended to be mechanically harvested may be
defined as a separate crop from grazed forage and may be separated
based upon the commodity used as forage, to the extent such separation
is allowed under paragraph (b) of this section.
(i) Crop acreage intended for the production of seed may be
considered a separate crop from other intended uses, as determined by
CCC, if all the following criteria apply:
(1) The specific crop acreage is seeded, or intended to be seeded,
with an intent of producing commercial seed as its primary intended
use;
(2) There is no possibility of other commercial uses of production
from the same crop without regard to market conditions; and
(3) The growing period of the specific crop acreage is uniquely
conducive to the production of commercial seed and not conducive to the
production of any other intended use of the crop, (e.g. vernalization
in a biennial crop such as carrots and onions) and that accommodation
renders the possibility of production for any other intended use of the
crop improbable.
Sec. 1437.13 Multiple benefits.
(a) If a producer is eligible to receive payments under this part
and benefits under any other program administered by the Secretary for
the same crop loss, the producer must choose whether to receive the
other program benefits or payments under this part, but shall not be
eligible for both. The limitation on multiple benefits prohibits a
producer from being compensated more than once for the same loss.
(b) The limitation on multiple benefits in paragraph (a) of this
section shall not apply in any respect to Emergency Loans under
subtitle C of the Consolidated Farm and Rural Development Act (7 U.S.C.
1961 et seq).
(c) The restriction on multiple benefits does not relieve the
producer from the requirements of making a production and acreage
report.
(d) If the other USDA program benefits are not available until
after an application for benefits has been filed under this part, the
producer may, to avoid this restriction on such other benefits, refund
the total amount of the payment to the administrative FSA office from
which the payment was received.
Sec. 1437.14 Payment and income limitations.
(a) NAP payments shall not be made in excess of $100,000 per person
per crop year under this part.
(b) NAP payments shall not be made to a person who has qualifying
gross revenues in excess of $2 million for the most recent tax year
preceding the year for which assistance is requested. Qualifying gross
revenue means:
(1) With respect to a person who receives more than 50 percent of
such person's gross income from farming, ranching, and forestry
operations, the annual gross income for the taxable year from such
operations; and
(2) With respect to a person who receives 50 percent or less of
such person's gross income from farming, ranching, and forestry
operations, the person's total gross income for the taxable year from
all sources.
(c) CCC will pay, for up to one year, simple interest on payments
to producers which are delayed. Interest will be paid on the net amount
ultimately found to be due, and will begin accruing on the 31st day
after the date the producer signs, dates, and submits a properly
completed application for payment on the designated form, or the 31st
day after a disputed application is adjudicated. Interest will be paid
unless the reason for failure to timely pay is due to the producer's
failure to provide information or other material necessary for the
computation of payment, or there was a genuine dispute concerning
eligibility for payment.
(d) Rules set out in 7 CFR part 1400 shall apply in implementing
the restrictions of this section.
Sec. 1437.15 Miscellaneous provisions.
(a) To be eligible for benefits under this part, producers must be
in compliance with the highly erodible land and wetlands provisions of
part 12 of this title.
(b) The provisions of Sec. 718.11 of this title, providing for
ineligibility for
[[Page 12453]]
benefits for offenses involving controlled substances, shall apply.
(c) A person shall be ineligible to receive assistance under this
part for the crop year plus two subsequent crop years if it is
determined by the State or county committee or an official of FSA that
such person has:
(1) Adopted any scheme or other device that tends to defeat the
purpose of a program operated under this part;
(2) Made any fraudulent representation with respect to such
program; or
(3) Misrepresented any fact affecting a program determination.
(d) All amounts paid by CCC to any such producer, applicable to the
crop year in which a violation of this part occurs, must be refunded to
CCC together with interest and other amounts as determined appropriate
to the circumstances by CCC.
(e) All persons with a financial interest in the operation
receiving benefits under this part shall be jointly and severally
liable for any refund, including related charges, which is determined
to be due CCC for any reason under this part.
(f) In the event that any request for assistance or payments under
this part was established as result of erroneous information or a
miscalculation, the assistance or payment shall be recalculated and any
excess refunded with applicable interest.
(g) The liability of any person for any penalty under this part or
for any refund to CCC or related charge arising in connection therewith
shall be in addition to any other liability of such person under any
civil or criminal fraud statute or any other provision of law
including, but not limited to: 18 U.S.C. 286, 287, 371, 641, 651, 1001
and 1014; 15 U.S.C. 714m; and 31 U. S. C. 3729.
(h) The appeal regulations at parts 11 and 780 of this title apply
to decisions made according to this part.
(i) Any payment or portion thereof to any person shall be made
without regard to questions of title under State law and without regard
to any claim or lien against the crop, or proceeds thereof.
(j) For the purposes of 28 U.S.C. 3201(e), the Secretary hereby
waives the restriction on receipt of funds or benefits under this
program but only as to beneficiaries who as a condition of such waiver
agree to apply the benefits to reduce the amount of the judgement lien.
(k) The provisions of parts 1400, 1403 and 1404 of this chapter
apply to NAP.
(l) In the case of death, incompetence or disappearance of any
person who is eligible to receive payments under this part, such
payments will be disbursed in accordance with part 707 of this title.
Subpart B--Determining Yield Coverage Using Actual Production
History
Sec. 1437.101 Actual production history.
Actual production history will be used, except as otherwise
indicated in this part, as the basis for providing noninsured crop
disaster assistance.
Sec. 1437.102 Yield determinations.
(a) Payments based on yields shall be made on ``approved yields'',
which shall be calculated based on the producer's APH for that period
up to ten years for which, of the first time such a yield is
calculated, there are consecutive years, beginning with the most recent
completed year, of actual production history for the producer. If there
are not four such consecutive years of history (excluding years when
the crop was out of rotation), then such first ``approved yield'' shall
be constructed by creating a four year history as provided for in this
part. After the first such approved yield is constructed, years will be
added to that history in the manner provided for in this section,
dropping, as needed, previous years from the history to the extent that
the current history would be a history or base of ten years. For the
first approved yield, as needed to construct a four-year history,
history will be supplied using T-yields, as set out in paragraph (b) of
this section.
(b) The county expected yield:
(1) Is the ``T-yield'' for the crop, and is the Olympic average
(disregarding the high and low yields) of yields in the county the 5
consecutive crop years immediately preceding the previous crop year.
(Example: For the 2001 crop year, the base period would be 1995 through
1999).
(2) Will be the same as the FCIC transitional yield if crop
insurance is available for the crop, (but not necessarily for the cause
of loss if excluded by policy provisions), in the administrative
county.
(3) Will be calculated so as to be comparable to the FCIC
transitional yield most reasonable to the area if crop insurance was
available for the crop (but not necessarily for the cause of loss) in
contiguous counties, but not in the immediate county.
(c) Available historical information will be used to establish the
county expected yields. Historical information is available from
sources including, but is not limited to, National Agricultural
Statistics Service data, Cooperative State Research, Education, and
Extension Service records, Federal Crop Insurance Data, credible non-
government studies, yields in similar areas, and reported actual yield
data. Such yields will be based on the acreage intended for harvest.
(d) County expected yields may be adjusted for:
(1) Yield variations due to different farming practices in the
administrative county such as: irrigated, nonirrigated, and organic
practices; and
(2) Cultural practices, including the age of the planting when such
practices are different from those used on acreage to establish the
yield.
(e) A T-yield will be used in the actual production history
database when less than four consecutive crop years of actual,
assigned, or zero yields, as applicable, are available. For those
producers who have land physically located in multiple counties and
administered out of one county office, the T-yield for all land for the
producer will be based on the administrative county's expected yield
for that crop. Where a four-year base must be constructed for the
producer's first approved yield because the producer does not have at
least four consecutive years of actual history starting with the most
recent year, then:
(1) If an approved yield had not previously been calculated for the
crop and there are no production records available for the most recent
crop year, or if there is no formula provided for the producer under
paragraphs (e)(2) through (4) of this section, then the approved yield
for the current crop year will be calculated on the simple average of
65 percent of the applicable T-yield for each of the four years of the
constructed base;
(2) If certified acceptable production records are available for
only the most recent crop year and there are no zero (credited) or
assigned yields in the producer's history, the approved yield for the
current crop year will be calculated on the simple average of the one
actual yield plus 80 percent of the applicable T-Yield for the missing
crop years.
(3) If certified acceptable production records are available for
only the two most recent crop years and there are no zero (credited) or
assigned yields in the APH database, the approved yield for the current
crop year will be calculated on the simple average of the two actual
yields plus 90 percent of the applicable T-yield for the missing years.
(4) If certified acceptable production records are available for
only the three most recent crop years and there are no zero (credited)
or assigned yields in the APH database, the approved yield will be
calculated on the simple average of
[[Page 12454]]
the three actual yields plus 100 percent of the applicable T-Yield for
the missing year.
(f) CCC will reduce unadjusted T-yields placed in the actual
production history database when, as determined by CCC, an unadjusted
T-yield does not accurately reflect the productive capability of
specific crop acreage.
(g) An actual yield includes the total amount of harvested and
appraised production on a per acre, or other basis, as applicable.
(h) Once an approved yield has been calculated for any year, then
thereafter an assigned yield will be used to update or extend the
producer's actual production history (or base) database when producers
fail to certify a report of production after the approved yield was
calculated and the following standards shall apply:
(1) The assigned one-year yield will be equal to 75 percent of the
approved yield calculated for the most recent crop year for which
producers do not certify a report of production.
(2) Producers may have only one assigned yield in the actual
production history database.
(3) Producers may replace an assigned yield with an actual yield by
providing a certification of production and production records for the
applicable crop year in accordance with Sec. 1437.7.
(4) If the acreage of a crop in the administrative county in which
the unit is located for the crop year increases by more than 100
percent over any year in the preceding seven crop years, or
significantly from the previous crop years, as determined by CCC,
producers may not receive an assigned yield and will receive a zero
credited yield, unless producers provide:
(i) Detailed documentation of production costs, acres planted, and
yield for the crop year for which the producer is requesting
assistance, or
(ii) If CCC determines those records are inadequate, proof that the
eligible crop, had it been harvested, could have been marketed at a
reasonable price.
(5) Notwithstanding paragraph (h)(4) of this section an assigned
yield may be used if:
(i) The planted acreage for the crop has been inspected by a third
party acceptable to CCC, or
(ii) The FSA county executive director, with the concurrence of the
FSA state executive director, makes a recommendation for an exemption
from the requirements and such recommendation is approved by CCC.
(6) A zero credited yield will be used to the extent provided for
in paragraph (i) of this section.
(i) A zero credited yield will be placed in the actual production
history database for each crop year, following the crop year containing
an assigned yield, for which producers do not certify a report of
production. A zero credited yield may be replaced with an actual yield
by providing a certification of production and production records for
the applicable crop year in accordance with Sec. 1437.7.
(j) An approved yield is calculated as the simple average of a
minimum of four, not to exceed a maximum of 10 consecutive crop year
yields for the crops, or as determined by CCC and as provided in this
section.
(1) If, for one or more actual production history crop years used
to establish the approved yield, the actual or appraised yield is less
than 65 percent of the current crop year T-yield due to losses incurred
in a disaster year, as determined by CCC, producers may request CCC
replace the applicable yield with a yield equal to 65 percent of the
current crop year T-yield.
(2) If approved yields were calculated for any of the 1995 through
2000 crop years, and subsequently in that period production was not
certified, producers may request CCC replace the missing yields for
such years with yields equal to the higher of 65 percent of the current
crop year T-yield or the missing crop years actual yield.
(3) If producers add land in the farming operation and do not have
available production records for the added land CCC will calculate an
approved yield for the new unit by utilizing the actual production
history yields for the existing unit. In the event the crop suffers a
loss greater than 50 percent of the initial approved yield for the crop
year and unit acreage has increased by more than 75 percent of the
historical average acreage, CCC may adjust the approved yield, as
determined by CCC.
(k) If a producer is a new producer, the approved yield may be
based on unadjusted T-Yields or a combination of actual yields and
unadjusted T-Yields. A new producer is a person who has not been
actively engaged in farming for a share of the production of the
eligible crop in the administrative county for more than two APH crop
years. Formation or dissolution of an entity which includes individuals
with more than two APH crop years of production history during the base
period does not qualify the new entity as a new producer for APH
determination purposes.
(l) If producers qualify as a new producer and have produced the
crop for 1 or 2 crop years, producers must provide to CCC at the
administrative FSA office serving the area in which the crop is
located, a certification and records of production for those crop
years.
(m) Further adjustments may be made as necessary to accomplish the
purposes of this program.
Sec. 1437.103 Determining payments for low yield.
(a) Except to the extent that the loss calculation provisions of
other subparts apply, and subject to limitations set out elsewhere in
this part and in this title and to the availability of funds, payments
under this part shall be made on eligible crops with eligible losses
by:
(1) Multiplying the total eligible acreage planted to the eligible
crop by the producers share, and subject to provisions for specific
crops provided elsewhere in this part;
(2) Multiplying the product of paragraph (a)(1) of this section by
50 percent of the approved yield per acre for the commodity for the
producer.
(3) Subtracting net production of the total eligible acreage from
the product of paragraph (a)(2) of this section;
(4) Multiplying the difference calculated under paragraph (a)(3) of
this section by the final payment price calculated under Sec. 1437.11,
and then
(5) Subtracting the value of salvage and secondary use.
(b) Further adjustments may be made as needed to accomplish the
purposes and goals of the program.
Sec. 1437.104 Honey.
(a) Honey production eligible for benefits under this part includes
table and non-table honey produced commercially.
(b) All of a producer's honey will be considered a single crop,
regardless of type or variety of floral source or intended use.
(c) The crop year for honey production is the calendar year,
January 1 through December 31.
(d) In addition to filing a report of acreage in accordance with
Sec. 1437.7, honey producers must provide a record of colonies to CCC.
The report of colonies must be filed before the crop year for which
producers seek to maintain coverage. The report of colonies shall
include:
(1) The address of the producer's headquarters and FSA farm serial
number, if available;
(2) Names and shares of each person sharing in the honey produced
from the unit;
(3) The number of all colonies of bees belonging to the unit;
[[Page 12455]]
(4) The names of counties in which colonies of bees are located as
of the date of the report; and
(5) A certification of the number of colonies reported including
all colonies from which production is expected.
(e) The honey unit shall consist of all the producer's bee
colonies, regardless of location.
(f) Producers must designate a FSA office as the control office for
the honey operation. Producers must complete the following actions only
in the control office:
(1) File an application for coverage;
(2) File a report of colonies;
(3) Report total unit production; and
(4) Request to change a unit's control office.
(g) Actions that may be taken in any Administrative FSA office
includes:
(1) Designating or selecting another control office; or
(2) Filing a notice of loss in accordance with Sec. 1437.10.
(h) Producers must notify the control office designated in
accordance with paragraph (f) of this section within 30 calendar days
of the date of:
(1) Any changes in the total number of colonies; and
(2) The movement of any colonies into any additional counties.
(i) Payments will be based on the amount of losses for this
community in excess of a 50 percent loss level at a rate determined in
accord with this part and the authorizing legislation.
Sec. 1437.105 Maple sap.
(a) NAP assistance for maple sap is limited to maple sap produced
on private property for sale as sap or syrup. Eligible maple sap must
be produced from trees that:
(1) Are located on land the producer controls by ownership or
lease;
(2) Are managed for production of maple sap;
(3) Are at least 30 years old and 12 inches in diameter; and
(4) Have a maximum of 4 taps per tree according to the tree's
diameter.
(b) The crop year for maple sap production is the calendar year,
January 1 through December 31.
(c) If producers file an application for coverage in accordance
with Sec. 1437.6, tree acreage containing trees from which maple sap is
produced or is to be produced must be reported to CCC no later than the
beginning of the crop year.
(d) In addition to the applicable records required under
Sec. 1437.7, producers must report the:
(1) Total number of eligible trees on the unit;
(2) Average size and age of producing trees; and
(3) Total number of taps placed or anticipated for the tapping
season.
(e) A maximum county-expected-yield for maple sap shall be 10
gallons of sap per tap per crop year unless acceptable documentary
evidence, as determined by CCC, is available to CCC to support a higher
county-expected-yield.
(f) The average market price for maple sap must be established for
the value of the sap before processing into syrup. If price data is
available only for maple syrup, this data must be converted to a maple
sap basis. The wholesale price for a gallon of maple syrup shall be
multiplied by 0.00936 to arrive at the average market price of a gallon
of maple sap.
(g) The actual production history for maple sap shall be recorded
on the basis of gallons of sap per tap.
(h) The unit's expected production is determined by:
(1) Multiplying the number of taps placed in eligible trees; by
(2) The approved per tap yield as determined in accordance with
Sec. 1437.102.
(i) Payments will be based on the amount of losses for this
community in excess of a 50 percent loss level at a rate determined in
accord with this part and the authorizing legislation.
Secs. 1437.106-1437.200 [Reserved]
Subpart C--Determining Coverage for Prevented Planted Acreage
Sec. 1437.201 Prevented planting acreage.
(a) Prevented planting is the inability to plant an eligible crop
with proper equipment during the planting period as a result of an
eligible cause of loss, as determined by CCC.
(b) The eligible cause of loss that prevented planting must have:
(1) Occurred after a previous planting period for the crop and
(2) Before the final planting date for the crop in the applicable
crop year or in the case of multiple plantings, the harvest date of the
first planting in the applicable planting period, and
(3) Generally affected other producers in the area, as determined
by CCC.
(c) Producers must be prevented from planting more than 35 percent
of the total eligible acreage intended for planting to the eligible
crop and in the case of multiple planting, more than 35 percent of the
total eligible acres intended to be planted within the applicable
planting period.
(d) Eligible prevented planting acreage will be determined on the
basis of the producer's intent to plant the crop acreage, and
possession of, or access to, resources to plant, grow, and harvest the
crop, as applicable.
(e) Acreage ineligible for prevented planting coverage includes,
but is not limited to:
(1) Acreage which planting history or conservation plans indicate
would remain fallow for crop rotation purposes; and
(2) Acreage used for conservation purposes or intended to be or
considered to have been left unplanted under any program administered
by USDA, including the Conservation Reserve and Wetland Reserve
Programs.
Sec. 1437.202 Determining payments for prevented planting.
(a) Subject to limitations, availability of funds, and specific
provisions dealing with specific crops, a payment for prevented
planting will be determined by:
(1) Multiplying the producer's total eligible acreage intended for
planting to the eligible crop by the producer's share;
(2) Multiplying the product of paragraph (a)(1) of this section by
65 percent;
(3) Subtracting the total acres planted from the product of
paragraph (a)(2) of this section;
(4) Multiplying the product of paragraph (a)(3) of this section by
50 percent of the producer's approved yield;
(5) Multiplying the product of paragraph (a)(4) of this section by
the final payment price for the producer's crop as calculated by the
agency under Sec. 1437.11.
(b) Yields for purposes of paragraph (a) of this section shall be
calculated in the same manner as for low-yield claims.
Secs. 1437.203-1437.300 [Reserved]
Subpart D--Determining Coverage Using Value
Sec. 1437.301 Value loss.
(a) Special provisions are required to assess losses and calculate
assistance for a few crops and commodities which do not lend themselves
to yield loss situations. Assistance for these commodities is
calculated based on the loss of value at the time of disaster. The
agency shall determine which crops shall be treated as value-loss
crops, but unless otherwise announced, such crops shall be limited to
those identified in Secs. 1437.303 through 1437.309 as value loss
crops. Lost productions of value loss crops shall be compensable only
under this subpart.
[[Page 12456]]
(b) The crop year for all value loss crops is October 1 through
September 30.
(c) Producers must file an application for coverage in accordance
with Sec. 1437.6, and must:
(1) Provide a report of the crop, commodity, and facility to CCC
for the acreage or facility, in a form prescribed by CCC, no later than
the beginning of the crop year.
(2) Maintain a verifiable inventory of the eligible crop throughout
the crop year; and
(3) Provide an accurate accounting of the inventory, as required by
CCC.
Sec. 1437.302 Determining payments.
Subject to all restrictions and the availability of funds, value
loss payments for qualifying losses will be determined by:
(a) Multiplying the field market value of the crop before the
disaster by 50 percent;
(b) Subtracting the sum of the field market value after the
disaster and value of ineligible causes of loss from the result from
paragraph (a)(1) of this section;
(c) Multiplying the result from paragraph (a)(2) of this section by
the producer's share;
(d) Multiplying the result from paragraph (a)(3) of this section by
55 percent plus whatever factor deemed appropriate to reflect savings
from non-harvesting of the damaged crop or other factors as
appropriate;
(e) Multiplying the salvage value by the producer's share;
(f) Subtracting the result from paragraph (a)(5) of this section
from the result from paragraph (a)(4) of this section.
Sec. 1437.303 Aquaculture, including ornamental fish.
(a) Aquaculture is a value loss crop and is compensable only in
accord with restrictions set in this section. Eligible aquacultural
species shall only include:
(1) Any species of aquatic organisms grown as food for human
consumption as determined by CCC.
(2) Fish raised as feed for other fish that are consumed by humans;
and
(3) Ornamental fish propagated and reared in an aquatic medium.
(b) The aquacultural facility must be:
(1) A commercial enterprise on private property;
(2) Owned or leased by the producer, with readily identifiable
boundaries; and
(3) Managed and maintained using good aquacultural growing
practices.
(c) Producers must:
(1) Ensure adequate and proper flood prevention, growing medium,
fertilization or feeding, irrigation and water quality, predator
control, and disease control; and
(2) Have control of the waterbed.
(d) Eligible aquacultural species must be:
(1) Placed in the facility and not be indigenous to the facility;
and
(2) Kept in a controlled environment; and
(3) Planted or seeded in containers, wire baskets, net pens, or
similar device designed for the protection and containment of the
seeded aquacultural species.
(e) In the crop year in which a notice of loss is filed, producers
may be required, at the discretion of CCC, to provide evidence that the
aquacultural species are produced in a facility in accordance with
paragraphs (b), (c) and (d) of this section.
Sec. 1437.304 Floriculture.
(a) Floriculture, except for seed crops as specified in paragraph
(d) of this section, is a value loss crop and is compensable only in
accord with restrictions set in this section. Eligible floriculture
shall be limited to commercial production of:
(1) Field-grown flowers, including flowers grown in containers or
other growing medium maintained in a field setting according to
industry standards, as determined by CCC; and
(2) Tubers and bulbs, for use as propagation stock of eligible
floriculture plants; and
(3) Seed for propagation of eligible floriculture plants.
(b) Floriculture does not include flowering plants indigenous to
the location of the floriculture facility or acreage.
(c) Eligible floriculture must be grown in a region or controlled
environment conducive to the successful production of flowers, tubers,
and bulbs, as determined by CCC.
(d) Claims on losses on the production of flower seed for
propagation of eligible floriculture plants will not be treated under
``value loss'' rules, but under the rules for normal production low
yield crops under subpart B of this part.
(e) The facility or acreage for eligible floriculture must be
managed and maintained using good floriculture growing practices. At a
minimum, producers are responsible for providing a controlled
environment and must ensure adequate and proper fertilization,
irrigation, weed control, insect and disease control, and rodent and
wildlife control.
(f) In the crop year in which a notice of loss is filed, producers
may be required, at the discretion of CCC, to provide evidence the
floriculture is produced in accordance with paragraph (e) of this
section.
(g) Flowers having any dollar value shall be counted as having full
value for loss calculations. Damaged plants that are determined able to
rejuvenate or determined to be merely stunted shall be counted as worth
full value.
Sec. 1437.305 Ornamental nursery.
(a) Eligible ornamental nursery stock is a value loss crop and is
compensable only in accord with restrictions set out in this section.
Eligible ornamental nursery stock is limited to field-grown and
containerized decorative plants grown in a controlled environment for
commercial sale.
(b) The property upon which the nursery stock is located must be
owned or leased by the producer.
(c) The eligible nursery stock must be placed in the ornamental
nursery facility and not be indigenous to the facility.
(d) The facility must be managed and cared for using good nursery
growing practices for the geographical region. At a minimum producers
must provide a controlled environment and ensure adequate and proper
flood prevention, growing medium, fertilization, irrigation, insect and
disease control, weed control, rodent and wildlife control, and over-
winterization storage facilities.
(e) An ornamental plant having any value as an ornamental plant, or
a damaged ornamental plant that may rejuvenate and re-establish value
as a ornamental plant, shall be considered as worth full value based on
the age or size of the plant at the time of disaster.
(f) In the crop year in which a notice of loss is filed, producers
may be required, at the discretion of CCC, to provide evidence the
ornamental nursery is maintained in accordance with this section.
Sec. 1437.306 Christmas tree crops.
(a) A Christmas tree is a value loss crop and may generate a claim
for benefits under this part only if the tree was grown exclusively for
commercial use as a Christmas tree, and only if other requirements of
this section are met.
(b) The unit of measure for all Christmas tree crops is a plant.
(c) A Christmas tree having any value as a Christmas tree, or a
damaged Christmas tree that may rejuvenate and re-establish value as a
Christmas tree, shall be considered as worth full value based on the
age of the tree at the time of disaster.
[[Page 12457]]
Sec. 1437.307 Mushrooms.
(a) Eligible mushrooms is a value loss crop and is only compensable
in accord with the restrictions of this section. To be eligible, the
mushrooms must be grown as a commercial crop in a facility with a
controlled environment utilizing good mushroom growing practices. The
facility must be located on private property either owned or leased by
the producer.
(b) The controlled environment for eligible mushrooms must include
primary and backup systems for:
(1) Temperature and humidity controls;
(2) Proper and adequate lighting; and
(3) Positive air pressurization and filtration.
(c) The growing medium must consist of a substrate (a habitat and
nutrient base) sterilized by heat treatment.
(d) Good mushroom growing practices must be used, and they consist
of proper and adequate insect and disease control and the maintenance
of a sterile environment. Maintaining a sterile environment includes at
a minimum:
(1) Adequate hygiene;
(2) Overall cleanliness;
(3) Isolation or minimum contact procedures;
(4) Use of footpaths; and
(5) Availability and frequent utilization of wash-down facilities.
(e) In the crop year in which a notice of loss is filed, producers
may be required, at the discretion of CCC, to provide evidence the
mushrooms are maintained in accordance with this section.
Sec. 1437.308 Ginseng.
(a) Ginseng is a value loss crop and is compensable only as allowed
in this section. Ginseng is eligible only if:
(1) The ginseng includes stratified seeds for use as propagation
stock in a commercial ginseng operation or rootlet for commercial sale
that are grown in a controlled, cultivatable environment on private
property either owned or leased by the producer; and
(2) The ginseng is grown using good ginseng growing practices with
all plant needs supplied and under control of the producer;
(b) Ginseng will not be eligible to generate benefits under this
part if it:
(1) Is indigenous to the facility;
(2) Is grown solely for medicinal purposes; and
(3) Includes wild ginseng rootlet that is harvested and
transplanted from woodland grown ginseng.
(c) Good ginseng growing practices must be followed, and include,
but are not limited to:
(1) Adequate drainage;
(2) Proper and adequate shade;
(3) Accurate pH level;
(4) Adequate and timely fertilization, including an adequate supply
to ensure nutrient reserves to the ginseng plants and customary
application equipment;
(5) Adequate pest control, including but not limited to, weed,
rodent, and wildlife control; and
(6) Disease control.
(d) Ginseng producers must:
(1) Provide a report of inventory of all ginseng, as determined by
CCC;
(2) Provide production and sales records necessary to determine the
value of eligible ginseng;
(3) Allow a CCC-certified loss adjustor to verify loss, including
physically removing representative samples;
(4) Maintain and provide, as determined by CCC, adequate records of
fertilization, and pest and disease controls used or put into place
during the crop year; and
(5) Possess a valid food processing licence issued by the
applicable State Department of Agriculture or equivalent and subject to
food regulations administered by the Food and Drug Administration.
(e) In the crop year in which a notice of loss is filed, producers
may be required, at the discretion of CCC, to provide evidence the
ginseng was produced in accordance with this section.
Sec. 1437.309 Turfgrass sod.
(a) Turfgrass sod is a value loss crop and is the upper stratum of
soil bound by mature grass and plant roots into a thick mat produced in
commercial quantities for sale.
(b) Specific species, types or varieties of grass intended for
turfgrass sod will be considered a separate crop without regard to
other intended uses.
(c) The unit of measure for all turfgrass sod shall be a square
yard.
(d) Turfgrass sod having any value shall be considered as worth
full value.
(e) In addition to the records required in Sec. 1437.7, producers
seeking payment must provide information to CCC regarding the average
number of square yards per acre and all unharvested areas.
Secs. 1437.310-1437.400 [Reserved]
Subpart E--Determining Coverage of Forage Intended for Animal
Consumption
Sec. 1437.401 Forage.
(a) Forage eligible to generate benefits under this part is limited
to vegetation produced for animal consumption in a commercial operation
using acceptable farming, pasture and range management practices for
the location necessary to sustain sufficient quality and quantity of
the vegetation so as to be suitable for grazing livestock or mechanical
harvest. Forage to be mechanically harvested shall be treated under the
rules for low-yield crops as calculated under Sec. 1437.103. Claims on
forage for grazing benefits will, contrariwise, be determined under
this subpart. However, the provisions in this subpart shall govern for
all claims including forage for mechanical harvest.
(b) Producers of forage must, in addition to the records required
in Sec. 1437.7, specify the intended method of harvest of all acreage
intended as forage for livestock consumption as either mechanically or
grazed.
(c) Producers must, in the administrative FSA office for the unit,
request an appraisal prior to the onset of grazing of any intended
mechanically harvested forage acreage that will be both mechanically
harvested and grazed.
(d) Forage acreage reported to FSA as intended to be mechanically
harvested which is subsequently completely grazed will be considered
for crop definition purposes as mechanically harvested. Expected
production of the specific acreage will be calculated on the basis of
carrying capacity.
(e) Small grain forage is the specific acreage of wheat, barley,
oats, triticale, or rye intended for use as forage. Small grain forage
shall be considered separate crops and distinct from any other forage
commodities and other intended uses of the small grain commodity. In
addition to the records required in Sec. 1437.7 producers must specify
whether the intended forage crop is intended for fall/winter, spring,
or total season forage. In addition to other eligibility requirements,
CCC will consider other factors, such as, water sources and available
fencing, and adequate fertilization to determine small grain forage
eligibility, yields, and production.
(f) CCC will establish forage losses of acreage intended to be
grazed on the basis of:
(1) For improved pasture, as determined by CCC, a similar
percentage of loss of mechanically harvested forage acreage on the
farm, or similar farms in the area; or
(2) For native pasture, as determined by CCC, the percentage of
loss as determined by two independent assessments of pasture
conditions.
Sec. 1437.402 Carrying capacity.
(a) CCC will establish a carrying capacity for all grazed forage
present in the county for purposes of
[[Page 12458]]
administering this program and to that end:
(1) Multiple carrying capacities may be determined for a specific
vegetation if factors, such as soil type, elevation, and topography,
result in a significant difference of carrying capacity within the
county.
(2) CCC may establish separate carrying capacities for irrigated
and non-irrigated forage acreage when acreage of traditionally
irrigated forage (forage actually irrigated 3 of the last 5 crop years)
is present in the county.
(b) Producers may provide evidence that unit forage management and
maintenance practices are improvements over those practices generally
associated with the established carrying capacity. Based on this
evidence, CCC may adjust the expected AUD for the specific forage
acreage upward for the crop year NAP assistance is requested by:
(1) Three percent when at least 1 practice was completed at least 1
time in the previous 5 crop years and such practice can be expected to
have a positive impact on the forage's carrying capacity in the crop
year NAP assistance is requested;
(2) Five percent when 2 or more practices were completed at least 1
time in the previous 5 crop years and such practices can be expected to
have a positive impact on the forage's carrying capacity in the crop
year NAP assistance is requested; and
(3) Greater than 5 percent when producers provide acceptable
records, as determined by CCC, of higher forage production or an
increase in animal units supported on the specific forage acreage in 3
of the 5 crop years immediately before the crop year NAP assistance is
requested.
Sec. 1437.403 Determining payments.
Subject to payment limits, availability of funds, and other limits
as may apply, payments for losses of forage reported to FSA as intended
to be grazed will be determined by:
(a) Multiplying the eligible acreage by the producer's share;
(b) Dividing the result from paragraph (a) of this section by the
carrying capacity or adjusted per day carrying capacity established for
the specific acreage, as determined by CCC;
(c) Multiplying the result from paragraph (b) of this section by
the number of days established as the grazing period;
(d) Adding adjustments of AUD for practices and production to the
product of paragraph (c) of this section;
(e) Multiplying the result from paragraph (d) of this section by
the applicable percentage of loss established by CCC;
(f) Multiplying the amount of AUD lost to other causes, as
determined by CCC, by the producer's share;
(g) Subtracting the result from paragraph (f) of this section from
the result from paragraph (e) of this section;
(h) Multiplying the result from paragraph (d) of this section by
0.50;
(i) Subtracting the result from paragraph (h) of this section from
the result from paragraph (g) of this section; and
(j) Multiplying the result from paragraph (i) of this section by
the AUD value established in accordance with Sec. 1437.11, and then by
55 percent.
Sec. 1437.404 Information collection requirements under the Paperwork
Reduction Act; OMB control number.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control number for the
regulation in this part is 0560-0175.
Signed at Washington, DC, on March 8, 2002.
James R. Little,
Executive Vice President, Commodity Credit Corporation.
[FR Doc. 02-6212 Filed 3-18-02; 8:45 am]
BILLING CODE 3410-05-P
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