Emergency Agricultural Assistance, 2007; Crop Disaster and Livestock Indemnity Programs, 72864-72878 [07-6153]

Agencies

• DEPARTMENT OF AGRICULTURE
• Farm Service Agency

[Federal Register Volume 72, Number 245 (Friday, December 21, 2007)]
[Rules and Regulations]
[Pages 72864-72878]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-6153]



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Part III





Department of Agriculture





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Farm Service Agency



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7 CFR Part 760



Emergency Agricultural Assistance, 2007; Crop Disaster and Livestock 
Indemnity Programs; Final Rule



2005-2007 Livestock Compensation and Catfish Grant Programs; Final Rule

Federal Register / Vol. 72, No. 245 / Friday, December 21, 2007 / 
Rules and Regulations

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DEPARTMENT OF AGRICULTURE

Farm Service Agency

7 CFR Part 760

RIN 0560-AH76


Emergency Agricultural Assistance, 2007; Crop Disaster and 
Livestock Indemnity Programs

AGENCY: Farm Service Agency, USDA.

ACTION: Final rule.

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SUMMARY: This rule establishes the Farm Service Agency (FSA) 
regulations for the 2007 Emergency Agricultural Assistance. The rule 
implements legislation that provides funds for agricultural disaster 
aid for eligible producers, specifically a Crop Disaster Program (CDP) 
and a 2005-2007 Livestock Indemnity Program (LIP). For CDP, the program 
applies only to 2005, 2006, and 2007 crop producers who chose to have a 
Federal Crop Insurance plan of insurance or Noninsured Crop Disaster 
Assistance Program coverage for the year of loss and suffered damage 
due to a natural disaster. Eligible crops for 2007 must have been 
planted prior to February 28, 2007. For LIP, the program applies only 
to livestock producers in counties designated as a major disaster or 
emergency area by the President or those declared a natural disaster 
area by the Secretary of Agriculture. Counties designated disasters by 
the President may be eligible even though agricultural loss was not 
covered by the designation if there has been an FSA Administrator's 
Physical Loss Notice covering such losses. The natural disaster 
declarations by the Secretary or designations by President must have 
been issued between January 1, 2005, and February 28, 2007; that is 
after January 1, 2005 and before February 28, 2007. Counties contiguous 
to such counties will also be eligible.

DATES: This rule is effective December 19, 2007.

FOR FURTHER INFORMATION CONTACT: Salomon Ramirez, Director, Production, 
Emergencies, and Compliance Division; Farm Service Agency; United 
States Department of Agriculture, STOP 0517, 1400 Independence Avenue, 
SW., Washington, DC 20250-0517; telephone (202) 720-7641; e-mail 
salomon.ramirez@wdc.usda.gov.

SUPPLEMENTARY INFORMATION:

Background

    This final rule implements the agricultural assistance provisions 
of the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq 
Accountability Appropriations Act, 2007 (Pub. L. 110-28) (the 2007 
Emergency Supplemental), enacted May 25, 2007. The 2007 Emergency 
Supplemental authorizes the Secretary of Agriculture (Secretary) to 
assist producers of livestock and agricultural commodities through 
programs administered by FSA.
    All counties, owners, contract growers, lessees, livestock, crops, 
and losses, must meet the eligibility criteria provided in this rule. 
False certifications carry severe ramifications. FSA will validate 
applications with random spot-checks.
    A payment limitation of $80,000 per program per person is 
applicable to payments made under the 2007 Emergency Supplemental. The 
amount of any payment for which a participant may be eligible under any 
of these programs may be reduced by any amount received by the 
participant for the same or any similar loss. Other restrictions apply 
including, but not limited to, those pertaining to highly erodible land 
and wetland conservation provisions. Livestock and crop losses that are 
not weather-related are not covered.
    The average adjusted gross income (AGI) limitation as administered 
under 7 CFR part 1400, subpart G, applies. AGI eligibility is based on 
the average of the adjusted gross incomes for the three tax years 
immediately preceding the tax year for which disaster assistance is 
being requested, with the exclusion of any year(s) the individual or 
entity did not have income or had an AGI of zero.

Crop Disaster Program

    Section 9001 of the 2007 Emergency Supplemental authorizes the 
Secretary to provide assistance to crop producers for qualifying crop 
quantity or crop quality losses due to damaging weather and related 
conditions for one, but not more than one, of the 2005, 2006, or 2007 
crop years. The 2007 Emergency Supplemental requires that assistance 
for quantity losses to be made available in the same manner as provided 
under section 815 of the Agricultural, Rural Development, Food and Drug 
Administration, and Related Agencies Appropriations Act, 2001 (Pub. L. 
106-387) (the 2001 Appropriations Act), except that the payment rate 
will be 42 percent of the established price, instead of 65 percent. 
Like under section 815 of the 2001 Appropriations Act, only approved 
yields based on production evidence submitted prior to the enactment of 
the 2007 Emergency Supplemental will be used for the purposes of the 
2005, 2006, and 2007 CDP. This is also applicable to those plans of 
insurance or NAP that did not or do not have approved yields calculated 
based on actual production history. FSA does not have the resources or 
the knowledge to calculate those approved yields now. Additionally, 
historically, FSA has not computed approved yields following enactment 
of legislation authorizing similar ad hoc disaster assistance. There 
are a plethora of reasons for not computing such yields now, not the 
least of which is burdening participants and FSA offices with tasks 
that will undoubtedly slow the dispersal of funds that Congress wanted 
issued timely. There are also serious integrity issues related to 
allowing, as a general matter, participants an opportunity to now in 
conjunction with a loss claim application under this ad hoc 
legislation, the opportunity to now alter or change their expected 
level of production in the year of alleged loss. The same quantity loss 
thresholds used under section 815 of the 2001 Appropriations Act are 
applicable. The 2007 Emergency Supplemental provides that total 
assistance provided to a participant for a crop year under the Crop 
Disaster Program (CDP), together with any amount provided to the same 
participant for the same crop made pursuant to any crop insurance 
program or the Noninsured Crop Disaster Assistance Program (NAP), plus 
the value of the crop that was not lost, may not exceed 95 percent of 
the value of the crop in the absence of a loss, as estimated by FSA.
    By statute, a participant seeking financial assistance under this 
rule will not be eligible for payments if the participant did not 
obtain a Federal Crop Insurance Plan or NAP coverage for the crop 
incurring loss for the year in which assistance is requested. 
Circumstances why a participant either chose to not have such insurance 
or NAP coverage are irrelevant to determination of CDP eligibility. 
Those circumstances, accordingly, will not be considered under any of 
the relief provisions outlined in 7 CFR part 718.
    The CDP objectives are as follows:
     Use crop insurance principles to the extent practicable.
     Establish an equitable distribution of payments based on 
the losses of each producer.
     Treat producers with similar losses similarly.
     Distribute payments according to the geographic location 
of the losses.
     Ensure that all producers are notified of program 
benefits.
    Eligible crops include insured crops and NAP covered crops. Insured 
crops

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are crops insured by a Federally-subsidized crop insurance policy. NAP 
covered crops are crops for which crop insurance is not available, but 
are covered by NAP. Under the previous CDP, crop insurance and NAP 
coverage were not required for eligibility.
    For quality losses, producers are eligible for assistance for 
quality losses of at least 25-percent. All crops are eligible for 
quality losses except for value loss crops \1\ and some specialty 
crops.\2\ The total affected production for a quality loss payment 
cannot exceed the expected production. Payments will be made only on 65 
percent of the quantity of production.
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    \1\ Value loss crops ineligible for quality losses include 
aquaculture, floriculture, mushrooms, ginseng root, ornamental 
nursery, and Christmas trees.
    \2\ Specialty crops ineligible for quality losses include honey, 
maple sap, and turf grass sod.
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    Payment rates will be based on five broad loss levels, determined 
as follows:

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                                                         The following
                                     For estimated       percentages of
              Level               quality loss ranges     established
                                      (percentage)       prices \1\ are
                                                             used:
------------------------------------------------------------------------
I...............................  25.0 and 34.9......                 30
II..............................  35.0 and 54.9......                 45
III.............................  55.0 and 74.9......                 65
IV..............................  75.0 and 94.9......                 85
V...............................  95.0 and 100.0.....                95
------------------------------------------------------------------------
\1\ Established prices are marketing contract prices, catastrophic risk
  protection, Actual Production History prices, or 5-year average
  prices.

    For marketing contracts and quality loss assistance, under the CDP, 
production of a commodity sold pursuant to a marketing contract is 
eligible for quality loss assistance based on one or more prices 
specified in the contracts. When there are multiple marketing contract 
prices, a weighted average will be calculated to determine a single 
blended price. Production of a commodity not sold through marketing 
contracts is eligible for quality loss assistance based on the average 
local market discounts for reduced quality, as determined by the 
appropriate State committee of FSA.
    For insurable crops, only producers who purchased crop insurance 
for the affected crop during the applicable disaster year are eligible 
to receive crop disaster payments. For NAP covered crops, producers 
must have participated in NAP for the crop for which they are seeking 
benefits in the disaster year.

Livestock Indemnity Program

    Section 9002(b) of the 2007 Emergency Supplemental appropriates to 
the Secretary such sums as necessary to remain available until expended 
to provide assistance to livestock producers for certain livestock 
deaths directly resulting from natural disasters that occurred between 
January 1, 2005, and February 28, 2007, that is after January 1, 2005, 
but before February 28, 2007, including losses due to blizzards that 
started in 2006 and continued into January 2007. To be eligible for 
assistance under the 2005-2007 Livestock Indemnity Program (LIP), the 
participant must have suffered livestock loss due to an eligible 
disaster event occurring after January 1, 2005, but before February 28, 
2007, and the livestock must have been physically located in a county 
or contiguous county having a natural disaster designated by the 
President or declared by the Secretary after January 1, 2005, but 
before February 28, 2007. For timely Presidential declarations that do 
not cover agricultural physical loss, the subject counties may still be 
eligible if the county was the subject of an approved Administrator's 
Physical Loss Notice (APLN) when the APLN applies to a natural disaster 
designated by the President. Livestock producers incurring livestock 
losses in more than one of the 2005, 2006, and 2007 calendar years may 
only select one year in which to receive assistance.
    The 2005-2007 LIP is administered by FSA and funds have been 
appropriated to FSA for such purpose. Therefore, it is implemented 
through regulations in 7 CFR part 760. We are establishing a new 
subpart J for the 2005-2007 LIP regulations.
    The 2005-2007 LIP will provide assistance to eligible producers 
(owners and contract growers) of eligible livestock located in a total 
of 2,944 counties. These 2,944 counties refer to the total number of 
declared counties, regardless of the number of times for which they 
received disaster declarations after January 1, 2005, but before 
February 28, 2007. The regulations will specify what makes a county 
eligible. The list of eligible counties is on the FSA Web site.
    The natural disasters covered by the 2005-2007 LIP include various 
hurricanes, extreme heat, wildfires, and blizzards that occurred after 
January 1, 2005, but before February 28, 2007.
    Payments under the 2005-2007 LIP are based on the type, kind, and 
weight of eligible livestock. The amount of payment that a person may 
receive under the 2005-2007 LIP cannot exceed $80,000.
    Eligible livestock includes certain beef cattle, dairy cattle, 
buffalo, beefalo, equine, sheep, goats, deer, swine, poultry, reindeer, 
catfish, and crawfish that died as a direct result of an eligible 
disaster and on the day they perished were all of the following:
     Owned by an eligible owner or in the possession of an 
eligible contract grower;
     Maintained for commercial use as part of a farming 
operation of the participant on the day they died; and
     Died in an eligible county as a direct result of an 
eligible disaster event during the disaster period.
    Participants must provide verifiable documentation of livestock 
deaths claimed.
    Payments will be made to contract growers to the extent of their 
contractual risk, as determined by FSA. Any compensation received by 
the contract grower from the contractor for loss of income for the dead 
livestock will be deducted from the contract grower's payment.
    An eligible producer who received payments for disaster-related 
livestock losses from the 2005 hurricanes under earlier LIPs may only 
receive payments under the 2005-2007 LIP under the following two 
circumstances: (1) A participant who lost livestock to subsequent 
disasters in 2006 or 2007, is eligible for payments resulting from the 
subsequent disasters, but must elect to declare losses and receive 
payments for only one of those two years. (2) A participant with 
eligible livestock who received payments for disaster-related livestock 
losses from the 2005 hurricanes under an earlier LIP may also elect to 
receive payments under the

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2005-2007 LIP, however, the payment will be reduced by the amount 
received for the same disaster under an earlier LIP. This second 
situation is not expected to produce any payments because payment rates 
under earlier programs were higher than payment rates under the 2005-
2007 LIP.

Notice and Comment

    These regulations are exempt from the notice and comment 
requirements of the Administrative Procedures Act (5 U.S.C. 553) and 
the Statement of Policy of the Secretary effective July 24, 1971 (36 FR 
13804) relating to notices of proposed rulemaking and public 
participation in rulemaking, as specified in section 9005 of the 2007 
Emergency Supplemental, which requires that the regulations be 
promulgated and administered without regard to those notice and comment 
provisions.

Executive Order 12866

    This rule has been determined to be economically significant under 
Executive Order 12866 and has been reviewed by the Office of Management 
and Budget. A Cost-Benefit Analysis (CBA) was completed and is 
available from the contact person listed above. The summary of the 
anticipated economic impacts for CDP and LIP are described below.

Crops

    Total crop disaster payments are expected to range from $1.6 
billion to $2.0 billion. The low end of the range is estimated at $1.6 
billion reflecting the probability that the more restrictive 
eligibility provisions and the reduction in the quality loss threshold 
may lower payments. The high end of the range is estimated at $2.0 
billion reflecting the probability that the new marketing contract 
provisions may increase payments.
    The 2005 and 2006 payments are expected to be mainly based on the 
2006 crop year because crop losses were more severe in 2006. A large 
portion of 2007 payments are expected to be paid to winter wheat and 
specialty crop producers affected by freezes. CDP payments for 2007 
winter wheat are estimated at $190 million. CDP payments for 2007 
oranges are estimated at $7 million. CDP payments for 2007 peaches are 
estimated at $6 million. CDP payments for 2007 lemons are estimated at 
$2 million.
    The past crop disaster programs (2001/2002 and 2003/2004) had very 
similar crop disaster payouts, with payments of $2.5 billion for each 
program. Qualitative adjustments to the estimates were necessary 
because of program changes. Program changes that are expected to cause 
the estimate to be lower include:
     Insurable crops that are uninsured are ineligible for crop 
disaster payments;
     Non-insurable crops not covered, but eligible, through NAP 
are ineligible for crop disaster payments; and
     Producers that will be compensated for losses of at least 
25 percent quality loss.
    New provisions that allow production of a commodity sold through 
marketing contracts to be eligible for quality loss assistance based on 
the prices specified in the contracts are expected to increase 
payments.

Livestock

    The value of expected claims under the 2005-2007 LIP is $14.4 
million. To the extent program payments are ultimately spent on forage 
or grain or affect the total supply of available livestock, the impacts 
of the 2005-2007 LIP on any sector of the economy, including livestock 
feed prices, livestock prices, and consumer prices, are not expected to 
be measurable. However, for those participants who have suffered losses 
from disasters between January 1, 2005, and February 28, 2007, and 
qualify for payments under the 2005-2007 LIP, their farm income losses 
will be somewhat offset or reduced by these payments, and they and 
their local communities may benefit accordingly.
    Most claims for losses are expected to result from conditions of 
extreme heat in California and blizzards that affected Colorado, 
western Kansas, two counties in northern New Mexico, and one county in 
Oklahoma. There are expected to be some producers in the Gulf Coast 
states who may not have applied for payments under an earlier LIP, or 
who had losses from other disasters for which the county in which they 
produced the livestock was declared a primary disaster county or an 
adjoining county. For example, several hundred cattle are reported to 
have died in Texas as a result of wildfires. Such claims are not 
expected to be significant, however. Other claims may also exist among 
other counties in the United States, but these are also expected to be 
quite small and no information exists upon which to make estimates.
    The impact of the 2005-2007 LIP is not expected to be significant 
in terms of aggregate change in social welfare. FSA initially estimates 
expected payments totaling $14.4 million for the 2005-2007 LIP, the sum 
of approximately $13.4 million for land-based losses and $1 million for 
payments to catfish and crawfish producers. The actual number of 
eligible owners, contract growers, and livestock and program costs will 
become more certain toward the end of signup for the program. Actual 
claims are expected to be less than the estimated $14.4 million because 
some persons may exceed the $80,000 payment limit, or their adjusted 
gross incomes may exceed $2.5 million.
    The $14.4 million is $3.3 million less than the $17.7 million paid 
out under the 2005 LIP. In comparison, the 2005 LIP used a 30 percent 
payout rate, compared to the 26 percent rate used in the 2005-2007 LIP, 
and paid for hurricane-related losses located in States affected by 
those hurricanes. If the 2005-2007 LIP payout rate was also 30 percent, 
the payout amount would be $16.6 million (0.3*($14.4/.26) = $16.6), or 
over $1 million less than the 2005 payout amount.
    The above magnitude of difference appears reasonable in spite of 
the fact that the 2005-2007 LIP is national in scope, and covers all 
disasters between January 1, 2005, and February 28, 2007, including 
catfish and crawfish, while the 2005 LIP only covered 9 states in the 
Southeast and Gulf Coast region. First, nearly all payments under the 
2005-2007 LIP are expected to cover two specific disasters: losses of 
an estimated 16,000 dairy cattle from extreme heat in California and an 
estimated 20,000 beef cattle lost from blizzards in the winter of 2006-
2007 that affected Colorado, Kansas, and New Mexico. Second, 
participants who received payments under the 2005 LIP are not expected 
to apply for payments under the 2005-2007 LIP because their payment 
rates were higher under the earlier program and they cannot receive 
payments under both programs without returning monies received under 
the 2005 LIP.

Regulatory Flexibility Act

    This rule is not subject to the Regulatory Flexibility Act since 
the Farm Service Agency is not required to publish a notice of proposed 
rulemaking for this rule.

Environmental Review

    The environmental impacts of this rule have been considered in a 
manner 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 the FSA 
regulations for compliance with NEPA (7 CFR part 799). The following 
final rule was determined to be Categorically Excluded because it is 
considered a ministerial action solely involving the transfer of

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funds to offset disaster related losses with no site-specific or 
ground-disturbing actions occurring as a requirement or an immediate 
result of program implementation. Therefore, no environmental 
assessment or environmental impact statement will be completed for this 
final rule.

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 12612

    This rule does not have Federalism implications that warrant the 
preparation of a Federalism Assessment. 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.

Executive Order 12988

    This rule has been reviewed under Executive Order 12988. This final 
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.

Unfunded Mandates

    This rule contains no Federal mandates under the regulatory 
provisions of Title II of the UMRA for State, local, and tribal 
government or the private sector. Therefore, this rule is not subject 
to the requirements of sections 202 and 205 of the UMRA.

Paperwork Reduction Act

    These regulations are exempt from the requirements of the Paperwork 
Reduction Act (44 U.S.C. Chapter 35), as specified in section 
9005(b)(3) of the 2007 Emergency Supplemental, which provides that 
these regulations, which are necessary to implement title IX of the 
2007 Emergency Supplemental, be promulgated and administered without 
regard to the Paperwork Reduction Act.

E-Government Act Compliance

    CCC 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.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule has been determined to be Major under the Small Business 
Regulatory Enforcement Fairness Act of 1996, (Pub. L. 104-121) 
(SBREFA). SBREFA normally requires that an agency delay the effective 
date of a major rule for 60 days from the date of publication to allow 
for Congressional review. Section 808 of SBREFA allows an agency to 
make a major regulation effective immediately if the agency finds there 
is good cause to do so. Consistent with the provisions of 9005(c) of 
the 2007 Emergency Supplemental, FSA finds that it would be contrary to 
the public interest to delay implementation of this rule because it 
would significantly delay assistance to the many people affected by the 
disasters addressed by this rule. Therefore, this rule is effective 
immediately.

List of Subjects in 7 CFR Part 760

    Dairy products, Indemnity payments, Pesticides and pests, Reporting 
and recordkeeping requirements.

0
For the reasons explained above, 7 CFR part 760 is amended as follows:

PART 760--INDEMNITY PAYMENT PROGRAMS

0
1. Revise the authority citation for 7 CFR part 760 to read as follows:

    Authority: 7 U.S.C. 612c; Pub. L. 106-387, 114 Stat. 1549; Pub. 
L. 107-76, 115 Stat. 704; Title III, Pub. L. 109-234, 120 Stat. 474; 
16 U.S.C. 3801, note; and Title IX, Pub. L. 110-28.


0
2. Amend 7 CFR part 760 by adding new subparts I and J to read as 
follows:
Subpart I--2005-2007 Crop Disaster Program
Sec.
760.800 Applicability.
760.801 Administration.
760.802 Definitions.
760.803 Eligibility.
760.804 Time and method of application.
760.805 Limitations on payments and other benefits.
760.806 Crop eligibility requirements.
760.807 Miscellaneous provisions.
760.808 General provisions.
760.809 Eligible damaging conditions.
760.810 Qualifying 2005, 2006, or 2007 quantity crop losses.
760.811 Rates and yields; calculating payments.
760.812 Production losses; participant responsibility.
760.813 Determination of production.
760.814 Calculation of acreage for crop losses other than prevented 
planted.
760.815 Calculation of prevented planted acreage.
760.816 Value loss crops.
760.817 Quality losses for 2005, 2006, and 2007 crops.
760.818 Marketing contracts.
760.819 Misrepresentation, scheme, or device.
760.820 Offsets, assignments, and debt settlement.
760.821 Compliance with highly erodible land and wetland 
conservation.
Subpart J--2005-2007 Livestock Indemnity Program
760.900 Administration.
760.901 Applicability.
760.902 Eligible counties and disaster periods.
760.903 Definitions.
760.904 Limitations on payments and other benefits.
760.905 Eligible owners and contract growers.
760.906 Eligible livestock.
760.907 Application process.
760.908 Deceased individuals or dissolved entities.
760.909 Payment calculation.
760.910 Appeals.
760.911 Offsets, assignments, and debt settlement.
760.912 Records and inspections.
760.913 Refunds; joint and several liability.
Subpart I--2005-2007 Crop Disaster Program


Sec.  760.800  Applicability.

    This part sets forth the terms and conditions for the 2005-2007 
Crop Disaster Program (2005-2007 CDP). CDP makes emergency financial 
assistance available to producers who have incurred crop losses in 
quantity or quality for eligible 2005, 2006, or 2007 crop years due to 
disasters as determined by the Secretary under provisions of Title IX 
of the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq 
Accountability Appropriations Act, 2007 (Pub. L. 110-28). However, to 
be eligible for assistance, the crop subject to the loss must have been 
planted or existed before February 28, 2007, or, in the case of 
prevented planting, would have been planted before February 28, 2007.


Sec.  760.801  Administration.

    (a) The program will be administered under the general supervision 
of the Deputy Administrator for Farm Programs and will be carried out 
in the field by FSA State and county committees.
    (b) State and county committees and representatives do not have the 
authority to modify or waive any of the provisions of this part.
    (c) The State committee will take any action required by this part 
that has not been taken by a county committee. The State committee will 
also:

[[Page 72868]]

    (1) Correct, or require a county committee to correct, any action 
taken by that FSA county committee that is not in accordance with this 
part; and
    (2) Require a county committee to withhold taking or reverse any 
action that is not in accordance with this part.
    (d) No provision or delegation to a State or county committee will 
prevent the Deputy Administrator for Farm Programs 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 for Farm Programs may authorize State 
and county committees to waive or modify non-statutory deadlines or 
other program requirements in cases where lateness or failure to meet 
such does not adversely affect the operation of the program.


Sec.  760.802  Definitions.

    The following definitions apply to this part. The definitions in 
parts 718 and 1400 of this title also apply, except where they conflict 
with the definitions in this section.
    Actual production means the total quantity of the crop appraised, 
harvested, or assigned, as determined by the FSA State or county 
committee in accordance with instructions issued by the Deputy 
Administrator for Farm Programs.
    Administrative fee means an amount the producer must pay for 
Noninsured Crop Disaster Assistance Program (NAP) enrollment for non-
insurable crops.
    Affected production means, with respect to quality losses, the 
harvested production of an eligible crop that has a documented quality 
reduction of 25 percent or more on the verifiable production record.
    Appraised production means production determined by FSA, or a 
company reinsured by the Federal Crop Insurance Corporation (FCIC), 
that was unharvested but was determined to reflect the crop's yield 
potential at the time of appraisal.
    Approved yield means the amount of production per acre, computed in 
accordance with FCIC's Actual Production History (APH) Program at part 
400, subpart G of this title or, for crops not included under part 400, 
subpart G of this title, the yield used to determine the guarantee. For 
crops covered under NAP, the approved yield is established according to 
part 1437 of this title. Only the approved yields based on production 
evidence submitted to FSA prior to May 25, 2007 will be used for 
purposes of the 2005-2007 CDP.
    Aquaculture means a value loss crop for the reproduction and 
rearing of aquatic species in controlled or selected environments 
including, but not limited to, ocean ranching, except private ocean 
ranching of Pacific salmon for profit in those States where such 
ranching is prohibited by law.
    Aquaculture facility means any land or structure including, but not 
limited to, a laboratory, concrete pond, hatchery, rearing pond, 
raceway, pen, incubator, or other equipment used in aquaculture.
    Aquaculture species means any aquaculture species as defined in 
part 1437 of this title.
    Average market price means the price or dollar equivalent on an 
appropriate basis for an eligible crop established by FSA, or CCC, or 
RMA, as applicable, for determining payment amounts. Such price will be 
based on historical data of the harvest basis excluding transportation, 
storage, processing, packing, marketing, or other post-harvesting 
expenses. Average market prices are generally applicable to all 
similarly situated participants and are not established in response to 
individual participants. Accordingly, the established average market 
prices are not appealable under parts 11 or 780 of this title.
    Catastrophic risk protection means the minimum level of coverage 
offered by FCIC.
    CCC means the Commodity Credit Corporation.
    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 insurance means an insurance policy reinsured by FCIC under 
the provisions of the Federal Crop Insurance Act, as amended.
    Crop year means:
    (1) For insured crops, the crop year as defined according to the 
applicable crop insurance policy;
    (2) For NAP covered crops, as provided in part 1437 of this title.
    Damaging weather means drought, excessive moisture, hail, freeze, 
tornado, hurricane, typhoon, excessive wind, excessive heat, weather-
related saltwater intrusion, weather-related irrigation water 
rationing, and earthquake and volcanic eruptions, or any combination. 
It also includes a related condition that occurs as a result of the 
damaging weather and exacerbates the condition of the crop, such as 
crop disease, and insect infestation.
    Deputy Administrator means the Deputy Administrator for Farm 
Programs, Farm Service Agency, U.S. Department of Agriculture or 
designee.
    Eligible crop means a crop insured by FCIC as defined in part 400 
of this title, or included under NAP as defined under part 1437 of this 
title for which insurance or NAP coverage was obtained timely for the 
year which CDP benefits are sought.
    End use means the purpose for which the harvested crop is used, 
such as grain, hay, or seed.
    Expected production means, for an agricultural unit, the historic 
yield multiplied by the number of planted or prevented acres of the 
crop for the unit.
    FCIC means the Federal Crop Insurance Corporation, a wholly owned 
Government Corporation within USDA.
    Final planting date means the latest date, established by the Risk 
Management Agency (RMA) for insured crops, by which the crop must 
initially be planted in order to be insured for the full production 
guarantee or amount of insurance per acre. For NAP covered crops, the 
final planting date is as provided in part 1437 of this title.
    Flood prevention means:
    (1) For aquaculture species, placing the aquaculture facility in an 
area not prone to flood;
    (2) In the case of raceways, devices or structures designed for the 
control of water level; and
    (3) With respect to nursery crops, placing containerized stock in a 
raised area above expected flood level and providing draining 
facilities, such as drainage ditches or tile, gravel, cinder, or sand 
base.
    Good nursery growing practices means utilizing flood prevention, 
growing media, fertilization to obtain expected production results, 
irrigation, insect and disease control, weed, rodent and wildlife 
control, and over winterization storage facilities.
    Ground water means aqueous supply existing in an aquifer subsurface 
that is brought to the surface and made available for irrigation by 
mechanical means such as by pumps and irrigation wells.
    Growing media means:
    (1) For aquaculture species, media that provides nutrients 
necessary for the production of the aquaculture species and protects 
the aquaculture species from harmful species or chemicals or

[[Page 72869]]

    (2) For nursery crops, a well-drained media with a minimum 20 
percent air pore space and pH adjustment for the type of plant produced 
designed to prevent ``root rot.''
    Harvested means:
    (1) For insured crops, harvested as defined according to the 
applicable crop insurance policy;
    (2) For NAP covered single harvest crops, that a crop has been 
removed from the field, either by hand or mechanically, or by grazing 
of livestock;
    (3) For NAP covered crops with potential multiple harvests in 1 
year or harvested over multiple years, that the producer has, by hand 
or mechanically, removed at least one mature crop from the field during 
the crop year;
    (4) For mechanically-harvested NAP covered crops, that the crop has 
been removed from the field and placed in a truck or other conveyance, 
except hay is considered harvested when in the bale, whether removed 
from the field or not. Grazed land will not be considered harvested for 
the purpose of determining an unharvested or prevented planting payment 
factor. A crop that is intended for mechanical harvest, but 
subsequently grazed and not mechanically harvested, will have an 
unharvested factor applied.
    Historic yield means, for a unit, the higher of the county average 
yield or the participant's approved yield.
    (1) An insured participant's yield will be the higher of the county 
average yield listed or the approved federal crop insurance APH, for 
the disaster year.
    (2) NAP participant's yield will be the higher of the county 
average or approved NAP APH for the disaster year.
    Insurable crop means an agricultural crop (excluding livestock) for 
which the producer on a farm is eligible to obtain a policy or plan of 
insurance under the Federal Crop Insurance Act (7 U.S.C. 1501-1524).
    Marketing contract means a legally binding written contract between 
a purchaser and grower for the purpose of marketing a crop.
    Market value means:
    (1) The price(s) designated in the marketing contract; or
    (2) If not designated in a marketing contract, the rate established 
for quantity payments under Sec.  760.811.
    Maximum average loss level means the maximum average level of crop 
loss to be attributed to a participant without acceptable production 
records (verifiable or reliable). Loss levels are expressed in either a 
percent of loss or yield per acre, and are intended to reflect the 
amount of production that a participant would have been expected to 
make if not for the eligible disaster conditions in the area or county, 
as determined by the county committee in accordance with instructions 
issued by the Deputy Administrator.
    Multi-use crop means a crop intended for more than one end use 
during the calendar year such as grass harvested for seed, hay, and 
grazing.
    Multiple cropping means the planting of two or more different crops 
on the same acreage for harvest within the same crop year.
    Multiple planting means the planting for harvest of the same crop 
in more than one planting period in a crop year on different acreage.
    NASS means the National Agricultural Statistics Service.
    Net crop insurance indemnity means the indemnity minus the producer 
paid premium.
    NAP covered means a crop for which the participants obtained 
assistance under section 196 of the Federal Agriculture Improvement and 
Reform Act of 1996 (7 U.S.C. 7333).
    Normal mortality means the percentage of dead aquaculture species 
that would normally occur during the crop year.
    Person means person as defined in part 1400 of this title, and all 
rules with respect to the determination of a person found in that part 
are applicable to this part. However, the determinations made in this 
part in accordance with part 1400, subpart B, Person Determinations, of 
this title will also take into account any affiliation with any entity 
in which an individual or entity has an interest, regardless of whether 
or not such entities are considered to be actively engaged in farming.
    Planted acreage means land in which seed, plants, or trees have 
been placed, appropriate for the crop and planting method, at a correct 
depth, into a seedbed that has been properly prepared for the planting 
method and production practice normal to the USDA plant hardiness zone 
as determined by the county committee.
    Prevented planting means 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 FSA.
    Production means quantity of the crop or commodity produced 
expressed in a specific unit of measure including, but not limited to, 
bushels or pounds.
    Rate means price per unit of the crop or commodity.
    Recording county means, for a producer with farming interests in 
only one county, the FSA county office in which the producer's farm is 
administratively located or, for a producer with farming interests that 
are administratively located in more than one county, the FSA county 
office designated by FSA to control the payments received by the 
producer.
    Related condition means, with respect to a disaster, a condition 
that causes deterioration of a crop, such as insect infestation, plant 
disease, or aflatoxin, that is accelerated or exacerbated as a result 
of damaging weather, as determined in accordance with instructions 
issued by the Deputy Administrator.
    Reliable production records means evidence provided by the 
participant that is used to substantiate the amount of production 
reported when verifiable records are not available, including copies of 
receipts, ledgers of income, income statements of deposit slips, 
register tapes, invoices for custom harvesting, and records to verify 
production costs, contemporaneous measurements, truck scale tickets, 
and contemporaneous diaries that are determined acceptable by the 
county committee.
    Repeat crop means, with respect to production, a commodity that is 
planted or prevented from being planted in more than one planting 
period on the same acreage in the same crop year.
    RMA means the Risk Management Agency.
    Salvage value means the dollar amount or equivalent for the 
quantity of the commodity that cannot be marketed or sold in any 
recognized market for the crop.
    Secondary use means the harvesting of a crop for a use other than 
the intended use.
    Secondary use value means the value determined by multiplying the 
quantity of secondary use times the FSA or CCC-established price for 
that use.
    State committee means the FSA State committee.
    Surface irrigation water means aqueous supply anticipated for 
irrigation of agricultural crops absent an eligible disaster condition 
impacting either the aquifer or watershed. Surface irrigation water may 
result from feral sources or from irrigation districts.
    Tropical crops has the meaning assigned in part 1437 of this title.
    Tropical region has the meaning assigned in part 1437 of this 
title.
    Unharvested factor means a percentage established for a crop and 
applied in a payment formula to reduce the payment for reduced expenses 
incurred because commercial harvest was not performed. Unharvested 
factors are generally applicable to all similarly situated participants 
and are not established in response to individual

[[Page 72870]]

participants. Accordingly established unharvested factors are not 
appealable under parts 11 and 780 of this title.
    Unit means, unless otherwise determined by the Deputy 
Administrator, basic unit as defined in part 457 of this title that, 
for ornamental nursery production, includes all eligible plant species 
and sizes.
    Unit of measure means:
    (1) For all insured crops, the FCIC-established unit of measure;
    (2) For all NAP covered crops, the established unit of measure, if 
available, used for the 2005, 2006, or 2007 NAP price and yield;
    (3) For aquaculture species, a standard unit of measure such as 
gallons, pounds, inches, or pieces, established by the State committee 
for all aquaculture species or varieties;
    (4) For turfgrass sod, a square yard;
    (5) For maple sap, a gallon;
    (6) For honey, pounds; and
    (7) For all other crops, the smallest unit of measure that lends 
itself to the greatest level of accuracy with minimal use of fractions, 
as determined by the State committee.
    United States means all 50 States of the United States, the 
Commonwealth of Puerto Rico, the Virgin Islands of the United States, 
and to the extent the Deputy Administrator determines it to be feasible 
and appropriate, Guam, American Samoa, the Commonwealth of the Northern 
Mariana Islands, and the former Trust Territory of the Pacific Islands, 
which include Palau, Federated States of Micronesia, and the Marshall 
Islands.
    USDA means the United States Department of Agriculture.
    USDA Plant Hardiness Zone means 11 regions or planting zones as 
defined by a 10 degree Fahrenheit difference in the average annual 
minimum temperature.
    Value loss crop has the meaning assigned in part 1437 of this 
title.
    Verifiable production record means:
    (1) For quantity losses, evidence that is used to substantiate the 
amount of production reported and that can be verified by FSA through 
an independent source; or
    (2) For quality losses, evidence that is used to substantiate the 
amount of production reported and that can be verified by FSA through 
an independent source including determined quality factors and the 
specific quantity covered by those factors.
    Yield means unit of production, measured in bushels, pounds, or 
other unit of measure, per area of consideration, usually measured in 
acres.


Sec.  760.803  Eligibility.

    (a) Participants will be eligible to receive disaster benefits 
under this part only if they incurred qualifying quantity or quality 
losses for the 2005, 2006, or 2007 crops, as further specified in this 
part, as a result of damaging weather or any related condition. 
Participants may not receive benefits with respect to volunteer stands 
of crops.
    (b) Payments may be made for losses suffered by an eligible 
participant who, at the time of application, is a deceased individual 
or is a dissolved entity if a representative, who currently has 
authority to enter into a contract for the participant, signs the 2005, 
2006, or 2007 Crop Disaster Program application. Participants must 
provide proof of the authority to sign legal documents for the deceased 
individual or dissolved entity. If a participant is now a dissolved 
general partnership or joint venture, all members of the general 
partnership or joint venture at the time of dissolution or their duly 
authorized representatives must sign the application for payment.
    (c) As a condition to receive benefits under this part, the 
Participant must have been in compliance with the Highly Erodible Land 
Conservation and Wetland Conservation provisions of part 12 of this 
title for the 2005, 2006, or 2007 crop year, as applicable, and must 
not otherwise be precluded from receiving benefits under parts 12 or 
1400 of this title or any law.


Sec.  760.804  Time and method of application.

    (a) The 2005, 2006, 2007 Crop Disaster Program application must be 
submitted on a completed FSA-840, or such other form designated for 
such application purpose by FSA, in the FSA county office in the 
participant's control county office before the close of business on a 
date that will be announced by the Deputy Administrator.
    (b) Once signed by a participant, the application for benefits is 
considered to contain information and certifications of and pertaining 
to the participant regardless of who entered the information on the 
application.
    (c) The participant requesting benefits under this program 
certifies the accuracy and truthfulness of the information provided in 
the application as well as any documentation filed with or in support 
of the application. All information is subject to verification by FSA. 
For example, as specified in Sec.  760.818(f), the participant may be 
required to provide documentation to substantiate and validate quality 
standards and marketing contract prices. Refusal to allow FSA or any 
agency of the Department of Agriculture to verify any information 
provided will result in the participant's forfeiting eligibility under 
this program. Furnishing required information is voluntary; however 
without it, FSA is under no obligation to act on the application or 
approve benefits. Providing a false certification to the government is 
punishable by imprisonment, fines, and other penalties.
    (d) FSA may require the participant to submit any additional 
information it deems necessary to implement or determine any 
eligibility provision of this part. For example, as specified in Sec.  
760.818(f), the participant may be required to provide documentation to 
substantiate and validate quality standards and marketing contract 
prices.
    (e) The application submitted in accordance with paragraph (a) of 
this section is not considered valid and complete for issuance of 
payment under this part unless FSA determines all the applicable 
eligibility provisions have been satisfied and the participant has 
submitted all of following completed forms:
    (1) If Item 16 on FSA-840 is answered ``YES,'' FSA-840M, Crop 
Disaster Program for Multiple Crop--Same Acreage Certification;
    (2) CCC-502, Farm Operating Plan for Payment Eligibility;
    (3) CCC-526, Payment Eligibility Average Adjusted Gross Income 
Certification;
    (4) AD-1026, Highly Erodible Land Conservation (HELC) and Wetland 
Conservation Certification; and
    (5) FSA-578, Report of Acreage.
    (f) Application approval and payment by FSA does not relieve a 
participant from having to submit any form required, but not filed, 
according to paragraph (e) of this section.


Sec.  760.805  Limitations on payments and other benefits.

    (a) A participant may receive benefits for crop losses for only one 
of the 2005, 2006, or 2007 crop years as specified under this part.
    (b) Payments will not be made under this part for grazing losses.
    (c) Payments determined to be issued are considered due and payable 
not later than 60 days after a participant's application is completed 
with all information necessary for FSA to determine producer 
eligibility for benefits.
    (d) FSA may divide and classify crops based on loss susceptibility, 
yield, and other factors.
    (e) No person, as defined by part 1400 subpart B of this title, may 
receive more than a total of $80,000 in disaster benefits under this 
part. In applying the

[[Page 72871]]

$80,000 per person payment limitation, regardless of whether 2005, 
2006, or 2007 crop year benefits are at issue or sought, the most 
restrictive ``person'' determination for the participant in the years 
2005, 2006, and 2007, will be used to limit benefits.
    (f) No participant may receive disaster benefits under this part in 
an amount that exceeds 95 percent of the value of the expected 
production for the relevant period as determined by FSA. Accordingly, 
the sum of the value of the crop not lost, if any; the disaster payment 
received under this part; and any crop insurance payment or payments 
received under the NAP for losses to the same crop, cannot exceed 95 
percent of what the crop's value would have been if there had been no 
loss.
    (g) An individual or entity whose adjusted gross income is in 
excess of $2.5 million, as defined by and determined under part 1400 
subpart G of this title, is not eligible to receive disaster benefits 
under this part.
    (h) Any participant in a county eligible for either of the 
following programs must complete a duplicate benefits certification. If 
the participant received a payment authorized by either of the 
following, the amount of that payment will be reduced from the 
calculated 2005-2007 CDP payment:
    (1) The Hurricane Indemnity Program (subpart B of this part);
    (2) The Hurricane Disaster Programs (subparts D, E, F, and G of 
part 1416 of this title);
    (3) The 2005 Louisiana Sugarcane Hurricane Disaster Assistance 
Program; or
    (4) The 2005 Crop Florida Sugarcane Disaster Program.


Sec.  760.806  Crop eligibility requirements.

    (a) A participant on a farm is eligible for assistance under this 
section with respect to losses to an insurable commodity or NAP if the 
participant:
    (1) In the case of an insurable commodity, obtained a policy or 
plan of insurance under the Federal Crop Insurance Act for the crop 
incurring the losses; or
    (2) In the case of a NAP covered crop, filed the required paperwork 
and paid the administrative fee by the applicable filing deadline, for 
the noninsurable commodity under section 196 of the Federal Agriculture 
Improvement and Reform Act of 1996 for the crop incurring the losses.
    (b) The reasons a participant either elected not to have coverage 
or did not have coverage mentioned in paragraphs (a)(1) or (2) of this 
section are not relevant to the determination of the participant's 
ineligibility under this section. In addition, such reasons for not 
having crop insurance coverage have no bearing for consideration under 
part 718, subpart D of this chapter.


Sec.  760.807  Miscellaneous provisions.

    (a) A person is not eligible to receive disaster assistance under 
this part if it is determined by FSA that the person has:
    (1) Adopted any scheme or other device that tends to defeat the 
purpose of this part;
    (2) Made any fraudulent representation;
    (3) Misrepresented any fact affecting a program determination;
    (4) Is ineligible under Sec.  1400.5 of this title; or
    (5) Does not have entitlement to an ownership share of the crop.
    (i) Growers growing eligible crops under contract for crop owners 
are not eligible unless the grower can be determined to have a share of 
the crop.
    (ii) Any verbal or written contract that precludes the grower from 
having an ownership share renders the grower ineligible for benefits 
under this part.
    (b) A person ineligible under Sec.  1437.15(c) of this title for 
any year is likewise ineligible for benefits under this part for that 
year or years.
    (c) A person ineligible under Sec.  400.458 of this title for any 
year is likewise ineligible for benefits under this part for that year 
or years.
    (d) All persons with a financial interest in the operation 
receiving benefits under this part are jointly and severally liable for 
any refund, including related charges, which is determined to be due 
FSA for any reason.
    (e) In the event that any request for assistance or payment under 
this part resulted from erroneous information or a miscalculation, the 
assistance or payment will be recalculated and any excess refunded to 
FSA with interest to be calculated from the date of the disbursement to 
the producer.
    (f) The liability of anyone for any penalty or sanction under or in 
connection with this part, or for any refund to FSA or related charge 
is 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. 714; and 31 U.S.C. 3729.
    (g) The regulations in parts 11 and 780 of this title apply to 
determinations under this part.
    (h) Any payment to any person will be made without regard to 
questions of title under State law and without regard to any claim or 
lien against the crop, or its proceeds.
    (i) For the purposes of the effect of lien on eligibility for 
Federal programs (28 U.S.C. 3201(e)), FSA 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 received under this part to reduce the amount of the judgment 
lien.
    (j) Under this program, participants are either eligible or 
ineligible. Participants in general, do not render performance or need 
to comply. They either suffered eligible losses or they did not. 
Accordingly, the provisions of Sec.  718.304 of this chapter do not 
apply to this part.


Sec.  760.808  General provisions.

    (a) For calculations of loss, the participant's existing unit 
structure will be used as the basis for the calculation established in 
accordance with:
    (1) For insured crops, part 457 of this title; or
    (2) For NAP covered crops, part 1437 of this title.
    (b) County average yield for loss calculations will be the average 
of the 2001 through 2005 official county yields established by FSA, 
excluding the years with the highest and lowest yields, respectively.
    (c) County committees will assign production or reduce the historic 
yield when the county committee determines:
    (1) An acceptable appraisal or record of harvested production does 
not exist;
    (2) The loss is due to an ineligible cause of loss or practices, 
soil type, climate, or other environmental factors that cause lower 
yields than those upon which the historic yield is based;
    (3) The participant has a contract providing a guaranteed payment 
for all or a portion of the crop; or
    (4) The crop was planted beyond the normal planting period for the 
crop.
    (d) The county committee will establish a maximum average loss 
level that reflects the amount of production producers would have 
produced if not for the eligible damaging weather or related conditions 
in the area or county for the same crop. The maximum average loss level 
for the county will be expressed as either a percent of loss or yield 
per acre. The maximum average loss level will apply when:
    (1) Unharvested acreage has not been appraised by FSA, or a company 
reinsured by FCIC; or
    (2) Acceptable production records for harvested acres are not 
available from any source.
    (e) Assignment of production or reduction in yield will apply for

[[Page 72872]]

practices that result in lower yields than those for which the historic 
yield is based.


Sec.  760.809  Eligible damaging conditions.

    (a) Except as provided in paragraphs (b) and (c) of this section, 
to be eligible for benefits under this part the loss of the crop, or 
reduction in quality, or prevented planting must be due to damaging 
weather or related conditions as defined in Sec.  760.802.
    (b) Benefits are not available under this part for any losses in 
quantity or quality, or prevented planting due to:
    (1) Poor farming practices;
    (2) Poor management decisions; or
    (3) Drifting herbicides.
    (c) With the exception of paragraph (d) of this section, in all 
cases, the eligible damaging condition must have directly impacted the 
specific crop or crop acreage during its planting or growing period.
    (d) If FSA has determined that there has been an eligible loss of 
surface irrigation water due to drought and such loss of surface 
irrigation water impacts eligible crop acreage, FSA may approve 
assistance to the extent permitted by section 760.814.


Sec.  760.810  Qualifying 2005, 2006, or 2007 quantity crop losses.

    (a) To receive benefits under this part, the county committee must 
determine that because of eligible damaging weather or related 
condition specifically impacting the crop or crop acreage, the 
participant with respect to the 2005, 2006, or 2007 crop:
    (1) Was prevented from planting a crop;
    (2) Sustained a loss in excess of 35 percent of the expected 
production of a crop; or
    (3) Sustained a loss in excess of 35 percent of the value for value 
loss crops.
    (b) Qualifying losses under this part do not include losses:
    (1) For the 2007 crop, those acres planted, or in the case of 
prevented planting, would have been planted, on or after February 28, 
2007;
    (2) That are determined by FSA to be the result of poor management 
decisions, poor farming practices, or drifting herbicides;
    (3) That are the result of the failure of the participant to re-
seed or replant the same crop in the county where it is customary to 
re-seed or replant after a loss;
    (4) That are not as a result of a damaging weather or a weather 
related condition specifically impacting the crop or crop acreage;
    (5) To crops not intended for harvest in crop year 2005, 2006, or 
2007;
    (6) Of by-products resulting from processing or harvesting a crop, 
such as cottonseed, peanut shells, wheat, or oat straw;
    (7) To home gardens;
    (8) That are a result of 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; or
    (9) If losses could be attributed to conditions occurring outside 
of the applicable crop year growing season.
    (c) Qualifying losses under this part for nursery stock will not 
include losses:
    (1) For the 2007 crop, that nursery inventory acquired on or after 
February 28, 2007;
    (2) Caused by a failure of power supply or brownouts;
    (3) Caused by the inability to market nursery stock as a result of 
lack of compliance with State and local commercial ordinances and laws, 
quarantine, boycott, or refusal of a buyer to accept production;
    (4) Caused by fire unless directly related to an eligible natural 
disaster;
    (5) Affecting crops where weeds and other forms of undergrowth in 
the vicinity of the nursery stock have not been controlled; or
    (6) Caused by the collapse or failure of buildings or structures.
    (d) Qualifying losses under this part for honey, where the honey 
production by colonies or bees was diminished, will not include losses:
    (1) For the 2007 crop, for production from those bees acquired on 
or after February 28, 2007;
    (2) Where the inability to extract was due to the unavailability of 
equipment, the collapse or failure of equipment, or apparatus used in 
the honey operation;
    (3) Resulting from storage of honey after harvest;
    (4) To honey production because of bee feeding;
    (5) Caused by the application of chemicals;
    (6) Caused by theft, fire, or vandalism;
    (7) Caused by the movement of bees by the producer or any other 
person; or
    (8) Due to disease or pest infestation of the colonies.
    (e) Qualifying losses for other value loss crops, except nursery, 
will not include losses for the 2007 crop that were acquired on or 
after February 28, 2007.
    (f) Loss calculations will take into account other conditions and 
adjustments provided for in this part.


Sec.  760.811  Rates and yields; calculating payments.

    (a)(1) Payments made under this part to a participant for a loss of 
quantity on a unit with respect to yield-based crops are determined by 
multiplying the average market price times 42 percent, times the loss 
of production which exceeds 35 percent of the expected production, as 
determined by FSA, of the unit.
    (2) Payments made under this part to a participant for a quantity 
loss on a unit with respect to value-based crops are determined by 
multiplying the payment rate established for the crop by FSA times the 
loss of value that exceeds 35 percent of the expected production value, 
as determined by FSA, of the unit.
    (3) As determined by FSA, additional quality loss payments may be 
made using a 25 percent quality loss threshold. The quality loss 
threshold is determined according to Sec.  760.817.
    (b) Payment rates for the 2005, 2006, or 2007 year crop losses will 
be 42 percent of the average market price.
    (c) Separate payment rates and yields for the same crop may be 
established by the State committee as authorized by the Deputy 
Administrator, when there is supporting data from NASS or other sources 
approved by FSA that show there is a significant difference in yield or 
value based on a distinct and separate end use of the crop. Despite 
potential differences in yield or values, separate rates or yields will 
not be established for crops with different cultural practices, such as 
those grown organically or hydroponically.
    (d) Production from all end uses of a multi-use crop or all 
secondary uses for multiple market crops will be calculated separately 
and summarized together.
    (e) Each eligible participant's share of a disaster payment will be 
based on the participant's ownership entitlement share of the crop or 
crop proceeds, or, if no crop was produced, the share of the crop the 
participant would have received if the crop had been produced. If the 
participant has no ownership share of the crop, the participant is 
ineligible for assistance under this part.
    (f) When calculating a payment for a