Noninsured Crop Disaster Assistance Program, 74561-74583 [2014-29082]
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Vol. 79
Monday,
No. 240
December 15, 2014
Part VI
Department of Agriculture
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Farm Service Agency
7 CFR Part 718
Commodity Credit Corporation
7 CFR Parts 1412, 1416, and 1437
Noninsured Crop Disaster Assistance Program; Interim Rule
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Federal Register / Vol. 79, No. 240 / Monday, December 15, 2014 / Rules and Regulations
DEPARTMENT OF AGRICULTURE
Farm Service Agency
7 CFR Part 718
Commodity Credit Corporation
7 CFR Parts 1412, 1416, and 1437
RIN 0560–AI20
Noninsured Crop Disaster Assistance
Program
Commodity Credit Corporation
and Farm Service Agency, USDA.
ACTION: Interim rule.
AGENCY:
This rule implements changes
to the Noninsured Crop Disaster
Assistance Program (NAP) as required
by the Agricultural Act of 2014 (the
2014 Farm Bill), including changes to
eligible crops, provisions governing
eligibility of native sod acreage,
additional coverage levels, and waivers
of service fees and premium reductions
for beginning, limited resource, and
socially disadvantaged producers. This
rule also clarifies requirements for
eligible types and causes of loss and
expands coverage for eligible mollusk
and other aquaculture losses. This rule
clarifies that the Farm Service Agency
(FSA) may set separate market prices for
organic crops and for direct to consumer
sales. The changes are relatively minor
and do not change the core purpose of
NAP, which is to provide financial
assistance to producers of non-insurable
crops when low yield, loss of inventory,
or prevented planting occurs due to a
natural disaster.
DATES: Effective Date: December 15,
2014.
Comment Date: We will consider
comments that we receive by February
13, 2015.
ADDRESSES: We invite you to submit
comments on this interim rule. In your
comment, include the Regulation
Identifier Number (RIN) and the
volume, date, and page number of this
issue of the Federal Register. You may
submit comments by any of the
following methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
online instructions for submitting
comments.
• Mail, hand delivery, or courier:
Steve Peterson, Production,
Emergencies and Compliance Division,
Farm Service Agency (FSA), United
States Department of Agriculture
(USDA), Stop 0517, 1400 Independence
Avenue SW., Washington, DC 20250–
0517.
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SUMMARY:
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Comments will be available online at
https://www.regulations.gov. In addition,
comments will be available for public
inspection at the above address during
business hours from 8 a.m. to 5 p.m.,
Monday through Friday, except
holidays. A copy of this interim rule is
available through the FSA home page at
https://www.fsa.usda.gov/.
FOR FURTHER INFORMATION CONTACT:
Steve Peterson, telephone: (202) 720–
7641. Persons with disabilities who
require alternative means for
communication (Braille, large print,
audiotape, etc.) should contact the
USDA Target Center at (202) 720–2600
(voice).
SUPPLEMENTARY INFORMATION:
Background
FSA administers NAP for the
Commodity Credit Corporation (CCC) as
authorized by section 196 of the Federal
Agriculture Improvement and Reform
Act of 1996, as amended (7 U.S.C.
7333). The NAP regulations are in 7 CFR
part 1437. NAP is administered under
the general supervision of the FSA
Administrator (who also serves as the
CCC Executive Vice-President) and is
carried out by FSA State and county
committees. NAP coverage is limited to
crops other than livestock that are
commercially produced for food and
fiber, and to other specific crops for
which catastrophic coverage under
section 508(b) or additional coverage
under sections 508(c) or 508(h) under
the Federal Crop Insurance Act (7 U.S.C.
1508(b), (c), and (h)) is not available.
Qualifying losses to eligible NAP crops
must be due to an eligible cause of loss
as specified in 7 CFR part 1437, which
includes damaging weather (drought,
hurricane, freeze, etc.) or adverse
natural occurrence (volcanic eruption,
flood, etc.). NAP coverage is not
automatic; producers must first apply
for NAP coverage by an application
closing date. That application is not
filed unless it is accompanied by the
service fee. The producer must file the
application for coverage accompanied
by the appropriate service fee (or service
fee waiver) at their FSA county office in
order to be eligible for NAP coverage. It
is important producers understand that
the law specifies that an application for
coverage must be accompanied by the
service fee and be filed no later than 30
days before the beginning of any
coverage period. Therefore, the NAP
application for coverage and payment of
the service fee must be completed before
any coverage can begin or attach. In
addition, in the event a loss claim is
filed for which premium fees are due
premium fees will be first deducted
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from the NAP payment earned. Losses
occurring outside a coverage period are
not eligible for NAP coverage. Producers
who choose not to obtain NAP coverage
for a crop or commodity are not eligible
for NAP assistance on the crop or
commodity. The core provisions of NAP
are not changing with this rule.
The 2014 Farm Bill (Pub. L. 113–79)
made a number of changes to NAP. This
rule amends the NAP regulations to be
consistent with those changes made by
the 2014 Farm Bill. The changes include
revised NAP eligibility requirements for
tilled native sod, added coverage
eligibility for sweet sorghum and
biomass sorghum, and modified
coverage for industrial crops. Beginning,
limited resource, and socially
disadvantaged farmers and ranchers will
be eligible for service fee waivers. New
‘‘buy up’’ provisions will allow
producers to buy additional NAP
coverage for a premium, resulting in a
risk management product that has
equivalent coverage levels to some types
of crop insurance offered by the Risk
Management Agency (RMA).
This rule makes discretionary changes
to clarify eligible losses, and to redefine
coverage for mollusks. Another
discretionary change adds a requirement
for NAP participants to notify FSA of
losses within 72 hours for certain crops,
including hand-harvested crops, which
require a timely assessment of loss
before the damaged crop deteriorates.
This rule clarifies that FSA may set
separate market prices for the same crop
in a state based on farming practices
(conventional or organic) or sales to
different markets (wholesale or direct to
consumer).
NAP Assistance for 2012 Fruit Crop
Losses
The 2014 Farm Bill requires USDA to
provide retroactive 2012 NAP assistance
for losses to fruit crops grown on trees
or bushes in counties that had
Secretarial disaster designations due to
frost or freeze. The eligibility provisions
for that assistance were previously
announced in a Notice of Funds
Availability (79 FR 42493–42499) and
are not addressed in this rule.
Definitions Added or Revised in This
Rule
The changes required by the 2014
Farm Bill and the clarifying
discretionary changes require new
definitions. This rule adds the following
definitions to 7 CFR 1437.3,
‘‘Definitions:’’ ‘‘acres devoted to the
crop,’’ ‘‘agricultural experts,’’
‘‘application for coverage,’’ ‘‘bypass
year,’’ ‘‘buffer zone,’’ ‘‘buy-up
coverage,’’ ‘‘buy-up coverage yield,’’
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‘‘certified organic acreage,’’ ‘‘certifying
agent,’’ ‘‘conventional farming
practice,’’ ‘‘feedstock,’’ ‘‘generally
recognized,’’ ‘‘guarantee,’’ ‘‘maximum
dollar value for coverage sought,’’
‘‘organic agricultural experts,’’ ‘‘organic
crop,’’ ‘‘organic system plan,’’ ‘‘organic
standards,’’ ‘‘prohibited substance,’’
‘‘short rotation woody crops,’’ and
‘‘transitional acreage.’’ This rule revises
the definitions for ‘‘application closing
date,’’ ‘‘catastrophic coverage,’’ ‘‘crop
year,’’ ‘‘good farming practices,’’
‘‘industrial crop,’’ and ‘‘native sod.’’
These new and revised terms are needed
to clarify the new provisions of this
rule. For example, the definitions for
‘‘feedstock,’’ ‘‘industrial crop,’’ and
‘‘short rotation woody crops’’ are
needed to implement the changes
required by the 2014 Farm Bill to add
certain biomass feedstocks as eligible
crops and to clarify the existing
provisions for industrial crops.
Definitions of ‘‘agricultural experts’’ and
‘‘organic agricultural experts’’ are
needed because those terms are used in
the context of determining appropriate
farming practices for specific crops and
locations. The new provisions
concerning specific market prices and
practices for organic crops requires
adding definitions for ‘‘buffer zone,’’
‘‘certified organic acreage,’’ ‘‘certifying
agent,’’ ‘‘organic crop,’’ ‘‘organic system
plan,’’ ‘‘organic standards,’’ ‘‘prohibited
substance,’’ and ‘‘transitional acreage.’’
The new ‘‘buy-up coverage’’ required
several additional terms to clarify the
provision on premium calculations.
NAP Eligibility for Crops and Practices
Not Covered by Federal Crop Insurance
This rule implements changes
required by the 2014 Farm Bill with
regard to NAP crop eligibility. Before
the 2014 Farm Bill, NAP coverage was
available on certain eligible crops for
which a catastrophic risk protection
plan of insurance (CAT) was
unavailable from RMA. (A CAT-level of
Federal crop insurance offered by RMA
pays 55 percent of the price of the
commodity established by RMA on crop
losses in excess of 50 percent.) NAP was
offered at CAT-levels only on those
crops. Prior to the required changes
made by the 2014 Farm Bill, in some
cases, NAP could be made available to
certain eligible crops that had other
forms of insurance (additional coverage
under sections 508(c) or 508(h))
available under the Federal Crop
Insurance Act. The 2014 Farm Bill
amends NAP crop eligibility. As
amended, NAP is not available for crops
for which CAT under section 508(b) or
additional coverage under sections
508(c) or 508(h) of the Federal Crop
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Insurance Act are available. Therefore, if
either CAT or additional coverage
(excluding pilot policies or plans of
insurance) is available for a crop, NAP
is not available.
In addition to the mandatory change
just described, FSA is making a
discretionary clarification that NAP
coverage may be made available for
certain eligible crops for certain
practices not covered under CAT or
additional coverage under sections
508(c) or (h). An example of this could
be where CAT or additional coverage is
available for irrigated corn grain crop
acreage in a county but CAT and
additional coverage is unavailable for
non-irrigated corn crop acreage. In this
example, if FSA determines that
producing non-irrigated corn in the
county is a good farming practice and
that Federal crop insurance is
unavailable because of a lack of
actuarial data, NAP can be made
available to non-irrigated corn acreage
in the county. This discretionary
decision to make NAP available to corn
that is not irrigated will provide
producers with risk management
protection. Coverage under NAP under
this exception will be limited to
situations when the unavailability of
CAT coverage is due to a lack of
actuarial data and not due to an absence
of good farming practices or due to
hardiness zones.
Native Sod
This rule makes mandatory changes to
the eligibility of producers who grow
crops on native sod as required by
section 11014 of the 2014 Farm Bill.
Prior to this rule, the regulations
allowed that the Governor of a State in
the Prairie Pothole National Priority
Area (specific counties within the States
of Iowa, Minnesota, Montana, North
Dakota, and South Dakota) could elect
that producers newly tilling native sod
(specifically, that was tilled for the
production of an annual crop) would
have been ineligible for Federal crop
insurance and for NAP benefits during
the first 5 crop years of planting that
annual crop. However, the governors
were not required to make that decision
and the producers of tilled native sod
would have continued to be eligible for
both Federal crop insurance and NAP in
those States, as such decision was
discretionary. The 2014 Farm Bill
requires a reduction of benefits for
native sod acreage in Iowa, Minnesota,
Montana, Nebraska, North Dakota, and
South Dakota. There is no longer any
discretion given to governors of those
States. The reduced eligibility period is
now the first four crop years of planting.
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Under the 2014 Farm Bill and this
rule, for the first four years of planting
on native sod acreage, the NAP service
fee and premiums for crops planted on
that acreage will be 200 percent of the
amount calculated according to 7 CFR
1437.6, although the premium cannot
exceed the maximum premium amount
of 5.25 percent times the payment
limitation. The payment limit is
$125,000, so the maximum premium
amount is $6,562.50. In addition, the
approved yield will be equal to 65
percent of the T-yield for the crop. (The
T-yield, as specified in 7 CFR 1437.3, is
the estimated county yield that is used
when a producer does not have 4 years
of actual production history.) This rule
also amends the definition of ‘‘native
sod’’ to conform to the amended
definition established by the 2014 Farm
Bill to specify that it includes land that
a producer cannot substantiate has ever
been tilled as of February 7, 2014. The
2014 Farm Bill does not change the de
minimis acreage exemption, which
applies to areas of 5 acres or less and is
clarified in this rule to be consistent
with the RMA provisions.
Eligible NAP Crops
Eligible NAP crops currently include
commercial crops: Crops grown for food
(excluding livestock and their byproducts); crops planted and grown for
livestock consumption; crops grown for
fiber (excluding trees grown for wood,
paper, or pulp products); aquaculture
species crops (including ornamental
fish); floriculture; ornamental nursery;
Christmas tree crops; turf grass sod;
industrial crops; seed crops; and sea
grass and sea oats. As required by the
2014 Farm Bill, this rule adds sweet
sorghum and biomass sorghum as
eligible crops.
The 2014 Farm Bill and this rule
clarify that ‘‘industrial crops’’ include
crops grown expressly for the purpose
of producing a feedstock for renewable
biofuel, renewable electricity, or
biobased products. For the purpose of
implementing this clarification to
‘‘industrial crops,’’ this rule also adds a
definition of ‘‘feedstock’’ in § 1437.3 to
include only crops grown expressly for
biofuel; residues and by-products of
crops grown for a purpose other than
biofuel are not eligible for NAP
coverage. This rule excludes crops that
are invasive or noxious plants from
‘‘industrial crops’’ to be consistent with
Executive Order 13112, which prohibits
Federal agencies from funding or
carrying out actions that ‘‘are likely to
cause or promote the introduction or
spread of invasive species in the United
States.’’ The determination of whether a
species is invasive or noxious varies by
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State, and FSA State committees will
consult with the State technical
committees for recommendations
concerning the invasive and noxious
status for otherwise eligible crops for
the purposes of NAP. Information on
ineligible species will be available in
FSA county offices.
Eligible Causes of Loss
This rule specifies that in limited
instances, insufficient chill hours is an
eligible cause of loss by itself for
specific crops and locations for which
FSA has determined, in advance of a
coverage period, based on its review of
sufficient scientific evidence, that chill
hours are required for the crop to
produce and a lack of chill hours is
detrimental to crop production
irrespective of management. In cases
where FSA makes the decision to
include insufficient chill hours as an
eligible cause of loss by itself for a crop
and location, the crop and location and
subsequent crop year coverage period
for which the decision will apply will
be specified in a list maintained by FSA
and available at FSA county offices. If
the crop and location is not on that list,
then insufficient chill hours can only be
an eligible cause of loss if the
insufficient chill hours was related to
damaging weather or an adverse natural
occurrence (as specified in
§ 1437.10(b)(1) or (b)(2)). This is
consistent with current policy.
FSA is also making discretionary
changes to clarify and specify additional
ineligible causes of loss under this rule.
Causes of loss that were previously
ineligible will continue to be ineligible
under this rule, except for insufficient
chill hours as discussed above. This rule
also clarifies that ineligible causes of
loss include: Failure to carry out a good
irrigation practice; variance of
temperatures from average normal
temperatures that are not otherwise
specified as eligible causes of loss;
managerial decisions to attempt to grow
or produce a crop in an area that is not
suited for successful commercial
production of that crop; for aquaculture,
loss of inventory or missing noncontainerized inventory resulting from a
managerial decision not to seed or raise
the crop in containers, net pens, or wire
baskets, on ropes, or using similar
devices (except as provided for
mollusks in this rule); failure to follow
organic farming practices or
contamination by application or drift of
prohibited substances onto organic
crops; weeds; and any cause of loss that
results in damage that is not evident or
would not have been evident during the
NAP coverage period. The addition of
these causes of loss is discretionary and
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is intended to provide clarification and
consistency with the intent of NAP to
provide coverage only for losses due to
drought, flood, or other natural disaster,
as determined by the Secretary, which
has been interpreted to include
damaging weather and adverse natural
occurrences and related conditions. FSA
is adding ropes as a device on which
aquacultural species are raised because
aquacultural species, including mussels
and other aquatic organisms such as
kelp, are seeded and raised on ropes.
FSA is adding ropes as an example of
a containment device. The Deputy
Administrator for Farm Programs will
determine on a species by species, area
by area, and practice by practice basis
whether ropes provide the necessary
containment and protection.
Buy-Up Coverage Levels and Premiums
Prior to the passage of the 2014 Farm
Bill, NAP provided only one level of
coverage, equivalent to CAT risk
protection available under section
508(b) of the Federal Crop Insurance
Act. This CAT-level protection covers
losses due to low yield that are greater
than 50 percent of expected production.
As specified in current regulations in 7
CFR part 1437, NAP payments for low
yield are calculated based on the
amount of loss that exceeds 50 percent
of expected production at 55 percent of
the average market price for the crop.
This means that the maximum NAP
payment for a total loss under CAT-level
coverage is 27.5 percent (50 percent of
55 percent) of the value of the covered
crop or commodity. Under NAP,
prevented planting was calculated not
on a loss of expected yield, but based on
acreage prevented from being planted
based on total acreage intended to be
planted in a crop year. A NAP
prevented planting payment was issued
based on the eligible approved
prevented planted crop acreage in
excess of 35 percent of total planted and
prevented planted acreage times 55
percent of the average market price of
the crop. NAP CAT-level coverage is
available for a service fee of $250 per
crop per county, up to $750 per county,
not to exceed $1,875 per producer—this
rule does not change the service fee for
CAT-level coverage.
NAP will continue to offer CAT-level
coverage for eligible crops. For the 2015
through 2018 crop years, the 2014 Farm
Bill authorizes additional levels of
coverage equivalent to coverage under
subsections (c) and (h) of section 508 of
the Federal Crop Insurance Act. This
means that producers may select buy-up
coverage ranging from 50 to 65 percent
of production, in 5 percent increments,
and for 100 percent of the average
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market price. In other words, all buy-up
coverage levels are at 100 percent of the
average market price. If a producer
elects buy-up coverage for a crop,
prevented planting on that crop will be
calculated as it was before but with 100
percent of the average market price.
Payment factors (for acres prevented
from being planted, planted and not
harvested, and planted and harvested)
will continue to be applied as they were
before. Crops and grasses intended for
grazing are specifically excluded from
buy-up coverage by the 2014 Farm Bill.
To obtain buy-up coverage, producers
are required to pay a premium, equal to
5.25 percent times the level of coverage,
in addition to the NAP service fee. The
coverage levels and premium
calculations are specified in the 2014
Farm Bill and FSA has no discretion to
offer different coverage levels or
premiums.
Premiums for additional coverage will
be calculated as the product of the
producer’s share of the NAP covered
crop, times the number of eligible acres
devoted to the crop, times the approved
yield per acre, times the coverage level,
times the average market price, times a
5.25 percent premium fee. The
maximum premium per producer, as
specified in the 2014 Farm Bill, is
$6,562.50 (the product of the applicable
payment limitation of $125,000 times a
5.25 percent premium fee for the
maximum level of coverage).
For example, if Farmer Smith has a
100 percent share interest in 20 acres of
apple trees intended for the fresh
market, and the approved yield per acre
for that crop is 450 bushels, and the
average fresh market price is $10.00 per
bushel, and the coverage level is 65
percent, the premium will be 1.000 (100
percent share) times 20 (acres) times 450
(bushels per acre) times 0.65 (coverage
level of 65 percent) times $10.00 (price
per bushel) times 0.0525 (premium
factor), which equals $3,071.25. If
Farmer Smith suffers a 100 percent loss,
the payment would be calculated as
1.000 (100 percent share) times 20
(acres) times 450 (bushels per acre)
times 0.65 (coverage level) minus 0
bushels (actual production) times
$10.00 (price per bushel), which equals
a NAP payment of $58,500.
Buy-up coverage will also be available
for value loss crops. NAP payments for
value loss crops are based on the field
market value of the crop before the
disaster rather than on an approved
yield. Examples of value loss crops
include aquaculture, floriculture and
ornamental nursery. The value of a crop
before a potential disaster will be
unknown at the time of premium
calculation due to variations in
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inventory and field value throughout
the crop year. As a result, premiums for
value loss crop will be based on the
maximum dollar value for which a
producer requests coverage, subject to
applicable payment limitation, times the
5.25 percent premium. In the event of a
loss, the NAP payment will be
calculated using the lesser of the field
market value of the crop before the
disaster or the maximum dollar value
for which the producer requested
coverage at the time of application.
The regulations discuss application
closing dates. Because 2015 application
closing dates for some crops have
already passed before FSA published
this rule and made buy-up coverage
available, with this rule producers may
still nonetheless obtain buy-up coverage
for those crops for the 2015 crop year by
submitting an application for coverage
requesting buy-up coverage and paying
the service fee, even if the producer did
not previously obtain CAT-level
coverage and pay the service fee for the
crop, by January 14, 2015. FSA needed
time to develop the regulatory changes
required to implement the new
provisions as required by the 2014 Farm
Bill, including completing additional
necessary work, such as updating
handbooks and training staff. Therefore,
it seemed reasonable to provide this
retroactive option because producers
did not know what the changes or
available options would be when they
typically would have been required to
purchase NAP coverage. In addition, if
there are application closing dates near
the publication of this rule, those
producers will also be given 30 days
from the date of publication of this rule
to submit an application for coverage to
ensure they are able to make their
decision to purchase NAP coverage
based on consideration of these
regulatory changes.
CAT-level coverage for the 2015 crop
year was available prior to the
application closing date prior to this
rule; therefore, the deadline to apply for
CAT-level coverage is not extended.
Coverage Periods
This rule clarifies that, regardless of
when the coverage period generally
begins for any crop, a producer’s own
individual coverage for a crop that must
fall within the general coverage period
can start no earlier than 30 calendar
days after the producer’s application for
coverage is filed, except as discussed
below. FSA is making this change to be
consistent with the requirements of 7
U.S.C. 7333.
This rule provides an exception for
the 2015 crop year for crops with
application closing dates that have
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passed prior to publication of this rule.
For those crops, if a producer did not
apply for NAP coverage prior to the
application closing date but files an
application for coverage and elects buyup coverage by January 14, 2015, the
coverage period will begin as specified
for the crop in 7 CFR 1437.6, without
regard to the date the application for
coverage is filed. Under this exception,
producers must elect buy-up coverage,
but such coverage can be for any level
available under such buy-up coverage.
Producers who previously purchased
CAT-level coverage prior to the
application closing date for those crops
may also elect buy-up coverage until
January 14, 2015. As noted above, if
there are application closing dates near
the publication of this rule, those
producers will also be given 30 days
following the publication of this rule to
ensure they have the same period in
which to make a decision to purchase
NAP coverage based on consideration of
these regulatory changes.
Service Fee Waiver and Premium
Reduction
Prior to this rule, the NAP regulations
waived the service fee for producers
who met the definition of ‘‘limited
resource farmer’’ in 7 CFR 457.8. The
2014 Farm Bill continues to waive
service fees for limited resource farmers
and ranchers and now waives service
fees for beginning and socially
disadvantaged farmers and ranchers as
well. In addition to the service fee
waiver, beginning, limited resource, and
socially disadvantaged farmers and
ranchers who elect buy-up coverage are
also eligible for a 50 percent premium
reduction. For the purpose of this rule,
‘‘beginning,’’ ‘‘limited resource,’’ and
‘‘socially disadvantaged farmer and
rancher’’ are defined in 7 CFR part 718.
To be eligible for the service fee waiver
or premium reduction, persons or legal
entities must provide a certification of
their status as beginning, limited
resource, or socially disadvantaged at
the time they file an application for
coverage, if they have not already filed
that certification with FSA.
For the 2014 crop year, the expanded
service fee waiver will apply
retroactively. In the extension of
authorization document published on
March 28, 2014 (79 FR 17388–17390),
FSA announced that beginning and
socially disadvantaged farmers and
ranchers who paid the service fee for the
2014 crop year before enactment of the
2014 Farm Bill would be refunded the
service fee.
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Notice of Loss and Completion of
Harvest
This rule clarifies requirements for
filing a notice of loss. As specified in
the NAP regulations, a written notice of
loss must be filed for prevented planting
claims within 15 calendar days after the
final planting date, or for yield claims
or value loss, by the earlier of 15
calendar days after the disaster
occurrence or date of loss or damage to
the crop first becomes apparent, or the
normal harvest date. These
requirements for a written notice of loss
are not changing with this rule.
In addition to the written notice of
loss, FSA is making a discretionary
change to add a requirement to provide
notice to the administrative county
office within 72 hours for certain crops,
including hand-harvested crops and
other crops as determined by FSA, if
earlier notice is needed in order to
conduct an accurate loss assessment of
the crop because of the rate at which
certain crops (these crops ordinarily
include hand harvested fruit and
vegetable crops that can rapidly
deteriorate and confound loss
adjustment work) decompose in the
field after a loss event and the reduced
ability to discern if alleged damage
occurred due to an eligible cause of loss
as opposed to other factors. For
example, if a freeze damages a crop of
tomatoes, the participant is required to
provide notice to FSA of damage or loss
to the tomatoes within 72 hours of when
damage is first apparent to the NAP
covered producer. The earlier notice,
which is not required to be in writing,
provides FSA an opportunity to assess
the loss before the damaged crop
deteriorates and while the amount of
loss attributable to a specific eligible
cause of loss is still apparent. This
provision is consistent with RMA’s
notification requirements for crop
insurance.
Producers of hand-harvested crops,
under the prior rule, were required to
provide FSA with notification that
harvest is complete within 15 days of
when damage or loss was first apparent.
This rule changes that deadline from 15
days to within 72 hours. This
discretionary change allows FSA to
make a more accurate appraisal before
the crop deteriorates or before evidence
of the crop suffering a loss due to an
eligible of loss diminishes or is lost in
order to differentiate between legitimate
losses versus production left in a field
because of quality or unmarketable
because of the lack of market.
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Late-Planted Acreage
This rule makes discretionary changes
to the late planting provisions in 7 CFR
1437.103 to add an exception to the rule
that crops having multiple planting
periods and value loss crops are not
eligible for reduced coverage for late
planting. The exception added by this
rule makes reduced NAP coverage
available for the last planting period of
multiple planted crops and multipleplanting periods having a defined gap of
60 days or more between the harvest
date of the previous planting period and
beginning of the immediately following
planting period.
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Average Market Prices
This rule makes discretionary changes
to clarify how average market prices are
established as specified in 7 CFR
1437.12. NAP payments are calculated
using average market prices, which are
determined by FSA. Prior to this rule,
an average market price was established
for each crop and, if practicable, for
each intended use of a crop on a
harvested basis without the inclusion of
transportation, storage, processing,
marketing, or other post-harvest
expenses. Prices should reflect the
average market price actually received
by producers, which may vary by state.
The average market price has been
typically established on a state-by-state
basis, meaning that all NAP payments
for a crop and, if applicable, for an
intended use within a state would be
based on the same average market price.
Average market prices are based on the
best available data (including National
Agricultural Statistics Service (NASS)
data, National Institute of Food and
Agriculture (NIFA) data, knowledge of
local markets, etc.) and are comparable
(though not required to be equal) to
established Federal Crop Insurance
Corporation (FCIC) prices. In this rule,
FSA details how it will determine,
average market prices of eligible NAP
crops for subsequent crop years.
This rule clarifies that FSA may
establish separate prices within a state
to reflect the different prices producers
receive based on differences due to
different farming practices
(conventional or organic) and sales to
different markets (wholesale, direct
sales to consumers at farm stands or
farmer’s markets, etc.). These changes to
average market price provisions do not
extend NAP coverage to additional
producers or crops; changes made by
this rule will allow an eligible producer
to obtain NAP coverage for eligible
crops grown with organic farming
practices or intended to be marketed
directly to consumers. This rule simply
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clarifies that when sufficient data is
available, FSA may establish separate
average market prices within a State that
more closely reflect the prices obtained
by producers based on the specific
situations.
To be eligible to receive payment
based on an organic price, producers
must report their organic acreage of the
crop. Producers reporting organic
acreage of a crop must be certified or
exempt from certification according to
the National Organic Program
regulations at 7 CFR part 205 and must
provide a copy of their organic system
plan to FSA. Yields will be adjusted as
needed to reflect yields for crops using
organic production methods. This rule
also adds definitions related to organic
acreage and production in order to
implement these changes.
All of the definitions in this rule
related to organic production and
certification are consistent with
definitions used by AMS and with the
basic provisions for Federal crop
insurance used by RMA. Specifically,
the definitions for ‘‘buffer zone,’’
‘‘certified organic acreage,’’ ‘‘certifying
agent,’’ conventional farming practice,’’
the specification of organic farming
practices within the definition for ‘‘good
farming practices,’’ ‘‘organic agricultural
experts,’’ ‘‘organic crop,’’ ‘‘organic
farming practice,’’ ‘‘organic standards,’’
‘‘prohibited substance,’’ and
‘‘transitional acreage’’ are identical to or
consistent with those terms as used in
the Federal crop insurance basic
provisions. The terms ‘‘certified organic
acreage,’’ ‘‘good farming practices,’’
‘‘organic crop,’’ ‘‘organic farming
practice,’’ ‘‘organic system plan,’’
‘‘organic standards,’’ and ‘‘prohibited
substance’’ reference the AMS National
Organic Program regulations, the
Organic Foods Production Act of 1990
(7 U.S.C. 6501–6523), or both.
When prices are established by
intended use, producers with buy-up
coverage, but without sufficient
evidence of the historical intended and
actual use or market as reflected in
production records and final
disposition, and those with CAT-level
coverage will have NAP payments
calculated using the average market
price of the predominant final use of the
crop. If a producer elects buy-up
coverage and provides sufficient
evidence of the intended use
percentages of the crop in prior crop
years, the NAP payment will be
calculated based on those percentages
instead of using only the price from the
predominant final use. Premiums for
producers who elect buy-up coverage
will be based on the intended use of the
crop based on the acreage report.
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If different prices are established for
crops intended for different markets of
an intended use of a crop, such as
wholesale or directly to consumers
through farmers markets or farm stands,
and where FSA has established average
market prices based on different
markets, producers who elect buy-up
coverage and provide acceptable
documentation may elect NAP
assistance calculated based on those
prices.
Approved Yields
Prior to this rule, when a producer
reported acreage for a crop year, but
failed to certify a report of production,
regardless of whether that producer
obtained NAP coverage for that year, an
assigned yield or zero-credited yield
was used in the producer’s actual
production history for calculation of
that producer’s approved yield in later
years. This rule defines ‘‘bypass year’’ to
include years when the producer did
not obtain coverage for the crop and
does not file a report of acreage or
production. The rule makes a
discretionary change to stop using
assigned yields and zero-credited yields
for bypass years in the calculation of a
producer’s approved yield. This change
is intended to encourage increased
participation in NAP by preventing an
adverse impact on producers who
choose not to report production during
years when they do not have NAP
coverage but choose to elect NAP
coverage in later years. The policy
regarding assigned yields and zerocredited yields for producers who have
NAP coverage, but do not report
production, is not changing under this
rule.
This rule allows replacement of
assigned yields and zero-credited yields
in a producer’s actual production
history (APH) for the 1995 through 2014
crop years with yields equal to the
higher of 65 percent of the current crop
year T-yield (as defined 7 CFR 1437.3)
or the missing crop year’s actual yield.
As with the change discussed above for
bypass years, this discretionary change
is intended to encourage increased
participation in NAP and to avoid
penalizing producers who did not report
production in a year in which they did
not have NAP coverage.
Adjustment of Production for Quality
Losses
To provide improved risk protection
that addresses losses in a similar
manner to some past ad hoc disaster
programs, the NAP payment calculation
for yield losses will allow an adjustment
of net production due to quality losses
for crops and locations approved by
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FSA. This change allows NAP to
provide risk protection for quality losses
in limited situations when a specific
crop in a given location typically does
not suffer yield losses large enough to
result in NAP payments, but does suffer
significant quality losses due to eligible
causes of loss. The requests for quality
adjustments for crops and locations may
be processed through any of the FSA
State offices. The crops and locations
eligible for quality adjustments will be
determined by the Deputy
Administrator for Farm Programs in
advance of the coverage period, only if
supporting documentation of industry
accepted standards for quality discounts
are available. Net production will be
adjusted only if buy-up coverage is
elected and the covered producer elects
to have the quality loss option; no
adjustment will be made if a producer
elects only CAT-level coverage for a
crop. Evidence to support making a
quality loss adjustment must be from
records acceptable to FSA and are
subject to disapproval if FSA is not
satisfied that the alleged loss of quality
occurred as a result of an eligible cause
of loss in the coverage period. If a
producer opts for quality loss
adjustment and an adjustment to the
unit’s net production is made, FSA will
enter the adjusted net production into
the producer’s actual production history
database for the loss year. In other
words, the lower actual yield that
results after adjustment for quality will
be used to compute future year
approved yields.
Aquaculture Coverage
NAP regulations required that for
aquaculture losses to be eligible for
payment, the aquaculture species must
be kept in a controlled environment and
that such species must be planted or
seeded in containers, net pens, wire
baskets, or similar devices designed for
protection and containment. This rule
makes discretionary changes for
aquaculture producers who raise
aquacultural species on a rope and
certain mollusk producers.
As noted above, under changes made
by this rule for eligible causes of loss,
NAP coverage will be available for
aquaculture producers who plant or
seed aquatic species in or on certain
specifically named devices, which now
includes ropes, when it is determined
by the Deputy Administrator for Farm
Programs that the ropes provide the
necessary containment and protection
for the species, area, and practice.
Under changes made by this rule,
with respect to mollusks not planted or
seeded in devices such as containers,
net pens, or wire baskets, on ropes, or
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using similar devices designed for
protection and containment, NAP
coverage for such mollusks will only
cover losses caused by a named tropical
storm, typhoon, or hurricane. This
change is intended to encourage
additional NAP participation by
mollusk producers who do not use
containers or similar devices, while
maintaining integrity in NAP by
covering those producers’ losses only
when their losses are caused by certain
types of natural disasters. Mollusk
producers who continue to seed or raise
mollusks in devices such as containers,
net pens, or wire baskets, on ropes, or
using similar devices designed for
protection and containment as well as
meet all other required conditions
remain eligible for all NAP qualifying
causes of loss for such value loss crops.
For these mollusk producers, the
principal elements of the rule are not
changing.
Certain oyster producers and other
stakeholders requested this change
because the use of containers or similar
devices for the protection and
containment of the species is
inconsistent with certain customary or
ordinary mollusk industry production
methods, particularly for oyster
production on the U.S. East Coast.
USDA data from the 2005 Census of
Aquaculture confirms that about 70
percent of mollusk producers use the
‘‘on bottom’’ production method,
without containers or pens. In 2011 and
2012, hurricanes caused significant
losses for mollusk aquaculture crops.
Mollusk producers who had NAP
coverage in those years and met the
current requirements were compensated
for their losses, but the majority of
mollusk producers did not have NAP
coverage and if they had, they would
not have had any losses that would have
met the NAP eligibility requirements at
that time. (See the Cost Benefit Analysis
Summary section for details about the
impacts.)
The purpose of NAP is to provide risk
management for agricultural operations
as they normally or ordinarily exist and
operate. Removing the requirement to
use containers or similar devices
benefits mollusk producers by offering
NAP coverage for their operations,
independent of how those producers
choose to manage their production. FSA
is therefore amending the regulations to
cover eligible losses of mollusks that are
not grown in containers, net pens, or
wire baskets, on ropes, or using similar
devices. This change permits mollusk
producers who accept the risks of
raising mollusks without containers, net
pens, ropes, wire baskets, or similar
devices to be eligible for NAP coverage;
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however, under such coverage, eligible
losses can only be caused by a named
tropical storm, typhoon, or hurricane. It
would likely benefit primarily U.S. East
Coast oyster producers, as well as
producers of other mollusk aquaculture
crops such as clams and mussels.
Mollusk producers who plant or seed
mollusks in containers, net pens, or
wire baskets, on ropes or using similar
devices designed for protection and
containment and meet all other required
conditions remain eligible for NAP
coverage for all NAP causes of loss. For
these mollusk producers, the principal
elements of the rule are not changing.
As specified in 7 U.S.C. 7333, NAP is
authorized to provide benefits only for
losses that are the result of natural
disaster; 7 U.S.C. 7333 also specifies
that NAP cannot cover losses due to
‘‘the failure of the producer to follow
good farming practices.’’ FSA has
determined that a producer’s decision to
not use containers, net pens, ropes, wire
baskets, or similar devices is not an
example of a poor farming practice or an
example of something that is not a good
farming practice. However, given that
NAP can only pay for losses stemming
from an eligible cause of loss (and not
a decision not to use containers, net
pens, ropes, wire baskets, or similar
devices), this rule specifies that for
mollusks not grown in containers, net
pens, or wire baskets, on ropes, or using
similar devices, only losses caused by
named hurricanes, typhoons, or tropical
storms would be eligible for payment.
NAP coverage does not cover a loss of
mollusks if the producer does not to use
containers to protect the mollusks from
loss caused by other types of adverse
weather, tidal surges, or predators, or
other similar events or causes. Missing
mollusk inventory reported by a
producer that does not use containers,
net pens, ropes, wire baskets, or similar
devices will not be eligible for a NAP
payment unless FSA can determine that
the loss of inventory was a direct result
of a named hurricane, typhoon, or
tropical storm. All other aquaculture
species are still subject to the
requirement to use protective devices.
Additionally, as previously mentioned,
mollusk producers that choose to grow
mollusks in an environment that
consists of containers, net pens, ropes,
wire baskets, or similar devices
designed for protection and
containment remain eligible for all NAP
qualifying losses.
Aquaculture species are considered a
‘‘value loss’’ crop under NAP, which
means that NAP coverage is based on
the market value of the inventory before
the loss event, rather than an expected
yield. This rule does not change NAP
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regulations regarding compensation of
eligible aquaculture losses using a value
loss calculation or the documentation
that must be provided to prove an
eligible loss. Mollusk producers,
whether they choose to keep their
mollusks in controlled environments or
not, are still required to have control of
the waterbed where the mollusks are
grown, as specified in the NAP
regulations, meaning that they must
own or lease the waterbed. The change
being made by this rule merely
eliminates the requirement that a NAPcovered participant seed or raise the
eligible mollusk inventory in containers
or similar devices to be eligible for NAP
coverage. It will not change any of the
requirements for other aquaculture
species.
Forage
This rule makes discretionary changes
to methods used by FSA to establish
losses for grazed acreage. Prior to being
amended by this rule, grazed acreage
losses have been established using two
methods:
(1) Based on the percentages of loss of
similar mechanically-harvested forage
acreage on the farm or on similar farms
in the area when approved yields have
been calculated to determine loss; or
(2) When there is no similar
mechanically-harvested forage acreage
on the farm or similar farms in the area,
on the collective percentage of loss as
determined by FSA for the geographical
region after consideration of at least two
independent assessments of grazed
forage acreage conditions.
This rule specifies additional methods
that FSA may use to establish a
collective percentage of loss based on
independent assessments of grazed
forage acreage conditions; the U. S.
Drought Monitor; information obtained
from loss adjusters with sufficient forage
knowledge to provide grazing loss
assessments; data from approved areas
where clippings are obtained on a
regular basis to compare with expected
levels of production in a geographical
region; and information from Natural
Resources Conservation Service
technical service providers having
specialized knowledge. Additionally,
because the 2014 Farm Bill did not
authorize buy-up coverage for grazed
forage, this rule clarifies how FSA will
treat forage crop acreage intended for
mechanical harvest or grazing when
such acreage is actually put to another
use for producers who either select
catastrophic coverage or buy-up
coverage. The rule specifies that forage
acreage reported to FSA as intended to
be mechanically harvested, but which is
instead, subsequently grazed, will be
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considered for crop definition purposes
as mechanically harvested. The rule also
amends how FSA will determine loss
for acreage intended to be grazed,
including in some cases acreage
intended to be mechanically harvested,
but instead is subsequently grazed for
producers with catastrophic coverage.
The rule also removes a prior
requirement that producers show a
history of forage production in order to
obtain coverage.
Payment and Income Limitation
Section 1605 of the 2014 Farm Bill
establishes payment and income
limitations that apply to 2014 and
subsequent crop, program, or fiscal year
benefits. FSA previously implemented
these payment and income limitations
through the final rule published on
April 14 (79 FR 21086–21118). The
payment and income limitations are
specified in 7 CFR part 1400.
NAP assistance is limited to $125,000
per person or legal entity, directly or
indirectly. Attribution of payments
under 7 CFR part 1400 applies in
administering the payment limitation.
The average AGI limit for most FSA and
CCC programs, including NAP, is
$900,000. The $900,000 limit is for total
average AGI, as opposed to the prior
multiple limits for farm and non-farm
income, and the separate limit for
conservation programs.
Consistency With Basic Provisions
When a producer signs up for NAP
coverage, they receive a copy of the
‘‘basic provisions,’’ which is a
document that explains in detail what is
covered by NAP and how to file a claim.
As part of the application process, the
producer acknowledges that they have
received and agree to the ‘‘basic
provisions.’’ This rule amends 7 CFR
1437.2, ‘‘Administration,’’ to specify
that when the NAP basic provisions are
less restrictive than regulations that
were in effect at the time of signup
(such as the situation that may occur in
2015 where the NAP basic provisions
were provided to participants prior to
amendment and publication of this rule
for the 2015 crop year), the Deputy
Administrator may determine that the
less restrictive provision applies. This
amendment is needed to prevent
adverse results for participants that
relied on the less restrictive basic
provisions provided by FSA when they
applied for NAP coverage. This rule also
amends 7 CFR 1437.3, ‘‘Definitions,’’ to
add a definition of ‘‘basic provisions.’’
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Miscellaneous Conforming and
Editorial Changes
In addition to the changes required by
the 2014 Farm Bill and the substantive
discretionary changes discussed above,
this rule makes a number of nonsubstantive changes to make the
regulations clear and consistent.
Because this rule expands waivers to
beginning farmers and ranchers and that
term is used for several FSA programs,
this rule defines the term in 7 CFR part
718 and makes a conforming change to
remove the term and definition from the
Emergency Assistance for Livestock,
Honeybees, and Farm-Raised Fish
Program (ELAP) regulations in 7 CFR
part 1416. The definition is revised
slightly to match the definition on the
form FSA presents to persons or legal
entities who claim they are beginning
farmers or ranchers and is consistent
with what FSA has determined is a
beginning farmer or rancher. FSA is
making this discretionary change to
provide consistency in the use of the
term among FSA programs.
Because this program requires a few
terms that are also needed for other FSA
and CCC programs, this rule adds those
terms to 7 CFR part 718 and removes
them from parts 1416 and 1412. These
terms are ‘‘planted and prevented
planted,’’ ‘‘controlled environment,’’
and ‘‘United States.’’ This rule adds the
terms ‘‘intended use’’ to part 718,
because it is needed for both NAP and
other FSA programs. It removes the term
‘‘State’’ from 718, because it is
redundant with the definition of
‘‘United States.’’
This rule replaces ‘‘CCC’’ with ‘‘FSA’’
where relevant in 7 CFR part 1437 to
clarify that NAP is administered by FSA
for CCC. It also amends the provisions
regarding requests to waive or modify
deadlines or other provisions, except
where specified by law, to clarify that
such requests may be considered at the
discretion of the Deputy Administrator
for Farm Programs (‘‘Deputy
Administrator’’). Participants do not
have a right to a decision on a request
for waiver or on such a request, and a
refusal to consider a waiver or such a
request is not a failure to act under any
law or regulation.
Notice and Comment
In general, the Administrative
Procedure Act (APA, 5 U.S.C. 553)
requires that a notice of proposed
rulemaking be published in the Federal
Register and interested persons be given
an opportunity to participate in the
rulemaking through submission of
written data, views, or arguments with
or without opportunity for oral
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presentation, except when the rule
involves a matter relating to public
property, loans, grants, benefits, or
contracts. Although FSA could use the
APA exemption and publish this rule as
a final rule without the opportunity for
public comment, FSA is implementing
the regulatory changes through an
interim rule to provide an opportunity
for public comment while also
implementing the rule without
unnecessary delay to benefit FSA
customers with the additional flexibility
provided by the changes.
Executive Orders 12866 and 13563
Executive Order 12866, ‘‘Regulatory
Planning and Review,’’ and Executive
Order 13563, ‘‘Improving Regulation
and Regulatory Review,’’ direct agencies
to assess all costs and benefits of
available regulatory alternatives and, if
regulation is necessary, to select
regulatory approaches that maximize
net benefits (including potential
economic, environmental, public health
and safety effects, distributive impacts,
and equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility.
The Office of Management and Budget
(OMB) designated this rule as
significant under Executive Order
12866, ‘‘Regulatory Planning and
Review,’’ and therefore, OMB has
reviewed this rule. The costs and
benefits of this rule are summarized
below. The full cost benefit analysis is
available on regulations.gov.
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Clarity of the Regulation
Executive Order 12866, as
supplemented by Executive Order
13563, requires each agency to write all
rules in plain language. In addition to
your substantive comments on this rule,
we invite your comments on how to
make the rule easier to understand. For
example:
• Are the requirements in the rule
clearly stated? Are the scope and intent
of the rule clear?
• Does the rule contain technical
language or jargon that is not clear?
• Is the material logically organized?
• Would changing the grouping or
order of sections or adding headings
make the rule easier to understand?
• Could we improve clarity by adding
tables, lists, or diagrams?
• Would more, but shorter, sections
be better? Are there specific sections
that are too long or confusing?
• What else could we do to make the
rule easier to understand?
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Cost Benefit Analysis Summary
The changes to the NAP regulations
are expected to have a net economic
impact of $39.4 million per year. This
includes $39.4 million for the ‘‘buy up’’
coverage provisions required by the
2014 Farm Bill, $250,000 for changes to
mollusk coverage, $45,000 for
aquaculture on ropes coverage, and $1.4
million for organic price coverage. As
noted below, the net impact of $39.4
million includes a partial offset due to
the $9.8 million increase in annual
premium and fee revenue.
The 2014 Farm Bill NAP ‘‘buy up’’
coverage changes are estimated to have
a net economic cost of $39.4 million
annually. This number is based on
estimating the three largest effects of the
new ‘‘buy-up’’ provisions: The shift of
existing CAT level NAP participants to
buy-up NAP coverage levels, an increase
in new NAP participants (not formerly
in CAT) who purchase buy-up NAP
coverage, and the expected NAP
payment increases due to the greater
liability associated with added buy-up
coverage levels for both existing and
new participants. (The greater liability
effect factors in the payment rate
increase from 55 percent to 100 percent
of the market value of eligible lost
production.) These three effects together
are expected to account for nearly $49.2
million in additional payments to
producers annually. However, these
additional payments are expected to be
partially offset by a $9.8 million
increase in annual premium and fee
revenue, for a net impact of $39.4
million annually.
The impact on costs from fee waivers
for socially disadvantaged and
beginning farmers is expected to be
negligible. This is because the persons
who are eligible for the waivers added
by the 2014 Farm Bill for socially
disadvantaged farmers and ranchers,
(SDA), and beginning farmers and
ranchers were mostly already eligible
for the waivers for limited resource
farmers and ranchers that were in place
prior to this rule. The participation of
these groups is expected to increase in
proportion with the overall rate of 44.3
percent increase in new participation
estimated for buy-up coverage.
Because the total number of eligible
mollusk producers in the United States
is relatively small, fewer than 800
producers, the total impact of the
changes in eligibility for mollusks is
expected to be relatively small, around
$250,000 in additional outlays per year.
The aquaculture grown on ropes cost
impact is even smaller, at an estimated
$45,000 in additional outlays per year.
The coverage for organic prices is
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74569
estimated at $1.4 million per year, based
on the assumption that the organic
crops for which RMA has enough price
data to provide an organic price election
in at least one state, but limited enough
RMA coverage that they fall within the
scope of NAP, are primarily specialty
fruit crops.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601–612), as amended by the
Small Business Regulatory Enforcement
Fairness Act of 1996 (SBREFA),
generally requires an agency to prepare
a regulatory flexibility analysis of any
rule whenever an agency is required by
APA or any other law to publish a
proposed rule, unless the agency
certifies that the rule will not have a
significant economic impact on a
substantial number of small entities.
This rule is not subject to the Regulatory
Flexibility Act because as noted above,
this rulemaking is exempt from the
notice and comment rulemaking
requirements of APA and no other law
requires that a proposed rule be
published for this rulemaking initiative.
Environmental Review
FSA has determined that the
administrative expansion of coverage for
mollusks under NAP, identified in this
rule, and the participation in NAP itself
do not constitute major Federal actions
that would significantly affect the
quality of the human environment
because Section 196 of 7 U.S.C. 7333
requires that the Secretary of
Agriculture operate NAP to provide
coverage equivalent to the catastrophic
risk protection otherwise available
under section 508(b) of the Federal Crop
Insurance Act (7 U.S.C. 1508(b)).
In addition to adding coverage for
mollusks, the other discretionary
changes proposed include coverage for
organic crops and clarifications
regarding eligible losses and causes of
loss (types of natural disasters). FSA has
likewise determined that these
discretionary efforts do not constitute
major Federal actions that would
significantly affect the quality of the
human environment, individually or
cumulatively, because of their context
and the anticipated intensity of impacts.
Therefore, in accordance with the
provisions of the National
Environmental Policy Act (NEPA, 42
U.S.C. 4321–4347), the regulations of
the Council on Environmental Quality
(40 CFR parts 1500–1508), and FSA
regulations for compliance with NEPA
(7 CFR part 799), no environmental
assessment or environmental impact
statement will be prepared.
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Executive Order 12372
Executive Order 12372,
‘‘Intergovernmental Review of Federal
Programs,’’ requires consultation with
State and local officials that would be
directly affected by proposed federal
financial assistance. The objectives of
the Executive Order are to foster an
intergovernmental partnership and a
strengthened Federalism, by relying on
State and local processes for State and
local government coordination and
review of proposed Federal Financial
assistance and direct Federal
development. For reasons set forth in
the final rule related notice regarding 7
CFR part 3015, subpart V (48 FR 29115,
June 24, 1983), the programs and
activities within this rule are excluded
from the scope of Executive Order
12372.
Executive Order 12988
This rule has been reviewed under
Executive Order 12988, ‘‘Civil Justice
Reform.’’ This rule will not preempt
State or local laws, regulations, or
policies unless they represent an
irreconcilable conflict with this rule.
The rule has retroactive effect in that for
the 2014 crop year, the expanded
service fee waiver will apply
retroactively, and for the 2015 crop year
the date coverage begins will be
retroactive as long as the application for
coverage is filed by the application
closing date as specified in § 1437.7(i).
Before any judicial action may be
brought regarding the provisions of this
rule, the administrative appeal
provisions of 7 CFR parts 11 and 780 are
to be exhausted.
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Executive Order 13132
This rule has been reviewed under
Executive Order 13132, ‘‘Federalism.’’
The policies contained in this rule do
not have any substantial direct effect on
States, on the relationship between the
Federal government and the States, or
on the distribution of power and
responsibilities among the various
levels of government, except as required
by law. Nor does this rule impose
substantial direct compliance costs on
State and local governments. Therefore,
consultation with the States is not
required.
Executive Order 13175
This rule has been reviewed in
accordance with the requirements of
Executive Order 13175, ‘‘Consultation
and Coordination with Indian Tribal
Governments.’’ Executive Order 13175
requires Federal agencies to consult and
coordinate with tribes on a governmentto-government basis on policies that
have tribal implications, including
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regulations, legislative comments or
proposed legislation, and other policy
statements or actions that have
substantial direct effects on one or more
Indian tribes, on the relationship
between the Federal Government and
Indian tribes or on the distribution of
power and responsibilities between the
Federal Government and Indian tribes.
FSA has assessed the impact of this
rule on Indian tribes and determined
that this rule does not, to our
knowledge, have tribal implications that
require tribal consultation under
Executive Order 13175. If a Tribe
requests consultation, FSA will work
with the USDA Office of Tribal
Relations to ensure meaningful
consultation is provided where changes,
additions, and modifications identified
in this rule are not expressly mandated
by the 2014 Farm Bill.
Unfunded Mandates
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA, Pub. L.
104–4) requires Federal agencies to
assess the effects of their regulatory
actions on State, local, and Tribal
governments or the private sector.
Agencies generally must prepare a
written statement, including a cost
benefit analysis, for proposed and final
rules with Federal mandates that may
result in expenditures of $100 million or
more in any year for State, local, or
Tribal governments, in the aggregate, or
to the private sector. UMRA generally
requires agencies to consider
alternatives and adopt the more cost
effective or least burdensome alternative
that achieves the objectives of the rule.
This rule contains no Federal mandates,
as defined in Title II of UMRA, for State,
local, and Tribal governments or the
private sector. Therefore, this rule is not
subject to the requirements of sections
202 and 205 of UMRA.
Small Business Regulatory Enforcement
Fairness Act of 1996 (SBREFA)
This rule is not a major rule under the
Small Business Regulatory Enforcement
Fairness Act of 1996, (Pub. L. 104–121,
SBREFA). Therefore, FSA is not
required to delay the effective date for
60 days from the date of publication to
allow for Congressional review.
Accordingly, this rule is effective on the
date of publication in the Federal
Register.
Federal Assistance Programs
The title and number of the Federal
Assistance Program, as found in the
Catalog of Federal Domestic Assistance,
to which this rule applies, is:
Noninsured Assistance 10.451.
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Paperwork Reduction Act of 1995
FSA added the changes required for
the buy-up for additional coverage,
organic crops, and mollusks described
in this rule to a currently approved
information collection by OMB under
the control number of 0560–0175,
Noninsured Crop Disaster Assistance
Program. The collection of information
from the respondents remains the same
except the new respondents with
organic crops and mollusks. FSA
described the revision of information
collection activities and the changes to
the burden hours due to the new
respondents in the request for public
comment that was published in the
Federal Register on October 15, 2014
(79 FR 61484–61489). FSA confirmed
that neither AMS nor RMA collect the
information that FSA will be collecting,
so there is no duplication of information
collection.
E-Government Act Compliance
FSA and CCC are committed to
complying with the E-Government Act,
to promote the use of the Internet and
other information technologies to
provide increased opportunities for
citizen access to Government
information and services, and for other
purposes.
List of Subjects
7 CFR Part 718
Acreage allotments, Drug traffic
control, Loan programs-agriculture,
Marketing quotas, Price support
programs, Reporting and recordkeeping
requirements.
7 CFR Part 1412
Cotton, Feed grains, Oilseeds,
Peanuts, Price support programs,
Reporting and recordkeeping
requirements, Rice, Soil conservation,
Wheat.
7 CFR Part 1416
Dairy products, Indemnity payments,
Pesticide and pests, Reporting and
recordkeeping requirements.
7 CFR Part 1437
Agricultural commodities, Crop
insurance, Disaster assistance, Fraud,
Penalties, Reporting and recordkeeping
requirements.
For the reasons discussed above, FSA
amends 7 CFR part 718 and CCC amend
7 CFR parts 1412, 1416, and 1437 as
follows:
PART 718—PROVISIONS APPLICABLE
TO MULTIPLE PROGRAMS
1. Revise the authority citation for part
718 to read as follows:
■
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Federal Register / Vol. 79, No. 240 / Monday, December 15, 2014 / Rules and Regulations
Authority: 7 U.S.C. 1501–1508, 1921–2008,
7201–7302, and 15 U.S.C. 714b.
2. Amend § 718.2 as follows:
a. Remove the definition for ‘‘State’’;
and
■ b. Add, in alphabetical order,
definitions for ‘‘Beginning farmer and
rancher’’, ‘‘Controlled environment’’,
‘‘Intended use’’, ‘‘Planted and
considered planted (P&CP)’’; and
‘‘United States’’.
The additions read as follows:
■
■
§ 718.2
Definitions.
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*
*
*
*
*
Beginning farmer or rancher means a
person or legal entity (for legal entities
to be considered a beginning farmer or
rancher, all members must be related by
blood or marriage and all members must
be beginning farmers or ranchers) for
which both of the following are true for
the farmer or rancher:
(1) Has not operated a farm or ranch
for more than 10 years; and
(2) Materially and substantially
participates in the operation.
*
*
*
*
*
Controlled environment means, with
respect to those crops for which a
controlled environment is required or
expected to be provided, including but
not limited to ornamental nursery,
aquaculture (including ornamental fish),
and floriculture, as applicable under the
particular program, 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.
*
*
*
*
*
Intended Use means for a crop or a
commodity, the end use for which it is
grown and produced.
*
*
*
*
*
Planted and considered planted
(P&CP) means with respect to an acreage
amount, the sum of the planted and
prevented planted acres on the farm
approved by the FSA county committee
for a crop. P&CP is limited to initially
planted or prevented planted crop
acreage, except for crops planted in an
FSA approved double-cropping
sequence. Subsequently planted crop
acreage and replacement crop acreage
are not included as P&CP.
*
*
*
*
*
United States means all 50 States of
the United States, the District of
Columbia, the Commonwealth of Puerto
Rico and any other territory or
possession of the United States.
*
*
*
*
*
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§ 718.102
[Amended]
3. Amend § 718.102 as follows:
a. In paragraph (b)(3), add the word
‘‘intended’’ immediately before the
word ‘‘use’’;
■ b. In paragraph (b)(4), remove the
words ‘‘in the country of the eligible
crop’’ and add the words ‘‘and intended
use of the eligible crop in the country’’
in their place; and
■ c. In paragraph (b)(6), add the word
‘‘intended’’ immediately before the
word ‘‘use’’.
■
■
PART 1412—AGRICULTURE RISK
COVERAGE, PRICE LOSS COVERAGE,
AND COTTON TRANSITION
ASSISTANCE PROGRAMS
4. The authority citation for part 1412
continues to read as follows:
■
Authority: 7 U.S.C. 1508b, 7911–7912,
7916, 8702, 8711–8712, 8751–8752, and 15
U.S.C. 714b and 714c.
§ 1412.3
[Amended]
5. In § 1412.3, remove the definition
for ‘‘Planted and considered planted
(P&CP)’’.
■
PART 1416—EMERGENCY
AGRICULTURAL DISASTER
ASSISTANCE PROGRAMS
6. Revise the authority citation for part
1416 to read as follows:
■
Authority: Title III, Pub. L. 109–234, 120
Stat. 474; and 16 U.S.C. 3801, note.
§ 1416.102
[Amended]
7. In § 1416.102, remove the
definitions for ‘‘Beginning farmer and
rancher’’; ‘‘Controlled environment’’;
‘‘County committee or county office’’;
‘‘Secretary’’; ‘‘State committee, State
office, county committee, or county
office’’; and ‘‘United States’’.
■
PART 1437—NONINSURED CROP
DISASTER ASSISTANCE PROGRAM
8. The authority citation for part 1437
continues to read as follows:
■
Authority: 7 U.S.C. 1501–1508 and 7333;
15 U.S.C. 714–714m; 19 U.S.C. 2497, and 48
U.S.C. 1469a.
Subpart A—General Provisions
■
9. Revise § 1437.1 to read as follows:
§ 1437.1
Applicability.
(a) The purpose of the Noninsured
Crop Disaster Assistance Program (NAP)
is to help manage and reduce
production risks faced by producers of
eligible commercial crops or other
agricultural commodities during a
coverage period. NAP reduces financial
losses that occur when natural disasters
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74571
(damaging weather or adverse natural
occurrence that is an eligible cause of
loss) cause a loss of expected
production or actual value for value loss
crops, or where producers are prevented
from planting an eligible crop because
of an eligible cause of loss in a coverage
period.
(b) The provisions in this part are
applicable to eligible producers and
eligible crops for which catastrophic
coverage under section 508(b) or
additional coverage of sections 508(c) or
508(h) under the Federal Crop Insurance
Act (7 U.S.C. 1508) (excluding pilot
policies or plans of insurance) is not
available.
(c) The regulations in this part are
applicable to the 2015 and subsequent
crop years.
■ 10. Revise § 1437.2 to read as follows:
§ 1437.2
Administration.
(a) NAP is administered under the
general supervision of the
Administrator, Farm Service Agency
(FSA) (who also serves as the
Commodity Credit Corporation (CCC)
Executive Vice President), and the
Deputy Administrator for Farm
Programs, FSA, (referred to as ‘‘Deputy
Administrator’’ in this part). NAP is
carried out by FSA State and county
committees (State and county
committees) with instructions issued by
the Deputy Administrator.
(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
in this part, NAP’s basic provisions, or
instructions issued by the Deputy
Administrator.
(c) The State committee will take any
action required by the regulations in
this part that the county committee has
not taken. The State committee will
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 in this
part; or
(2) Require a county committee to
withhold taking any action that is not in
accordance with this part.
(d) No delegation to a State or county
committee precludes the FSA
Administrator, the Deputy
Administrator, or a designee, from
determining any question arising under
NAP or from reversing or modifying any
determination made by a State or county
committee.
(e) The Deputy Administrator has the
authority to permit State and county
committees to waive or modify
deadlines (except deadlines specified in
a law) and other requirements or
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Federal Register / Vol. 79, No. 240 / Monday, December 15, 2014 / Rules and Regulations
program provisions not specified in law,
in cases where lateness or failure to
meet such other requirements or
program provisions do not adversely
affect operation of NAP.
(1) Producers and participants have
no right to a decision in response to a
request to waive or modify deadlines or
program provisions. The Deputy
Administrator’s refusal to consider such
a request or a decision not to exercise
this discretionary authority under this
section is not an adverse decision and
is not appealable.
(2) FSA’s decision not to consider a
case under this section is not a failure
to act under any law or regulation
because participants have no right to a
decision on a request for waiver or
modification.
(f) Items including, but not limited to,
application periods, application
deadlines, basic provisions, internal
operating guidelines issued to FSA State
and county offices, coverage periods,
fees, prices, yields, and payment factors
established for NAP in accordance with
this part that are used for similarly
situated participants and eligible crops
are not to be construed to be individual
program eligibility determinations or
extent of eligibility determinations and
are, therefore, not subject to
administrative review.
(g) Where there is any conflict
between the basic provisions and the
regulations, the regulations apply except
when the Deputy Administrator
determines that because of the timing of
issuance of the regulations, the basic
provisions applicable to the specific
crop year or coverage period that may be
less restrictive will apply.
■ 11. Amend § 1437.3 as follows:
■ a. Revise the introductory text;
■ b. Revise the definitions for
‘‘Application closing date’’ and
‘‘Catastrophic coverage’’;
■ c. In the definition for ‘‘Crop year’’,
third sentence, add the words ‘‘or buyup coverage’’ immediately after the
words ‘‘catastrophic coverage’’;
■ d. Revise the definitions for ‘‘Good
farming practices’’, ‘‘Industrial crop’’,
and ‘‘Native sod’’;
■ e. Remove the definitions for
‘‘Controlled environment ’’ and
‘‘Intended Use’’; and
■ f. Add, in alphabetical order,
definitions for ‘‘Acres devoted to the
eligible crop’’, ‘‘Additional coverage’’,
‘‘Agricultural experts’’, ‘‘Application for
coverage’’, ‘‘Basic provisions’’, ‘‘Bypass
year’’, ‘‘Buffer zone’’, ‘‘Buy-up
coverage’’, ‘‘Buy-up coverage yield’’,
‘‘Certified organic acreage’’, ‘‘Certifying
agent’’, ‘‘Conventional farming
practice’’, ‘‘Feedstock’’, ‘‘Generally
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recognized’’, ‘‘Guarantee’’, ‘‘Handharvested’’, ‘‘Maximum dollar value for
coverage sought’’, ‘‘Organic agricultural
experts’’, ‘‘Organic crop’’, ‘‘Organic
farming practice’’, ‘‘Organic system
plan’’, ‘‘Organic standards’’, ‘‘Prohibited
substance’’, ‘‘Secondary use’’, ‘‘Short
rotation woody crops’’, and
‘‘Transitional acreage’’.
The revisions and additions read as
follows:
§ 1437.3
Definitions.
The terms and definitions in this
section apply to NAP. The terms and
definitions in part 718 of this title and
part 1400 of this chapter also apply to
NAP, except where those same terms are
defined in this section. In that case, the
terms and definitions of this section
apply.
Acres devoted to the eligible crop
means the total planted and considered
planted (P&CP) acres of the eligible
crop.
Additional coverage means insurance
coverage offered by the Federal Crop
Insurance Corporation under sections
508(c) or 508(h) of the Federal Crop
Insurance Act.
*
*
*
*
*
Agricultural experts means persons
who are employed by the National
Institute of Food and Agriculture, or the
agricultural departments of universities,
or other persons approved by FSA,
whose research or occupation is related
to the specific crop or practice for which
such expertise is sought.
*
*
*
*
*
Application closing date means the
last date, as determined by FSA,
producers can submit an application for
coverage for noninsured crops for the
specified crop year and coverage period.
Application for coverage means the
form specified by FSA to be completed
by a producer applying for NAP
coverage for an eligible crop that is
accompanied by the service fee or
service fee waiver form in the
administrative county office by the
application closing date.
Basic provisions means the document
summarizing the terms and conditions
of NAP coverage for a crop year that are
acknowledged as having been received
by the person or legal entity who signs
an application for coverage according to
this part.
Bypass year means a year that the
producer did not obtain NAP coverage
for the crop and did not file a report of
acreage or production, or obtained NAP
coverage for the crop and had reported
or determined zero acres devoted to the
eligible crop.
Buffer zone means a parcel of land, as
designated in an organic system plan,
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that separates agricultural commodities
grown under organic practices from
agricultural commodities grown under
non-organic practices and is used to
minimize the possibility of unintended
contact by prohibited substances or
organisms.
Buy-up coverage means NAP
assistance that is available for all
eligible NAP covered crops (other than
for crops and grasses intended for
grazing) at a payment amount that is
equal to an indemnity amount
calculated for buy-up coverage
computed under section 508(c) or (h) of
the Federal Crop Insurance Act and
equal to the amount that the buy-up
coverage yield for the crop exceeds the
actual yield for the crop.
Buy-up coverage yield means not less
than 50 percent nor greater than 65
percent of the approved yield for the
crop, as elected by the NAP covered
participant and specified in 5-percent
increments.
Catastrophic coverage means:
(1) For insured crops, the coverage
offered by the Federal Crop Insurance
Corporation (FCIC) under section 508(b)
of the Federal Crop Insurance Act.
(2) For eligible NAP crops, coverage at
the following levels due to an eligible
cause of loss impacting the NAP
covered crop during the coverage
period:
(i) Prevented planting in excess of 35
percent of the intended acres;
(ii) A yield loss in excess of 50
percent of the approved yield;
(iii) A value loss in excess of 50
percent; or
(iv) An animal-unit-days (AUD) loss
greater than 50 percent of expected
AUD.
Certified organic acreage means
acreage in the certified organic farming
operation that has been certified by a
certifying agent as conforming to
organic standards specified in part 205
of this title.
Certifying agent means a private or
governmental entity accredited by the
United States Department of Agriculture
(USDA) Secretary for the purpose of
certifying a production, processing or
handling operation as organic.
Conventional farming practice means
any good farming practice that is not an
organic farming practice.
*
*
*
*
*
Feedstock means a crop including,
but not limited to, grasses or legumes,
algae, cotton, peanuts, coarse grains,
small grains, oil seeds, or short rotation
woody crops, that is grown expressly for
the purpose of producing a biobased
material or product, and does not
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include residues and by-products of
crops grown for any other purpose.
*
*
*
*
*
Generally recognized means when
agricultural experts or organic
agricultural experts, as applicable, are
aware of the production method or
practice and there is no genuine dispute
regarding whether the production
method or practice allows the crop to
make normal progress toward maturity
and produce at least the yield used to
determine the production guarantee or
amount of insurance.
Good farming practices means the
cultural practices generally recognized
as compatible with agronomic and
weather conditions and used for the
crop to make normal progress toward
maturity and produce at least the
individual unit approved yield, as
determined by FSA. These practices are:
(1) For conventional farming
practices, those generally recognized by
agricultural experts for the area, which
could include one or more counties; or
(2) For organic farming practices,
those generally recognized by the
organic agricultural experts for the area
or contained in the organic system plan
that is in accordance with the National
Organic Program specified in part 205 of
this title.
Guarantee means the level of coverage
provided based on the application for
coverage and buy-up coverage elected
under the provisions of this part.
Hand-harvested crop means a nonforage crop that is not harvested
mechanically and is removed from a
field by hand.
*
*
*
*
*
Industrial crop means a commercial
crop, or other agricultural commodity
used in manufacturing or grown
expressly for the purpose of producing
a feedstock for renewable biofuel,
renewable electricity, or biobased
products. Industrial crops include castor
beans, chia, crambe, crotalaria, cuphea,
guar, guayule, hesperaloe, kenaf,
lesquerella, meadowfoam, milkweed,
plantago ovato, sesame, and other crops
specifically designated by FSA.
Industrial crops exclude any plant that
FSA has determined to be either a
noxious weed or an invasive species. A
list of plants that are noxious weeds and
invasive species will be available in the
FSA county office.
Maximum dollar value for coverage
sought means the total dollar amount
elected by the NAP covered participant
for which buy-up coverage may be
considered for a value loss crop in a
coverage period. The amount is set by
the NAP covered participant for each
value loss crop and represents the
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highest amount of field market value of
the crop before disaster in a coverage
period.
*
*
*
*
*
Native sod means land on which the
natural state plant cover before tilling
was composed principally of native
grasses, grass-like plants, forbs, or
shrubs suitable for grazing and browsing
and is land that has never been tilled
(determined in accordance with
information collected and maintained
by an agency of the USDA or other
verifiable records that are provided by a
producer and acceptable to FSA) for the
production of an annual crop through
February 7, 2014.
*
*
*
*
*
Organic agricultural experts means
persons who are employed by the
following organizations: Appropriate
Technology Transfer for Rural Areas,
Sustainable Agriculture Research and
Education, or the National Institute of
Food and Agriculture, the agricultural
departments of universities, or other
persons approved by FSA, whose
research or occupation is related to the
specific practice for which such
expertise is sought.
Organic crop means an agricultural
commodity that is organically produced
consistent with section 2103 of the
Organic Foods Production Act of 1990
(7 U.S.C. 6502).
Organic farming practice means a
system of plant production practices
used to produce an organic crop that is
approved by a certifying agent in
accordance with 7 CFR part 205.
Organic system plan means a plan of
management of an organic production or
handling operation that has been agreed
to by the producer or handler and the
certifying agent and that includes
written plans concerning all aspects of
agricultural production or handling
described in the Organic Foods
Production Act and the regulations in 7
CFR part 205, subpart C.
Organic standards means standards in
accordance with the Organic Foods
Production Act of 1990 (7 U.S.C. 6501–
6523) and 7 CFR part 205.
Prohibited substance means any
biological, chemical, or other agent that
is prohibited from use or is not included
in the organic standards for use on any
certified organic, transitional, or buffer
zone acreage. Lists of such substances
are specified in §§ 205.602 and 205.604
of this title.
Secondary use means the harvested
production bears little resemblance to,
or has a different unit of expression
than, the unit of expression for the
reported intended use. It does not apply
to fresh and processed harvested
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production; is not salvage; not counted
as production of the crop for the
following purposes, including, but not
limited to:
(1) The determination of whether the
unit suffered requisite loss; and
(2) APH and approved yield.
*
*
*
*
*
Short rotation woody crops means
fast-growing trees that reach their
economically optimum size between 4
and 20 years old.
*
*
*
*
*
Transitional acreage means acreage
on which organic farming practices are
being followed that does not yet qualify
to be designated as organic acreage.
*
*
*
*
*
■ 12. Amend § 1437.4 as follows:
■ a. Revise paragraph (a) introductory
text;
■ b. Revise paragraph (a)(4);
■ c. In paragraph (b)(2), remove the
words and punctuation ‘‘except for the
2001 and preceding crop years
assistance for forage produced on
Federal- and State-owned lands is
available only for seeded forage.’’;
■ d. Revise paragraphs (b)(4)(vi), (vii),
and (viii), and add paragraphs (b)(4)(ix)
and (x); and
■ e. Revise paragraphs (c) and (d).
The revisions and addition read as
follows:
§ 1437.4
Eligibility.
(a) Noninsured crop disaster
assistance is available during the
coverage period specified in § 1437.6 for
loss of production or loss of value for
value loss crops or prevented planting
of eligible commercial crops or other
eligible agricultural commodities:
*
*
*
*
*
(4) Determined by FSA to be eligible
crops for which:
(i) Catastrophic risk protection under
the Federal Crop Insurance Act (7 U.S.C.
1508(b)) is not available;
(ii) Additional coverage under the
Federal Crop Insurance Act (7 U.S.C.
1508(c) or (h)) is not available
(excluding pilot policies or plans of
insurance) and for which the Deputy
Administrator determines are
appropriate for NAP coverage; or
(iii) These specific practices for these
crops are not included under the
Federal Crop Insurance Act (7 U.S.C.
1508), but only when the Deputy
Administrator determines in advance of
a coverage period that the specific
practice is appropriate for NAP coverage
and is not available for coverage under
Federal crop insurance.
(iv) The producer applies good
farming practices.
(b) * * *
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(4) * * *
(vi) Sweet sorghum;
(vii) Biomass sorghum;
(viii) Industrial crops (including those
grown expressly for the purpose of
producing a feedstock for renewable
biofuel, renewable electricity, or
biobased products);
(ix) Seed crops, including propagation
stock such as non-ornamental seedlings,
sets, cuttings, rootstock, and others, as
determined by FSA; and
(x) Sea grass and sea oats.
(c) Except as specified in paragraph
(d) of this section, during the first 4 crop
years of planting, as determined by the
Secretary, native sod acreage in Iowa,
Minnesota, Montana, Nebraska, North
Dakota, and South Dakota that has been
tilled for the production of an annual
crop after February 7, 2014, will be
subject to the following:
(1) The approved yield will be
determined by using a yield equal to 65
percent of the producer’s T-yield for the
annually planted crop; and
(2) The service fee or premium for the
annual covered crop planted on native
sod will be equal to 200 percent of the
amount determined in § 1437.7, as
applicable, but the premium will not
exceed the maximum amount specified
in § 1437.7(d)(2).
(d) If the producer’s total native sod
acreage that is tilled in a crop year is 5
acres or less, the approved yield, service
fee, and premium provisions specified
in paragraph (c) of this section will not
apply.
*
*
*
*
*
§§ 1437.5 through 1437.15 [Redesignated
as §§ 1437.6 through 1437.16]
13. Redesignate §§ 1437.5 through
1437.15 as §§ 1437.6 through 1437.16,
respectively.
■ 14. Add § 1437.5 to read as follows:
■
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§ 1437.5
Coverage levels.
(a) NAP coverage for prevented
planting is provided for approved
prevented planting of an eligible NAP
covered crop due to an eligible cause of
loss in the coverage period. Payment is
based on the approved prevented
planted acreage in excess of 35 percent
of the total intended acres to be planted.
(b) Except as provided in paragraph
(d) of this section, NAP coverage is
equal to 50 percent of the yield or
inventory value specified in paragraph
(c) of this section at 55 percent of the
average market price established by
FSA.
(c) Except as provided in paragraph
(d) of this section, to be eligible for a
NAP payment a producer must have
suffered a yield or inventory value loss
greater than 50 percent as the result of
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an eligible cause of loss in the coverage
period as follows:
(1) For yield-based crops, a yield loss
in excess of 50 percent of the approved
yield;
(2) For value loss crops, a loss of
value in excess of 50 percent of the total
value of eligible inventory at the time of
disaster;
(d) For 2015 through 2018 crop years,
producers of eligible NAP crops, other
than crops and grasses intended for
grazing, may elect buy-up coverage at
100 percent of the average market price
in amounts of 50 percent to 65 percent,
in 5 percent increments, of:
(1) For yield-based crops, your
approved yield; and
(2) For value loss crops, the lesser of
the total value of eligible inventory at
the time of disaster or the maximum
dollar value for coverage sought.
(e) The quantity or value of any
eligible NAP crop will not be reduced
for any quality consideration unless a
zero value is established based on a total
loss of quality, except as specified in
§ 1437.105.
(f) For crop acreage intended to be
grazed, to be eligible for a NAP
payment, a producer must have suffered
a loss of AUD in excess of 50 percent
of expected AUD determined on the
basis of acreage, carrying capacity, and
grazing period.
■ 15. Revise newly redesignated
§ 1437.6 to read as follows:
§ 1437.6
Coverage period.
(a) Coverage period. The coverage
period is the time during which
coverage is available against prevented
planting, a loss of production, or loss of
value, as applicable, of the eligible crop
as a result of an eligible cause of loss
specified in § 1437.10. Except as
provided in paragraph (h) of this
section, coverage periods start no earlier
than 30 days after date of filing of a
valid application for coverage as
specified in § 1437.7.
(1) Relief provisions cannot be used to
change or modify the date an
application is filed.
(2) If an application for coverage is
filed within 30 days of the end of a
coverage period, the application for
coverage is invalid and will not be
processed by FSA. In the event the
application for coverage is invalid as
discussed in this paragraph, service fees
will not be refunded.
(3) Except as provided in paragraph
(h) of this section, coverage is never
retroactive.
(b) Annual crops. Except as provided
in paragraph (h) of this section, the
coverage period for annual crops,
including annual forage crops,
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(1) Begins the later of:
(i) 30 calendar days after the date the
application for coverage is filed; or
(ii) The date the crop is planted, not
to exceed the late planting period; and
(2) Ends on the earlier of:
(i) The date harvest is complete;
(ii) The normal harvest date of the
crop in the area;
(iii) The date the crop is abandoned;
or
(iv) The date the crop is destroyed.
(c) Biennial and perennial crops.
Except as otherwise specified in this
part, the coverage period for biennial
and perennial crops begins the later of
30 calendar days after the date the
application for coverage is filed or 30
calendar days after the application
closing date. The coverage ends as
determined by FSA.
(d) Value loss crops. 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 floriculture and
mushrooms begins the later of 30
calendar days after the date the
application for coverage is filed or 30
calendar days after the application
closing date. The coverage ends the last
day of the crop year, as determined by
FSA.
(e) Honey. Except as provided in
paragraph (h) of this section, the
coverage period for honey begins the
later of 30 calendar days after the date
the application for coverage is filed or
30 calendar days after the application
closing date. The coverage ends the last
day of the crop year, as determined by
FSA.
(f) Maple sap. Except as provided in
paragraph (h) of this section, the
coverage period for maple sap begins
the later of 30 calendar days after the
date the application for coverage is filed
or 30 calendar days after the application
closing date. The coverage ends on the
earlier of the date harvest is complete;
or the normal harvest date.
(g) Biennial and perennial forage
crops. Except as provided in paragraph
(h) of this section, for biennial and
perennial forage crops the coverage
period begins the later of 30 calendar
days after the date the application for
coverage is filed or 30 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.
(h) 2015 crop year. For the 2015 crop
year only, if a crop’s application closing
date is before January 14, 2015, the
coverage period of the crop will be as
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specified in paragraphs (a) through (g) of
this section except that the date
coverage begins will be retroactive as
long as the application for coverage is
filed by the application closing date as
specified in § 1437.7(i). This limited
retroactive coverage for the 2015 crop
year only will begin 30 days after the
established application date, which
would be the same as if they had filed
by the deadlines as specified in
paragraphs (a) through (g) of this
section.
■ 16. Revise newly redesignated
§ 1437.7 to read as follows:
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§ 1437.7 Application for coverage, service
fee, premium, and transfers of coverage.
(a) Except as provided in paragraph (i)
of this section, with respect to each
crop, commodity, or acreage, producers
must file an application for coverage
under this part in the administrative
county office by the application closing
date.
(b) The service fee or request for
service fee waiver under paragraph (g)
of this section must accompany the
application for coverage in order for it
to be considered filed. The service fee
is $250 per crop per administrative
county, up to $750 per producer per
administrative county, not to exceed
$1,875 per producer.
(c) The service fee will be applied per
administrative county by crop and by
planting period, as determined by FSA.
(d) Producers who elect buy-up
coverage must pay a premium, in
addition to the service fee, equal to the
lesser of:
(1) The product obtained by
multiplying:
(i) A 5.25-percent premium fee; and
(ii) The applicable payment limit; or
(2) The sum of the premiums for each
eligible crop, with the premium for each
eligible crop obtained by multiplying:
(i) The producer’s share of the eligible
crop;
(ii) The number of acres devoted to
the eligible crop;
(iii) The approved yield;
(iv) The coverage level elected by the
producer;
(v) The average market price; and
(vi) A 5.25-percent premium fee.
(e) For value loss crops, premiums
will be calculated based on the
maximum dollar value for which
coverage is sought by the applicant,
subject to applicable payment
limitation, times the 5.25 percent
premium.
(f) Premiums will be calculated
separately for each crop, type, and
intended use as reported on the acreage
report and as specified in the basic
provisions.
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(g) Beginning farmers and ranchers,
limited resource farmers and ranchers,
and socially disadvantaged farmers or
ranchers will receive, upon certification,
a waiver of the service fee and a 50
percent premium reduction. The
certification is required on or before the
time the application for coverage is filed
using the form specified by FSA.
(h) Transfers of NAP coverage are
governed by the basic provisions.
(i) For the 2015 crop year, if a crop’s
application closing date is before
January 14, 2015, FSA will accept
applications for coverage without regard
to whether or not the application for
coverage was filed by the crop’s
application closing date, provided that
the application for coverage includes
buy-up coverage according to
§ 1437.5(d) and is filed by January 14,
2015. Except as specifically stated in
this rule, the provisions of this
paragraph (i) do not apply to crops
having an application closing date
established on or after December 15,
2014 or to applications for coverage that
do not include buy-up coverage as an
option selected by the applicant. The
coverage period for applications for
coverage filed according to this
paragraph (i) will be as specified in
§ 1437.6.
■ 17. Amend newly redesignated
§ 1437.8 as follows:
■ a. Revise paragraph (a) introductory
text, add paragraph (a)(3), and revise
paragraphs (b)(1) and (2) and (c)
introductory text;
■ b. In paragraph (d), revise the
introductory text, redesignate
paragraphs (d)(6) through (8) as
paragraphs (d)(7) through (9),
respectively, and add paragraph (d)(6);
and
■ c. Add paragraphs (i), (j), and (k).
The revisions and additions read as
follows:
§ 1437.8
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 § 1437.7. For those
crops or commodities for which it is
impractical, as determined by FSA, to
maintain crop acreage, yields, or
production data, 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
§ 1437.7. Producers may be selected and
be required to provide records
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74575
acceptable to FSA to support any
certification provided. For each
harvested crop for which producers file
an application for payment in
accordance with § 1437.11, producers
must provide documentary evidence
acceptable to FSA of production and the
date harvest was completed, including
production of crops planted after the
planting period or late planting period.
Such documentary evidence must be
provided no later than the acreage
reporting date for the crop in the
subsequent crop year or, for crops with
a coverage period of more than 12
months, no later than 60 days after the
normal harvest date. 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 acreage reporting date for
the crop in the current crop year.
Production data provided after the
acreage reporting 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 FSA.
Records of production acceptable to
FSA may include:
*
*
*
*
*
(3) For quality losses specified in
§ 1437.105, verifiable records
substantiating a quality loss due to an
eligible cause of loss in the coverage
period. The record submitted must
come from tests or analysis
substantiating that the loss of quality
occurred from an eligible cause of loss
during the coverage period. FSA will
disapprove quality adjustments under
§ 1437.105 if FSA determines the
evidence does not substantiate a loss of
quality occurred due to an eligible cause
of loss in the coverage period. For
example, if FSA determines the tests or
analysis of the specific crop’s
production were taken too late to
determine if the measured loss of
quality occurred from an eligible cause
of loss in the coverage period (regardless
whether a loss of quality was in fact
measured or determined), no quality
loss adjustment will be made or
permitted. There is no presumption that
a measured loss of quality occurred due
to an eligible cause of loss in the
coverage period. It is a NAP covered
producer’s burden to present evidence,
satisfactory to FSA, substantiating that
the alleged quality loss occurred to the
NAP covered crop in the coverage
period.
(b) * * *
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(1) Producers of hand-harvested crops
must, in addition to providing
acceptable production records according
to this part, notify the administrative
county office that harvest is complete.
This notification must be made within
72 hours of when harvest is complete.
If an appraisal of the crop acreage is
requested by the producer or
determined necessary by FSA, the
producer must not destroy the crop
residue until the crop acreage is
released by an FCIC- or FSA-qualified
loss adjustor. Producers may, at their
expense, request that an appraisal by
certified FCIC or FSA loss adjusters of
hand-harvested crop acreage be
completed during non-loss crop years in
order to maintain accurate actual
production history.
(2) Producers must not allow the
gathering (gleaning) of any produce left
in the field following normal harvest of
the crop acreage until the crop acreage
is released by a qualified FSA or FCIC
loss adjustor, as determined by FSA.
Except, crop acreage may be released by
an authorized FSA representative for
acceptable gleaning operations, as
determined by FSA, when producers
and gleaners agree to provide acceptable
records, as determined by FSA, of the
quantity of the crop gleaned.
(c) Producers must provide acceptable
evidence, as determined by FSA, of:
*
*
*
*
*
(d) Reports of acreage planted or
intended but prevented from being
planted must be provided to FSA at the
administrative county office for the
acreage no later than the date specified
by FSA for each crop and location.
Reports of acreage filed beyond the date
specified by FSA for the crop and
location may, however, be processed
and used for determining acres devoted
to the eligible crop if all the provisions
of 7 CFR part 718 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 by the date
specified by FSA for the crop and
location. Reports of acreage planted or
intended and prevented from being
planted must include all of the
following information:
*
*
*
*
*
(6) For organic crops with an average
market price established under
§ 1437.12(b), the identity of the crop
planted on:
(i) Acreage using conventional
farming practices;
(ii) Certified organic acreage;
(iii) Transitional acreage being
converted to certified organic acreage;
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(iv) Buffer zone acreage;
*
*
*
*
(i) Producers requesting payment
under this part for a crop grown on
certified organic acreage for which a
price and T-yield are established, as
provided in §§ 1437.12(b) and 1437.102,
must provide, no later than the acreage
reporting date specified by FSA for the
crop and location:
(1) A written certification in effect
from a certifying agency indicating the
name of the entity certified, effective
date of certification, certificate number,
types of commodities certified, and
name and address of the certifying agent
(a certificate issued to a tenant may be
used to qualify a landlord or other
similar arrangement); and
(2) Records from the certifying agent
showing the specific location of
certified organic, transitional, and buffer
zone acreage, and acreage not subject to
organic farming practices according to
an organic system plan.
(j) Producers providing reports of
acreage that include transitional acreage
being converted to certified organic
acreage in accordance with an organic
system plan must provide, no later than
the acreage reporting date specified by
FSA for the crop and location:
(1) Written documentation from a
certifying agent indicating an organic
system plan is in effect for the acreage;
and
(2) Records from the certifying agent
showing the specific location of
certified organic, transitional, and buffer
zone acreage, and acreage not subject to
organic farming practices according to
an organic system plan.
(k) Producers who are exempt from
National Organic certification
requirements, as specified in § 205.101
of this title, and are requesting payment
under this part for a crop grown on
organic acreage for which a price and Tyield is established, as provided in
§§ 1437.12(b) and 1437.102, must
provide, no later than the acreage
reporting date specified by FSA for the
crop and location, a copy of their
organic system plan, which must be
developed with an organic certifying
agent.
■ 18. Revise newly redesignated
§ 1437.10 to read as follows:
*
§ 1437.10
Causes of loss.
(a) To qualify for assistance,
production losses or prevented planting
must occur as a result of an eligible
cause of loss during the coverage period.
Not all causes of loss are eligible causes
of loss for all crops or all commodities.
(b) An eligible cause of loss is:
(1) Damaging weather, including, but
not limited to:
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(i) Drought;
(ii) Hail;
(iii) Excessive moisture;
(iv) Freeze;
(v) Tornado;
(vi) Hurricane;
(vii) Excessive wind;
(viii) Insufficient chill hours, but only
for specific crops and locations for
which FSA has determined in advance
of a coverage period, based on FSA’s
review of sufficient scientific evidence
that a requisite amount of chill hours is
required for the crop to produce and a
lack of chill hours is adverse to the
crop’s production without any regard to
any management. In this context,
‘‘without regard to any management’’
means if a crop’s inability to produce
due to lack of chill hours can be
mitigated by any managerial practices,
application of chemical, or other
management intervention, the lack of
chill hours will not be included as an
eligible cause of loss for the crop, In
cases where FSA makes the decision to
include insufficient chill hours as a
cause of loss by itself for a crop and
location, the crop and location and
subsequent crop year coverage period
for which the decision will apply will
be specified in a list maintained by FSA.
If the crop and location is not on that
list, then insufficient chill hours can
only be an eligible cause of loss if the
insufficient chill hours were related to
a damaging weather event or an adverse
natural occurrence included in
paragraphs (b)(1) or (2) of this section;
or
(ix) Any combination of paragraphs
(b)(1)(i) through (viii) of this section;
(2) Adverse natural occurrence,
including, but not limited to:
(i) Earthquake;
(ii) Flood; or
(iii) Volcanic eruption; or
(3) A condition related to an eligible
cause of loss in paragraphs (b)(1) or (2)
of this section (in this context, the
related condition must result from the
damaging weather or adverse natural
occurrence; it is not eligible if it occurs
on its own) including, but not limited
to:
(i) Heat;
(ii) Insect infestation;
(iii) Disease;
(iv) Insufficient chill hours; or
(v) Any combination thereof.
(c) The damaging weather, adverse
natural occurrence, or related condition
as specified in paragraph (b) of this
section must occur in the coverage
period before or during harvest and
directly cause, accelerate, or exacerbate
destruction or deterioration of the
eligible crop as determined by the
county committee.
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(d) NAP coverage is provided against
only eligible causes of loss. All specified
causes of loss must be due to a naturally
occurring event during the coverage
period. All other causes of loss,
including, but not limited to, the
following, are not covered:
(1) Negligence, mismanagement, or
wrongdoing by the NAP covered
producer or anyone else;
(2) Failure to follow recognized good
farming practices for the eligible crop;
(3) 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;
(4) Failure or breakdown of the
irrigation equipment facilities, unless
the failure or breakdown is due to an
eligible cause of loss. If damage is due
to an eligible cause of loss, the producer
must make all reasonable efforts to
restore the equipment or facilities to
proper working order within a
reasonable amount of time unless FSA
determines it is not practical to do so.
Cost will not be considered when
determining whether it is practical to
restore the equipment or facilities;
(5) Failure to carry out a good
irrigation practice for the covered crop,
if applicable;
(6) Any cause of loss that results in
damage that is not evident or would not
have been evident during the NAP
coverage period. Even though FSA may
not inspect the damaged crop until after
the end of the NAP coverage period,
only damage due to eligible causes that
would have been evident during the
NAP coverage period will be covered;
(7) Except for lack of chill hours as
specified in paragraph (b)(1)(viii) of this
section, normal variance of
temperatures from average normal
temperatures including, but not limited
to, cyclic yield variations that occur for
a crop that are not causes of loss
included in paragraphs (b)(1) or (2) of
this section;
(8) Any managerial decision to
attempt to grow or produce a crop in an
area that is not suited for successful
commercial production of the eligible
NAP crop as determined by FSA;
(9) Failure of the producer to reseed
to the same crop during the same
planting period in those areas and under
such circumstances where it is
customary to do so;
(10) Except for tree crops and
perennials and as provided for in
§ 1437.201, inadequate irrigation
resources at time of planting;
(11) Except as specified in § 1437.303,
a loss of inventory or yield of
aquaculture (including ornamental fish),
floriculture, or ornamental nursery
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stemming from drought or any failure to
provide water, soil, or growing media to
such crop for any reason;
(12) Any failure to provide a
controlled environment or exercise good
nursery practices when such controlled
environment or practices are a condition
of eligibility under this part;
(13) Except as provided for mollusks
in § 1437.303, any alleged or actual loss
of inventory or missing noncontainerized inventory resulting from a
managerial decision not to seed or raise
the eligible NAP crop in containers, net
pens, or wire baskets, on ropes, or using
similar devices;
(14) For crops grown using organic
farming practices, failure to comply
with organic standards;
(15) Contamination by application or
drift of prohibited substances onto land
on which crops are grown using organic
farming practices; or
(16) Weeds.
(e) The lack of an eligible cause of loss
during a coverage period is not a
compliance matter or issue. NAP will
not provide assistance for crops that do
not suffer from an eligible cause of loss
during a coverage period. The relief
provisions of these regulations and of 7
CFR part 718 cannot be used to pay
producers of crops that did not suffer
from an eligible cause of loss during the
coverage period.
■ 19. Amend newly redesignated
§ 1437.11 as follows:
■ a. Revise paragraphs (a) through (c)
and (e) through (g);
■ b. In paragraphs (d)(3) remove the
words ‘‘FSA administrative county
office’’ and add the words
‘‘administrative county office’’ in their
place;
■ c. In paragraph (d)(4) remove the
words ‘‘FSA administrative county
office’’ and add the words
‘‘administrative county office’’ in their
place, and remove the acronym ‘‘CCC’’
and add the acronym ‘‘FSA’’ in its place
both times it appears;
■ d. In paragraph (d)(5) remove the
words ‘‘FSA administrative county
office’’ and add the words
‘‘administrative county office’’ in their
place; and
■ e. Add paragraph (h).
The revisions and addition read as
follows:
§ 1437.11 Notice of loss, appraisal
requirements, and application for payment.
(a) In addition to the written notice of
loss requirements specified for all crops
in paragraphs (b) and (c) of this section,
for hand-harvested crops and for other
crops determined by FSA, at least one
producer having a share in the unit
must notify FSA of the damage or loss
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through the administrative county office
for the unit within 72 hours of the date
damage or loss on the unit first becomes
apparent. Notification required under
this paragraph may be via telephone to
the administrative county office during
business hours or via written notice on
a form prescribed by FSA as specified
in paragraph (c) of this section.
(b) Unless written notice for handharvested crops has already been
provided within 72 hours of date of
damage or loss as specified in
paragraphs (a) and (c) of this section, in
case of damage to any NAP covered
crop, at least one producer having a
share in the unit must file a notice of
loss in the administrative county office:
(1) For prevented planting claims,
within 15 days after the final planting
date;
(2) For low yield claims, the earlier of:
(i) 15 days after the disaster
occurrence or date of loss or damage to
the crop first becomes apparent; or
(ii) 15 days after the normal harvest
date.
(c) The notice of loss specified in
paragraph (b) of this section must be for
each crop and be in writing on a form
prescribed by FSA and include:
(1) The alleged cause of crop damage;
(2) Date the disaster occurred and
when the damage or loss first became
apparent;
(3) A copy of the contract or
agreement if a contract or agreement of
a guaranteed payment for planted
acreage exists;
(4) The type of loss that occurred, for
example, prevented planting or low
yield;
(5) Practices used, for example,
irrigated or non-irrigated;
(6) For prevented planting:
(i) Total intended planted acreage of
the crop on the unit;
(ii) Total acreage of the crop planted
on the unit;
(iii) Whether seed, chemicals,
fertilizer, etc. was purchased, delivered,
or an arrangement for purchase or
delivery was made for the intended to
be planted crop;
(iv) What and when land preparation
measures were completed, and
(v) What has been done or will be
done with the acreage, for example,
abandoned, replanted, etc.;
(7) For low yield:
(i) Total acreage devoted to the crop
in the unit;
(ii) Total acreage of the crop affected;
(iii) What and when land preparation
measures and practices were completed
before and after the loss; and
(iv) What will be done with the
affected crop acreage, for example,
harvested, destroyed, replanted to a
different crop, abandoned, etc.; and
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(8) Any other information requested
by an FSA authorized representative.
*
*
*
*
*
(e) Crop acreage for which an
application for coverage has been filed,
that is intended for production of forage
seed and for which a notice of loss is
filed indicating the crop acreage will not
be harvested as seed, will be appraised
for potential production of seed when
producers provide FSA acceptable
evidence of a contract to produce seed
for the current crop year or acceptable
records of acreage and seed production
for three or more of the last 5
consecutive crop years, as determined
by FSA.
(f) Forage acreage for which a notice
of loss is filed and:
(1) Catastrophic coverage was
obtained for forage intended to be
grazed will have NAP benefits
calculated based on § 1437.401(f);
(2) Catastrophic coverage was
obtained for forage that was intended to
be mechanical harvested but will be
grazed and not mechanical harvested;
(i) Must have an appraisal and release
for the unit to have NAP benefits
calculated based on mechanical
harvested forage; or
(ii) For which an appraisal or release
was not obtained, will have a loss
calculated as specified in § 1437.401(f).
(3) Buy-up coverage was obtained for
forage intended to be mechanically
harvested but will be grazed and not
mechanically harvested:
(i) Must have an appraisal and release
in order for the unit to have NAP
benefits calculated based on the loss of
expected mechanically harvested forage;
or
(ii) For which an appraisal or release
was not obtained is ineligible for
payment consideration and will have
the unit guarantee assigned to the forage
crop acreage.
(g) Producers must file an application
for payment on a form specified by FSA
to apply for NAP payments within 60
days of the last day of coverage for the
crop year for any NAP covered crop in
the unit.
(h) A notice of loss under paragraph
(a) of this section filed beyond the time
specified in this section or notification
provided under paragraph (b) of this
section may satisfy the requirements of
these provisions, if, at the discretion of
FSA, the notice is filed at such time that
permits:
(1) An authorized FSA representative
to verify information on the notice of
loss by inspecting the affected acreage
or the crop or commodity involved; and
(2) The county committee or an
authorized FSA representative the
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opportunity to determine that eligible
disaster conditions caused the damage
or loss.
■ 20. Amend newly redesignated
§ 1437.12 as follows:
■ a. Redesignate paragraph (b) as
paragraph (e);
■ c. Remove paragraphs (c) and (d); and
■ d. Add paragraphs (b) through (d) and
(f) through (i).
The additions read as follows:
§ 1437.12 Average market price and
payment factors.
*
*
*
*
*
(b) For each crop and location (State
or county or other location as
determined appropriate by FSA), FSA
will establish an average market price
using the following method:
(1) Obtaining market prices for each
crop for the 5 consecutive crop years
immediately preceding the crop year of
coverage, if available; then
(2) Dropping the crop years in the 5
consecutive crop years with the highest
and lowest prices; and then
(3) Averaging the prices for the
remaining 3 crop years in the 5
consecutive crop years; and
(4) If 5 crop years of data is not
available for determining the average
market price, FSA will use the best data
available, as determined by FSA, for as
many crop years of average market price
data as possible within the 5
consecutive crop years immediately
preceding the previous crop year and
determine an average market price for
the crop by computing a simple average
of the prices for those years.
(c) FSA will disregard small
differences in prices for a crop based on
different types or varieties or various
intended uses. If FSA determines there
is a significant amount of production
being marketed in a location or region
at significantly different prices, FSA
will determine whether or not to
establish different average market prices
for subsequent crop years.
(d) Separate average market prices
may be established within a State based
on conventional or organic practices or
the intended market, as determined by
FSA.
*
*
*
*
*
(f) 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 FSA. The imposition of
payment factors is based on the acre
status and disposition not whether a
NAP participant actually incurs or does
not incur expenses.
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(g) The average market price used to
determine the amount of NAP assistance
for crop acreage reported with a specific
intended use will be based on the
smaller of the approved average market
price established for either the specific
intended use reported on the acreage
report or actual market or actual use for
which more than 50 percent of the
acreage’s harvested production is
marketed. For example: A producer
reports 50 acres of carrots intended for
fresh market and the producer suffers a
70 percent loss of production on the
acreage. Additionally, more than 50
percent of the carrots actually produced
from the 50 acres are sold as processed
carrots. Because the established average
market price for processed carrots is less
than fresh carrots and more than 50
percent of the harvested crop was
marketed as processed carrots, the
established average market price for
processed carrots will be used to
compute the producer’s NAP assistance.
If an average market price had not been
established for processed carrots in this
example before the coverage period,
then the average market price for fresh
carrots would be used.
(1) The provisions of this paragraph
do not apply to secondary use, peanuts,
seed intended uses, and small grain
intended for use as forage.
(2) [Reserved]
(h) For crops with an established
yield and market price for multiple
intended uses, the average market price
will be as provided in paragraph (g) of
this section except that for producers
who choose buy-up coverage under
§ 1437.5(d), the average market price
used to determine assistance may be
based on historical production and
acreage evidence provided by the
participant. The evidence of actual final
use of historical production must come
from the 3 previous crop years
immediately preceding the coverage
year. Only years in which the producer
had acreage and production harvested
will be counted. In other words, if a
producer only marketed a crop in 1
previous year, FSA will review the
evidence of final use in that year and
based on the evidence for that year,
determine a percent of production
attributable to each use. Based on that
determined percentage, an appropriate
average market price and use will be
calculated and determined, respectively.
If more than 1 and up to 3 years of final
use evidence are available, FSA will
count all years and production and
determine the average. If a producer had
crop acreage and evidence of final use
for any year in the 3-year period, but the
producer does not submit evidence for
any other year in the 3-year period for
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which the producer also had acreage,
the average market price will be as
provided in paragraph (g) of this
section.
(i) A final payment price will be
determined by multiplying, as
appropriate, the average market price
determined in this section by the
applicable payment factor (that is,
harvested, unharvested, or prevented
planting).
§ 1437.14
[Amended]
21. Amend newly redesignated
§ 1437.14 as follows:
■ a. In paragraph (a), remove the word
‘‘shall’’ and add the word ‘‘will’’ in its
place;
■ b. Remove paragraph (b)(2);
■ c. Redesignate paragraphs (b)(3)
through (5) as paragraphs (b)(2) through
(4), respectively;
■ d. In newly redesignated paragraphs
(b)(2) through (4) remove the reference
‘‘part 760 of this title’’ and add the
reference ‘‘part 1416 of this chapter’’ in
its place each time it appears; and
■ e. In paragraph (d), remove the word
‘‘FSA’’ and add the word ‘‘county’’ in its
place.
■
§ 1437.15
[Amended]
22. Amend newly redesignated
§ 1437.15 as follows:
■ a. Remove paragraph (b); and
■ c. Redesignate paragraph (c) as
paragraph (b).
■ 23. Amend newly redesignated
§ 1437.16 as follows:
■ a. In paragraph (b), remove the word
‘‘shall’’;
■ b. In paragraph (c) introductory text,
remove the words ‘‘shall be’’ and add
the word ‘‘is’’ in their place;
■ c. In paragraph (e), remove the words
‘‘shall be’’ and add the word ‘‘are’’ in
their place, and remove the acronym
‘‘CCC’’ and add the acronym ‘‘FSA’’ in
its place;
■ d. In paragraph (f), remove the word
‘‘shall’’ and add the word ‘‘will’’ in its
place;
■ e. Revise paragraph (g);
■ f. In paragraph (i), remove the word
‘‘shall’’ and add the word ‘‘will’’ in its
place;
■ g. Revise paragraph (j); and
■ h. Add paragraphs (m) through (p).
The additions and revisions read as
follows:
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■
§ 1437.16
Miscellaneous provisions.
*
*
*
*
*
(g) The liability of any person for any
penalty under this part is in addition to
any other liability under any civil or
criminal fraud statute or any other
provision of law.
*
*
*
*
*
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(j) For the purposes of 28 U.S.C.
3201(e), the Secretary waives the
ineligibility to receive benefits under
this program but only for beneficiaries
who as a condition of such waiver agree
to apply the benefits to reduce the
amount of the judgment lien.
*
*
*
*
*
(m) Any person or legal entity who
has a debt from nonpayment of the
premium for coverage levels specified in
§ 1437.5(c) will be ineligible for
assistance under any subsequent crop
year NAP coverage on any crop from the
crop year of nonpayment of premium
until the debt is paid in full.
(1) If a person or legal entity is
ineligible for NAP assistance due to the
debt because of the nonpayment of
premium, FSA will permit the person or
legal entity to file an application for
coverage together with payment of any
service fees; however, that application
and payment of service fees will not
make the person or legal entity eligible
for any assistance until the premium
debt is paid in full.
(2) Service fees paid with applications
for coverage that are filed by persons or
legal entities who are ineligible for NAP
assistance as specified in paragraph (m)
of this section will not be credited to
any unpaid premium debt nor are they
refundable.
(n) A person or legal entity ineligible
for NAP assistance under paragraph (m)
of this section may become eligible for
future NAP assistance if they remit all
unpaid debt related to the nonpayment
of premium before the application for
payment filing deadline (see
§ 1437.11(g)).
(o) Any NAP payment that was not
issued for a prior NAP crop year due to
an outstanding debt as specified in
paragraph (m) of this section will not be
issued.
(p) Unpaid debt related to the failure
to pay any premium satisfied by
administrative offset will reinstate the
eligibility of a person or legal entity
from the date the offset satisfies all the
unpaid premium debt with interest.
■ 24. Add § 1437.17 to read as follows:
§ 1437.17
Matters of general applicability.
(a) The regulations in this part and
FSA’s interpretation of the regulations
in this part, the basic provisions, and
internal agency directives issued to FSA
State and county offices are matters of
general applicability and are not
individually appealable in
administrative appeals according to
§§ 11.3 and 780.5 of this title.
Additionally, the regulations in this part
and any FSA decisions that are not
based on specific facts derived from an
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74579
individual participant’s application,
contract, or file are not appealable under
parts 11 or 780 of this title. Examples of
such decisions include how NAP is
generally administered, signup
deadlines, payment rates, or any other
generally applicable matter or
determination that is made by FSA for
use in all similarly situated
applications. The only extent to which
the matters referenced in this section are
reviewable administratively in an
appeal forum is whether FSA’s
determination of facts incidental to the
case and decision to apply the generally
applicable matter is in conformance
with the regulations in this part.
(b) The relief provisions of 7 CFR part
718 are applicable only to participant
ineligibility and noncompliance
decisions. The relief provisions cannot
be used to extend a benefit or assistance
not otherwise available under law or not
otherwise available to others who have
satisfied or complied with all the
eligibility and compliance requirements
of this part. Equitable relief provisions
of part 718 of this title cannot be used
to obtain a review of either these
regulations, the requirements of this
part, the agency’s interpretations of this
part, or compliance provisions of this
part.
Subpart B—Determining Yield
Coverage Using Actual Production
History
25. Amend § 1437.102 as follows:
a. In paragraph (b)(1), remove the year
‘‘2005’’ and add the year ‘‘2015’’ in its
place, and remove the term ‘‘1999
through 2003’’ and add the term ‘‘2009
through 2013’’ in its place;
■ b. In paragraph (b)(5)(i), remove the
words ‘‘irrigated, non-irrigated, and
organic practices’’ and add the words
‘‘irrigated and non-irrigated’’ in their
place;
■ c. Redesignate paragraphs (b)(6)
through (8) as paragraphs (b)(8) through
(10), respectively;
■ d. Add paragraphs (b)(6) and (7);
■ e. In paragraphs (c)(1) and (2), add the
words ‘‘in a crop year that is not a
bypass year’’ immediately after the
words ‘‘report of production’’;
■ f. In paragraph (c)(3), remove the
reference ‘‘§ 1437.7’’ and add the
reference ‘‘§ 1437.8’’ in its place;
■ g. In paragraph (d)(1), remove the
words ‘‘production, as determined by
CCC’’ add the words ‘‘production in a
crop year that is not a bypass year, as
determined by CCC’’ in their place;
■ h. In paragraph (d)(2), remove the
reference ‘‘§ 1437.7’’ and add the
reference ‘‘§ 1437.8’’ in its place;
■
■
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i. In paragraph (e)(3), remove the word
‘‘Shall’’ and add the word ‘‘Will’’ in its
place;
■ j. In paragraph (g), remove the year
‘‘2000’’ and add the year ‘‘2014’’ in its
place and remove the acronym ‘‘CCC’’
and add the acronym ‘‘FSA’’ in its
place;
■ k. In paragraph (h), remove the words
‘‘50 percent of the initial approved
yield’’ and add the words ‘‘the unit
guarantee’’ in their place, and remove
the acronym ‘‘CCC’’ each time it appears
and add the acronym ‘‘FSA’’ in its
place; and
■ l. Revise paragraph (j).
The additions and revision read as
follows:
■
§ 1437.102
Yield determinations.
*
*
*
*
*
(b) * * *
(6) Will be adjusted on a State-wide
basis, for crops grown on certified
organic and transitional acreage for
which FSA has established a separate
organic price as specified in
§ 1437.12(b), based on an average of
FCIC organic yield reductions, as
determined by FSA, for the same crop
in the same State.
(7) May be adjusted on a county-wide
or regional basis for crops grown on
certified organic and transitional
acreage for which FSA has established
a separate organic price as specified in
§ 1437.12(b), based on the most
representative available historical
information, as determined by FSA.
*
*
*
*
*
(j) A producer who has not shared in
the risk of the production of the crop for
more than two crop years during the
base period, as determined by FSA, will
have an approved yield calculated based
on a combination of 100 percent of the
applicable T-yield and any actual yield
for the minimum crop years of the
producer’s APH base period. Producers
who have produced the crop for one or
more crop years must provide FSA, at
the administrative county office serving
the area in which the crop is located, a
certification of production and
production records for the applicable
crop years as specified in § 1437.8.
*
*
*
*
*
■ 26. Revise § 1437.103 to read as
follows:
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§ 1437.103
Late-planted acreage.
(a) Producers planting crop acreage
after the final planting date and during
the late planting period, as determined
by FSA, may be eligible for reduced
coverage as specified in paragraphs (b)
and (c) of this section.
(b) Crops with multiple planting
periods and value loss crops are not
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eligible for reduced coverage for late
planting. Exceptions to this are the last
planting period of multiple planted
crops and multiple-planting periods
having a defined gap of 60 days or more
between harvest date of the previous
planting period and beginning of the
immediately following planting period.
(c) For crops with a growing period of:
(1) 60 days or less and planted:
(i) From 1 to 5 calendar days after the
final planting date, production will be
assigned equal to 5 percent of unit
expected production for each day the
crop is actually planted after the final
planting date;
(ii) From 6 days after the final
planting date, production will be
assigned equal to the unit guarantee for
the late planted crop acreage.
(2) 61 to 120 calendar days and
planted:
(i) From 1 to 5 calendar days after the
final planting date, production will be
assigned equal to 5 percent of expected
unit production of the applicable lateplanted crop acreage and for days 6
through 20 an additional 1 percent for
each day the crop is planted after the
final planting date;
(ii) From 21 days after the final
planting date, production will be
assigned equal to the unit guarantee for
the late planted crop acreage.
(3) 121 calendar days or more and
planted:
(i) From 1 to 5 calendar days after the
final planting date, production will be
assigned equal to 5 percent of expected
production of the applicable lateplanted crop acreage and for days 6
through 25 an additional 1 percent for
each day the crop is planted after the
final planting date.
(ii) From 26 or more calendar days
after the final planting date, production
will be assigned equal to unit guarantee
of the producer’s expected production
of the applicable late-planted crop
acreage.
§ 1437.104
[Amended]
27. In § 1437.104(a)(2) remove the
reference ‘‘§ 1437.10(d)’’ and add the
reference ‘‘§ 1437.11(e)’’ in its place.
■ 28. Amend § 1437.105 as follows:
■ a. In paragraph (a) introductory text,
remove the word ‘‘shall’’ and add the
word ‘‘will’’ in its place;
■ b. In paragraph (a)(1), remove the
words ‘‘eligible acreage planted’’ and
add the words ‘‘acres devoted’’ in their
place;
■ c. In paragraph (a)(2), remove the
words ‘‘50 percent’’ and add the words
and punctuation ‘‘50, 55, 60, or 65
percent, as selected by the producer as
specified in § 1437.5;’’ in their place;
and
■
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d. Revise paragraph (a)(5); and
e. Add paragraphs (c), (d), (e), and (f).
The revision and additions read as
follows:
■
■
§ 1437.105
yield.
Determining payments for low
(a) * * *
(5) Multiplying the amount calculated
as specified in paragraph (a)(4) of this
section by 55 or 100 percent (selected by
the producer as specified in § 1437.5) of
the final payment price calculated as
specified in § 1437.12; and
*
*
*
*
*
(c) The crops and locations eligible for
quality adjustments will be determined
by the Deputy Administrator in advance
of the coverage period, only if
supporting documentation of industry
standards for quality adjustments are
available. For specific crops and
locations determined by the Deputy
Administrator for which buy-up
coverage under § 1437.5(d) is elected
and for which adjustments to net
production based on quality losses will
be authorized for a coverage period in
accordance with this paragraph,
producers may opt for an adjustment of
net production of a covered crop as
specified in paragraph (a)(3) of this
section based on a specific measure of
quality against a set of standards that are
acceptable to FSA. The standards and
permissible adjustments to net
production based on alleged quality
losses stemming from eligible causes of
loss in a coverage period will be based
on FSA’s review of sufficient
documentation and are subject to FSA
acceptance and State committee
recommendation to the Deputy
Administrator. The crops and locations
where quality adjustments will be
permitted will be as specified on a list
maintained by FSA.
(d) Production will not be adjusted
under this section unless all other
provisions of this section are met and
the crop and location are included on a
list of approved crops and locations
before the beginning of the coverage
period for the crop.
(e) A producer of a NAP covered crop
in a location and coverage period
approved by FSA as specified in
paragraphs (c) and (d) of this section
who opts for the quality loss adjustment
option must submit verifiable records
obtained by testing or analysis of the
specific crop’s production and the
alleged loss of quality stemming from an
eligible cause of loss in the coverage
period. Records must meet requirements
of § 1437.8(a)(3).
(f) If a quality adjustment option is
sought by a producer and approved for
a crop year, FSA will enter the adjusted
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value of net production into the
producer’s actual production history
yield database for the loss year. The
lower actual yield that results from the
quality adjustment will be used for
future approved yield calculations.
■ 29. Amend § 1437.106 as follows:
■ a. Revise paragraph (d);
■ b. In paragraph (e), remove the words
‘‘shall consist’’ and add the word
‘‘consists’’ in its place;
■ c. In paragraph (g) introductory text,
remove the words ‘‘Administrative
FSA’’ and add the words
‘‘administrative county’’ in their place;
■ d. In paragraph (g)(2), remove the
reference ‘‘§ 1437.10’’ and add the
reference ‘‘§ 1437.11’’ in its place;
■ e. In paragraph (i), remove the words
‘‘in excess of a 50 percent loss level’’
and add the words ‘‘based on the
applicable guarantee’’ in their place;
and
■ f. Add paragraph (j).
The revision and addition read as
follows:
§ 1437.106
Honey.
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*
*
*
*
*
(d) In addition to filing a report of
acreage in accordance with § 1437.8,
honey producers must provide a record
of colonies to FSA. The report of
colonies must be filed before the crop
year for which producers seek to
maintain coverage. The report of
colonies must include:
*
*
*
*
*
(j) Premiums for coverage levels
specified in § 1437.5(c) will be
calculated based on the highest number
of colonies reported during the program
year.
■ 30. Amend § 1437.107 as follows:
■ a. In paragraph (c), remove the
reference ‘‘§ 1437.6’’ and add the
reference ‘‘§ 1437.7’’ in its place, and
remove the acronym ‘‘CCC’’ and add the
acronym ‘‘FSA’’ in its place;
■ b. In paragraph (d) introductory text,
remove the reference ‘‘§ 1437.7’’ and
add the reference ‘‘§ 1437.8’’ in its
place;
■ c. In paragraph (e), remove the words
‘‘shall be’’ and add the word ‘‘is’’ in
their place, and remove the acronym
‘‘CCC’’ in both places it appears and add
the acronym ‘‘FSA’’ in its place;
■ d. In paragraph (f), remove the words
‘‘shall be’’ and add the word ‘‘is’’ in
their place;
■ e. In paragraph (g), remove the words
‘‘shall be’’ and add the word ‘‘will’’ in
their place;
■ f. In paragraph (i), remove the words
‘‘in excess of a 50 percent loss level’’
and add the words ‘‘based on the
applicable guarantee’’ in its place; and
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■
g. Add paragraph (j).
The addition reads as follows:
§ 1437.107
Maple sap.
*
*
*
*
*
(j) Premiums for coverage levels
specified in § 1437.5(c) will be
calculated based on the number of taps
reported by the producer.
Subpart C—Determining Coverage For
Prevented Planted Acreage
§ 1437.201
[Amended]
31. In § 1437.201(a), remove the word
‘‘shall’’.
■
§ 1437.202
[Amended]
32. Amend § 1437.202 as follows:
a. In paragraph (a)(7), remove the
words ‘‘by the final’’ and add the words
‘‘by 55 or 100 percent, as selected by the
producer as specified in § 1437.5, of the
final’’ in their place, and remove the
reference ‘‘§ 1437.11’’ and add the
reference ‘‘§ 1437.12’’ in its place; and
■ b. In paragraph (b), remove the word
‘‘shall’’ and add the word ‘‘will’’ in its
place.
Subpart D—Determining Coverage
Using Value
■ 33. Amend § 1437.301 as follows:
■ a. Revise paragraph (a);
■ b. In paragraph (c) introductory text,
remove the reference ‘‘§ 1437.6’’ and
add the reference ‘‘§ 1437.7’’ in its
place; and
■ c. Add paragraph (d).
The revision and addition read as
follows:
■
■
§ 1437.301
Value loss.
(a) Special provisions are required to
assess losses and calculate assistance for
a few crops and commodities that 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. FSA
determines which crops are value-loss
crops, but unless otherwise announced,
value-loss crops are those identified in
§§ 1437.303 through 1437.309. Lost
production of value loss crops is eligible
for payment only as specified in this
subpart.
*
*
*
*
*
(d) For coverage levels specified in
§ 1437.5(c), producers must pay a
premium equal to the lesser of:
(1) The producer’s share, times the
maximum dollar value for coverage
sought, times the coverage level, times
the average market price, times a 5.25
percent premium fee; or
(2) A 5.25 percent premium fee times
the applicable payment limitation.
■ 34. Revise § 1437.302 to read as
follows:
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§ 1437.302
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Determining payments.
(a) Subject to all restrictions and the
availability of funds, value loss
payments for qualifying losses will be
determined by:
(1) Multiplying the field market value
of the crop before the disaster, or for
buy-up coverage specified in
§ 1437.5(c), the lesser of the field market
value of the crop before the disaster or
the maximum dollar value for coverage
sought, by 50, 55, 60, or 65 percent, as
selected by the producer as specified in
§ 1437.5;
(2) 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;
(3) Multiplying the result from
paragraph (a)(2) of this section by the
producer’s share;
(4) Multiplying the result from
paragraph (a)(3) of this section by 55 or
100 percent, as selected by the producer
as specified in § 1437.5, plus whatever
appropriate factor reflects savings from
non-harvesting of the damaged crop or
other factors as appropriate; and
(5) Subtracting the producer’s share of
any salvage value, if applicable.
(b) [Reserved]
■ 35. Amend § 1437.303 as follows:
■ a. In paragraph (a) introductory text,
remove the words ‘‘is compensable’’ and
add the words ‘‘will have NAP
assistance calculated’’ in their place,
and remove the world ‘‘shall’’;
■ b. In paragraph (d)(3), add the words
and punctuation ‘‘on ropes,’’
immediately after ‘‘net pens,’’;
■ c. Redesignate paragraphs (e) and (f)
as paragraphs (f) and (g); and
■ d. Add paragraph (e).
The addition reads as follows:
§ 1437.303 Aquaculture, including
ornamental fish.
*
*
*
*
*
(e) For mollusks that are not planted
or seeded in containers, net pens, on
ropes, wire baskets, or similar device
designed for the containment and
protection of the mollusks, the only
eligible cause of loss of mollusks or
missing mollusk inventory will be a
direct result of a National Oceanic and
Atmospheric Administrationdetermined tropical storm, typhoon, or
hurricane.
*
*
*
*
*
§ 1437.304
[Amended]
36. Amend § 1437.304 as follows:
a. In paragraph (a) introductory text,
remove the words ‘‘shall be’’ and add
the word ‘‘is’’ in their place; and
■
■
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b. In paragraph (g), remove the words
‘‘shall be’’ and add the word ‘‘are’’ in
their place both times they appear.
■
§ 1437.305
[Amended]
37. In § 1437.305(e), remove the word
‘‘shall’’ and add the word ‘‘will’’ in its
place.
■
§ 1437.306
[Amended]
36. In § 1437.306(c), remove the word
‘‘shall’’ and add the word ‘‘will’’ in its
place.
■
§ 1437.308
[Amended]
39. In § 1437.308(d)(3), remove the
words ‘‘a CCC-certified’’ and add the
words ‘‘an FSA-certified’’ in their place.
■
§ 1437.309
[Amended]
40. Amend § 1437.309 as follows:
a. In paragraph (c), remove the words
‘‘shall be’’ and add the word ‘‘is’’ in
their place;
■ b. In paragraph (d), removed the word
‘‘shall’’ and add the word ‘‘will’’ in its
place; and
■ c. In paragraph (e), remove the
reference ‘‘§ 1437.7’’ and add the
reference ‘‘§ 1437.8’’ in its place, and
remove the acronym ‘‘CCC’’ and add the
acronym ‘‘FSA’’ in its place.
■
■
§ 1437.310
[Amended]
41. Amend § 1437.310 as follows:
a. In paragraph (b)(1), remove the
word ‘‘shall’’ and add the word ‘‘will’’
in its place;
■ b. In paragraphs (c)(1) and (2), remove
the reference ‘‘§ 1437.11’’ and add the
reference ‘‘§ 1437.12’’ in its place both
times it appears; and
■ c. In paragraph (h), remove the word
‘‘shall’’ and add the word ‘‘will’’ in its
place both times it appears.
■
■
Subpart E—Determining Coverage of
Forage Intended for Animal
Consumption
42. Revise § 1437.401 to read as
follows:
■
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§ 1437.401
Forage.
(a) Forage eligible for benefits under
this part is limited to mature vegetation,
as determined by FSA, produced in a
commercial operation. Benefits are not
available for first-year seeding of alfalfa
and similar vegetation when production
is not produced in the seeding year, as
determined by FSA. The commercial
operation must use 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
as hay or seed. Forage to be
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mechanically harvested will be treated
under the rules for low-yield crops as
calculated under § 1437.103, except
claims on forage for grazing benefits will
be determined according to paragraph
(f) of this section. The provisions in this
subpart apply to all claims including
forage for mechanical harvest.
(b) Producers of forage must, in
addition to the records required in
§ 1437.8, specify the intended method of
harvest of all acreage intended as forage
for livestock consumption as either
mechanically or grazed.
(c) Producers must request an
appraisal from the administrative
county office for the unit 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,
but which is instead subsequently
grazed, will be considered for crop
definition purposes as mechanically
harvested. Expected production of the
specific acreage for which catastrophic
coverage was obtained will be
calculated on the basis of carrying
capacity. The loss of such grazed forage
will be determined according to
paragraph (f) of this section. For acreage
intended to be mechanically harvested
which is instead subsequently grazed,
the loss of intended mechanically
harvested forage may alternatively be
determined based on a review of
acceptable production evidence or
appraisal of the specific crop acreage.
As part of the payment computation for
this loss, intended mechanically
harvested forage crop acreage that is not
mechanically harvested but instead
grazed will be deemed to be unharvested for the purposes of
determining a payment factor.
(e) Small grain forage is the specific
acreage of wheat, barley, oats, triticale,
or rye intended for use as forage. Small
grain forage is a separate crop and
distinct from any other forage
commodities and other intended uses of
the small grain commodity. In addition
to the records required in § 1437.8,
producers must specify whether the
intended forage crop is intended for fall
and winter, spring, or full season forage.
In addition to other eligibility
requirements, FSA will consider other
factors, such as water sources and
available fencing, and adequate
fertilization to determine small grain
forage eligibility, yields, and
production.
(f) FSA will establish forage losses of
acreage intended to be grazed including,
in some cases, acreage intended to be
mechanically harvested but instead
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subsequently grazed for producers with
catastrophic coverage, on the basis of:
(1) The percentage of loss of similar
mechanically-harvested forage acreage
on the farm, or on similar farms in the
area when approved yields have been
calculated to determine loss; or
(2) Where there is no similar
mechanically-harvested forage acreage
on the farm or similar farms in the area,
the collective percentage of loss as
determined by FSA for the geographical
region after consideration of at least two
independent assessments of grazed
forage acreage conditions.
(i) The assessments must be
completed by forage or range specialists
in Federal, State, and local government
agencies, educational institutions, and
private companies not having a
financial interest in the outcome of the
assessment. Collective percentage of
loss determined by FSA for the
geographical region may be based on
any or all the following methods as may
be available and as determined
appropriate by the Deputy
Administrator:
(A) Independent assessments of
grazed forage acreage conditions;
(B) The U.S. Drought Monitor;
(C) Information obtained from loss
adjusters with sufficient forage
knowledge to provide grazing loss
assessments;
(D) Data obtained from approved areas
where clippings are obtained on a
regular basis to compare with expected
levels of production in a geographical
region; or
(E) Information from Natural
Resources Conservation Service
technical service providers having a
specialized knowledge.
(ii) Neither the assessments
themselves, nor collective loss
percentages established in accordance
with this section are subject to appeal.
FSA’s determinations of geographical
area for assessments and collective
grazing loss are generally applicable to
all similarly situated participants
farming in such defined geographical
region.
§ 1437.402
[Amended]
43. In § 1437.402(b) introductory text,
add the words ‘‘with catastrophic
coverage’’ immediately after the word
‘‘acreage’’, and remove the acronym
‘‘CCC’’ and add the acronym ‘‘FSA’’ in
its place.
■ 44. Revise § 1437.403 to read as
follows:
■
§ 1437.403
Determining payments.
(a) Subject to payment limits,
availability of funds, and other limits as
may apply, payments for catastrophic
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coverage of losses of forage reported to
FSA as intended to be grazed will be
determined by:
(1) Multiplying the eligible acreage by
the producer’s share;
(2) Dividing the result from paragraph
(a)(1) of this section by the carrying
capacity or adjusted per day carrying
capacity established for the specific
catastrophic coverage acreage, as
determined by FSA;
(3) Multiplying the result from
paragraph (a)(2) of this section by the
number of days established as the
grazing period;
(4) Adding adjustments of AUD for
practices and production to the product
of paragraph (a)(3) of this section;
(5) Multiplying the result from
paragraph (a)(4) of this section by the
applicable percentage of loss established
by FSA;
(6) Multiplying the amount of
assigned AUD, as determined by FSA,
by the producer’s share;
(7) Subtracting the result from
paragraph (a)(6) of this section from the
result from paragraph (a)(5) of this
section;
(8) Multiplying the result from
paragraph (a)(4) of this section by 0.50;
(9) Subtracting the result from
paragraph (a)(8) of this section from the
result from paragraph (a)(7) of this
section; and
(10) Multiplying the result from
paragraph (a)(9) of this section by 55
percent of the final payment price
established in accordance with
§ 1437.12.
(b) [Reserved]
Subpart F—Determining Coverage in
the Tropical Region
45. Amend § 1437.501 as follows:
■ a. Revise paragraph (a);
■ b. Remove paragraph (b)(2); and
■ c. Redesignate paragraph (b)(3) as
paragraphs (b)(2).
The revision reads as follows:
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■
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§ 1437.501 Applicability; definition of
‘‘tropical region’’ and additional definitions.
(a) This subpart applies to covered
tropical crops in the tropical region, as
those terms are defined in this subpart.
Benefits under this part may be
extended to those crops only to the
extent that they are otherwise eligible
for assistance under this part. Covered
crops do not include ‘‘value loss’’ crops,
as defined elsewhere in this part. For
those crops that are covered by this
subpart, loss and payment
determinations for NAP covered in this
part are determined by the rules that
otherwise apply to NAP subject to the
modifications provided by this subpart.
The rules that otherwise apply include,
but are not limited to, limitations on
payments that are specified in part 1400
of this chapter.
*
*
*
*
*
§ 1437.502
[Amended]
46. Amend § 1437.502 as follows:
a. In paragraph (a), remove the words
‘‘beginning in 2006 through subsequent
years’’;
■ b. Redesignate paragraphs (d)(1) and
(2) as paragraphs (d) and (e),
respectively; and
■ c. In newly redesignated paragraph
(d), remove the word ‘‘shall’’ and add
the words ‘‘will be interpreted to’’ in its
place.
■
■
§ 1437.504
[Amended]
47. Amend § 1437.504 as follows:
a. In paragraph (a), remove the
reference ‘‘§ 1437.10(c)’’ and add the
reference ‘‘§ 1437.11(d)’’ in its place;
and
■ b. In paragraph (b) introductory text,
remove the reference ‘‘§ 1437.10’’ and
add the reference ‘‘§ 1437.11’’ in its
place.
■
■
§ 1437.505
[Amended]
48. In § 1437.505(a) and (b)(1), remove
the reference ‘‘§ 1437.10’’ and add the
reference ‘‘§ 1437.11’’ in its place both
times it appears.
■
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§§ 1437.3, 1437.4, 1437.8, 1437., 1437.11,
1437.12, 1437.13, 1437.16, 1437.102,
1437.104, 1437.201, 1437.301, 1437.304,
1437.305, 1437.307, 1437.308, 1437.309,
1437.310, 1437.402, 1437.502, 1437.503,
1437.504 [Amended]
49. In addition to the amendments set
forth above, in 7 CFR part 1437, remove
the word ‘‘CCC’’ and add, in its place,
the word ‘‘FSA’’ in the following places:
■ a. In § 1437.3, in the definitions of
‘‘Fiber’’, ‘‘Final planting date’’, ‘‘Food’’,
‘‘Multiple planted’’, and ‘‘Normal
harvest date’’;
■ b. In § 1437.4(a)(1) and (3);
■ c. In newly redesignated § 1437.8(a)(1)
and (2), (e), both times it appears, and
(f);
■ d. In newly redesignated § 1437.11(d)
introductory text and (d)(2)(ii) and (iii);
■ e. In newly redesignated
§ 1437.12(a)(2) and (4);
■ f. In newly redesignated § 1437.13,
each time it appears;
■ g. In newly redesignated § 1437.16(d),
each time it appears;
■ h. In § 1437.102(b)(4), newly
redesignated paragraph (b)(9), (c)(4)
introductory text, (c)(4)(ii), (c)(5)(i) and
(ii), and (f), both times it appears;
■ i. In § 1437.104(a) introductory text;
■ j. In § 1437.201(c)(2)(i) and (ii);
■ k. In § 1437.301(c)(1) and (3);
■ l. In § 1437.304(a)(1), (c), and (f);
■ m. In § 1437.305(f);
■ n. In § 1437.307(e);
■ o. In § 1437.308(d)(1) and (4), and (e);
■ p. In § 1437.310(d), (e)(3), (g)(1), and
(i);
■ q. In § 1437.402(a) introductory text,
(a)(2), and (b)(3);
■ r. In § 1437.502(c)(1) and (2);
■ s. In § 1437.503(c)(2); and
■ t. In § 1437.504(f).
■
Signed on December 5, 2014.
Val Dolcini,
Executive Vice President, Commodity Credit
Corporation, and Administrator, Farm
Service Agency.
[FR Doc. 2014–29082 Filed 12–12–14; 8:45 am]
BILLING CODE 3410–05–P
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[Federal Register Volume 79, Number 240 (Monday, December 15, 2014)]
[Rules and Regulations]
[Pages 74561-74583]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-29082]
[[Page 74561]]
Vol. 79
Monday,
No. 240
December 15, 2014
Part VI
Department of Agriculture
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Farm Service Agency
7 CFR Part 718
Commodity Credit Corporation
7 CFR Parts 1412, 1416, and 1437
Noninsured Crop Disaster Assistance Program; Interim Rule
Federal Register / Vol. 79, No. 240 / Monday, December 15, 2014 /
Rules and Regulations
[[Page 74562]]
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DEPARTMENT OF AGRICULTURE
Farm Service Agency
7 CFR Part 718
Commodity Credit Corporation
7 CFR Parts 1412, 1416, and 1437
RIN 0560-AI20
Noninsured Crop Disaster Assistance Program
AGENCY: Commodity Credit Corporation and Farm Service Agency, USDA.
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: This rule implements changes to the Noninsured Crop Disaster
Assistance Program (NAP) as required by the Agricultural Act of 2014
(the 2014 Farm Bill), including changes to eligible crops, provisions
governing eligibility of native sod acreage, additional coverage
levels, and waivers of service fees and premium reductions for
beginning, limited resource, and socially disadvantaged producers. This
rule also clarifies requirements for eligible types and causes of loss
and expands coverage for eligible mollusk and other aquaculture losses.
This rule clarifies that the Farm Service Agency (FSA) may set separate
market prices for organic crops and for direct to consumer sales. The
changes are relatively minor and do not change the core purpose of NAP,
which is to provide financial assistance to producers of non-insurable
crops when low yield, loss of inventory, or prevented planting occurs
due to a natural disaster.
DATES: Effective Date: December 15, 2014.
Comment Date: We will consider comments that we receive by February
13, 2015.
ADDRESSES: We invite you to submit comments on this interim rule. In
your comment, include the Regulation Identifier Number (RIN) and the
volume, date, and page number of this issue of the Federal Register.
You may submit comments by any of the following methods:
Federal eRulemaking Portal: Go to https://www.regulations.gov. Follow the online instructions for submitting
comments.
Mail, hand delivery, or courier: Steve Peterson,
Production, Emergencies and Compliance Division, Farm Service Agency
(FSA), United States Department of Agriculture (USDA), Stop 0517, 1400
Independence Avenue SW., Washington, DC 20250-0517.
Comments will be available online at https://www.regulations.gov. In
addition, comments will be available for public inspection at the above
address during business hours from 8 a.m. to 5 p.m., Monday through
Friday, except holidays. A copy of this interim rule is available
through the FSA home page at https://www.fsa.usda.gov/.
FOR FURTHER INFORMATION CONTACT: Steve Peterson, telephone: (202) 720-
7641. Persons with disabilities who require alternative means for
communication (Braille, large print, audiotape, etc.) should contact
the USDA Target Center at (202) 720-2600 (voice).
SUPPLEMENTARY INFORMATION:
Background
FSA administers NAP for the Commodity Credit Corporation (CCC) as
authorized by section 196 of the Federal Agriculture Improvement and
Reform Act of 1996, as amended (7 U.S.C. 7333). The NAP regulations are
in 7 CFR part 1437. NAP is administered under the general supervision
of the FSA Administrator (who also serves as the CCC Executive Vice-
President) and is carried out by FSA State and county committees. NAP
coverage is limited to crops other than livestock that are commercially
produced for food and fiber, and to other specific crops for which
catastrophic coverage under section 508(b) or additional coverage under
sections 508(c) or 508(h) under the Federal Crop Insurance Act (7
U.S.C. 1508(b), (c), and (h)) is not available. Qualifying losses to
eligible NAP crops must be due to an eligible cause of loss as
specified in 7 CFR part 1437, which includes damaging weather (drought,
hurricane, freeze, etc.) or adverse natural occurrence (volcanic
eruption, flood, etc.). NAP coverage is not automatic; producers must
first apply for NAP coverage by an application closing date. That
application is not filed unless it is accompanied by the service fee.
The producer must file the application for coverage accompanied by the
appropriate service fee (or service fee waiver) at their FSA county
office in order to be eligible for NAP coverage. It is important
producers understand that the law specifies that an application for
coverage must be accompanied by the service fee and be filed no later
than 30 days before the beginning of any coverage period. Therefore,
the NAP application for coverage and payment of the service fee must be
completed before any coverage can begin or attach. In addition, in the
event a loss claim is filed for which premium fees are due premium fees
will be first deducted from the NAP payment earned. Losses occurring
outside a coverage period are not eligible for NAP coverage. Producers
who choose not to obtain NAP coverage for a crop or commodity are not
eligible for NAP assistance on the crop or commodity. The core
provisions of NAP are not changing with this rule.
The 2014 Farm Bill (Pub. L. 113-79) made a number of changes to
NAP. This rule amends the NAP regulations to be consistent with those
changes made by the 2014 Farm Bill. The changes include revised NAP
eligibility requirements for tilled native sod, added coverage
eligibility for sweet sorghum and biomass sorghum, and modified
coverage for industrial crops. Beginning, limited resource, and
socially disadvantaged farmers and ranchers will be eligible for
service fee waivers. New ``buy up'' provisions will allow producers to
buy additional NAP coverage for a premium, resulting in a risk
management product that has equivalent coverage levels to some types of
crop insurance offered by the Risk Management Agency (RMA).
This rule makes discretionary changes to clarify eligible losses,
and to redefine coverage for mollusks. Another discretionary change
adds a requirement for NAP participants to notify FSA of losses within
72 hours for certain crops, including hand-harvested crops, which
require a timely assessment of loss before the damaged crop
deteriorates. This rule clarifies that FSA may set separate market
prices for the same crop in a state based on farming practices
(conventional or organic) or sales to different markets (wholesale or
direct to consumer).
NAP Assistance for 2012 Fruit Crop Losses
The 2014 Farm Bill requires USDA to provide retroactive 2012 NAP
assistance for losses to fruit crops grown on trees or bushes in
counties that had Secretarial disaster designations due to frost or
freeze. The eligibility provisions for that assistance were previously
announced in a Notice of Funds Availability (79 FR 42493-42499) and are
not addressed in this rule.
Definitions Added or Revised in This Rule
The changes required by the 2014 Farm Bill and the clarifying
discretionary changes require new definitions. This rule adds the
following definitions to 7 CFR 1437.3, ``Definitions:'' ``acres devoted
to the crop,'' ``agricultural experts,'' ``application for coverage,''
``bypass year,'' ``buffer zone,'' ``buy-up coverage,'' ``buy-up
coverage yield,''
[[Page 74563]]
``certified organic acreage,'' ``certifying agent,'' ``conventional
farming practice,'' ``feedstock,'' ``generally recognized,''
``guarantee,'' ``maximum dollar value for coverage sought,'' ``organic
agricultural experts,'' ``organic crop,'' ``organic system plan,''
``organic standards,'' ``prohibited substance,'' ``short rotation woody
crops,'' and ``transitional acreage.'' This rule revises the
definitions for ``application closing date,'' ``catastrophic
coverage,'' ``crop year,'' ``good farming practices,'' ``industrial
crop,'' and ``native sod.'' These new and revised terms are needed to
clarify the new provisions of this rule. For example, the definitions
for ``feedstock,'' ``industrial crop,'' and ``short rotation woody
crops'' are needed to implement the changes required by the 2014 Farm
Bill to add certain biomass feedstocks as eligible crops and to clarify
the existing provisions for industrial crops. Definitions of
``agricultural experts'' and ``organic agricultural experts'' are
needed because those terms are used in the context of determining
appropriate farming practices for specific crops and locations. The new
provisions concerning specific market prices and practices for organic
crops requires adding definitions for ``buffer zone,'' ``certified
organic acreage,'' ``certifying agent,'' ``organic crop,'' ``organic
system plan,'' ``organic standards,'' ``prohibited substance,'' and
``transitional acreage.'' The new ``buy-up coverage'' required several
additional terms to clarify the provision on premium calculations.
NAP Eligibility for Crops and Practices Not Covered by Federal Crop
Insurance
This rule implements changes required by the 2014 Farm Bill with
regard to NAP crop eligibility. Before the 2014 Farm Bill, NAP coverage
was available on certain eligible crops for which a catastrophic risk
protection plan of insurance (CAT) was unavailable from RMA. (A CAT-
level of Federal crop insurance offered by RMA pays 55 percent of the
price of the commodity established by RMA on crop losses in excess of
50 percent.) NAP was offered at CAT-levels only on those crops. Prior
to the required changes made by the 2014 Farm Bill, in some cases, NAP
could be made available to certain eligible crops that had other forms
of insurance (additional coverage under sections 508(c) or 508(h))
available under the Federal Crop Insurance Act. The 2014 Farm Bill
amends NAP crop eligibility. As amended, NAP is not available for crops
for which CAT under section 508(b) or additional coverage under
sections 508(c) or 508(h) of the Federal Crop Insurance Act are
available. Therefore, if either CAT or additional coverage (excluding
pilot policies or plans of insurance) is available for a crop, NAP is
not available.
In addition to the mandatory change just described, FSA is making a
discretionary clarification that NAP coverage may be made available for
certain eligible crops for certain practices not covered under CAT or
additional coverage under sections 508(c) or (h). An example of this
could be where CAT or additional coverage is available for irrigated
corn grain crop acreage in a county but CAT and additional coverage is
unavailable for non-irrigated corn crop acreage. In this example, if
FSA determines that producing non-irrigated corn in the county is a
good farming practice and that Federal crop insurance is unavailable
because of a lack of actuarial data, NAP can be made available to non-
irrigated corn acreage in the county. This discretionary decision to
make NAP available to corn that is not irrigated will provide producers
with risk management protection. Coverage under NAP under this
exception will be limited to situations when the unavailability of CAT
coverage is due to a lack of actuarial data and not due to an absence
of good farming practices or due to hardiness zones.
Native Sod
This rule makes mandatory changes to the eligibility of producers
who grow crops on native sod as required by section 11014 of the 2014
Farm Bill. Prior to this rule, the regulations allowed that the
Governor of a State in the Prairie Pothole National Priority Area
(specific counties within the States of Iowa, Minnesota, Montana, North
Dakota, and South Dakota) could elect that producers newly tilling
native sod (specifically, that was tilled for the production of an
annual crop) would have been ineligible for Federal crop insurance and
for NAP benefits during the first 5 crop years of planting that annual
crop. However, the governors were not required to make that decision
and the producers of tilled native sod would have continued to be
eligible for both Federal crop insurance and NAP in those States, as
such decision was discretionary. The 2014 Farm Bill requires a
reduction of benefits for native sod acreage in Iowa, Minnesota,
Montana, Nebraska, North Dakota, and South Dakota. There is no longer
any discretion given to governors of those States. The reduced
eligibility period is now the first four crop years of planting.
Under the 2014 Farm Bill and this rule, for the first four years of
planting on native sod acreage, the NAP service fee and premiums for
crops planted on that acreage will be 200 percent of the amount
calculated according to 7 CFR 1437.6, although the premium cannot
exceed the maximum premium amount of 5.25 percent times the payment
limitation. The payment limit is $125,000, so the maximum premium
amount is $6,562.50. In addition, the approved yield will be equal to
65 percent of the T-yield for the crop. (The T-yield, as specified in 7
CFR 1437.3, is the estimated county yield that is used when a producer
does not have 4 years of actual production history.) This rule also
amends the definition of ``native sod'' to conform to the amended
definition established by the 2014 Farm Bill to specify that it
includes land that a producer cannot substantiate has ever been tilled
as of February 7, 2014. The 2014 Farm Bill does not change the de
minimis acreage exemption, which applies to areas of 5 acres or less
and is clarified in this rule to be consistent with the RMA provisions.
Eligible NAP Crops
Eligible NAP crops currently include commercial crops: Crops grown
for food (excluding livestock and their by-products); crops planted and
grown for livestock consumption; crops grown for fiber (excluding trees
grown for wood, paper, or pulp products); aquaculture species crops
(including ornamental fish); floriculture; ornamental nursery;
Christmas tree crops; turf grass sod; industrial crops; seed crops; and
sea grass and sea oats. As required by the 2014 Farm Bill, this rule
adds sweet sorghum and biomass sorghum as eligible crops.
The 2014 Farm Bill and this rule clarify that ``industrial crops''
include crops grown expressly for the purpose of producing a feedstock
for renewable biofuel, renewable electricity, or biobased products. For
the purpose of implementing this clarification to ``industrial crops,''
this rule also adds a definition of ``feedstock'' in Sec. 1437.3 to
include only crops grown expressly for biofuel; residues and by-
products of crops grown for a purpose other than biofuel are not
eligible for NAP coverage. This rule excludes crops that are invasive
or noxious plants from ``industrial crops'' to be consistent with
Executive Order 13112, which prohibits Federal agencies from funding or
carrying out actions that ``are likely to cause or promote the
introduction or spread of invasive species in the United States.'' The
determination of whether a species is invasive or noxious varies by
[[Page 74564]]
State, and FSA State committees will consult with the State technical
committees for recommendations concerning the invasive and noxious
status for otherwise eligible crops for the purposes of NAP.
Information on ineligible species will be available in FSA county
offices.
Eligible Causes of Loss
This rule specifies that in limited instances, insufficient chill
hours is an eligible cause of loss by itself for specific crops and
locations for which FSA has determined, in advance of a coverage
period, based on its review of sufficient scientific evidence, that
chill hours are required for the crop to produce and a lack of chill
hours is detrimental to crop production irrespective of management. In
cases where FSA makes the decision to include insufficient chill hours
as an eligible cause of loss by itself for a crop and location, the
crop and location and subsequent crop year coverage period for which
the decision will apply will be specified in a list maintained by FSA
and available at FSA county offices. If the crop and location is not on
that list, then insufficient chill hours can only be an eligible cause
of loss if the insufficient chill hours was related to damaging weather
or an adverse natural occurrence (as specified in Sec. 1437.10(b)(1)
or (b)(2)). This is consistent with current policy.
FSA is also making discretionary changes to clarify and specify
additional ineligible causes of loss under this rule. Causes of loss
that were previously ineligible will continue to be ineligible under
this rule, except for insufficient chill hours as discussed above. This
rule also clarifies that ineligible causes of loss include: Failure to
carry out a good irrigation practice; variance of temperatures from
average normal temperatures that are not otherwise specified as
eligible causes of loss; managerial decisions to attempt to grow or
produce a crop in an area that is not suited for successful commercial
production of that crop; for aquaculture, loss of inventory or missing
non-containerized inventory resulting from a managerial decision not to
seed or raise the crop in containers, net pens, or wire baskets, on
ropes, or using similar devices (except as provided for mollusks in
this rule); failure to follow organic farming practices or
contamination by application or drift of prohibited substances onto
organic crops; weeds; and any cause of loss that results in damage that
is not evident or would not have been evident during the NAP coverage
period. The addition of these causes of loss is discretionary and is
intended to provide clarification and consistency with the intent of
NAP to provide coverage only for losses due to drought, flood, or other
natural disaster, as determined by the Secretary, which has been
interpreted to include damaging weather and adverse natural occurrences
and related conditions. FSA is adding ropes as a device on which
aquacultural species are raised because aquacultural species, including
mussels and other aquatic organisms such as kelp, are seeded and raised
on ropes. FSA is adding ropes as an example of a containment device.
The Deputy Administrator for Farm Programs will determine on a species
by species, area by area, and practice by practice basis whether ropes
provide the necessary containment and protection.
Buy-Up Coverage Levels and Premiums
Prior to the passage of the 2014 Farm Bill, NAP provided only one
level of coverage, equivalent to CAT risk protection available under
section 508(b) of the Federal Crop Insurance Act. This CAT-level
protection covers losses due to low yield that are greater than 50
percent of expected production. As specified in current regulations in
7 CFR part 1437, NAP payments for low yield are calculated based on the
amount of loss that exceeds 50 percent of expected production at 55
percent of the average market price for the crop. This means that the
maximum NAP payment for a total loss under CAT-level coverage is 27.5
percent (50 percent of 55 percent) of the value of the covered crop or
commodity. Under NAP, prevented planting was calculated not on a loss
of expected yield, but based on acreage prevented from being planted
based on total acreage intended to be planted in a crop year. A NAP
prevented planting payment was issued based on the eligible approved
prevented planted crop acreage in excess of 35 percent of total planted
and prevented planted acreage times 55 percent of the average market
price of the crop. NAP CAT-level coverage is available for a service
fee of $250 per crop per county, up to $750 per county, not to exceed
$1,875 per producer--this rule does not change the service fee for CAT-
level coverage.
NAP will continue to offer CAT-level coverage for eligible crops.
For the 2015 through 2018 crop years, the 2014 Farm Bill authorizes
additional levels of coverage equivalent to coverage under subsections
(c) and (h) of section 508 of the Federal Crop Insurance Act. This
means that producers may select buy-up coverage ranging from 50 to 65
percent of production, in 5 percent increments, and for 100 percent of
the average market price. In other words, all buy-up coverage levels
are at 100 percent of the average market price. If a producer elects
buy-up coverage for a crop, prevented planting on that crop will be
calculated as it was before but with 100 percent of the average market
price. Payment factors (for acres prevented from being planted, planted
and not harvested, and planted and harvested) will continue to be
applied as they were before. Crops and grasses intended for grazing are
specifically excluded from buy-up coverage by the 2014 Farm Bill. To
obtain buy-up coverage, producers are required to pay a premium, equal
to 5.25 percent times the level of coverage, in addition to the NAP
service fee. The coverage levels and premium calculations are specified
in the 2014 Farm Bill and FSA has no discretion to offer different
coverage levels or premiums.
Premiums for additional coverage will be calculated as the product
of the producer's share of the NAP covered crop, times the number of
eligible acres devoted to the crop, times the approved yield per acre,
times the coverage level, times the average market price, times a 5.25
percent premium fee. The maximum premium per producer, as specified in
the 2014 Farm Bill, is $6,562.50 (the product of the applicable payment
limitation of $125,000 times a 5.25 percent premium fee for the maximum
level of coverage).
For example, if Farmer Smith has a 100 percent share interest in 20
acres of apple trees intended for the fresh market, and the approved
yield per acre for that crop is 450 bushels, and the average fresh
market price is $10.00 per bushel, and the coverage level is 65
percent, the premium will be 1.000 (100 percent share) times 20 (acres)
times 450 (bushels per acre) times 0.65 (coverage level of 65 percent)
times $10.00 (price per bushel) times 0.0525 (premium factor), which
equals $3,071.25. If Farmer Smith suffers a 100 percent loss, the
payment would be calculated as 1.000 (100 percent share) times 20
(acres) times 450 (bushels per acre) times 0.65 (coverage level) minus
0 bushels (actual production) times $10.00 (price per bushel), which
equals a NAP payment of $58,500.
Buy-up coverage will also be available for value loss crops. NAP
payments for value loss crops are based on the field market value of
the crop before the disaster rather than on an approved yield. Examples
of value loss crops include aquaculture, floriculture and ornamental
nursery. The value of a crop before a potential disaster will be
unknown at the time of premium calculation due to variations in
[[Page 74565]]
inventory and field value throughout the crop year. As a result,
premiums for value loss crop will be based on the maximum dollar value
for which a producer requests coverage, subject to applicable payment
limitation, times the 5.25 percent premium. In the event of a loss, the
NAP payment will be calculated using the lesser of the field market
value of the crop before the disaster or the maximum dollar value for
which the producer requested coverage at the time of application.
The regulations discuss application closing dates. Because 2015
application closing dates for some crops have already passed before FSA
published this rule and made buy-up coverage available, with this rule
producers may still nonetheless obtain buy-up coverage for those crops
for the 2015 crop year by submitting an application for coverage
requesting buy-up coverage and paying the service fee, even if the
producer did not previously obtain CAT-level coverage and pay the
service fee for the crop, by January 14, 2015. FSA needed time to
develop the regulatory changes required to implement the new provisions
as required by the 2014 Farm Bill, including completing additional
necessary work, such as updating handbooks and training staff.
Therefore, it seemed reasonable to provide this retroactive option
because producers did not know what the changes or available options
would be when they typically would have been required to purchase NAP
coverage. In addition, if there are application closing dates near the
publication of this rule, those producers will also be given 30 days
from the date of publication of this rule to submit an application for
coverage to ensure they are able to make their decision to purchase NAP
coverage based on consideration of these regulatory changes.
CAT-level coverage for the 2015 crop year was available prior to
the application closing date prior to this rule; therefore, the
deadline to apply for CAT-level coverage is not extended.
Coverage Periods
This rule clarifies that, regardless of when the coverage period
generally begins for any crop, a producer's own individual coverage for
a crop that must fall within the general coverage period can start no
earlier than 30 calendar days after the producer's application for
coverage is filed, except as discussed below. FSA is making this change
to be consistent with the requirements of 7 U.S.C. 7333.
This rule provides an exception for the 2015 crop year for crops
with application closing dates that have passed prior to publication of
this rule. For those crops, if a producer did not apply for NAP
coverage prior to the application closing date but files an application
for coverage and elects buy-up coverage by January 14, 2015, the
coverage period will begin as specified for the crop in 7 CFR 1437.6,
without regard to the date the application for coverage is filed. Under
this exception, producers must elect buy-up coverage, but such coverage
can be for any level available under such buy-up coverage. Producers
who previously purchased CAT-level coverage prior to the application
closing date for those crops may also elect buy-up coverage until
January 14, 2015. As noted above, if there are application closing
dates near the publication of this rule, those producers will also be
given 30 days following the publication of this rule to ensure they
have the same period in which to make a decision to purchase NAP
coverage based on consideration of these regulatory changes.
Service Fee Waiver and Premium Reduction
Prior to this rule, the NAP regulations waived the service fee for
producers who met the definition of ``limited resource farmer'' in 7
CFR 457.8. The 2014 Farm Bill continues to waive service fees for
limited resource farmers and ranchers and now waives service fees for
beginning and socially disadvantaged farmers and ranchers as well. In
addition to the service fee waiver, beginning, limited resource, and
socially disadvantaged farmers and ranchers who elect buy-up coverage
are also eligible for a 50 percent premium reduction. For the purpose
of this rule, ``beginning,'' ``limited resource,'' and ``socially
disadvantaged farmer and rancher'' are defined in 7 CFR part 718. To be
eligible for the service fee waiver or premium reduction, persons or
legal entities must provide a certification of their status as
beginning, limited resource, or socially disadvantaged at the time they
file an application for coverage, if they have not already filed that
certification with FSA.
For the 2014 crop year, the expanded service fee waiver will apply
retroactively. In the extension of authorization document published on
March 28, 2014 (79 FR 17388-17390), FSA announced that beginning and
socially disadvantaged farmers and ranchers who paid the service fee
for the 2014 crop year before enactment of the 2014 Farm Bill would be
refunded the service fee.
Notice of Loss and Completion of Harvest
This rule clarifies requirements for filing a notice of loss. As
specified in the NAP regulations, a written notice of loss must be
filed for prevented planting claims within 15 calendar days after the
final planting date, or for yield claims or value loss, by the earlier
of 15 calendar days after the disaster occurrence or date of loss or
damage to the crop first becomes apparent, or the normal harvest date.
These requirements for a written notice of loss are not changing with
this rule.
In addition to the written notice of loss, FSA is making a
discretionary change to add a requirement to provide notice to the
administrative county office within 72 hours for certain crops,
including hand-harvested crops and other crops as determined by FSA, if
earlier notice is needed in order to conduct an accurate loss
assessment of the crop because of the rate at which certain crops
(these crops ordinarily include hand harvested fruit and vegetable
crops that can rapidly deteriorate and confound loss adjustment work)
decompose in the field after a loss event and the reduced ability to
discern if alleged damage occurred due to an eligible cause of loss as
opposed to other factors. For example, if a freeze damages a crop of
tomatoes, the participant is required to provide notice to FSA of
damage or loss to the tomatoes within 72 hours of when damage is first
apparent to the NAP covered producer. The earlier notice, which is not
required to be in writing, provides FSA an opportunity to assess the
loss before the damaged crop deteriorates and while the amount of loss
attributable to a specific eligible cause of loss is still apparent.
This provision is consistent with RMA's notification requirements for
crop insurance.
Producers of hand-harvested crops, under the prior rule, were
required to provide FSA with notification that harvest is complete
within 15 days of when damage or loss was first apparent. This rule
changes that deadline from 15 days to within 72 hours. This
discretionary change allows FSA to make a more accurate appraisal
before the crop deteriorates or before evidence of the crop suffering a
loss due to an eligible of loss diminishes or is lost in order to
differentiate between legitimate losses versus production left in a
field because of quality or unmarketable because of the lack of market.
[[Page 74566]]
Late-Planted Acreage
This rule makes discretionary changes to the late planting
provisions in 7 CFR 1437.103 to add an exception to the rule that crops
having multiple planting periods and value loss crops are not eligible
for reduced coverage for late planting. The exception added by this
rule makes reduced NAP coverage available for the last planting period
of multiple planted crops and multiple-planting periods having a
defined gap of 60 days or more between the harvest date of the previous
planting period and beginning of the immediately following planting
period.
Average Market Prices
This rule makes discretionary changes to clarify how average market
prices are established as specified in 7 CFR 1437.12. NAP payments are
calculated using average market prices, which are determined by FSA.
Prior to this rule, an average market price was established for each
crop and, if practicable, for each intended use of a crop on a
harvested basis without the inclusion of transportation, storage,
processing, marketing, or other post-harvest expenses. Prices should
reflect the average market price actually received by producers, which
may vary by state. The average market price has been typically
established on a state-by-state basis, meaning that all NAP payments
for a crop and, if applicable, for an intended use within a state would
be based on the same average market price. Average market prices are
based on the best available data (including National Agricultural
Statistics Service (NASS) data, National Institute of Food and
Agriculture (NIFA) data, knowledge of local markets, etc.) and are
comparable (though not required to be equal) to established Federal
Crop Insurance Corporation (FCIC) prices. In this rule, FSA details how
it will determine, average market prices of eligible NAP crops for
subsequent crop years.
This rule clarifies that FSA may establish separate prices within a
state to reflect the different prices producers receive based on
differences due to different farming practices (conventional or
organic) and sales to different markets (wholesale, direct sales to
consumers at farm stands or farmer's markets, etc.). These changes to
average market price provisions do not extend NAP coverage to
additional producers or crops; changes made by this rule will allow an
eligible producer to obtain NAP coverage for eligible crops grown with
organic farming practices or intended to be marketed directly to
consumers. This rule simply clarifies that when sufficient data is
available, FSA may establish separate average market prices within a
State that more closely reflect the prices obtained by producers based
on the specific situations.
To be eligible to receive payment based on an organic price,
producers must report their organic acreage of the crop. Producers
reporting organic acreage of a crop must be certified or exempt from
certification according to the National Organic Program regulations at
7 CFR part 205 and must provide a copy of their organic system plan to
FSA. Yields will be adjusted as needed to reflect yields for crops
using organic production methods. This rule also adds definitions
related to organic acreage and production in order to implement these
changes.
All of the definitions in this rule related to organic production
and certification are consistent with definitions used by AMS and with
the basic provisions for Federal crop insurance used by RMA.
Specifically, the definitions for ``buffer zone,'' ``certified organic
acreage,'' ``certifying agent,'' conventional farming practice,'' the
specification of organic farming practices within the definition for
``good farming practices,'' ``organic agricultural experts,'' ``organic
crop,'' ``organic farming practice,'' ``organic standards,''
``prohibited substance,'' and ``transitional acreage'' are identical to
or consistent with those terms as used in the Federal crop insurance
basic provisions. The terms ``certified organic acreage,'' ``good
farming practices,'' ``organic crop,'' ``organic farming practice,''
``organic system plan,'' ``organic standards,'' and ``prohibited
substance'' reference the AMS National Organic Program regulations, the
Organic Foods Production Act of 1990 (7 U.S.C. 6501-6523), or both.
When prices are established by intended use, producers with buy-up
coverage, but without sufficient evidence of the historical intended
and actual use or market as reflected in production records and final
disposition, and those with CAT-level coverage will have NAP payments
calculated using the average market price of the predominant final use
of the crop. If a producer elects buy-up coverage and provides
sufficient evidence of the intended use percentages of the crop in
prior crop years, the NAP payment will be calculated based on those
percentages instead of using only the price from the predominant final
use. Premiums for producers who elect buy-up coverage will be based on
the intended use of the crop based on the acreage report.
If different prices are established for crops intended for
different markets of an intended use of a crop, such as wholesale or
directly to consumers through farmers markets or farm stands, and where
FSA has established average market prices based on different markets,
producers who elect buy-up coverage and provide acceptable
documentation may elect NAP assistance calculated based on those
prices.
Approved Yields
Prior to this rule, when a producer reported acreage for a crop
year, but failed to certify a report of production, regardless of
whether that producer obtained NAP coverage for that year, an assigned
yield or zero-credited yield was used in the producer's actual
production history for calculation of that producer's approved yield in
later years. This rule defines ``bypass year'' to include years when
the producer did not obtain coverage for the crop and does not file a
report of acreage or production. The rule makes a discretionary change
to stop using assigned yields and zero-credited yields for bypass years
in the calculation of a producer's approved yield. This change is
intended to encourage increased participation in NAP by preventing an
adverse impact on producers who choose not to report production during
years when they do not have NAP coverage but choose to elect NAP
coverage in later years. The policy regarding assigned yields and zero-
credited yields for producers who have NAP coverage, but do not report
production, is not changing under this rule.
This rule allows replacement of assigned yields and zero-credited
yields in a producer's actual production history (APH) for the 1995
through 2014 crop years with yields equal to the higher of 65 percent
of the current crop year T-yield (as defined 7 CFR 1437.3) or the
missing crop year's actual yield. As with the change discussed above
for bypass years, this discretionary change is intended to encourage
increased participation in NAP and to avoid penalizing producers who
did not report production in a year in which they did not have NAP
coverage.
Adjustment of Production for Quality Losses
To provide improved risk protection that addresses losses in a
similar manner to some past ad hoc disaster programs, the NAP payment
calculation for yield losses will allow an adjustment of net production
due to quality losses for crops and locations approved by
[[Page 74567]]
FSA. This change allows NAP to provide risk protection for quality
losses in limited situations when a specific crop in a given location
typically does not suffer yield losses large enough to result in NAP
payments, but does suffer significant quality losses due to eligible
causes of loss. The requests for quality adjustments for crops and
locations may be processed through any of the FSA State offices. The
crops and locations eligible for quality adjustments will be determined
by the Deputy Administrator for Farm Programs in advance of the
coverage period, only if supporting documentation of industry accepted
standards for quality discounts are available. Net production will be
adjusted only if buy-up coverage is elected and the covered producer
elects to have the quality loss option; no adjustment will be made if a
producer elects only CAT-level coverage for a crop. Evidence to support
making a quality loss adjustment must be from records acceptable to FSA
and are subject to disapproval if FSA is not satisfied that the alleged
loss of quality occurred as a result of an eligible cause of loss in
the coverage period. If a producer opts for quality loss adjustment and
an adjustment to the unit's net production is made, FSA will enter the
adjusted net production into the producer's actual production history
database for the loss year. In other words, the lower actual yield that
results after adjustment for quality will be used to compute future
year approved yields.
Aquaculture Coverage
NAP regulations required that for aquaculture losses to be eligible
for payment, the aquaculture species must be kept in a controlled
environment and that such species must be planted or seeded in
containers, net pens, wire baskets, or similar devices designed for
protection and containment. This rule makes discretionary changes for
aquaculture producers who raise aquacultural species on a rope and
certain mollusk producers.
As noted above, under changes made by this rule for eligible causes
of loss, NAP coverage will be available for aquaculture producers who
plant or seed aquatic species in or on certain specifically named
devices, which now includes ropes, when it is determined by the Deputy
Administrator for Farm Programs that the ropes provide the necessary
containment and protection for the species, area, and practice.
Under changes made by this rule, with respect to mollusks not
planted or seeded in devices such as containers, net pens, or wire
baskets, on ropes, or using similar devices designed for protection and
containment, NAP coverage for such mollusks will only cover losses
caused by a named tropical storm, typhoon, or hurricane. This change is
intended to encourage additional NAP participation by mollusk producers
who do not use containers or similar devices, while maintaining
integrity in NAP by covering those producers' losses only when their
losses are caused by certain types of natural disasters. Mollusk
producers who continue to seed or raise mollusks in devices such as
containers, net pens, or wire baskets, on ropes, or using similar
devices designed for protection and containment as well as meet all
other required conditions remain eligible for all NAP qualifying causes
of loss for such value loss crops. For these mollusk producers, the
principal elements of the rule are not changing.
Certain oyster producers and other stakeholders requested this
change because the use of containers or similar devices for the
protection and containment of the species is inconsistent with certain
customary or ordinary mollusk industry production methods, particularly
for oyster production on the U.S. East Coast. USDA data from the 2005
Census of Aquaculture confirms that about 70 percent of mollusk
producers use the ``on bottom'' production method, without containers
or pens. In 2011 and 2012, hurricanes caused significant losses for
mollusk aquaculture crops. Mollusk producers who had NAP coverage in
those years and met the current requirements were compensated for their
losses, but the majority of mollusk producers did not have NAP coverage
and if they had, they would not have had any losses that would have met
the NAP eligibility requirements at that time. (See the Cost Benefit
Analysis Summary section for details about the impacts.)
The purpose of NAP is to provide risk management for agricultural
operations as they normally or ordinarily exist and operate. Removing
the requirement to use containers or similar devices benefits mollusk
producers by offering NAP coverage for their operations, independent of
how those producers choose to manage their production. FSA is therefore
amending the regulations to cover eligible losses of mollusks that are
not grown in containers, net pens, or wire baskets, on ropes, or using
similar devices. This change permits mollusk producers who accept the
risks of raising mollusks without containers, net pens, ropes, wire
baskets, or similar devices to be eligible for NAP coverage; however,
under such coverage, eligible losses can only be caused by a named
tropical storm, typhoon, or hurricane. It would likely benefit
primarily U.S. East Coast oyster producers, as well as producers of
other mollusk aquaculture crops such as clams and mussels. Mollusk
producers who plant or seed mollusks in containers, net pens, or wire
baskets, on ropes or using similar devices designed for protection and
containment and meet all other required conditions remain eligible for
NAP coverage for all NAP causes of loss. For these mollusk producers,
the principal elements of the rule are not changing.
As specified in 7 U.S.C. 7333, NAP is authorized to provide
benefits only for losses that are the result of natural disaster; 7
U.S.C. 7333 also specifies that NAP cannot cover losses due to ``the
failure of the producer to follow good farming practices.'' FSA has
determined that a producer's decision to not use containers, net pens,
ropes, wire baskets, or similar devices is not an example of a poor
farming practice or an example of something that is not a good farming
practice. However, given that NAP can only pay for losses stemming from
an eligible cause of loss (and not a decision not to use containers,
net pens, ropes, wire baskets, or similar devices), this rule specifies
that for mollusks not grown in containers, net pens, or wire baskets,
on ropes, or using similar devices, only losses caused by named
hurricanes, typhoons, or tropical storms would be eligible for payment.
NAP coverage does not cover a loss of mollusks if the producer does not
to use containers to protect the mollusks from loss caused by other
types of adverse weather, tidal surges, or predators, or other similar
events or causes. Missing mollusk inventory reported by a producer that
does not use containers, net pens, ropes, wire baskets, or similar
devices will not be eligible for a NAP payment unless FSA can determine
that the loss of inventory was a direct result of a named hurricane,
typhoon, or tropical storm. All other aquaculture species are still
subject to the requirement to use protective devices. Additionally, as
previously mentioned, mollusk producers that choose to grow mollusks in
an environment that consists of containers, net pens, ropes, wire
baskets, or similar devices designed for protection and containment
remain eligible for all NAP qualifying losses.
Aquaculture species are considered a ``value loss'' crop under NAP,
which means that NAP coverage is based on the market value of the
inventory before the loss event, rather than an expected yield. This
rule does not change NAP
[[Page 74568]]
regulations regarding compensation of eligible aquaculture losses using
a value loss calculation or the documentation that must be provided to
prove an eligible loss. Mollusk producers, whether they choose to keep
their mollusks in controlled environments or not, are still required to
have control of the waterbed where the mollusks are grown, as specified
in the NAP regulations, meaning that they must own or lease the
waterbed. The change being made by this rule merely eliminates the
requirement that a NAP-covered participant seed or raise the eligible
mollusk inventory in containers or similar devices to be eligible for
NAP coverage. It will not change any of the requirements for other
aquaculture species.
Forage
This rule makes discretionary changes to methods used by FSA to
establish losses for grazed acreage. Prior to being amended by this
rule, grazed acreage losses have been established using two methods:
(1) Based on the percentages of loss of similar mechanically-
harvested forage acreage on the farm or on similar farms in the area
when approved yields have been calculated to determine loss; or
(2) When there is no similar mechanically-harvested forage acreage
on the farm or similar farms in the area, on the collective percentage
of loss as determined by FSA for the geographical region after
consideration of at least two independent assessments of grazed forage
acreage conditions.
This rule specifies additional methods that FSA may use to
establish a collective percentage of loss based on independent
assessments of grazed forage acreage conditions; the U. S. Drought
Monitor; information obtained from loss adjusters with sufficient
forage knowledge to provide grazing loss assessments; data from
approved areas where clippings are obtained on a regular basis to
compare with expected levels of production in a geographical region;
and information from Natural Resources Conservation Service technical
service providers having specialized knowledge. Additionally, because
the 2014 Farm Bill did not authorize buy-up coverage for grazed forage,
this rule clarifies how FSA will treat forage crop acreage intended for
mechanical harvest or grazing when such acreage is actually put to
another use for producers who either select catastrophic coverage or
buy-up coverage. The rule specifies that forage acreage reported to FSA
as intended to be mechanically harvested, but which is instead,
subsequently grazed, will be considered for crop definition purposes as
mechanically harvested. The rule also amends how FSA will determine
loss for acreage intended to be grazed, including in some cases acreage
intended to be mechanically harvested, but instead is subsequently
grazed for producers with catastrophic coverage. The rule also removes
a prior requirement that producers show a history of forage production
in order to obtain coverage.
Payment and Income Limitation
Section 1605 of the 2014 Farm Bill establishes payment and income
limitations that apply to 2014 and subsequent crop, program, or fiscal
year benefits. FSA previously implemented these payment and income
limitations through the final rule published on April 14 (79 FR 21086-
21118). The payment and income limitations are specified in 7 CFR part
1400.
NAP assistance is limited to $125,000 per person or legal entity,
directly or indirectly. Attribution of payments under 7 CFR part 1400
applies in administering the payment limitation. The average AGI limit
for most FSA and CCC programs, including NAP, is $900,000. The $900,000
limit is for total average AGI, as opposed to the prior multiple limits
for farm and non-farm income, and the separate limit for conservation
programs.
Consistency With Basic Provisions
When a producer signs up for NAP coverage, they receive a copy of
the ``basic provisions,'' which is a document that explains in detail
what is covered by NAP and how to file a claim. As part of the
application process, the producer acknowledges that they have received
and agree to the ``basic provisions.'' This rule amends 7 CFR 1437.2,
``Administration,'' to specify that when the NAP basic provisions are
less restrictive than regulations that were in effect at the time of
signup (such as the situation that may occur in 2015 where the NAP
basic provisions were provided to participants prior to amendment and
publication of this rule for the 2015 crop year), the Deputy
Administrator may determine that the less restrictive provision
applies. This amendment is needed to prevent adverse results for
participants that relied on the less restrictive basic provisions
provided by FSA when they applied for NAP coverage. This rule also
amends 7 CFR 1437.3, ``Definitions,'' to add a definition of ``basic
provisions.''
Miscellaneous Conforming and Editorial Changes
In addition to the changes required by the 2014 Farm Bill and the
substantive discretionary changes discussed above, this rule makes a
number of non-substantive changes to make the regulations clear and
consistent.
Because this rule expands waivers to beginning farmers and ranchers
and that term is used for several FSA programs, this rule defines the
term in 7 CFR part 718 and makes a conforming change to remove the term
and definition from the Emergency Assistance for Livestock, Honeybees,
and Farm-Raised Fish Program (ELAP) regulations in 7 CFR part 1416. The
definition is revised slightly to match the definition on the form FSA
presents to persons or legal entities who claim they are beginning
farmers or ranchers and is consistent with what FSA has determined is a
beginning farmer or rancher. FSA is making this discretionary change to
provide consistency in the use of the term among FSA programs.
Because this program requires a few terms that are also needed for
other FSA and CCC programs, this rule adds those terms to 7 CFR part
718 and removes them from parts 1416 and 1412. These terms are
``planted and prevented planted,'' ``controlled environment,'' and
``United States.'' This rule adds the terms ``intended use'' to part
718, because it is needed for both NAP and other FSA programs. It
removes the term ``State'' from 718, because it is redundant with the
definition of ``United States.''
This rule replaces ``CCC'' with ``FSA'' where relevant in 7 CFR
part 1437 to clarify that NAP is administered by FSA for CCC. It also
amends the provisions regarding requests to waive or modify deadlines
or other provisions, except where specified by law, to clarify that
such requests may be considered at the discretion of the Deputy
Administrator for Farm Programs (``Deputy Administrator'').
Participants do not have a right to a decision on a request for waiver
or on such a request, and a refusal to consider a waiver or such a
request is not a failure to act under any law or regulation.
Notice and Comment
In general, the Administrative Procedure Act (APA, 5 U.S.C. 553)
requires that a notice of proposed rulemaking be published in the
Federal Register and interested persons be given an opportunity to
participate in the rulemaking through submission of written data,
views, or arguments with or without opportunity for oral
[[Page 74569]]
presentation, except when the rule involves a matter relating to public
property, loans, grants, benefits, or contracts. Although FSA could use
the APA exemption and publish this rule as a final rule without the
opportunity for public comment, FSA is implementing the regulatory
changes through an interim rule to provide an opportunity for public
comment while also implementing the rule without unnecessary delay to
benefit FSA customers with the additional flexibility provided by the
changes.
Executive Orders 12866 and 13563
Executive Order 12866, ``Regulatory Planning and Review,'' and
Executive Order 13563, ``Improving Regulation and Regulatory Review,''
direct agencies to assess all costs and benefits of available
regulatory alternatives and, if regulation is necessary, to select
regulatory approaches that maximize net benefits (including potential
economic, environmental, public health and safety effects, distributive
impacts, and equity). Executive Order 13563 emphasizes the importance
of quantifying both costs and benefits, of reducing costs, of
harmonizing rules, and of promoting flexibility.
The Office of Management and Budget (OMB) designated this rule as
significant under Executive Order 12866, ``Regulatory Planning and
Review,'' and therefore, OMB has reviewed this rule. The costs and
benefits of this rule are summarized below. The full cost benefit
analysis is available on regulations.gov.
Clarity of the Regulation
Executive Order 12866, as supplemented by Executive Order 13563,
requires each agency to write all rules in plain language. In addition
to your substantive comments on this rule, we invite your comments on
how to make the rule easier to understand. For example:
Are the requirements in the rule clearly stated? Are the
scope and intent of the rule clear?
Does the rule contain technical language or jargon that is
not clear?
Is the material logically organized?
Would changing the grouping or order of sections or adding
headings make the rule easier to understand?
Could we improve clarity by adding tables, lists, or
diagrams?
Would more, but shorter, sections be better? Are there
specific sections that are too long or confusing?
What else could we do to make the rule easier to
understand?
Cost Benefit Analysis Summary
The changes to the NAP regulations are expected to have a net
economic impact of $39.4 million per year. This includes $39.4 million
for the ``buy up'' coverage provisions required by the 2014 Farm Bill,
$250,000 for changes to mollusk coverage, $45,000 for aquaculture on
ropes coverage, and $1.4 million for organic price coverage. As noted
below, the net impact of $39.4 million includes a partial offset due to
the $9.8 million increase in annual premium and fee revenue.
The 2014 Farm Bill NAP ``buy up'' coverage changes are estimated to
have a net economic cost of $39.4 million annually. This number is
based on estimating the three largest effects of the new ``buy-up''
provisions: The shift of existing CAT level NAP participants to buy-up
NAP coverage levels, an increase in new NAP participants (not formerly
in CAT) who purchase buy-up NAP coverage, and the expected NAP payment
increases due to the greater liability associated with added buy-up
coverage levels for both existing and new participants. (The greater
liability effect factors in the payment rate increase from 55 percent
to 100 percent of the market value of eligible lost production.) These
three effects together are expected to account for nearly $49.2 million
in additional payments to producers annually. However, these additional
payments are expected to be partially offset by a $9.8 million increase
in annual premium and fee revenue, for a net impact of $39.4 million
annually.
The impact on costs from fee waivers for socially disadvantaged and
beginning farmers is expected to be negligible. This is because the
persons who are eligible for the waivers added by the 2014 Farm Bill
for socially disadvantaged farmers and ranchers, (SDA), and beginning
farmers and ranchers were mostly already eligible for the waivers for
limited resource farmers and ranchers that were in place prior to this
rule. The participation of these groups is expected to increase in
proportion with the overall rate of 44.3 percent increase in new
participation estimated for buy-up coverage.
Because the total number of eligible mollusk producers in the
United States is relatively small, fewer than 800 producers, the total
impact of the changes in eligibility for mollusks is expected to be
relatively small, around $250,000 in additional outlays per year. The
aquaculture grown on ropes cost impact is even smaller, at an estimated
$45,000 in additional outlays per year. The coverage for organic prices
is estimated at $1.4 million per year, based on the assumption that the
organic crops for which RMA has enough price data to provide an organic
price election in at least one state, but limited enough RMA coverage
that they fall within the scope of NAP, are primarily specialty fruit
crops.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA), generally requires an agency to prepare a regulatory
flexibility analysis of any rule whenever an agency is required by APA
or any other law to publish a proposed rule, unless the agency
certifies that the rule will not have a significant economic impact on
a substantial number of small entities. This rule is not subject to the
Regulatory Flexibility Act because as noted above, this rulemaking is
exempt from the notice and comment rulemaking requirements of APA and
no other law requires that a proposed rule be published for this
rulemaking initiative.
Environmental Review
FSA has determined that the administrative expansion of coverage
for mollusks under NAP, identified in this rule, and the participation
in NAP itself do not constitute major Federal actions that would
significantly affect the quality of the human environment because
Section 196 of 7 U.S.C. 7333 requires that the Secretary of Agriculture
operate NAP to provide coverage equivalent to the catastrophic risk
protection otherwise available under section 508(b) of the Federal Crop
Insurance Act (7 U.S.C. 1508(b)).
In addition to adding coverage for mollusks, the other
discretionary changes proposed include coverage for organic crops and
clarifications regarding eligible losses and causes of loss (types of
natural disasters). FSA has likewise determined that these
discretionary efforts do not constitute major Federal actions that
would significantly affect the quality of the human environment,
individually or cumulatively, because of their context and the
anticipated intensity of impacts.
Therefore, in accordance with the provisions of the National
Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations
of the Council on Environmental Quality (40 CFR parts 1500-1508), and
FSA regulations for compliance with NEPA (7 CFR part 799), no
environmental assessment or environmental impact statement will be
prepared.
[[Page 74570]]
Executive Order 12372
Executive Order 12372, ``Intergovernmental Review of Federal
Programs,'' requires consultation with State and local officials that
would be directly affected by proposed federal financial assistance.
The objectives of the Executive Order are to foster an
intergovernmental partnership and a strengthened Federalism, by relying
on State and local processes for State and local government
coordination and review of proposed Federal Financial assistance and
direct Federal development. For reasons set forth in the final rule
related notice regarding 7 CFR part 3015, subpart V (48 FR 29115, June
24, 1983), the programs and activities within this rule are excluded
from the scope of Executive Order 12372.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, ``Civil
Justice Reform.'' This rule will not preempt State or local laws,
regulations, or policies unless they represent an irreconcilable
conflict with this rule. The rule has retroactive effect in that for
the 2014 crop year, the expanded service fee waiver will apply
retroactively, and for the 2015 crop year the date coverage begins will
be retroactive as long as the application for coverage is filed by the
application closing date as specified in Sec. 1437.7(i). Before any
judicial action may be brought regarding the provisions of this rule,
the administrative appeal provisions of 7 CFR parts 11 and 780 are to
be exhausted.
Executive Order 13132
This rule has been reviewed under Executive Order 13132,
``Federalism.'' The policies contained in this rule do not have any
substantial direct effect on States, on the relationship between the
Federal government and the States, or on the distribution of power and
responsibilities among the various levels of government, except as
required by law. Nor does this rule impose substantial direct
compliance costs on State and local governments. Therefore,
consultation with the States is not required.
Executive Order 13175
This rule has been reviewed in accordance with the requirements of
Executive Order 13175, ``Consultation and Coordination with Indian
Tribal Governments.'' Executive Order 13175 requires Federal agencies
to consult and coordinate with tribes on a government-to-government
basis on policies that have tribal implications, including regulations,
legislative comments or proposed legislation, and other policy
statements or actions that have substantial direct effects on one or
more Indian tribes, on the relationship between the Federal Government
and Indian tribes or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.
FSA has assessed the impact of this rule on Indian tribes and
determined that this rule does not, to our knowledge, have tribal
implications that require tribal consultation under Executive Order
13175. If a Tribe requests consultation, FSA will work with the USDA
Office of Tribal Relations to ensure meaningful consultation is
provided where changes, additions, and modifications identified in this
rule are not expressly mandated by the 2014 Farm Bill.
Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L.
104-4) requires Federal agencies to assess the effects of their
regulatory actions on State, local, and Tribal governments or the
private sector. Agencies generally must prepare a written statement,
including a cost benefit analysis, for proposed and final rules with
Federal mandates that may result in expenditures of $100 million or
more in any year for State, local, or Tribal governments, in the
aggregate, or to the private sector. UMRA generally requires agencies
to consider alternatives and adopt the more cost effective or least
burdensome alternative that achieves the objectives of the rule. This
rule contains no Federal mandates, as defined in Title II of UMRA, for
State, local, and Tribal governments or the private sector. Therefore,
this rule is not subject to the requirements of sections 202 and 205 of
UMRA.
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)
This rule is not a major rule under the Small Business Regulatory
Enforcement Fairness Act of 1996, (Pub. L. 104-121, SBREFA). Therefore,
FSA is not required to delay the effective date for 60 days from the
date of publication to allow for Congressional review. Accordingly,
this rule is effective on the date of publication in the Federal
Register.
Federal Assistance Programs
The title and number of the Federal Assistance Program, as found in
the Catalog of Federal Domestic Assistance, to which this rule applies,
is: Noninsured Assistance 10.451.
Paperwork Reduction Act of 1995
FSA added the changes required for the buy-up for additional
coverage, organic crops, and mollusks described in this rule to a
currently approved information collection by OMB under the control
number of 0560-0175, Noninsured Crop Disaster Assistance Program. The
collection of information from the respondents remains the same except
the new respondents with organic crops and mollusks. FSA described the
revision of information collection activities and the changes to the
burden hours due to the new respondents in the request for public
comment that was published in the Federal Register on October 15, 2014
(79 FR 61484-61489). FSA confirmed that neither AMS nor RMA collect the
information that FSA will be collecting, so there is no duplication of
information collection.
E-Government Act Compliance
FSA and CCC are committed to complying with the E-Government Act,
to promote the use of the Internet and other information technologies
to provide increased opportunities for citizen access to Government
information and services, and for other purposes.
List of Subjects
7 CFR Part 718
Acreage allotments, Drug traffic control, Loan programs-
agriculture, Marketing quotas, Price support programs, Reporting and
recordkeeping requirements.
7 CFR Part 1412
Cotton, Feed grains, Oilseeds, Peanuts, Price support programs,
Reporting and recordkeeping requirements, Rice, Soil conservation,
Wheat.
7 CFR Part 1416
Dairy products, Indemnity payments, Pesticide and pests, Reporting
and recordkeeping requirements.
7 CFR Part 1437
Agricultural commodities, Crop insurance, Disaster assistance,
Fraud, Penalties, Reporting and recordkeeping requirements.
For the reasons discussed above, FSA amends 7 CFR part 718 and CCC
amend 7 CFR parts 1412, 1416, and 1437 as follows:
PART 718--PROVISIONS APPLICABLE TO MULTIPLE PROGRAMS
0
1. Revise the authority citation for part 718 to read as follows:
[[Page 74571]]
Authority: 7 U.S.C. 1501-1508, 1921-2008, 7201-7302, and 15
U.S.C. 714b.
0
2. Amend Sec. 718.2 as follows:
0
a. Remove the definition for ``State''; and
0
b. Add, in alphabetical order, definitions for ``Beginning farmer and
rancher'', ``Controlled environment'', ``Intended use'', ``Planted and
considered planted (P&CP)''; and ``United States''.
The additions read as follows:
Sec. 718.2 Definitions.
* * * * *
Beginning farmer or rancher means a person or legal entity (for
legal entities to be considered a beginning farmer or rancher, all
members must be related by blood or marriage and all members must be
beginning farmers or ranchers) for which both of the following are true
for the farmer or rancher:
(1) Has not operated a farm or ranch for more than 10 years; and
(2) Materially and substantially participates in the operation.
* * * * *
Controlled environment means, with respect to those crops for which
a controlled environment is required or expected to be provided,
including but not limited to ornamental nursery, aquaculture (including
ornamental fish), and floriculture, as applicable under the particular
program, 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.
* * * * *
Intended Use means for a crop or a commodity, the end use for which
it is grown and produced.
* * * * *
Planted and considered planted (P&CP) means with respect to an
acreage amount, the sum of the planted and prevented planted acres on
the farm approved by the FSA county committee for a crop. P&CP is
limited to initially planted or prevented planted crop acreage, except
for crops planted in an FSA approved double-cropping sequence.
Subsequently planted crop acreage and replacement crop acreage are not
included as P&CP.
* * * * *
United States means all 50 States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico and any other
territory or possession of the United States.
* * * * *
Sec. 718.102 [Amended]
0
3. Amend Sec. 718.102 as follows:
0
a. In paragraph (b)(3), add the word ``intended'' immediately before
the word ``use'';
0
b. In paragraph (b)(4), remove the words ``in the country of the
eligible crop'' and add the words ``and intended use of the eligible
crop in the country'' in their place; and
0
c. In paragraph (b)(6), add the word ``intended'' immediately before
the word ``use''.
PART 1412--AGRICULTURE RISK COVERAGE, PRICE LOSS COVERAGE, AND
COTTON TRANSITION ASSISTANCE PROGRAMS
0
4. The authority citation for part 1412 continues to read as follows:
Authority: 7 U.S.C. 1508b, 7911-7912, 7916, 8702, 8711-8712,
8751-8752, and 15 U.S.C. 714b and 714c.
Sec. 1412.3 [Amended]
0
5. In Sec. 1412.3, remove the definition for ``Planted and considered
planted (P&CP)''.
PART 1416--EMERGENCY AGRICULTURAL DISASTER ASSISTANCE PROGRAMS
0
6. Revise the authority citation for part 1416 to read as follows:
Authority: Title III, Pub. L. 109-234, 120 Stat. 474; and 16
U.S.C. 3801, note.
Sec. 1416.102 [Amended]
0
7. In Sec. 1416.102, remove the definitions for ``Beginning farmer and
rancher''; ``Controlled environment''; ``County committee or county
office''; ``Secretary''; ``State committee, State office, county
committee, or county office''; and ``United States''.
PART 1437--NONINSURED CROP DISASTER ASSISTANCE PROGRAM
0
8. The authority citation for part 1437 continues to read as follows:
Authority: 7 U.S.C. 1501-1508 and 7333; 15 U.S.C. 714-714m; 19
U.S.C. 2497, and 48 U.S.C. 1469a.
Subpart A--General Provisions
0
9. Revise Sec. 1437.1 to read as follows:
Sec. 1437.1 Applicability.
(a) The purpose of the Noninsured Crop Disaster Assistance Program
(NAP) is to help manage and reduce production risks faced by producers
of eligible commercial crops or other agricultural commodities during a
coverage period. NAP reduces financial losses that occur when natural
disasters (damaging weather or adverse natural occurrence that is an
eligible cause of loss) cause a loss of expected production or actual
value for value loss crops, or where producers are prevented from
planting an eligible crop because of an eligible cause of loss in a
coverage period.
(b) The provisions in this part are applicable to eligible
producers and eligible crops for which catastrophic coverage under
section 508(b) or additional coverage of sections 508(c) or 508(h)
under the Federal Crop Insurance Act (7 U.S.C. 1508) (excluding pilot
policies or plans of insurance) is not available.
(c) The regulations in this part are applicable to the 2015 and
subsequent crop years.
0
10. Revise Sec. 1437.2 to read as follows:
Sec. 1437.2 Administration.
(a) NAP is administered under the general supervision of the
Administrator, Farm Service Agency (FSA) (who also serves as the
Commodity Credit Corporation (CCC) Executive Vice President), and the
Deputy Administrator for Farm Programs, FSA, (referred to as ``Deputy
Administrator'' in this part). NAP is carried out by FSA State and
county committees (State and county committees) with instructions
issued by the Deputy Administrator.
(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 in this part, NAP's basic provisions, or
instructions issued by the Deputy Administrator.
(c) The State committee will take any action required by the
regulations in this part that the county committee has not taken. The
State committee will 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 in this part; or
(2) Require a county committee to withhold taking any action that
is not in accordance with this part.
(d) No delegation to a State or county committee precludes the FSA
Administrator, the Deputy Administrator, or a designee, from
determining any question arising under NAP or from reversing or
modifying any determination made by a State or county committee.
(e) The Deputy Administrator has the authority to permit State and
county committees to waive or modify deadlines (except deadlines
specified in a law) and other requirements or
[[Page 74572]]
program provisions not specified in law, in cases where lateness or
failure to meet such other requirements or program provisions do not
adversely affect operation of NAP.
(1) Producers and participants have no right to a decision in
response to a request to waive or modify deadlines or program
provisions. The Deputy Administrator's refusal to consider such a
request or a decision not to exercise this discretionary authority
under this section is not an adverse decision and is not appealable.
(2) FSA's decision not to consider a case under this section is not
a failure to act under any law or regulation because participants have
no right to a decision on a request for waiver or modification.
(f) Items including, but not limited to, application periods,
application deadlines, basic provisions, internal operating guidelines
issued to FSA State and county offices, coverage periods, fees, prices,
yields, and payment factors established for NAP in accordance with this
part that are used for similarly situated participants and eligible
crops are not to be construed to be individual program eligibility
determinations or extent of eligibility determinations and are,
therefore, not subject to administrative review.
(g) Where there is any conflict between the basic provisions and
the regulations, the regulations apply except when the Deputy
Administrator determines that because of the timing of issuance of the
regulations, the basic provisions applicable to the specific crop year
or coverage period that may be less restrictive will apply.
0
11. Amend Sec. 1437.3 as follows:
0
a. Revise the introductory text;
0
b. Revise the definitions for ``Application closing date'' and
``Catastrophic coverage'';
0
c. In the definition for ``Crop year'', third sentence, add the words
``or buy-up coverage'' immediately after the words ``catastrophic
coverage'';
0
d. Revise the definitions for ``Good farming practices'', ``Industrial
crop'', and ``Native sod'';
0
e. Remove the definitions for ``Controlled environment '' and
``Intended Use''; and
0
f. Add, in alphabetical order, definitions for ``Acres devoted to the
eligible crop'', ``Additional coverage'', ``Agricultural experts'',
``Application for coverage'', ``Basic provisions'', ``Bypass year'',
``Buffer zone'', ``Buy-up coverage'', ``Buy-up coverage yield'',
``Certified organic acreage'', ``Certifying agent'', ``Conventional
farming practice'', ``Feedstock'', ``Generally recognized'',
``Guarantee'', ``Hand-harvested'', ``Maximum dollar value for coverage
sought'', ``Organic agricultural experts'', ``Organic crop'', ``Organic
farming practice'', ``Organic system plan'', ``Organic standards'',
``Prohibited substance'', ``Secondary use'', ``Short rotation woody
crops'', and ``Transitional acreage''.
The revisions and additions read as follows:
Sec. 1437.3 Definitions.
The terms and definitions in this section apply to NAP. The terms
and definitions in part 718 of this title and part 1400 of this chapter
also apply to NAP, except where those same terms are defined in this
section. In that case, the terms and definitions of this section apply.
Acres devoted to the eligible crop means the total planted and
considered planted (P&CP) acres of the eligible crop.
Additional coverage means insurance coverage offered by the Federal
Crop Insurance Corporation under sections 508(c) or 508(h) of the
Federal Crop Insurance Act.
* * * * *
Agricultural experts means persons who are employed by the National
Institute of Food and Agriculture, or the agricultural departments of
universities, or other persons approved by FSA, whose research or
occupation is related to the specific crop or practice for which such
expertise is sought.
* * * * *
Application closing date means the last date, as determined by FSA,
producers can submit an application for coverage for noninsured crops
for the specified crop year and coverage period.
Application for coverage means the form specified by FSA to be
completed by a producer applying for NAP coverage for an eligible crop
that is accompanied by the service fee or service fee waiver form in
the administrative county office by the application closing date.
Basic provisions means the document summarizing the terms and
conditions of NAP coverage for a crop year that are acknowledged as
having been received by the person or legal entity who signs an
application for coverage according to this part.
Bypass year means a year that the producer did not obtain NAP
coverage for the crop and did not file a report of acreage or
production, or obtained NAP coverage for the crop and had reported or
determined zero acres devoted to the eligible crop.
Buffer zone means a parcel of land, as designated in an organic
system plan, that separates agricultural commodities grown under
organic practices from agricultural commodities grown under non-organic
practices and is used to minimize the possibility of unintended contact
by prohibited substances or organisms.
Buy-up coverage means NAP assistance that is available for all
eligible NAP covered crops (other than for crops and grasses intended
for grazing) at a payment amount that is equal to an indemnity amount
calculated for buy-up coverage computed under section 508(c) or (h) of
the Federal Crop Insurance Act and equal to the amount that the buy-up
coverage yield for the crop exceeds the actual yield for the crop.
Buy-up coverage yield means not less than 50 percent nor greater
than 65 percent of the approved yield for the crop, as elected by the
NAP covered participant and specified in 5-percent increments.
Catastrophic coverage means:
(1) For insured crops, the coverage offered by the Federal Crop
Insurance Corporation (FCIC) under section 508(b) of the Federal Crop
Insurance Act.
(2) For eligible NAP crops, coverage at the following levels due to
an eligible cause of loss impacting the NAP covered crop during the
coverage period:
(i) Prevented planting in excess of 35 percent of the intended
acres;
(ii) A yield loss in excess of 50 percent of the approved yield;
(iii) A value loss in excess of 50 percent; or
(iv) An animal-unit-days (AUD) loss greater than 50 percent of
expected AUD.
Certified organic acreage means acreage in the certified organic
farming operation that has been certified by a certifying agent as
conforming to organic standards specified in part 205 of this title.
Certifying agent means a private or governmental entity accredited
by the United States Department of Agriculture (USDA) Secretary for the
purpose of certifying a production, processing or handling operation as
organic.
Conventional farming practice means any good farming practice that
is not an organic farming practice.
* * * * *
Feedstock means a crop including, but not limited to, grasses or
legumes, algae, cotton, peanuts, coarse grains, small grains, oil
seeds, or short rotation woody crops, that is grown expressly for the
purpose of producing a biobased material or product, and does not
[[Page 74573]]
include residues and by-products of crops grown for any other purpose.
* * * * *
Generally recognized means when agricultural experts or organic
agricultural experts, as applicable, are aware of the production method
or practice and there is no genuine dispute regarding whether the
production method or practice allows the crop to make normal progress
toward maturity and produce at least the yield used to determine the
production guarantee or amount of insurance.
Good farming practices means the cultural practices generally
recognized as compatible with agronomic and weather conditions and used
for the crop to make normal progress toward maturity and produce at
least the individual unit approved yield, as determined by FSA. These
practices are:
(1) For conventional farming practices, those generally recognized
by agricultural experts for the area, which could include one or more
counties; or
(2) For organic farming practices, those generally recognized by
the organic agricultural experts for the area or contained in the
organic system plan that is in accordance with the National Organic
Program specified in part 205 of this title.
Guarantee means the level of coverage provided based on the
application for coverage and buy-up coverage elected under the
provisions of this part.
Hand-harvested crop means a non-forage crop that is not harvested
mechanically and is removed from a field by hand.
* * * * *
Industrial crop means a commercial crop, or other agricultural
commodity used in manufacturing or grown expressly for the purpose of
producing a feedstock for renewable biofuel, renewable electricity, or
biobased products. Industrial crops include castor beans, chia, crambe,
crotalaria, cuphea, guar, guayule, hesperaloe, kenaf, lesquerella,
meadowfoam, milkweed, plantago ovato, sesame, and other crops
specifically designated by FSA. Industrial crops exclude any plant that
FSA has determined to be either a noxious weed or an invasive species.
A list of plants that are noxious weeds and invasive species will be
available in the FSA county office.
Maximum dollar value for coverage sought means the total dollar
amount elected by the NAP covered participant for which buy-up coverage
may be considered for a value loss crop in a coverage period. The
amount is set by the NAP covered participant for each value loss crop
and represents the highest amount of field market value of the crop
before disaster in a coverage period.
* * * * *
Native sod means land on which the natural state plant cover before
tilling was composed principally of native grasses, grass-like plants,
forbs, or shrubs suitable for grazing and browsing and is land that has
never been tilled (determined in accordance with information collected
and maintained by an agency of the USDA or other verifiable records
that are provided by a producer and acceptable to FSA) for the
production of an annual crop through February 7, 2014.
* * * * *
Organic agricultural experts means persons who are employed by the
following organizations: Appropriate Technology Transfer for Rural
Areas, Sustainable Agriculture Research and Education, or the National
Institute of Food and Agriculture, the agricultural departments of
universities, or other persons approved by FSA, whose research or
occupation is related to the specific practice for which such expertise
is sought.
Organic crop means an agricultural commodity that is organically
produced consistent with section 2103 of the Organic Foods Production
Act of 1990 (7 U.S.C. 6502).
Organic farming practice means a system of plant production
practices used to produce an organic crop that is approved by a
certifying agent in accordance with 7 CFR part 205.
Organic system plan means a plan of management of an organic
production or handling operation that has been agreed to by the
producer or handler and the certifying agent and that includes written
plans concerning all aspects of agricultural production or handling
described in the Organic Foods Production Act and the regulations in 7
CFR part 205, subpart C.
Organic standards means standards in accordance with the Organic
Foods Production Act of 1990 (7 U.S.C. 6501-6523) and 7 CFR part 205.
Prohibited substance means any biological, chemical, or other agent
that is prohibited from use or is not included in the organic standards
for use on any certified organic, transitional, or buffer zone acreage.
Lists of such substances are specified in Sec. Sec. 205.602 and
205.604 of this title.
Secondary use means the harvested production bears little
resemblance to, or has a different unit of expression than, the unit of
expression for the reported intended use. It does not apply to fresh
and processed harvested production; is not salvage; not counted as
production of the crop for the following purposes, including, but not
limited to:
(1) The determination of whether the unit suffered requisite loss;
and
(2) APH and approved yield.
* * * * *
Short rotation woody crops means fast-growing trees that reach
their economically optimum size between 4 and 20 years old.
* * * * *
Transitional acreage means acreage on which organic farming
practices are being followed that does not yet qualify to be designated
as organic acreage.
* * * * *
0
12. Amend Sec. 1437.4 as follows:
0
a. Revise paragraph (a) introductory text;
0
b. Revise paragraph (a)(4);
0
c. In paragraph (b)(2), remove the words and punctuation ``except for
the 2001 and preceding crop years assistance for forage produced on
Federal- and State-owned lands is available only for seeded forage.'';
0
d. Revise paragraphs (b)(4)(vi), (vii), and (viii), and add paragraphs
(b)(4)(ix) and (x); and
0
e. Revise paragraphs (c) and (d).
The revisions and addition read as follows:
Sec. 1437.4 Eligibility.
(a) Noninsured crop disaster assistance is available during the
coverage period specified in Sec. 1437.6 for loss of production or
loss of value for value loss crops or prevented planting of eligible
commercial crops or other eligible agricultural commodities:
* * * * *
(4) Determined by FSA to be eligible crops for which:
(i) Catastrophic risk protection under the Federal Crop Insurance
Act (7 U.S.C. 1508(b)) is not available;
(ii) Additional coverage under the Federal Crop Insurance Act (7
U.S.C. 1508(c) or (h)) is not available (excluding pilot policies or
plans of insurance) and for which the Deputy Administrator determines
are appropriate for NAP coverage; or
(iii) These specific practices for these crops are not included
under the Federal Crop Insurance Act (7 U.S.C. 1508), but only when the
Deputy Administrator determines in advance of a coverage period that
the specific practice is appropriate for NAP coverage and is not
available for coverage under Federal crop insurance.
(iv) The producer applies good farming practices.
(b) * * *
[[Page 74574]]
(4) * * *
(vi) Sweet sorghum;
(vii) Biomass sorghum;
(viii) Industrial crops (including those grown expressly for the
purpose of producing a feedstock for renewable biofuel, renewable
electricity, or biobased products);
(ix) Seed crops, including propagation stock such as non-ornamental
seedlings, sets, cuttings, rootstock, and others, as determined by FSA;
and
(x) Sea grass and sea oats.
(c) Except as specified in paragraph (d) of this section, during
the first 4 crop years of planting, as determined by the Secretary,
native sod acreage in Iowa, Minnesota, Montana, Nebraska, North Dakota,
and South Dakota that has been tilled for the production of an annual
crop after February 7, 2014, will be subject to the following:
(1) The approved yield will be determined by using a yield equal to
65 percent of the producer's T-yield for the annually planted crop; and
(2) The service fee or premium for the annual covered crop planted
on native sod will be equal to 200 percent of the amount determined in
Sec. 1437.7, as applicable, but the premium will not exceed the
maximum amount specified in Sec. 1437.7(d)(2).
(d) If the producer's total native sod acreage that is tilled in a
crop year is 5 acres or less, the approved yield, service fee, and
premium provisions specified in paragraph (c) of this section will not
apply.
* * * * *
Sec. Sec. 1437.5 through 1437.15 [Redesignated as Sec. Sec. 1437.6
through 1437.16]
0
13. Redesignate Sec. Sec. 1437.5 through 1437.15 as Sec. Sec. 1437.6
through 1437.16, respectively.
0
14. Add Sec. 1437.5 to read as follows:
Sec. 1437.5 Coverage levels.
(a) NAP coverage for prevented planting is provided for approved
prevented planting of an eligible NAP covered crop due to an eligible
cause of loss in the coverage period. Payment is based on the approved
prevented planted acreage in excess of 35 percent of the total intended
acres to be planted.
(b) Except as provided in paragraph (d) of this section, NAP
coverage is equal to 50 percent of the yield or inventory value
specified in paragraph (c) of this section at 55 percent of the average
market price established by FSA.
(c) Except as provided in paragraph (d) of this section, to be
eligible for a NAP payment a producer must have suffered a yield or
inventory value loss greater than 50 percent as the result of an
eligible cause of loss in the coverage period as follows:
(1) For yield-based crops, a yield loss in excess of 50 percent of
the approved yield;
(2) For value loss crops, a loss of value in excess of 50 percent
of the total value of eligible inventory at the time of disaster;
(d) For 2015 through 2018 crop years, producers of eligible NAP
crops, other than crops and grasses intended for grazing, may elect
buy-up coverage at 100 percent of the average market price in amounts
of 50 percent to 65 percent, in 5 percent increments, of:
(1) For yield-based crops, your approved yield; and
(2) For value loss crops, the lesser of the total value of eligible
inventory at the time of disaster or the maximum dollar value for
coverage sought.
(e) The quantity or value of any eligible NAP crop will not be
reduced for any quality consideration unless a zero value is
established based on a total loss of quality, except as specified in
Sec. 1437.105.
(f) For crop acreage intended to be grazed, to be eligible for a
NAP payment, a producer must have suffered a loss of AUD in excess of
50 percent of expected AUD determined on the basis of acreage, carrying
capacity, and grazing period.
0
15. Revise newly redesignated Sec. 1437.6 to read as follows:
Sec. 1437.6 Coverage period.
(a) Coverage period. The coverage period is the time during which
coverage is available against prevented planting, a loss of production,
or loss of value, as applicable, of the eligible crop as a result of an
eligible cause of loss specified in Sec. 1437.10. Except as provided
in paragraph (h) of this section, coverage periods start no earlier
than 30 days after date of filing of a valid application for coverage
as specified in Sec. 1437.7.
(1) Relief provisions cannot be used to change or modify the date
an application is filed.
(2) If an application for coverage is filed within 30 days of the
end of a coverage period, the application for coverage is invalid and
will not be processed by FSA. In the event the application for coverage
is invalid as discussed in this paragraph, service fees will not be
refunded.
(3) Except as provided in paragraph (h) of this section, coverage
is never retroactive.
(b) Annual crops. Except as provided in paragraph (h) of this
section, the coverage period for annual crops, including annual forage
crops,
(1) Begins the later of:
(i) 30 calendar days after the date the application for coverage is
filed; or
(ii) The date the crop is planted, not to exceed the late planting
period; and
(2) Ends on the earlier of:
(i) The date harvest is complete;
(ii) The normal harvest date of the crop in the area;
(iii) The date the crop is abandoned; or
(iv) The date the crop is destroyed.
(c) Biennial and perennial crops. Except as otherwise specified in
this part, the coverage period for biennial and perennial crops begins
the later of 30 calendar days after the date the application for
coverage is filed or 30 calendar days after the application closing
date. The coverage ends as determined by FSA.
(d) Value loss crops. 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 floriculture and mushrooms begins the
later of 30 calendar days after the date the application for coverage
is filed or 30 calendar days after the application closing date. The
coverage ends the last day of the crop year, as determined by FSA.
(e) Honey. Except as provided in paragraph (h) of this section, the
coverage period for honey begins the later of 30 calendar days after
the date the application for coverage is filed or 30 calendar days
after the application closing date. The coverage ends the last day of
the crop year, as determined by FSA.
(f) Maple sap. Except as provided in paragraph (h) of this section,
the coverage period for maple sap begins the later of 30 calendar days
after the date the application for coverage is filed or 30 calendar
days after the application closing date. The coverage ends on the
earlier of the date harvest is complete; or the normal harvest date.
(g) Biennial and perennial forage crops. Except as provided in
paragraph (h) of this section, for biennial and perennial forage crops
the coverage period begins the later of 30 calendar days after the date
the application for coverage is filed or 30 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.
(h) 2015 crop year. For the 2015 crop year only, if a crop's
application closing date is before January 14, 2015, the coverage
period of the crop will be as
[[Page 74575]]
specified in paragraphs (a) through (g) of this section except that the
date coverage begins will be retroactive as long as the application for
coverage is filed by the application closing date as specified in Sec.
1437.7(i). This limited retroactive coverage for the 2015 crop year
only will begin 30 days after the established application date, which
would be the same as if they had filed by the deadlines as specified in
paragraphs (a) through (g) of this section.
0
16. Revise newly redesignated Sec. 1437.7 to read as follows:
Sec. 1437.7 Application for coverage, service fee, premium, and
transfers of coverage.
(a) Except as provided in paragraph (i) of this section, with
respect to each crop, commodity, or acreage, producers must file an
application for coverage under this part in the administrative county
office by the application closing date.
(b) The service fee or request for service fee waiver under
paragraph (g) of this section must accompany the application for
coverage in order for it to be considered filed. The service fee is
$250 per crop per administrative county, up to $750 per producer per
administrative county, not to exceed $1,875 per producer.
(c) The service fee will be applied per administrative county by
crop and by planting period, as determined by FSA.
(d) Producers who elect buy-up coverage must pay a premium, in
addition to the service fee, equal to the lesser of:
(1) The product obtained by multiplying:
(i) A 5.25-percent premium fee; and
(ii) The applicable payment limit; or
(2) The sum of the premiums for each eligible crop, with the
premium for each eligible crop obtained by multiplying:
(i) The producer's share of the eligible crop;
(ii) The number of acres devoted to the eligible crop;
(iii) The approved yield;
(iv) The coverage level elected by the producer;
(v) The average market price; and
(vi) A 5.25-percent premium fee.
(e) For value loss crops, premiums will be calculated based on the
maximum dollar value for which coverage is sought by the applicant,
subject to applicable payment limitation, times the 5.25 percent
premium.
(f) Premiums will be calculated separately for each crop, type, and
intended use as reported on the acreage report and as specified in the
basic provisions.
(g) Beginning farmers and ranchers, limited resource farmers and
ranchers, and socially disadvantaged farmers or ranchers will receive,
upon certification, a waiver of the service fee and a 50 percent
premium reduction. The certification is required on or before the time
the application for coverage is filed using the form specified by FSA.
(h) Transfers of NAP coverage are governed by the basic provisions.
(i) For the 2015 crop year, if a crop's application closing date is
before January 14, 2015, FSA will accept applications for coverage
without regard to whether or not the application for coverage was filed
by the crop's application closing date, provided that the application
for coverage includes buy-up coverage according to Sec. 1437.5(d) and
is filed by January 14, 2015. Except as specifically stated in this
rule, the provisions of this paragraph (i) do not apply to crops having
an application closing date established on or after December 15, 2014
or to applications for coverage that do not include buy-up coverage as
an option selected by the applicant. The coverage period for
applications for coverage filed according to this paragraph (i) will be
as specified in Sec. 1437.6.
0
17. Amend newly redesignated Sec. 1437.8 as follows:
0
a. Revise paragraph (a) introductory text, add paragraph (a)(3), and
revise paragraphs (b)(1) and (2) and (c) introductory text;
0
b. In paragraph (d), revise the introductory text, redesignate
paragraphs (d)(6) through (8) as paragraphs (d)(7) through (9),
respectively, and add paragraph (d)(6); and
0
c. Add paragraphs (i), (j), and (k).
The revisions and additions read as follows:
Sec. 1437.8 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. 1437.7. For those crops or
commodities for which it is impractical, as determined by FSA, to
maintain crop acreage, yields, or production data, 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. 1437.7. Producers may be selected and
be required to provide records acceptable to FSA to support any
certification provided. For each harvested crop for which producers
file an application for payment in accordance with Sec. 1437.11,
producers must provide documentary evidence acceptable to FSA of
production and the date harvest was completed, including production of
crops planted after the planting period or late planting period. Such
documentary evidence must be provided no later than the acreage
reporting date for the crop in the subsequent crop year or, for crops
with a coverage period of more than 12 months, no later than 60 days
after the normal harvest date. 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 acreage reporting date for
the crop in the current crop year. Production data provided after the
acreage reporting 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 FSA. Records of production
acceptable to FSA may include:
* * * * *
(3) For quality losses specified in Sec. 1437.105, verifiable
records substantiating a quality loss due to an eligible cause of loss
in the coverage period. The record submitted must come from tests or
analysis substantiating that the loss of quality occurred from an
eligible cause of loss during the coverage period. FSA will disapprove
quality adjustments under Sec. 1437.105 if FSA determines the evidence
does not substantiate a loss of quality occurred due to an eligible
cause of loss in the coverage period. For example, if FSA determines
the tests or analysis of the specific crop's production were taken too
late to determine if the measured loss of quality occurred from an
eligible cause of loss in the coverage period (regardless whether a
loss of quality was in fact measured or determined), no quality loss
adjustment will be made or permitted. There is no presumption that a
measured loss of quality occurred due to an eligible cause of loss in
the coverage period. It is a NAP covered producer's burden to present
evidence, satisfactory to FSA, substantiating that the alleged quality
loss occurred to the NAP covered crop in the coverage period.
(b) * * *
[[Page 74576]]
(1) Producers of hand-harvested crops must, in addition to
providing acceptable production records according to this part, notify
the administrative county office that harvest is complete. This
notification must be made within 72 hours of when harvest is complete.
If an appraisal of the crop acreage is requested by the producer or
determined necessary by FSA, the producer must not destroy the crop
residue until the crop acreage is released by an FCIC- or FSA-qualified
loss adjustor. Producers may, at their expense, request that an
appraisal by certified FCIC or FSA loss adjusters of hand-harvested
crop acreage be completed during non-loss crop years in order to
maintain accurate actual production history.
(2) Producers must not allow the gathering (gleaning) of any
produce left in the field following normal harvest of the crop acreage
until the crop acreage is released by a qualified FSA or FCIC loss
adjustor, as determined by FSA. Except, crop acreage may be released by
an authorized FSA representative for acceptable gleaning operations, as
determined by FSA, when producers and gleaners agree to provide
acceptable records, as determined by FSA, of the quantity of the crop
gleaned.
(c) Producers must provide acceptable evidence, as determined by
FSA, of:
* * * * *
(d) Reports of acreage planted or intended but prevented from being
planted must be provided to FSA at the administrative county office for
the acreage no later than the date specified by FSA for each crop and
location. Reports of acreage filed beyond the date specified by FSA for
the crop and location may, however, be processed and used for
determining acres devoted to the eligible crop if all the provisions of
7 CFR part 718 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 by the
date specified by FSA for the crop and location. Reports of acreage
planted or intended and prevented from being planted must include all
of the following information:
* * * * *
(6) For organic crops with an average market price established
under Sec. 1437.12(b), the identity of the crop planted on:
(i) Acreage using conventional farming practices;
(ii) Certified organic acreage;
(iii) Transitional acreage being converted to certified organic
acreage;
(iv) Buffer zone acreage;
* * * * *
(i) Producers requesting payment under this part for a crop grown
on certified organic acreage for which a price and T-yield are
established, as provided in Sec. Sec. 1437.12(b) and 1437.102, must
provide, no later than the acreage reporting date specified by FSA for
the crop and location:
(1) A written certification in effect from a certifying agency
indicating the name of the entity certified, effective date of
certification, certificate number, types of commodities certified, and
name and address of the certifying agent (a certificate issued to a
tenant may be used to qualify a landlord or other similar arrangement);
and
(2) Records from the certifying agent showing the specific location
of certified organic, transitional, and buffer zone acreage, and
acreage not subject to organic farming practices according to an
organic system plan.
(j) Producers providing reports of acreage that include
transitional acreage being converted to certified organic acreage in
accordance with an organic system plan must provide, no later than the
acreage reporting date specified by FSA for the crop and location:
(1) Written documentation from a certifying agent indicating an
organic system plan is in effect for the acreage; and
(2) Records from the certifying agent showing the specific location
of certified organic, transitional, and buffer zone acreage, and
acreage not subject to organic farming practices according to an
organic system plan.
(k) Producers who are exempt from National Organic certification
requirements, as specified in Sec. 205.101 of this title, and are
requesting payment under this part for a crop grown on organic acreage
for which a price and T-yield is established, as provided in Sec. Sec.
1437.12(b) and 1437.102, must provide, no later than the acreage
reporting date specified by FSA for the crop and location, a copy of
their organic system plan, which must be developed with an organic
certifying agent.
0
18. Revise newly redesignated Sec. 1437.10 to read as follows:
Sec. 1437.10 Causes of loss.
(a) To qualify for assistance, production losses or prevented
planting must occur as a result of an eligible cause of loss during the
coverage period. Not all causes of loss are eligible causes of loss for
all crops or all commodities.
(b) An eligible cause of loss is:
(1) Damaging weather, including, but not limited to:
(i) Drought;
(ii) Hail;
(iii) Excessive moisture;
(iv) Freeze;
(v) Tornado;
(vi) Hurricane;
(vii) Excessive wind;
(viii) Insufficient chill hours, but only for specific crops and
locations for which FSA has determined in advance of a coverage period,
based on FSA's review of sufficient scientific evidence that a
requisite amount of chill hours is required for the crop to produce and
a lack of chill hours is adverse to the crop's production without any
regard to any management. In this context, ``without regard to any
management'' means if a crop's inability to produce due to lack of
chill hours can be mitigated by any managerial practices, application
of chemical, or other management intervention, the lack of chill hours
will not be included as an eligible cause of loss for the crop, In
cases where FSA makes the decision to include insufficient chill hours
as a cause of loss by itself for a crop and location, the crop and
location and subsequent crop year coverage period for which the
decision will apply will be specified in a list maintained by FSA. If
the crop and location is not on that list, then insufficient chill
hours can only be an eligible cause of loss if the insufficient chill
hours were related to a damaging weather event or an adverse natural
occurrence included in paragraphs (b)(1) or (2) of this section; or
(ix) Any combination of paragraphs (b)(1)(i) through (viii) of this
section;
(2) Adverse natural occurrence, including, but not limited to:
(i) Earthquake;
(ii) Flood; or
(iii) Volcanic eruption; or
(3) A condition related to an eligible cause of loss in paragraphs
(b)(1) or (2) of this section (in this context, the related condition
must result from the damaging weather or adverse natural occurrence; it
is not eligible if it occurs on its own) including, but not limited to:
(i) Heat;
(ii) Insect infestation;
(iii) Disease;
(iv) Insufficient chill hours; or
(v) Any combination thereof.
(c) The damaging weather, adverse natural occurrence, or related
condition as specified in paragraph (b) of this section must occur in
the coverage period before or during harvest and directly cause,
accelerate, or exacerbate destruction or deterioration of the eligible
crop as determined by the county committee.
[[Page 74577]]
(d) NAP coverage is provided against only eligible causes of loss.
All specified causes of loss must be due to a naturally occurring event
during the coverage period. All other causes of loss, including, but
not limited to, the following, are not covered:
(1) Negligence, mismanagement, or wrongdoing by the NAP covered
producer or anyone else;
(2) Failure to follow recognized good farming practices for the
eligible crop;
(3) 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;
(4) Failure or breakdown of the irrigation equipment facilities,
unless the failure or breakdown is due to an eligible cause of loss. If
damage is due to an eligible cause of loss, the producer must make all
reasonable efforts to restore the equipment or facilities to proper
working order within a reasonable amount of time unless FSA determines
it is not practical to do so. Cost will not be considered when
determining whether it is practical to restore the equipment or
facilities;
(5) Failure to carry out a good irrigation practice for the covered
crop, if applicable;
(6) Any cause of loss that results in damage that is not evident or
would not have been evident during the NAP coverage period. Even though
FSA may not inspect the damaged crop until after the end of the NAP
coverage period, only damage due to eligible causes that would have
been evident during the NAP coverage period will be covered;
(7) Except for lack of chill hours as specified in paragraph
(b)(1)(viii) of this section, normal variance of temperatures from
average normal temperatures including, but not limited to, cyclic yield
variations that occur for a crop that are not causes of loss included
in paragraphs (b)(1) or (2) of this section;
(8) Any managerial decision to attempt to grow or produce a crop in
an area that is not suited for successful commercial production of the
eligible NAP crop as determined by FSA;
(9) Failure of the producer to reseed to the same crop during the
same planting period in those areas and under such circumstances where
it is customary to do so;
(10) Except for tree crops and perennials and as provided for in
Sec. 1437.201, inadequate irrigation resources at time of planting;
(11) Except as specified in Sec. 1437.303, a loss of inventory or
yield of aquaculture (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;
(12) Any failure to provide a controlled environment or exercise
good nursery practices when such controlled environment or practices
are a condition of eligibility under this part;
(13) Except as provided for mollusks in Sec. 1437.303, any alleged
or actual loss of inventory or missing non-containerized inventory
resulting from a managerial decision not to seed or raise the eligible
NAP crop in containers, net pens, or wire baskets, on ropes, or using
similar devices;
(14) For crops grown using organic farming practices, failure to
comply with organic standards;
(15) Contamination by application or drift of prohibited substances
onto land on which crops are grown using organic farming practices; or
(16) Weeds.
(e) The lack of an eligible cause of loss during a coverage period
is not a compliance matter or issue. NAP will not provide assistance
for crops that do not suffer from an eligible cause of loss during a
coverage period. The relief provisions of these regulations and of 7
CFR part 718 cannot be used to pay producers of crops that did not
suffer from an eligible cause of loss during the coverage period.
0
19. Amend newly redesignated Sec. 1437.11 as follows:
0
a. Revise paragraphs (a) through (c) and (e) through (g);
0
b. In paragraphs (d)(3) remove the words ``FSA administrative county
office'' and add the words ``administrative county office'' in their
place;
0
c. In paragraph (d)(4) remove the words ``FSA administrative county
office'' and add the words ``administrative county office'' in their
place, and remove the acronym ``CCC'' and add the acronym ``FSA'' in
its place both times it appears;
0
d. In paragraph (d)(5) remove the words ``FSA administrative county
office'' and add the words ``administrative county office'' in their
place; and
0
e. Add paragraph (h).
The revisions and addition read as follows:
Sec. 1437.11 Notice of loss, appraisal requirements, and application
for payment.
(a) In addition to the written notice of loss requirements
specified for all crops in paragraphs (b) and (c) of this section, for
hand-harvested crops and for other crops determined by FSA, at least
one producer having a share in the unit must notify FSA of the damage
or loss through the administrative county office for the unit within 72
hours of the date damage or loss on the unit first becomes apparent.
Notification required under this paragraph may be via telephone to the
administrative county office during business hours or via written
notice on a form prescribed by FSA as specified in paragraph (c) of
this section.
(b) Unless written notice for hand-harvested crops has already been
provided within 72 hours of date of damage or loss as specified in
paragraphs (a) and (c) of this section, in case of damage to any NAP
covered crop, at least one producer having a share in the unit must
file a notice of loss in the administrative county office:
(1) For prevented planting claims, within 15 days after the final
planting date;
(2) For low yield claims, the earlier of:
(i) 15 days after the disaster occurrence or date of loss or damage
to the crop first becomes apparent; or
(ii) 15 days after the normal harvest date.
(c) The notice of loss specified in paragraph (b) of this section
must be for each crop and be in writing on a form prescribed by FSA and
include:
(1) The alleged cause of crop damage;
(2) Date the disaster occurred and when the damage or loss first
became apparent;
(3) A copy of the contract or agreement if a contract or agreement
of a guaranteed payment for planted acreage exists;
(4) The type of loss that occurred, for example, prevented planting
or low yield;
(5) Practices used, for example, irrigated or non-irrigated;
(6) For prevented planting:
(i) Total intended planted acreage of the crop on the unit;
(ii) Total acreage of the crop planted on the unit;
(iii) Whether seed, chemicals, fertilizer, etc. was purchased,
delivered, or an arrangement for purchase or delivery was made for the
intended to be planted crop;
(iv) What and when land preparation measures were completed, and
(v) What has been done or will be done with the acreage, for
example, abandoned, replanted, etc.;
(7) For low yield:
(i) Total acreage devoted to the crop in the unit;
(ii) Total acreage of the crop affected;
(iii) What and when land preparation measures and practices were
completed before and after the loss; and
(iv) What will be done with the affected crop acreage, for example,
harvested, destroyed, replanted to a different crop, abandoned, etc.;
and
[[Page 74578]]
(8) Any other information requested by an FSA authorized
representative.
* * * * *
(e) Crop acreage for which an application for coverage has been
filed, that is intended for production of forage seed and for which a
notice of loss is filed indicating the crop acreage will not be
harvested as seed, will be appraised for potential production of seed
when producers provide FSA acceptable evidence of a contract to produce
seed for the current crop year or acceptable records of acreage and
seed production for three or more of the last 5 consecutive crop years,
as determined by FSA.
(f) Forage acreage for which a notice of loss is filed and:
(1) Catastrophic coverage was obtained for forage intended to be
grazed will have NAP benefits calculated based on Sec. 1437.401(f);
(2) Catastrophic coverage was obtained for forage that was intended
to be mechanical harvested but will be grazed and not mechanical
harvested;
(i) Must have an appraisal and release for the unit to have NAP
benefits calculated based on mechanical harvested forage; or
(ii) For which an appraisal or release was not obtained, will have
a loss calculated as specified in Sec. 1437.401(f).
(3) Buy-up coverage was obtained for forage intended to be
mechanically harvested but will be grazed and not mechanically
harvested:
(i) Must have an appraisal and release in order for the unit to
have NAP benefits calculated based on the loss of expected mechanically
harvested forage; or
(ii) For which an appraisal or release was not obtained is
ineligible for payment consideration and will have the unit guarantee
assigned to the forage crop acreage.
(g) Producers must file an application for payment on a form
specified by FSA to apply for NAP payments within 60 days of the last
day of coverage for the crop year for any NAP covered crop in the unit.
(h) A notice of loss under paragraph (a) of this section filed
beyond the time specified in this section or notification provided
under paragraph (b) of this section may satisfy the requirements of
these provisions, if, at the discretion of FSA, the notice is filed at
such time that permits:
(1) An authorized FSA representative to verify information on the
notice of loss by inspecting the affected acreage or the crop or
commodity involved; and
(2) The county committee or an authorized FSA representative the
opportunity to determine that eligible disaster conditions caused the
damage or loss.
0
20. Amend newly redesignated Sec. 1437.12 as follows:
0
a. Redesignate paragraph (b) as paragraph (e);
0
c. Remove paragraphs (c) and (d); and
0
d. Add paragraphs (b) through (d) and (f) through (i).
The additions read as follows:
Sec. 1437.12 Average market price and payment factors.
* * * * *
(b) For each crop and location (State or county or other location
as determined appropriate by FSA), FSA will establish an average market
price using the following method:
(1) Obtaining market prices for each crop for the 5 consecutive
crop years immediately preceding the crop year of coverage, if
available; then
(2) Dropping the crop years in the 5 consecutive crop years with
the highest and lowest prices; and then
(3) Averaging the prices for the remaining 3 crop years in the 5
consecutive crop years; and
(4) If 5 crop years of data is not available for determining the
average market price, FSA will use the best data available, as
determined by FSA, for as many crop years of average market price data
as possible within the 5 consecutive crop years immediately preceding
the previous crop year and determine an average market price for the
crop by computing a simple average of the prices for those years.
(c) FSA will disregard small differences in prices for a crop based
on different types or varieties or various intended uses. If FSA
determines there is a significant amount of production being marketed
in a location or region at significantly different prices, FSA will
determine whether or not to establish different average market prices
for subsequent crop years.
(d) Separate average market prices may be established within a
State based on conventional or organic practices or the intended
market, as determined by FSA.
* * * * *
(f) 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 FSA. The imposition of payment factors
is based on the acre status and disposition not whether a NAP
participant actually incurs or does not incur expenses.
(g) The average market price used to determine the amount of NAP
assistance for crop acreage reported with a specific intended use will
be based on the smaller of the approved average market price
established for either the specific intended use reported on the
acreage report or actual market or actual use for which more than 50
percent of the acreage's harvested production is marketed. For example:
A producer reports 50 acres of carrots intended for fresh market and
the producer suffers a 70 percent loss of production on the acreage.
Additionally, more than 50 percent of the carrots actually produced
from the 50 acres are sold as processed carrots. Because the
established average market price for processed carrots is less than
fresh carrots and more than 50 percent of the harvested crop was
marketed as processed carrots, the established average market price for
processed carrots will be used to compute the producer's NAP
assistance. If an average market price had not been established for
processed carrots in this example before the coverage period, then the
average market price for fresh carrots would be used.
(1) The provisions of this paragraph do not apply to secondary use,
peanuts, seed intended uses, and small grain intended for use as
forage.
(2) [Reserved]
(h) For crops with an established yield and market price for
multiple intended uses, the average market price will be as provided in
paragraph (g) of this section except that for producers who choose buy-
up coverage under Sec. 1437.5(d), the average market price used to
determine assistance may be based on historical production and acreage
evidence provided by the participant. The evidence of actual final use
of historical production must come from the 3 previous crop years
immediately preceding the coverage year. Only years in which the
producer had acreage and production harvested will be counted. In other
words, if a producer only marketed a crop in 1 previous year, FSA will
review the evidence of final use in that year and based on the evidence
for that year, determine a percent of production attributable to each
use. Based on that determined percentage, an appropriate average market
price and use will be calculated and determined, respectively. If more
than 1 and up to 3 years of final use evidence are available, FSA will
count all years and production and determine the average. If a producer
had crop acreage and evidence of final use for any year in the 3-year
period, but the producer does not submit evidence for any other year in
the 3-year period for
[[Page 74579]]
which the producer also had acreage, the average market price will be
as provided in paragraph (g) of this section.
(i) A final payment price will be determined by multiplying, as
appropriate, the average market price determined in this section by the
applicable payment factor (that is, harvested, unharvested, or
prevented planting).
Sec. 1437.14 [Amended]
0
21. Amend newly redesignated Sec. 1437.14 as follows:
0
a. In paragraph (a), remove the word ``shall'' and add the word
``will'' in its place;
0
b. Remove paragraph (b)(2);
0
c. Redesignate paragraphs (b)(3) through (5) as paragraphs (b)(2)
through (4), respectively;
0
d. In newly redesignated paragraphs (b)(2) through (4) remove the
reference ``part 760 of this title'' and add the reference ``part 1416
of this chapter'' in its place each time it appears; and
0
e. In paragraph (d), remove the word ``FSA'' and add the word
``county'' in its place.
Sec. 1437.15 [Amended]
0
22. Amend newly redesignated Sec. 1437.15 as follows:
0
a. Remove paragraph (b); and
0
c. Redesignate paragraph (c) as paragraph (b).
0
23. Amend newly redesignated Sec. 1437.16 as follows:
0
a. In paragraph (b), remove the word ``shall'';
0
b. In paragraph (c) introductory text, remove the words ``shall be''
and add the word ``is'' in their place;
0
c. In paragraph (e), remove the words ``shall be'' and add the word
``are'' in their place, and remove the acronym ``CCC'' and add the
acronym ``FSA'' in its place;
0
d. In paragraph (f), remove the word ``shall'' and add the word
``will'' in its place;
0
e. Revise paragraph (g);
0
f. In paragraph (i), remove the word ``shall'' and add the word
``will'' in its place;
0
g. Revise paragraph (j); and
0
h. Add paragraphs (m) through (p).
The additions and revisions read as follows:
Sec. 1437.16 Miscellaneous provisions.
* * * * *
(g) The liability of any person for any penalty under this part is
in addition to any other liability under any civil or criminal fraud
statute or any other provision of law.
* * * * *
(j) For the purposes of 28 U.S.C. 3201(e), the Secretary waives the
ineligibility to receive benefits under this program but only for
beneficiaries who as a condition of such waiver agree to apply the
benefits to reduce the amount of the judgment lien.
* * * * *
(m) Any person or legal entity who has a debt from nonpayment of
the premium for coverage levels specified in Sec. 1437.5(c) will be
ineligible for assistance under any subsequent crop year NAP coverage
on any crop from the crop year of nonpayment of premium until the debt
is paid in full.
(1) If a person or legal entity is ineligible for NAP assistance
due to the debt because of the nonpayment of premium, FSA will permit
the person or legal entity to file an application for coverage together
with payment of any service fees; however, that application and payment
of service fees will not make the person or legal entity eligible for
any assistance until the premium debt is paid in full.
(2) Service fees paid with applications for coverage that are filed
by persons or legal entities who are ineligible for NAP assistance as
specified in paragraph (m) of this section will not be credited to any
unpaid premium debt nor are they refundable.
(n) A person or legal entity ineligible for NAP assistance under
paragraph (m) of this section may become eligible for future NAP
assistance if they remit all unpaid debt related to the nonpayment of
premium before the application for payment filing deadline (see Sec.
1437.11(g)).
(o) Any NAP payment that was not issued for a prior NAP crop year
due to an outstanding debt as specified in paragraph (m) of this
section will not be issued.
(p) Unpaid debt related to the failure to pay any premium satisfied
by administrative offset will reinstate the eligibility of a person or
legal entity from the date the offset satisfies all the unpaid premium
debt with interest.
0
24. Add Sec. 1437.17 to read as follows:
Sec. 1437.17 Matters of general applicability.
(a) The regulations in this part and FSA's interpretation of the
regulations in this part, the basic provisions, and internal agency
directives issued to FSA State and county offices are matters of
general applicability and are not individually appealable in
administrative appeals according to Sec. Sec. 11.3 and 780.5 of this
title. Additionally, the regulations in this part and any FSA decisions
that are not based on specific facts derived from an individual
participant's application, contract, or file are not appealable under
parts 11 or 780 of this title. Examples of such decisions include how
NAP is generally administered, signup deadlines, payment rates, or any
other generally applicable matter or determination that is made by FSA
for use in all similarly situated applications. The only extent to
which the matters referenced in this section are reviewable
administratively in an appeal forum is whether FSA's determination of
facts incidental to the case and decision to apply the generally
applicable matter is in conformance with the regulations in this part.
(b) The relief provisions of 7 CFR part 718 are applicable only to
participant ineligibility and noncompliance decisions. The relief
provisions cannot be used to extend a benefit or assistance not
otherwise available under law or not otherwise available to others who
have satisfied or complied with all the eligibility and compliance
requirements of this part. Equitable relief provisions of part 718 of
this title cannot be used to obtain a review of either these
regulations, the requirements of this part, the agency's
interpretations of this part, or compliance provisions of this part.
Subpart B--Determining Yield Coverage Using Actual Production
History
0
25. Amend Sec. 1437.102 as follows:
0
a. In paragraph (b)(1), remove the year ``2005'' and add the year
``2015'' in its place, and remove the term ``1999 through 2003'' and
add the term ``2009 through 2013'' in its place;
0
b. In paragraph (b)(5)(i), remove the words ``irrigated, non-irrigated,
and organic practices'' and add the words ``irrigated and non-
irrigated'' in their place;
0
c. Redesignate paragraphs (b)(6) through (8) as paragraphs (b)(8)
through (10), respectively;
0
d. Add paragraphs (b)(6) and (7);
0
e. In paragraphs (c)(1) and (2), add the words ``in a crop year that is
not a bypass year'' immediately after the words ``report of
production'';
0
f. In paragraph (c)(3), remove the reference ``Sec. 1437.7'' and add
the reference ``Sec. 1437.8'' in its place;
0
g. In paragraph (d)(1), remove the words ``production, as determined by
CCC'' add the words ``production in a crop year that is not a bypass
year, as determined by CCC'' in their place;
0
h. In paragraph (d)(2), remove the reference ``Sec. 1437.7'' and add
the reference ``Sec. 1437.8'' in its place;
[[Page 74580]]
0
i. In paragraph (e)(3), remove the word ``Shall'' and add the word
``Will'' in its place;
0
j. In paragraph (g), remove the year ``2000'' and add the year ``2014''
in its place and remove the acronym ``CCC'' and add the acronym ``FSA''
in its place;
0
k. In paragraph (h), remove the words ``50 percent of the initial
approved yield'' and add the words ``the unit guarantee'' in their
place, and remove the acronym ``CCC'' each time it appears and add the
acronym ``FSA'' in its place; and
0
l. Revise paragraph (j).
The additions and revision read as follows:
Sec. 1437.102 Yield determinations.
* * * * *
(b) * * *
(6) Will be adjusted on a State-wide basis, for crops grown on
certified organic and transitional acreage for which FSA has
established a separate organic price as specified in Sec. 1437.12(b),
based on an average of FCIC organic yield reductions, as determined by
FSA, for the same crop in the same State.
(7) May be adjusted on a county-wide or regional basis for crops
grown on certified organic and transitional acreage for which FSA has
established a separate organic price as specified in Sec. 1437.12(b),
based on the most representative available historical information, as
determined by FSA.
* * * * *
(j) A producer who has not shared in the risk of the production of
the crop for more than two crop years during the base period, as
determined by FSA, will have an approved yield calculated based on a
combination of 100 percent of the applicable T-yield and any actual
yield for the minimum crop years of the producer's APH base period.
Producers who have produced the crop for one or more crop years must
provide FSA, at the administrative county office serving the area in
which the crop is located, a certification of production and production
records for the applicable crop years as specified in Sec. 1437.8.
* * * * *
0
26. Revise Sec. 1437.103 to read as follows:
Sec. 1437.103 Late-planted acreage.
(a) Producers planting crop acreage after the final planting date
and during the late planting period, as determined by FSA, may be
eligible for reduced coverage as specified in paragraphs (b) and (c) of
this section.
(b) Crops with multiple planting periods and value loss crops are
not eligible for reduced coverage for late planting. Exceptions to this
are the last planting period of multiple planted crops and multiple-
planting periods having a defined gap of 60 days or more between
harvest date of the previous planting period and beginning of the
immediately following planting period.
(c) For crops with a growing period of:
(1) 60 days or less and planted:
(i) From 1 to 5 calendar days after the final planting date,
production will be assigned equal to 5 percent of unit expected
production for each day the crop is actually planted after the final
planting date;
(ii) From 6 days after the final planting date, production will be
assigned equal to the unit guarantee for the late planted crop acreage.
(2) 61 to 120 calendar days and planted:
(i) From 1 to 5 calendar days after the final planting date,
production will be assigned equal to 5 percent of expected unit
production of the applicable late-planted crop acreage and for days 6
through 20 an additional 1 percent for each day the crop is planted
after the final planting date;
(ii) From 21 days after the final planting date, production will be
assigned equal to the unit guarantee for the late planted crop acreage.
(3) 121 calendar days or more and planted:
(i) From 1 to 5 calendar days after the final planting date,
production will be assigned equal to 5 percent of expected production
of the applicable late-planted crop acreage and for days 6 through 25
an additional 1 percent for each day the crop is planted after the
final planting date.
(ii) From 26 or more calendar days after the final planting date,
production will be assigned equal to unit guarantee of the producer's
expected production of the applicable late-planted crop acreage.
Sec. 1437.104 [Amended]
0
27. In Sec. 1437.104(a)(2) remove the reference ``Sec. 1437.10(d)''
and add the reference ``Sec. 1437.11(e)'' in its place.
0
28. Amend Sec. 1437.105 as follows:
0
a. In paragraph (a) introductory text, remove the word ``shall'' and
add the word ``will'' in its place;
0
b. In paragraph (a)(1), remove the words ``eligible acreage planted''
and add the words ``acres devoted'' in their place;
0
c. In paragraph (a)(2), remove the words ``50 percent'' and add the
words and punctuation ``50, 55, 60, or 65 percent, as selected by the
producer as specified in Sec. 1437.5;'' in their place; and
0
d. Revise paragraph (a)(5); and
0
e. Add paragraphs (c), (d), (e), and (f).
The revision and additions read as follows:
Sec. 1437.105 Determining payments for low yield.
(a) * * *
(5) Multiplying the amount calculated as specified in paragraph
(a)(4) of this section by 55 or 100 percent (selected by the producer
as specified in Sec. 1437.5) of the final payment price calculated as
specified in Sec. 1437.12; and
* * * * *
(c) The crops and locations eligible for quality adjustments will
be determined by the Deputy Administrator in advance of the coverage
period, only if supporting documentation of industry standards for
quality adjustments are available. For specific crops and locations
determined by the Deputy Administrator for which buy-up coverage under
Sec. 1437.5(d) is elected and for which adjustments to net production
based on quality losses will be authorized for a coverage period in
accordance with this paragraph, producers may opt for an adjustment of
net production of a covered crop as specified in paragraph (a)(3) of
this section based on a specific measure of quality against a set of
standards that are acceptable to FSA. The standards and permissible
adjustments to net production based on alleged quality losses stemming
from eligible causes of loss in a coverage period will be based on
FSA's review of sufficient documentation and are subject to FSA
acceptance and State committee recommendation to the Deputy
Administrator. The crops and locations where quality adjustments will
be permitted will be as specified on a list maintained by FSA.
(d) Production will not be adjusted under this section unless all
other provisions of this section are met and the crop and location are
included on a list of approved crops and locations before the beginning
of the coverage period for the crop.
(e) A producer of a NAP covered crop in a location and coverage
period approved by FSA as specified in paragraphs (c) and (d) of this
section who opts for the quality loss adjustment option must submit
verifiable records obtained by testing or analysis of the specific
crop's production and the alleged loss of quality stemming from an
eligible cause of loss in the coverage period. Records must meet
requirements of Sec. 1437.8(a)(3).
(f) If a quality adjustment option is sought by a producer and
approved for a crop year, FSA will enter the adjusted
[[Page 74581]]
value of net production into the producer's actual production history
yield database for the loss year. The lower actual yield that results
from the quality adjustment will be used for future approved yield
calculations.
0
29. Amend Sec. 1437.106 as follows:
0
a. Revise paragraph (d);
0
b. In paragraph (e), remove the words ``shall consist'' and add the
word ``consists'' in its place;
0
c. In paragraph (g) introductory text, remove the words
``Administrative FSA'' and add the words ``administrative county'' in
their place;
0
d. In paragraph (g)(2), remove the reference ``Sec. 1437.10'' and add
the reference ``Sec. 1437.11'' in its place;
0
e. In paragraph (i), remove the words ``in excess of a 50 percent loss
level'' and add the words ``based on the applicable guarantee'' in
their place; and
0
f. Add paragraph (j).
The revision and addition read as follows:
Sec. 1437.106 Honey.
* * * * *
(d) In addition to filing a report of acreage in accordance with
Sec. 1437.8, honey producers must provide a record of colonies to FSA.
The report of colonies must be filed before the crop year for which
producers seek to maintain coverage. The report of colonies must
include:
* * * * *
(j) Premiums for coverage levels specified in Sec. 1437.5(c) will
be calculated based on the highest number of colonies reported during
the program year.
0
30. Amend Sec. 1437.107 as follows:
0
a. In paragraph (c), remove the reference ``Sec. 1437.6'' and add the
reference ``Sec. 1437.7'' in its place, and remove the acronym ``CCC''
and add the acronym ``FSA'' in its place;
0
b. In paragraph (d) introductory text, remove the reference ``Sec.
1437.7'' and add the reference ``Sec. 1437.8'' in its place;
0
c. In paragraph (e), remove the words ``shall be'' and add the word
``is'' in their place, and remove the acronym ``CCC'' in both places it
appears and add the acronym ``FSA'' in its place;
0
d. In paragraph (f), remove the words ``shall be'' and add the word
``is'' in their place;
0
e. In paragraph (g), remove the words ``shall be'' and add the word
``will'' in their place;
0
f. In paragraph (i), remove the words ``in excess of a 50 percent loss
level'' and add the words ``based on the applicable guarantee'' in its
place; and
0
g. Add paragraph (j).
The addition reads as follows:
Sec. 1437.107 Maple sap.
* * * * *
(j) Premiums for coverage levels specified in Sec. 1437.5(c) will
be calculated based on the number of taps reported by the producer.
Subpart C--Determining Coverage For Prevented Planted Acreage
Sec. 1437.201 [Amended]
0
31. In Sec. 1437.201(a), remove the word ``shall''.
Sec. 1437.202 [Amended]
0
32. Amend Sec. 1437.202 as follows:
0
a. In paragraph (a)(7), remove the words ``by the final'' and add the
words ``by 55 or 100 percent, as selected by the producer as specified
in Sec. 1437.5, of the final'' in their place, and remove the
reference ``Sec. 1437.11'' and add the reference ``Sec. 1437.12'' in
its place; and
0
b. In paragraph (b), remove the word ``shall'' and add the word
``will'' in its place.
Subpart D--Determining Coverage Using Value
0
33. Amend Sec. 1437.301 as follows:
0
a. Revise paragraph (a);
0
b. In paragraph (c) introductory text, remove the reference ``Sec.
1437.6'' and add the reference ``Sec. 1437.7'' in its place; and
0
c. Add paragraph (d).
The revision and addition read as follows:
Sec. 1437.301 Value loss.
(a) Special provisions are required to assess losses and calculate
assistance for a few crops and commodities that 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. FSA
determines which crops are value-loss crops, but unless otherwise
announced, value-loss crops are those identified in Sec. Sec. 1437.303
through 1437.309. Lost production of value loss crops is eligible for
payment only as specified in this subpart.
* * * * *
(d) For coverage levels specified in Sec. 1437.5(c), producers
must pay a premium equal to the lesser of:
(1) The producer's share, times the maximum dollar value for
coverage sought, times the coverage level, times the average market
price, times a 5.25 percent premium fee; or
(2) A 5.25 percent premium fee times the applicable payment
limitation.
0
34. Revise Sec. 1437.302 to read as follows:
Sec. 1437.302 Determining payments.
(a) Subject to all restrictions and the availability of funds,
value loss payments for qualifying losses will be determined by:
(1) Multiplying the field market value of the crop before the
disaster, or for buy-up coverage specified in Sec. 1437.5(c), the
lesser of the field market value of the crop before the disaster or the
maximum dollar value for coverage sought, by 50, 55, 60, or 65 percent,
as selected by the producer as specified in Sec. 1437.5;
(2) 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;
(3) Multiplying the result from paragraph (a)(2) of this section by
the producer's share;
(4) Multiplying the result from paragraph (a)(3) of this section by
55 or 100 percent, as selected by the producer as specified in Sec.
1437.5, plus whatever appropriate factor reflects savings from non-
harvesting of the damaged crop or other factors as appropriate; and
(5) Subtracting the producer's share of any salvage value, if
applicable.
(b) [Reserved]
0
35. Amend Sec. 1437.303 as follows:
0
a. In paragraph (a) introductory text, remove the words ``is
compensable'' and add the words ``will have NAP assistance calculated''
in their place, and remove the world ``shall'';
0
b. In paragraph (d)(3), add the words and punctuation ``on ropes,''
immediately after ``net pens,'';
0
c. Redesignate paragraphs (e) and (f) as paragraphs (f) and (g); and
0
d. Add paragraph (e).
The addition reads as follows:
Sec. 1437.303 Aquaculture, including ornamental fish.
* * * * *
(e) For mollusks that are not planted or seeded in containers, net
pens, on ropes, wire baskets, or similar device designed for the
containment and protection of the mollusks, the only eligible cause of
loss of mollusks or missing mollusk inventory will be a direct result
of a National Oceanic and Atmospheric Administration-determined
tropical storm, typhoon, or hurricane.
* * * * *
Sec. 1437.304 [Amended]
0
36. Amend Sec. 1437.304 as follows:
0
a. In paragraph (a) introductory text, remove the words ``shall be''
and add the word ``is'' in their place; and
[[Page 74582]]
0
b. In paragraph (g), remove the words ``shall be'' and add the word
``are'' in their place both times they appear.
Sec. 1437.305 [Amended]
0
37. In Sec. 1437.305(e), remove the word ``shall'' and add the word
``will'' in its place.
Sec. 1437.306 [Amended]
0
36. In Sec. 1437.306(c), remove the word ``shall'' and add the word
``will'' in its place.
Sec. 1437.308 [Amended]
0
39. In Sec. 1437.308(d)(3), remove the words ``a CCC-certified'' and
add the words ``an FSA-certified'' in their place.
Sec. 1437.309 [Amended]
0
40. Amend Sec. 1437.309 as follows:
0
a. In paragraph (c), remove the words ``shall be'' and add the word
``is'' in their place;
0
b. In paragraph (d), removed the word ``shall'' and add the word
``will'' in its place; and
0
c. In paragraph (e), remove the reference ``Sec. 1437.7'' and add the
reference ``Sec. 1437.8'' in its place, and remove the acronym ``CCC''
and add the acronym ``FSA'' in its place.
Sec. 1437.310 [Amended]
0
41. Amend Sec. 1437.310 as follows:
0
a. In paragraph (b)(1), remove the word ``shall'' and add the word
``will'' in its place;
0
b. In paragraphs (c)(1) and (2), remove the reference ``Sec. 1437.11''
and add the reference ``Sec. 1437.12'' in its place both times it
appears; and
0
c. In paragraph (h), remove the word ``shall'' and add the word
``will'' in its place both times it appears.
Subpart E--Determining Coverage of Forage Intended for Animal
Consumption
0
42. Revise Sec. 1437.401 to read as follows:
Sec. 1437.401 Forage.
(a) Forage eligible for benefits under this part is limited to
mature vegetation, as determined by FSA, produced in a commercial
operation. Benefits are not available for first-year seeding of alfalfa
and similar vegetation when production is not produced in the seeding
year, as determined by FSA. The commercial operation must use
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 as hay or seed. Forage to be mechanically harvested will be
treated under the rules for low-yield crops as calculated under Sec.
1437.103, except claims on forage for grazing benefits will be
determined according to paragraph (f) of this section. The provisions
in this subpart apply to all claims including forage for mechanical
harvest.
(b) Producers of forage must, in addition to the records required
in Sec. 1437.8, specify the intended method of harvest of all acreage
intended as forage for livestock consumption as either mechanically or
grazed.
(c) Producers must request an appraisal from the administrative
county office for the unit 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, but which is instead subsequently grazed, will be considered
for crop definition purposes as mechanically harvested. Expected
production of the specific acreage for which catastrophic coverage was
obtained will be calculated on the basis of carrying capacity. The loss
of such grazed forage will be determined according to paragraph (f) of
this section. For acreage intended to be mechanically harvested which
is instead subsequently grazed, the loss of intended mechanically
harvested forage may alternatively be determined based on a review of
acceptable production evidence or appraisal of the specific crop
acreage. As part of the payment computation for this loss, intended
mechanically harvested forage crop acreage that is not mechanically
harvested but instead grazed will be deemed to be un-harvested for the
purposes of determining a payment factor.
(e) Small grain forage is the specific acreage of wheat, barley,
oats, triticale, or rye intended for use as forage. Small grain forage
is a separate crop and distinct from any other forage commodities and
other intended uses of the small grain commodity. In addition to the
records required in Sec. 1437.8, producers must specify whether the
intended forage crop is intended for fall and winter, spring, or full
season forage. In addition to other eligibility requirements, FSA will
consider other factors, such as water sources and available fencing,
and adequate fertilization to determine small grain forage eligibility,
yields, and production.
(f) FSA will establish forage losses of acreage intended to be
grazed including, in some cases, acreage intended to be mechanically
harvested but instead subsequently grazed for producers with
catastrophic coverage, on the basis of:
(1) The percentage of loss of similar mechanically-harvested forage
acreage on the farm, or on similar farms in the area when approved
yields have been calculated to determine loss; or
(2) Where there is no similar mechanically-harvested forage acreage
on the farm or similar farms in the area, the collective percentage of
loss as determined by FSA for the geographical region after
consideration of at least two independent assessments of grazed forage
acreage conditions.
(i) The assessments must be completed by forage or range
specialists in Federal, State, and local government agencies,
educational institutions, and private companies not having a financial
interest in the outcome of the assessment. Collective percentage of
loss determined by FSA for the geographical region may be based on any
or all the following methods as may be available and as determined
appropriate by the Deputy Administrator:
(A) Independent assessments of grazed forage acreage conditions;
(B) The U.S. Drought Monitor;
(C) Information obtained from loss adjusters with sufficient forage
knowledge to provide grazing loss assessments;
(D) Data obtained from approved areas where clippings are obtained
on a regular basis to compare with expected levels of production in a
geographical region; or
(E) Information from Natural Resources Conservation Service
technical service providers having a specialized knowledge.
(ii) Neither the assessments themselves, nor collective loss
percentages established in accordance with this section are subject to
appeal. FSA's determinations of geographical area for assessments and
collective grazing loss are generally applicable to all similarly
situated participants farming in such defined geographical region.
Sec. 1437.402 [Amended]
0
43. In Sec. 1437.402(b) introductory text, add the words ``with
catastrophic coverage'' immediately after the word ``acreage'', and
remove the acronym ``CCC'' and add the acronym ``FSA'' in its place.
0
44. Revise Sec. 1437.403 to read as follows:
Sec. 1437.403 Determining payments.
(a) Subject to payment limits, availability of funds, and other
limits as may apply, payments for catastrophic
[[Page 74583]]
coverage of losses of forage reported to FSA as intended to be grazed
will be determined by:
(1) Multiplying the eligible acreage by the producer's share;
(2) Dividing the result from paragraph (a)(1) of this section by
the carrying capacity or adjusted per day carrying capacity established
for the specific catastrophic coverage acreage, as determined by FSA;
(3) Multiplying the result from paragraph (a)(2) of this section by
the number of days established as the grazing period;
(4) Adding adjustments of AUD for practices and production to the
product of paragraph (a)(3) of this section;
(5) Multiplying the result from paragraph (a)(4) of this section by
the applicable percentage of loss established by FSA;
(6) Multiplying the amount of assigned AUD, as determined by FSA,
by the producer's share;
(7) Subtracting the result from paragraph (a)(6) of this section
from the result from paragraph (a)(5) of this section;
(8) Multiplying the result from paragraph (a)(4) of this section by
0.50;
(9) Subtracting the result from paragraph (a)(8) of this section
from the result from paragraph (a)(7) of this section; and
(10) Multiplying the result from paragraph (a)(9) of this section
by 55 percent of the final payment price established in accordance with
Sec. 1437.12.
(b) [Reserved]
Subpart F--Determining Coverage in the Tropical Region
0
45. Amend Sec. 1437.501 as follows:
0
a. Revise paragraph (a);
0
b. Remove paragraph (b)(2); and
0
c. Redesignate paragraph (b)(3) as paragraphs (b)(2).
The revision reads as follows:
Sec. 1437.501 Applicability; definition of ``tropical region'' and
additional definitions.
(a) This subpart applies to covered tropical crops in the tropical
region, as those terms are defined in this subpart. Benefits under this
part may be extended to those crops only to the extent that they are
otherwise eligible for assistance under this part. Covered crops do not
include ``value loss'' crops, as defined elsewhere in this part. For
those crops that are covered by this subpart, loss and payment
determinations for NAP covered in this part are determined by the rules
that otherwise apply to NAP subject to the modifications provided by
this subpart. The rules that otherwise apply include, but are not
limited to, limitations on payments that are specified in part 1400 of
this chapter.
* * * * *
Sec. 1437.502 [Amended]
0
46. Amend Sec. 1437.502 as follows:
0
a. In paragraph (a), remove the words ``beginning in 2006 through
subsequent years'';
0
b. Redesignate paragraphs (d)(1) and (2) as paragraphs (d) and (e),
respectively; and
0
c. In newly redesignated paragraph (d), remove the word ``shall'' and
add the words ``will be interpreted to'' in its place.
Sec. 1437.504 [Amended]
0
47. Amend Sec. 1437.504 as follows:
0
a. In paragraph (a), remove the reference ``Sec. 1437.10(c)'' and add
the reference ``Sec. 1437.11(d)'' in its place; and
0
b. In paragraph (b) introductory text, remove the reference ``Sec.
1437.10'' and add the reference ``Sec. 1437.11'' in its place.
Sec. 1437.505 [Amended]
0
48. In Sec. 1437.505(a) and (b)(1), remove the reference ``Sec.
1437.10'' and add the reference ``Sec. 1437.11'' in its place both
times it appears.
Sec. Sec. 1437.3, 1437.4, 1437.8, 1437., 1437.11, 1437.12, 1437.13,
1437.16, 1437.102, 1437.104, 1437.201, 1437.301, 1437.304, 1437.305,
1437.307, 1437.308, 1437.309, 1437.310, 1437.402, 1437.502, 1437.503,
1437.504 [Amended]
0
49. In addition to the amendments set forth above, in 7 CFR part 1437,
remove the word ``CCC'' and add, in its place, the word ``FSA'' in the
following places:
0
a. In Sec. 1437.3, in the definitions of ``Fiber'', ``Final planting
date'', ``Food'', ``Multiple planted'', and ``Normal harvest date'';
0
b. In Sec. 1437.4(a)(1) and (3);
0
c. In newly redesignated Sec. 1437.8(a)(1) and (2), (e), both times it
appears, and (f);
0
d. In newly redesignated Sec. 1437.11(d) introductory text and
(d)(2)(ii) and (iii);
0
e. In newly redesignated Sec. 1437.12(a)(2) and (4);
0
f. In newly redesignated Sec. 1437.13, each time it appears;
0
g. In newly redesignated Sec. 1437.16(d), each time it appears;
0
h. In Sec. 1437.102(b)(4), newly redesignated paragraph (b)(9), (c)(4)
introductory text, (c)(4)(ii), (c)(5)(i) and (ii), and (f), both times
it appears;
0
i. In Sec. 1437.104(a) introductory text;
0
j. In Sec. 1437.201(c)(2)(i) and (ii);
0
k. In Sec. 1437.301(c)(1) and (3);
0
l. In Sec. 1437.304(a)(1), (c), and (f);
0
m. In Sec. 1437.305(f);
0
n. In Sec. 1437.307(e);
0
o. In Sec. 1437.308(d)(1) and (4), and (e);
0
p. In Sec. 1437.310(d), (e)(3), (g)(1), and (i);
0
q. In Sec. 1437.402(a) introductory text, (a)(2), and (b)(3);
0
r. In Sec. 1437.502(c)(1) and (2);
0
s. In Sec. 1437.503(c)(2); and
0
t. In Sec. 1437.504(f).
Signed on December 5, 2014.
Val Dolcini,
Executive Vice President, Commodity Credit Corporation, and
Administrator, Farm Service Agency.
[FR Doc. 2014-29082 Filed 12-12-14; 8:45 am]
BILLING CODE 3410-05-P
