Common Crop Insurance Policy Basic Provisions (7 CFR 457.8), 28983-28993 [2017-13242]

Agencies

• DEPARTMENT OF AGRICULTURE
• Federal Crop Insurance Corporation

[Federal Register Volume 82, Number 122 (Tuesday, June 27, 2017)]
[Rules and Regulations]
[Pages 28983-28993]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-13242]



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Federal Register / Vol. 82, No. 122 / Tuesday, June 27, 2017 / Rules 
and Regulations

[[Page 28983]]



DEPARTMENT OF AGRICULTURE

Federal Crop Insurance Corporation

7 CFR Part 457

[Docket No. FCIC-16-0002]
RIN 0563-AC53


Common Crop Insurance Policy Basic Provisions (7 CFR 457.8)

AGENCY: Federal Crop Insurance Corporation, USDA.

ACTION: Final rule.

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SUMMARY: The Federal Crop Insurance Corporation (FCIC) finalizes the 
Common Crop Insurance Policy Basic Provisions (Basic Provisions) and 
makes amendments to the final rule, with request for comment, published 
in the Federal Register on June 22, 2016, that clarified and revised 
the policy definition of ``practical to replant'' and ``replanted 
crop,'' and policy provisions regarding double cropping. The changes to 
the policy made in this rule are applicable for the 2018 and succeeding 
crop years for all crops with a contract change date on or after the 
effective date of the rule, and for the 2019 and succeeding crop years 
for all crops with a contract change date prior to the effective date 
of the rule.

DATES: This rule is effective June 27, 2017.

FOR FURTHER INFORMATION CONTACT: Tim Hoffmann, Director, Product 
Administration and Standards Division, Product Management, Risk 
Management Agency, United States Department of Agriculture, Beacon 
Facility, Stop 0812, Room 421, PO Box 419205, Kansas City, MO 64141-
6205, telephone (816) 926-7730.

SUPPLEMENTARY INFORMATION: 

Background

    This final rule makes changes to the Common Crop Insurance 
Regulations, Basic Provisions that were published by FCIC on June 22, 
2016, as a notice of final rule with request for comment rulemaking in 
the Federal Register at 81 FR 40477-40480. The public was afforded 60 
days to submit written comments and opinions.
    Comments were received from 59 commenters. The commenters included 
persons or entities from the following categories: Insurance company, 
insurance agent, farmer, financial, producer group, academic, trade 
association, and other.
    The public comments received regarding the final rule with request 
for comment and FCIC's responses to the comments are as follows:

Practical To Replant

    Comment: A commenter stated the practical to replant provision 
should be adopted as written. The dates are reasonable and producers 
who desire to plant a crop will often plant at these dates or beyond. 
Claiming a replant unnecessarily has negative impacts on other 
producer's premiums and on supporting industry operations. Ultimately, 
the local economy is the loser.
    Response: FCIC thanks the commenter and appreciates their input.
    Comment: Several commenters supported the clarity intended by the 
revisions to the definition of ``practical to replant.'' Consistency 
between all insurance providers was always a challenge with the 
ambiguous language with the previous definition. The commenters always 
supported clear and concise definitions. A commenter stated it 
generally supports any effort to take subjectivity and ambiguity out of 
the crop insurance program and efforts to prevent fraud from occurring.
    Response: FCIC appreciates the commenter's support for the clarity 
and consistency intended by the revised definition of ``practical to 
replant.''
    Comment: A commenter stated there certainly is a need to provide a 
clear deadline for that period (or date) when replanting of a crop is 
considered to be practical and that if not replanted, insurance 
coverage should not be provided for the initial crop. This information 
is important to standardize practices at the farm and state insurance 
agency levels to ensure that the highest standards of fairness and 
consistency are practiced. The crop insurance program in Louisiana is 
an essential risk management tool that must be sustained into the 
future. The food security of this country could be at risk without a 
viable Federal crop insurance program that is compatible with the needs 
of U.S. agriculture. If changes in the definition of ``practical to 
replant'' are accepted and become mandatory without exception, then 
stakeholders, scientists, and policy makers should be given the 
opportunity to develop workable solutions based upon the best available 
information. This process does not appear to have been followed 
regarding these proposed late planting dates. The commenter has 
concerns, because the rule states that for ``Impacts and Effects'' 
(None) and for ``Priority'' (Substantive, Nonsignificant), information 
is lacking for a full understanding of unintended consequences.
    Response: Consistency is necessary in any program and FCIC is 
striving to attain that in this final rule. Further, FCIC values the 
input from stakeholders and other knowledgeable persons. FCIC has 
revised this final rule in response to the comments received with a 
goal of maintaining consistency but also allowing flexibility when 
circumstances warrant.
    Comment: A commenter was concerned about the definition change in 
that it creates internal inconsistencies in the program that will not 
make sense to the producers this program is meant to serve. For 
example, a producer can be declared prevented from planting as of the 
final plant date. But, now, under the change, if the producer did get a 
particular field planted before the flood occurred, the producer would 
be held to replant rules on that field through a late plant period 
which might be 10, 15, 20, or 25 days later, depending on which county 
the producer is in. This could create confusing and inconsistent 
results that only restrict the most prudent options and the deference 
paid toward a producer in attaining the best outcome.
    Response: As stated previously, the revisions to the practical to 
replant provisions were intended to provide clarity and consistency. 
Given the differences in the programs and purposes, there should be no 
confusion between prevented planting and practical to replant. 
Prevented planting only provides payments for the pre-planting costs 
lost due to the inability to plant the crop and does not provide a 
payment for any loss in production.

[[Page 28984]]

However, once the crop has been planted and fails, the producer may be 
entitled to an indemnity. While the deadlines may be different, so are 
the purposes of the provisions. Replant payments are intended to 
mitigate losses that impact both the producer and taxpayer, as well as 
minimize disruptions to local agricultural economies.
    For producers, the replant payment provides the opportunity and 
financial support to replant the crop. Since the initial planting 
generally takes place at an optimal time period available to the 
producer, replanting the crop likely takes place at a less optimal time 
in the future. While the odds of producing an above average or high 
yielding crop are potentially lower, the producer still has a 
reasonable chance to produce a crop that is worth more than the 
indemnity payment from the insurance policy. In addition, to 
potentially avoiding an indemnity, the producer's actual production 
history yield for that crop year is likely to be higher, having less 
impact on future crop guarantees. At worst, if the replanted crop 
fails, the producer still receives the same indemnity payment he or she 
would have had without replanting--but at least had the chance to earn 
a larger gain from the marketplace and preserve future crop guarantees.
    From a taxpayer's perspective, the replant payment is a way to 
reduce the cost of the crop insurance program. This is because the 
replanted crop may produce an average or even above average yield, 
which results in a reduced (or even no) indemnity payment to the 
producer. The reduction in indemnity payments reduces the cost of the 
crop insurance program for taxpayers and mitigates impacts to future 
premium rates producers would otherwise experience.
    Finally, the replant payment provides stability to the local 
agricultural economy. Encouraging producers to replant their crops 
helps ensure a more consistent supply of the agricultural commodities 
that others depend on for their livelihoods--such as livestock 
producers and grain or food processors thus helping maintain a more 
consistent supply of agricultural goods for consumers.
    Comment: A commenter stated instead of revising the replant dates, 
FCIC should be asking why there are replant dates associated with crop 
insurance. The commenter questioned if a person wrecks a car does that 
person only get paid if they buy a new one. The commenter questioned 
why if a crop fails to make a stand there is a requirement to replant 
associated with the claim being paid. Several commenters stated the 
definition of ``practical to replant'' should not be made a part of the 
policy. The planting period and the replant requirements should remain 
the same as they are now. A commenter stated the revisions to the 
definition of ``practical to replant'' are ill-advised and will result 
in reduction of important benefits to producers who will possibly be in 
a precarious financial position due to the circumstances that brought 
this particular situation.
    A commenter stated they are in total opposition to the proposed 
change that would require a producer to have to continue replanting his 
crop all the way through the end of the late planting period. This type 
of change would only benefit the insurance companies and not the 
producer, who is the one the policy is intending to protect. A 
commenter stated that this change could cause a tremendous financial 
burden on our producers. With the low commodity prices, the yield 
expected with corn planted that late will not allow a producer to stay 
in business. A commenter stated the new definition would guarantee 
producers take a loss in an impossible situation to succeed.
    Response: The Federal Crop Insurance Act does not authorize 
coverage for losses if the producer is able to replant to the same crop 
in such areas and under such circumstances as is customary to replant, 
but fails to do so. If an initially planted crop is damaged, and in 
that area and under such circumstances it is customary to replant, the 
producer must replant for insurance coverage to continue on that crop, 
and a replant payment is provided to compensate the producer for the 
costs of replanting. Past experience has shown that some producers were 
paid a full loss on the initially planted and insured crop and were 
allowed to plant an alternative crop, even when replanting the initial 
crop was practical. The practical to replant provisions were intended 
to balance the needs of the producer with the requirements of the Act 
and the best interests of the Federal crop insurance program and 
taxpayers. This balance has not changed in the final rule.
    If it is practical for the producer to replant, it is in the best 
interest of the program and for the producer to replant the crop and 
potentially make a full crop rather than paying the producer an 
indemnity, which only covers part of the loss. Further, since the 
guarantee is not reduced even if the crop is planted during the late 
planting period, if there is a future yield loss due to an insurable 
cause of loss, the producer will be indemnified to the same extent as 
the originally planted lost crop. The final rule was simply intended to 
add more consistency to determinations of practical to replant so that 
all producers are treated fairly and equitably. However, as stated more 
fully below, FCIC is revising the current provisions to lessen the time 
in which it will generally be considered practical to replant, and 
provide the general circumstances to be considered by insurance 
providers in making such a determination to find a proper balance.
    Comment: A few commenters stated that agricultural lending officers 
rely heavily on the value of crop insurance when underwriting 
agricultural loans. The extension of the late planting dates would be 
detrimental to producers' overall farming operation. The commenters 
were opposed to the extension of the late planting periods. Several 
commenters were concerned with the final planting dates, earliest 
planting dates, and late planting period for crops in their area being 
incorrect.
    Another commenter stated southeast Nebraska and northwest Nebraska 
producers have to manage their acres completely different. The 
commenter questioned why these producers should be constrained by one 
set of dates limiting yield potential and the most key element of 
farming, flexibility to work around the curve balls that Mother Nature 
throws producers each year. The commenter stated the same could be said 
for the state of Missouri and Iowa. Producers in southeast Nebraska, 
southwest Iowa, northeast Kansas and northwest Missouri all experience 
similar climates and plant many of the same corn hybrids and soybean 
varieties and maturities. The commenter stated they could easily be 
treated the same, but having varying earliest, final, and late period 
plant dates within this region truly makes no sense to the commenter or 
the producers the commenter works with in each of these states. Freeze, 
wind, rain, heat, drought events typically affect all these areas 
similarly. The commenter states that as farm operations become much 
larger and they expand their acres, many large producers the commenter 
works with are farming in three or four of the corners of these states 
but confused by different dates, when all should be treated the same. 
They all start planting at the same time and manage their acres in 
these states the same. The commenter stated it was frustrating that if 
it's dry in southeast Nebraska, producers have to wait until April 10 
to plant but could have started April 5 in Missouri where for sake of 
argument, say it rained. The

[[Page 28985]]

commenter asked that the date be changed.
    The commenter stated planting in proper soil conditions has the 
largest impact on final yield in the commenter's opinion. Planting in 
wet conditions and fighting sidewall compaction limiting plant root 
ability to get to water and nutrients, uneven emergence forcing plants 
to compete with each other and runts failing to make an ear. The 
commenter stated that within this geographic region, an April 1 initial 
plant date makes sense. Producers in the corners of these four states 
have started planting April 1 for the last four to five years and for 
good reasons. It is typically dry and planting conditions are perfect 
the first half of April. About mid-April each year the ``rainy season'' 
will begin on and off through June 1. Producers will try to ``mud it 
in'' in desperation, and will fight compaction, achieve uneven stands, 
or be delayed to a May dry spell and lose yield by date of planting 
even with a perfect stand. These May plantings will also force the 
hybrid to directly deal with the heat and dryness of July. Two weeks 
before and two weeks after pollination is when the corn plant is most 
successful to yield loss from stress. The commenter stated that 
planting early allows hybrids to beat this hot period and pollinate in 
late June or first week of July. These April 1 plantings, nine out of 
ten years will yield higher or at a minimum the same as these later 
plantings even if the hybrid corn has to lie in the ground for three 
weeks waiting to accumulate enough Growth Degree Units (GDU's) to 
emerge. The commenter stated that today's hybrids are specifically bred 
for earlier planting dates and better cold stress emergence and they 
are typically planted in the best soil conditions of the year limiting 
sidewall compaction, rooting, and uneven emergence. Finally, the 
commenter stated that as farming operations get larger, and this trend 
will continue without a doubt, they have to start planting sooner to 
give them the best opportunity to successfully get the desired crop 
planted around rain events.
    Several commenters stated the proposed change to the planting date 
will be detrimental to profitability of crops. The commenters stated 
that there is a potential for dramatic reduction in yield as proven by 
University research from multiple states. The commenters stated the 
economic impact to the producers is enhanced because of the fact it is 
a replant. Most all of the input costs are already spent. This change 
will require producers to spend more with no choice of making a profit. 
The commenters asked that FCIC not change the planting dates.
    A commenter stated there is resistance to the requirement of 
replanting the initial crop until the end of the late planting period. 
A commenter stated they were frustrated by the late planting period. 
Every producer wants to be as profitable as possible, and have the 
ability to plant corn and soybeans in the best soil conditions 
possible. The commenter stated that pushing this date out 20 or 25 days 
(need aligned as mentioned above) just seems like the producer is being 
penalized. The producer can go back with soybeans and still have a 
chance to attain the highest yield before at least June 10. A soybean 
has an amazing ability to compensate with more branches and pods after 
weather events, but are day-length sensitive and only have a certain 
amount of time to build the factory that will feed the pods that will 
be set. Planting a soybean June 25 will limit plant height, node, and 
most importantly pod and seed set ability of that plant.
    The commenter stated the program should provide flexibility. The 
commenter has seen this happen. A producer is in a river bottom area. 
The area hit an extended wet period in late April and May. The producer 
is not able to plant corn, or if he did, it would drown out. The 
producer wants to plant soybeans. Another extended wet period is 
expected (typically mid-June is wet) and the producer cannot plant in 
early June while it's dry but tries to mud in the soybeans on June 26. 
Now the soybean stand will also be heavily affected and poor rooting 
from compaction will allow drought later to ``burn them up.'' The 
commenter believed that there should be a period where a conversation 
between the adjuster and the producer should be had that discusses all 
these variables and allows a producer to plant ahead of the current 
date or any date to give the producer the best chance at success and 
profitability. It seems senseless for the planter to set when it could 
be planting in ideal soil conditions because of the date in a program. 
Mother Nature forces the producer to be extremely flexible, especially 
in a region where the Missouri River or similar geographies, causes a 
lot of intense weather events through the spring and early summer. The 
commenter asked FCIC to give the producer flexibility.
    Response: The final rule with request for comment did not change 
planting dates or the late planting period. The final rule with request 
for comment was intended to provide a clear, known deadline for when 
replanting of the crop is considered practical, ensuring that the 
provisions are consistently and equitably implemented across all 
insurance providers and producers. If the commenter or any interested 
party is concerned about the dates for specific crops or counties, they 
should advise the RMA Regional Office. Any interested person may find 
contact information for the applicable regional office on RMA's Web 
site at https://www.rma.usda.gov/aboutrma/fields/rsos.html.
    Comment: A commenter stated that the university studies and 
agricultural experts agree that April 20 is initially too late to plant 
the crop so requiring producers to replant through the late planting 
period is ridiculous.
    Response: FCIC has not proposed revising any of the final planting 
dates or late planting periods so it cannot make any such changes in 
this rule. If the commenter or any interested party is concerned about 
the dates for specific crops or counties, they should advise the RMA 
Regional Office. Any interested person may find contact information for 
the applicable regional office on RMA's Web site at https://www.rma.usda.gov/aboutrma/fields/rsos.html.
    Comment: A commenter stated the proposed rule taking the 
practicality to replant all the way to the end of the late planting 
period seems too severe and does limit producer's ability to be 
flexible in the event of a lost crop. Many, if not the majority of 
crops that this would impact, have a 25-day late planting period. The 
commenter stated that this will give an initially planted crop a 25 
percent reduction in coverage. In this example, the producer would be 
reducing a 75 percent buy-up cover to essentially a catastrophic level 
cover if this was the initial planting. This certainly indicates the 
policy does not think it is practical to produce a normal crop. The 
commenter suggested FCIC define ``practical to replant'' similarly to 
the prevented planting provisions as it pertains to the final plant 
date. This is a fair and equitable solution to a difficult circumstance 
for both the producer and FCIC.
    Response: When a crop is deemed practical to replant there is no 
reduction in the coverage that attaches to the initially planted crop. 
Therefore, while the yield of a crop planted during the late planting 
period may or may not be reduced, depending on many factors, the 
coverage provided by the crop insurance policy is not reduced like it 
otherwise would be if the crop was initially planted during the late 
planting period. FCIC agrees with the commenter that taking the 
practicality to replant all

[[Page 28986]]

the way to the end of the late planting period may not be appropriate 
and can limit the producer's ability to be flexible in the event of a 
lost crop. Therefore, FCIC revised the definition of ``practical to 
replant'' to state it will be considered practical to replant through: 
(1) The final planting date if no late planting period is applicable; 
(2) the end of the late planting period if the late planting period is 
less than 10 days; or (3) the 10th day after the final planting date if 
the crop has a late planting period of 10 days or more. Changing the 
provisions to encompass these three scenarios and including 10 days 
after the final planting date will help bring more uniformity to the 
amount of time producers are required to replant since the number of 
days in the late planting period can vary by crop. Based on the 
commenter's feedback, the fact that some crops and regions have varying 
late planting periods and for some crops up to a 25-day late planting 
period, uniform and equitable treatment to similarly situated producers 
may not always occur, so FCIC is reducing the presumptive date to no 
more than 10 days. FCIC also added provisions for determining whether 
it is practical to replant so that approved insurance providers may 
consider circumstances as to whether: (1) It is physically possible to 
replant the acreage; (2) seed germination, emergence, and formation of 
a healthy plant is likely; (3) field, soil, and growing conditions 
allow for proper planting and growth of the replanted crop to reach 
maturity; or (4) other conditions exist, as provided by the Crop 
Provisions or Special Provisions. This will allow a proper balance 
between the interests of producers and the interests of the program.
    Comment: A commenter stated with the requirement to have crop 
insurance, premiums are paid every year. The final planting dates are 
already liberal with the ability of the crop to produce an economically 
viable yield, depending on any given year's weather, etc. With these 
proposed changes FCIC is requiring a producer to choose between two 
options: (1) To spend money (the claim amount plus more) replanting a 
crop 25 days later than it could be expected to produce an acceptable 
yield; or (2) call the premium a government mandated donation to the 
insurance company and instead of replanting (and/or collecting the 
claim), plant a crop that has potential to produce a yield. The 
commenter stated, in short, the final planting date should be just 
that, the final date that the crop should be planted (or replanted). 
There has been a lot of time and research put into developing the final 
planting dates by the extension services, etc., and FCIC should be 
listening to the people whose job it is to determine these dates.
    Response: Requiring a producer to replant under such circumstances 
as is customary for the area has been statutorily mandated and a 
requirement of the policy for years. Producers have been required to 
replant the crop after the final planting date if the agronomics 
allowed in order to receive a replanting payment and continue insurance 
coverage for the initially planted crop. This final rule does not 
change this. However, there has been inconsistency in the application 
of the practical to replant provisions between insurance providers such 
that if two producers were in similar agronomic conditions one could be 
required to replant the crop and the other may not. This final rule is 
intended to address that inequity. However, FCIC agrees that the 25-day 
period may be too long because of the potential effect on the replanted 
crop so it is reducing the presumptive date to no more than 10 days. 
This earlier date for it to be practical to replant is a presumptive 
date and FCIC has added circumstances to the provisions that insurance 
providers may consider whether: (1) It is physically possible to 
replant the acreage; (2) seed germination, emergence, and formation of 
a healthy plant is likely; (3) field, soil, and growing conditions 
allow for proper planting and growth of the replanted crop to reach 
maturity; or (4) other conditions exist, as provided by the Crop 
Provisions or Special Provisions. This will allow a better balance 
between the interests of the producers and the interests of the 
program.
    FCIC disagrees with the commenter that if a crop deemed practical 
to replant is not replanted, the premium becomes a government-mandated 
donation to the insurance company. If it is determined practical to 
replant the insured crop and the producer elects not to replant the 
crop, no coverage for the initially planted crop will be provided and 
no premium will be due. If the producer decides not to replant, the 
crop would be considered as if it never existed, and the acreage is 
removed from the acreage report. No indemnity is due, no replant 
payment is made, and no premium is earned nor payable by the producer.
    Comment: Several commenters generally support any effort to take 
subjectivity and ambiguity out of the crop insurance program and 
efforts to prevent fraud from occurring, but the commenters cannot 
support this change because it is not supported by research or by 
Extension recommendations.
    A commenter stated that no county agent, no agricultural expert, no 
university study will agree that planting corn as late as May 5 in the 
Arkansas, Louisiana, and Mississippi region would be considered a good 
farming practice. In addition, the commenter believed no ag-lender 
would provide financing for planting this late.
    A commenter stated that if it was practical to replant the crop, 
the crop should be able to achieve the actual production history yield 
in most years. Replanting at the end of the late planting period would 
have a marginal chance at achieving that level of production. The 
commenter suggested that perhaps part of the solution would be to 
shorten the late planting period.
    Response: FCIC agrees that it should not be presumed practical to 
replant the crop until the end of the late planting period and, as 
stated above, has revised the provisions accordingly. This should 
mitigate any unintended reductions in yield as a result of planting 
during the late planting period, and producers will not be penalized 
because they will still receive the full guarantee. This means that if 
there is a reduction in yield, it can still be indemnified, but these 
changes allow a balance between the interests of producers and the 
interests of taxpayers.
    Comment: Several commenters had issues with FCIC's wording under 
the definition of ``practical to replant'' which states that replanting 
should continue as long as the seed has the chance to germinate, 
emerge, and form a healthy plant. A commenter stated that this could be 
achieved planting much further past May 5 and the crop would mature 
prior to the end of the insurance period, but the problem would remain 
the same even if it is planted by the end of April. The producer would 
not be able to produce a yield that it would take to stay in farming. 
Their goal is not to make their guarantee; their goal is to make a 
profit. A commenter stated that producers have other cropping options 
that may be more economically viable once the original crop is lost. In 
these situations, producers need all options at their disposal so the 
best economic and agronomic choices can be made.
    A commenter encouraged FCIC to further clarify that the revised 
definition is not intended to be interpreted in such a way that could 
potentially force a producer to replant a lost or damaged crop after 
the end of the late planting period or after the final planting date if 
there is no late planting period for the crop. The commenter believed 
it would be prudent for FCIC to reiterate to both insurance providers 
and insurance

[[Page 28987]]

agents that the changes made to the definition of ``practical to 
replant'' is not intended to be interpreted in such a way that a 
producer could be forced to replant after the end of the applicable 
late planting period, and further, that even when a crop is lost prior 
to the end of a late planting period, all applicable circumstances will 
be considered before a decision on the practicality of replanting the 
lost acreage is made. The commenter understood that this revised 
definition is set to become effective for the 2017 reinsurance year, 
but urged FCIC to consider further revisions to improve the 
understanding and limit the potential for it to be misinterpreted.
    Response: FCIC agrees that the definition of ``practical to 
replant'' requires replanting during the late planting period as long 
as the seed has the chance to germinate, emerge, and form a healthy 
plant and may result in the ability to plant the crop even after the 
late planting period, which could cause confusion. The provisions have 
been revised so that insurance providers may consider circumstances as 
to whether: (1) It is physically possible to replant the acreage; (2) 
seed germination, emergence, and formation of a healthy plant is 
likely; (3) field, soil, and growing conditions allow for proper 
planting and growth of the replanted crop to reach maturity; or (4) 
other conditions exist, as provided by the Crop Provisions or Special 
Provisions.
    Further, while FCIC does not want to hinder producers from 
maximizing their profits, it must balance this with the taxpayer 
interest in not paying indemnities when there is a possibility for the 
crop to reach maturity. FCIC balances the interests of producers with 
the interests of taxpayers by making a replant payment to offset the 
costs of replanting and providing for a full guarantee so that if the 
yield is later reduced, such costs will be indemnified.
    Comment: A commenter stated that a producer should be required to 
replant until the crop's final plant date. At that point, if conditions 
are good and producers are actively planting and replanting, then a 
producer should go along with what is common in the producer's area. If 
not, there should be a maximum of a ten-day period from the final plant 
date before acres can be released and allow the producer to go to 
another crop. The late planting period should be an option, not a 
requirement.
    A commenter stated that if a specific date needs to be established 
for ``practical to replant,'' the commenter requested FCIC consider the 
following revision, ``An insured should be required to plant and 
replant through the crop's final plant date.'' At that point, the acres 
should not be released for an additional ten days. If after ten days an 
adequate stand has not emerged, the acres should be released and the 
producer should be able to go to another crop.
    Response: Defaulting to the final planting date ignores the 
possible agronomic circumstances that may allow the crop to be planted 
and reach maturity after this date. However, FCIC is revising the 
provisions to require replanting no later than 10 days into the late 
planting period. It is presumed that replanting is practical during 
this period and the producer will be required to replant, in order to 
receive a replant payment and continue full insurance coverage for the 
initially planted crop, unless the insurance provider determines it is 
not practical to replant. Replant payments are intended to mitigate 
losses, as stated above, by requiring replanting when agronomic 
conditions and circumstances exist to produce a crop that can reach 
maturity. Allowing producers to pick and choose whether to replant may 
result in unnecessary indemnities and premium rate increases.
    Comment: A commenter stated that producers need an appropriate 
degree of situational flexibility when adverse conditions arise 
particularly during the planting season. The commenter believed FCIC 
will never achieve complete consistency, as even within a small area 
two cases can be very different. The commenter believed the current 
practical to replant standard and processes better accommodate the 
needs of the producers.
    Another commenter stated that to restrict a producer's options at 
planting time where every minute is critical strikes the commenter as 
an overly broad fix to a very narrow problem. The commenter suggested 
that a better solution would be to require that when a producer chooses 
to plant back to the original crop at any time during the late plant 
period that this definitively be considered a replant until the late 
plant period has expired.
    Response: The problem with the definition of ``practical to 
replant'' prior to 2017 is that the provisions were inconsistently 
applied such that with neighboring farms, one producer could be 
required to replant and the other not, even when agronomic conditions 
were the same. The final rule with request for comment and this final 
rule are intended to make the application of the provisions more 
consistent, while still allowing some flexibility. This is done by 
creating a presumed practical to replant date, while still allowing 
insurance providers to consider certain agronomic factors and 
circumstances to overcome this presumption. Allowing producers to pick 
and choose whether to replant may result in unnecessary indemnities and 
premium rate increases.
    Comment: Several commenters felt that requiring producers to 
replant through the end of the late planting period was not sound 
policy. A commenter stated the University of Arkansas Division of 
Agriculture Rice Verification Program has demonstrated this fact over 
the past 30 years on 430 fields across the state. The planting date of 
rice has a direct impact on yield. The commenter stated that this 
policy would result in requiring producers to replant even though data 
suggests their projected yield could be cut by approximately 40 
percent, making it very difficult to make a profit on the crop. The 
Arkansas Rice Production Handbook, published by the University of 
Arkansas Division of Agriculture, contains recommendations for optimum 
planting dates as well as recommended absolute cut-offs for rice based 
upon regions of the state. The commenter stated that optimum cut-off 
recommendations are May 10 for northern Arkansas, May 15 for central 
Arkansas, and May 20 for southern Arkansas and the recommended absolute 
cutoff recommendations are June 5 for northern Arkansas, June 10 for 
central Arkansas, and June 15 for southern Arkansas. While the 
recommended absolute cutoff does not mean a successful rice crop cannot 
be grown outside of that time-frame, success will depend on a myriad of 
factors unique to each individual farm.
    A commenter stated that this proposal would force the planting of 
crops well beyond the recommended dates supported by research conducted 
by the LSU AgCenter. Yields are reduced by 38 to 52 percent for five of 
the major crops produced in Louisiana. The economic consequences of 
which would be devastating to producers which had already suffered 
losses from the original crop loss.
    Several commenters stated that the changes being proposed are 
considered extreme by LSU AgCenter scientists that work to develop Best 
Management Practices for the targeted crops. Based upon the best long-
term information generated by LSU AgCenter research and extension 
scientists, the commenters stated they cannot support recommending that 
producers re-plant at the latest ``practical to replant'' dates being 
supported by FCIC. A commenter questioned the origin of these proposed 
dates and request that FCIC provide science-based information to show

[[Page 28988]]

Louisiana producers can produce a profitable and sustainable yield if 
they are required to replant the crops on these late dates. A commenter 
also stated unfortunately, some of the ``practical replant'' dates 
detailed in the FCIC notice are even later than the LSU AgCenter have 
tested in field trials. The commenter stated that in reality, the 
actual date that a producer is officially released (by program 
adjuster) to plant alternative crops may not be until ten days after 
the final planting date of the insured crop which makes these changes 
even more unreasonable. The LSU AgCenter's optimum and latest planting 
dates are based upon Best Management Practices, as well as risk 
aversion for Louisiana's crop production systems. The commenter stated 
that potential increases in production costs, unfavorable weather 
conditions for crop development, and harvest risk associated with 
adverse weather events during the late fall are real factors that must 
be factored into this decision-making process.
    A commenter stated the end of the late planting period for corn in 
Illinois is June 30. Most agronomic experts would not recommend 
planting corn this late in Illinois but the change in language would, 
with some exceptions, require it.
    Another commenter stated the proposed replant dates are well past 
the recommended final planting dates as put forth by LSU, the various 
seed companies, private consultants and anyone else with practical 
knowledge of best agronomic practices in the state of Louisiana. With 
the high production costs of these crops today there is less margin for 
error than ever before and forcing producers to replant as much as 
three weeks after recommended final planting date is guaranteeing a 
potentially crippling financial loss on corn and grain sorghum. On rice 
and cotton it may not be a guaranteed loss but is almost a certainty 
not just in reduced yield but in increased costs fighting late season 
disease, insects, irrigation expense and field work due to a late 
harvest. While soybeans have the best chance of making a profit with 
the new proposed replant dates of all the crops it would still be an 
iffy proposition at best. These proposed changes would make buying 
higher levels of coverage a risky decision for the producer and expose 
them to even greater levels of uncertainty, which will lead to more 
difficulty in securing financing which will ultimately lead to further 
consolidation with only the largest producers benefitting.
    Another commenter stated in the mid-south there is a definite cut 
off period for corn that is much earlier than the final planting date 
for late planting (May 5) if a producer wants to make a profitable corn 
yield in an average weather year. Forcing a producer to plant corn late 
dooms the producer to a loss and the insurance company to writing a 
check. If producers need to change crops, allow them to continue to 
make the switch after the final planting date. The commenter asks that 
FCIC not make them wait until the final LATE planting date. Producers 
need to have flexibility to farm the crop that is most likely to 
produce a full yield in the time period given. Failure to allow that 
flexibility will cost everyone money. A commenter stated that in light 
of the unique and unusual conditions that can arise following the 
failure of the initial crop, the revised definition, in effect, will 
result in cases where the agronomic realities of planting simply do not 
align with an assumption the crop will reach physiological maturity. As 
an example, corn in most of southern Illinois has a final plant date of 
June 5 followed by a 25-day late planting period. To limit a producer 
in this situation to the replanting of corn in the last two weeks of 
June rather than allowing a switch to another crop is not a sound 
agronomic practice given the low probability of corn reaching maturity 
before the normal frost date.
    A commenter believed that most agronomic experts would not 
recommend replanting the crop that late, so the producer will be in a 
position of having to replant a crop at a time that agronomic experts 
would not recommend. The commenter stated, for instance, the end of the 
late planting period for corn in Illinois is June 30. Most agronomic 
experts would not recommend planting corn this late in Illinois. The 
change in language would, with some exceptions, require it. While this 
would limit the level of insurance for crops being initially planted 
later, the crop would still be insurable at the prevented planting 
level of coverage. On the positive side of the change to the practical 
to replant language--it would force more consistency in the industry as 
to when acreage is allowed to be planted to another crop, instead of 
replanted to the original crop. The producer receives a replant payment 
and still has the original coverage on the acreage, so there is still 
coverage on the replanted crop, even if replanted near the end of the 
late planting period.
    Response: The final rule with request for comment did not change 
planting dates or the late planting period. The final rule with request 
for comment was intended to provide a clear, known deadline for when 
replanting of the crop is considered practical, ensuring that the 
provisions are consistently and equitably implemented across all 
insurance providers and producers. If the commenter or any interested 
party is concerned about the dates for specific crops or counties, they 
should advise the RMA Regional Office. Any interested person may find 
contact information for the applicable regional office on RMA's Web 
site at https://www.rma.usda.gov/aboutrma/fields/rsos.html. After 
considering all the comments, FCIC agrees that requiring replanting 
throughout the late planting period may not be practical. Therefore, as 
stated above, FCIC revised the definition of ``practical to replant'' 
to state it will be considered practical to replant through: (1) The 
final planting date if no late planting period is applicable; (2) the 
end of the late planting period if the late planting period is less 
than 10 days; or (3) the 10th day after the final planting date if the 
crop has a late planting period of 10 days or more. FCIC believes it is 
necessary to provide a clear, known deadline for when replanting of the 
crop is considered to be practical, and while this deadline is 
presumptive, FCIC is also revising the provisions to allow other 
agronomic factors and circumstances to be considered when determining 
whether it is practical to replant to provide needed flexibility as 
necessary.
    Comment: A commenter stated they are very much against the new 
proposal to make a producer continue to replant all the way through the 
end of the late planting period. The commenter stated that the LSU Ag 
Department has documented evidence that this would mean an average of a 
50 percent yield loss on those acres planted that late. The commenter 
understood that a producer may still be insured at the full guarantee 
but that does not really help either the producer or the crop insurance 
companies. For instance: a producer has a 75 percent coverage policy 
and a 175 bushel Actual Production History. That means the producer is 
guaranteed 131 bushels. According to LSU the potential of corn planted 
that late would be 80 bushels an acre. So that means that the producer 
would cut their 80 bushels, sell it and then crop insurance would pay 
the producer for the other 51 bushels. The going market on those 
bushels right now is $3.30 and crop insurance is paying $3.81 per 
bushel. 80 x $3.30 = $264 51 x $3.81 = $194 that comes to $458 per 
acre. The cost of production on that acre of corn is $650 including 
rent, seed, fertilizer, etc., excluding any profit needed to pay any

[[Page 28989]]

living expenses or maintenance on equipment. This is where the producer 
makes a living. This is not just a hobby for the producer but the 
producer's livelihood. That means the producer is in the hole $200 per 
acre plus what it took for the producer to feed their family, pay 
equipment notes, pay interest at the bank for the money the producer 
still owes (1,000 acre average producer x $200 = $200,000) at 6 percent 
average interest, and many other costs. So the bottom line is the 
producer has lost money that the producer may never be able to recover 
from. The insurance company lost by having to pay the producer a $194 
an acre claim. Not to mention the $30 acre replant claim they paid the 
producer (which is only about \1/3\ of the cost to actually replant). 
The commenter questioned why the insurance provider could not release 
those acres for the producer to plant another crop such as soybeans or 
cotton to at least be able to survive. Note that the longer you wait to 
release those acres the more the yield on the second crop yield is 
being hurt also. Lastly, the average producer is not looking to collect 
on an insurance claim. The producer would rather produce a good 
yielding crop, sell it for a decent price and survive to farm another 
year.
    Response: As stated above, FCIC realized that requiring replanting 
up to the end of the late planting period may place too much of a 
burden on producers and reduced needed flexibility. Therefore, FCIC is 
revising the period in which to replant a crop to no more than 10 days 
and revising the provisions to allow additional agronomic factors and 
circumstances to be considered by the insurance providers. However, 
while FCIC understands the commenter's concerns about the economics of 
producing a crop, when production costs exceed the potential value of 
the planted crop the Federal crop insurance program is not in a 
position to consider those costs when determining indemnities. It 
indemnifies lost production at an established price, in part, using 
taxpayer dollars. FCIC has a responsibility to those taxpayers to 
ensure that their dollars are properly spent. Replanting a crop when it 
is possible for that crop to grow and reach maturity is one way of 
protecting taxpayer dollars, and helps achieve the balance between the 
interests of producers and the interests of taxpayers.
    With respect to the scenario stated above, the claimed losses are 
outside of the control of FCIC or the scope of this rule. In the 
example provided, regardless of whether the producer's original crop 
failed or produced a full crop, the producer would have lost money. If 
the producer produced the guarantee of 131 bushels and sold it for 
$3.30, which equals $432, this is still far below the claimed expenses 
of $650. Even if the producer had produced the 175 bushels actual 
production history yield, the producer would only have received 
$577.50.
    Comment: Several commenters believed that a practical to replant 
determination is best made by the producer and the adjuster on the 
farm, and that a one size fits all approach could seriously jeopardize 
a producer's chances of profitability as margins are already tight in a 
replant situation. A commenter stated that even though the interim 
rule's revised definition allows for an exception to the standard date 
if ``there is no chance of seed germination, emergence, and formation 
of a healthy plant,'' this language raises the question of how such an 
important and time-sensitive determination will account for different 
conditions, including soil types and the varying impact of rainfall on 
farms just miles apart. Because of the significant differences between 
crops, final plant dates and late planting periods, a thorough 
assessment by the adjuster for the insurance provider along with the 
producer's input and experience are a more sensible match for the 
replant decision than an across-the-board application of a standard 
date.
    A commenter stated that when the final plant date has been reached 
and during the late planting period, allow and encourage the producer 
and adjuster in consultation to make a determination and decision; 
based upon the conditions in the field and area as to when each field 
is no longer ``practical to replant.'' By doing so this would enable 
the producer to fail the first crop and plant to a second different 
crop, while practical to expect a second crop can reach yield potential 
and maturity. If the producer should choose to plant back to the 
original crop, it would be considered a replanted crop.
    A commenter stated that the producer and the adjuster have been 
looked to as the best judge of whether it was practical to replant that 
crop. Under this definitional change, however, the practical experience 
and judgment of the producer and the adjuster, which is specifically 
focused upon that farm, that area, and the unique conditions, would be 
replaced with a uniform date. Thus, the change effectively declares 
that it is always practical to replant, not just through the final 
plant date for the crop but through the late planting period as well. 
This is not a practical standard given the various adverse situations 
that trigger replant provisions. Even if the final plant dates and late 
planting periods were all perfect and consistent across all regions, 
which they are not, the commenter still strongly believed the producer 
and adjuster are best suited to make this judgment.
    A commenter stated that removing the human and weather elements 
from the decision-making within this definition and rule would prove 
detrimental. The decisions should definitively combine both factors. 
They are not independent of what is decided; only after planting 
potential has been examined can an accurate determination be made. The 
word ``practical'' is at the heart of this issue, even included in the 
definition; therefore practicality and flexibility become the points of 
action.
    A few commenters stated they have serious concerns about proposed 
changes to the ``practical to replant'' definition contained in the 
interim rule. Beyond the proposed changes, producers were given an 
inadequate window of time to respond to the changes overlapping the 
state's harvest period and currently managing disastrous flooding 
conditions. The commenter stated that in the Southern U.S., where rice 
is grown, planting windows and options tend to be longer and more 
diverse. Important replant provisions of the various crop insurance 
policies only come into play when a first attempt at planting is ruined 
in whole or in part. In such an adverse situation, the commenters would 
maintain the producer needs all options at their disposal. The planting 
dates and windows of Federal crop insurance, while necessary, cannot 
reflect the best and most practical options for each farm. The 
commenters believed this determination is best made by the producer and 
the adjuster on the farm.
    A commenter stated that in many cases, if a first crop is washed or 
flooded out, but the water recedes and the producer has the ability to 
plant again, planting the same first crop would not be the ideal 
financial or agronomic decision even if it is still an insurable 
possibility by the USDA Risk Management Agency dates. To handcuff the 
producer in these situations where they can only go back to the 
original crop through the late planting period seems unreasonable. 
Again, the commenter thinks the current rules, which show deference to 
the producer and the adjuster to make the best determination for that 
farm in that situation in that adverse year, is the better model.
    The commenters are very concerned about advancing integrity of 
Federal crop insurance, and the commenters know that clear rules need 
to be made

[[Page 28990]]

and enforced. But every farm is unique and the situation on each farm 
is unique each year, so the rules have to be balanced against an 
adequate flexibility that allows the producers to do their work the 
best they know how. The commenters noted their support for other rules 
like the first crop, second crop limitations that protect the integrity 
of the program while affording the producer flexibility to make the 
best productive use of the land in any given year.
    Response: One of the fundamental principles of the crop insurance 
program is that all producers be treated fairly and equitably. FCIC 
also believes that producers working with their loss adjuster can make 
or reach the best decisions for addressing crop loss on the farm, but 
to do so requires clear rules and understanding. FCIC realizes that 
requiring replanting until the end of the late planting period may be 
too burdensome and has revised the provisions to reduce the presumptive 
time to replant to not more than 10 days. In addition, when determining 
whether it is practical to replant approved insurance providers may 
consider circumstances as to whether: (1) It is physically possible to 
replant the acreage; (2) seed germination, emergence, and formation of 
a healthy plant is likely; (3) field, soil, and growing conditions 
allow for proper planting and growth of the replanted crop to reach 
maturity; or (4) other conditions exist, as provided by the Crop 
Provisions or Special Provisions. This will allow decisions to be more 
tailored to actual agronomic conditions and circumstances for 
determining whether it is practical to replant. However, as stated 
above, the goal of replanting is to mitigate losses in those situations 
where it is still possible to produce a crop that can reach maturity. 
To effectuate this goal and balance the interests of producers and 
taxpayers, FCIC provides for a replant payment and allows a full 
guarantee on the replanted acres, so that if there is any future 
reduction in yield the producer will be indemnified.
    Comment: A commenter stated if there was a change to be made to the 
``practical to replant'' definition in the policy it should have been 
to shorten the number of days that a producer has to replant his crops 
after the final plant date. The definition should not require a 
producer to replant all the way to the end.
    Response: FCIC agrees with the commenter. FCIC is changing the 
definition of ``practical to replant'' to state it will be considered 
practical to replant through: (1) The final planting date if no late 
planting period is applicable; (2) the end of the late planting period 
if the late planting period is less than 10 days; or (3) the 10th day 
after the final planting date if the crop has a late planting period of 
10 days or more.
    Comment: A commenter stated there are other unintended consequences 
that the commenter asked FCIC to consider as well. If a producer 
follows all guidelines of the proposed process and plants an 
alternative crop after the proposed latest ``practical to replant'' 
date for the initial insured crop, they will in most cases be planting 
the alternative crops after optimum dates and potentially suffer 
economic losses as well. In addition, the resulting figures for rice, 
soybeans, corn, cotton, and grain sorghum are considered to be very 
conservative estimates that do not include the additional production 
input costs associated with late-planting of these Louisiana crops. The 
commenter stated that crop insurance should remain a tool to support 
producers when unforeseen covered events adversely affect their crops. 
These proposed changes have the potential to drastically affect 
Louisiana agriculture and create insecurity among the commenter's 
producers and which the commenter hopes is certainly not the intended 
outcome.
    Response: FCIC is changing the definition of ``practical to 
replant'' to reduce the number of days it is presumed to be practical 
to replant. Further, other agronomic factors and circumstances can be 
considered when determining whether it is practical to replant. These 
changes should create more stability, flexibility, and security.
    Comment: A commenter stated that consistency and common 
understanding of the rule from producer to insurance provider needs to 
be achieved. If enacted as written, this rule becomes inconsistent with 
declaration of prevent plant by the producer; which can and is allowed 
to occur after the final plant date. It becomes the producer's 
declaration and decision per the assessment of agronomic conditions, 
weather and human assessment, soil conditions, viability to reach a 
desired result of the planted crop. It is counter intuitive to require 
the producer to replant following a peril that destroys their first 
crop based upon the calendar date, rather than taking into 
consideration the factors on each farm. Only with ``boots on the 
ground'' assessing crop maturity, availability of product, plant vigor, 
weather and field conditions can good farming, and program integrity 
decisions be made. Because of the variability experienced by each 
producer's situation, the geographies that they work within and the 
unknown weather conditions that can arise at any time, there is no one 
blanket date that would fit all farms. Creating a definition that 
allows for these variables will enable consistency, understanding and 
optimum risk management for producers, insurance providers, and 
taxpayers.
    Response: As stated in the final rule with request for comment, the 
previous provisions, as written, regarding ``practical to replant'' can 
lead to different insurance providers reaching differing determinations 
as to whether it is practical to replant in the same area. Therefore, 
it is important to provide a clear, known presumptive deadline for when 
replanting of the crop is considered to be practical. Further, as 
stated above, prevented planting and practical to replant are two 
different provisions, with different purposes, that provide different 
coverage. Prevented planting coverage only covers the expected costs 
incurred at the time the crop was prevented from planting, which is 
determined by a percentage of the guarantee. It does not indemnify for 
the crop loss. When a crop fails and the issue is whether to replant, 
the failed crop could receive an indemnity based on the lost production 
if it is determined not to be practical to replant. However, the 
requirement to replant is intended to mitigate these losses when 
agronomic conditions and circumstances are such that the crop could be 
expected to grow and reach maturity. In prevented planting situations, 
insurance providers look at whether it was possible to plant before the 
final planting date. In practical to replant situations, the 
determination is made by the insurance provider after considering the 
agronomics and the circumstances for the area as to whether it is 
customary to replant the crop. However, FCIC agrees that one size does 
not fit all and has revised the provisions to shorten the period for 
practical to replant and has added provisions allowing for 
consideration of additional circumstances in determining the 
practicality of replanting.
    Comment: A commenter stated aflatoxin is a horrible disease in 
grain crops. This, as well as other diseases and risks such as 
hurricane and intense heat and drought would be greatly enhanced by 
requiring a producer to replant through the end of the late planting 
period.
    Another commenter stated getting the product that will produce the 
highest yield on a specific soil type, disease environment, is 
extremely important to the final yield outcome. At the end of

[[Page 28991]]

the season in the last couple years, the most desired products are sold 
out, due to seed companies limiting piles of unused units that must be 
written off at a loss. So, the producer is now forced to use a third or 
fourth choice corn or soybean product that offers less inherent yield 
potential for this geography and possibly higher risk of disease 
infestation and yield loss.
    Response: FCIC understands the commenter's concern regarding 
increasing risks by requiring the producer to replant through the end 
of the late planting period. FCIC has revised the provisions to reduce 
the presumptive time to replant to no more than 10 days and allowing 
for consideration of additional agronomic factors and circumstances to 
be considered in the determination of practical to replant. These 
changes provide a better balance of the interests of producers with 
those of the taxpayer, whose interests are in paying losses when it is 
not possible to replant a crop that would grow and reach maturity. 
Further, since the guarantee is not reduced as a result of planting 
during the late planting period, any such losses would be fully 
indemnified.
    With respect to the availability of seed and other inputs, the 
previous definition of ``practical to replant'' stated it will be 
considered to be practical to replant regardless of availability of 
seed or plants, or the input costs necessary to produce the insured 
crop such as those that would be incurred for seed or plants, 
irrigation water, etc. FCIC inadvertently omitted this sentence from 
the final rule with request for comments. Therefore, FCIC has modified 
the definition of ``practical to replant'' to add that it will be 
considered practical to replant regardless of the availability of seed 
or plants, or the input costs necessary to produce the insured crop 
such as seed or plants, irrigation water, etc. Since the Act only 
authorizes coverage due to drought, flood or other natural disaster, 
things such as seed availability, plants or input costs cannot be a 
consideration when determining whether or not it is practical to 
replant the crop.

Double Cropping

    Comment: A commenter had some concerns that the wording in the 2017 
Common Crop Insurance Policy Basic Provisions (Basic Provisions) under 
section 15(h) could lead to misunderstandings and differing 
interpretations. For example, section 15(h)(5)(i) allows for when a 
historical double cropping percentage could be used for situations 
where a producer acquires additional acreage. Section 15(h)(5)(i) 
implies the double crop percentage would be applied to the total 
acreage now in the producer's operation. However, the example under 
section 15(h)(5)(i)(D) says to apply the double crop percentage to both 
the current year first insured crop acreage and the current year second 
crop acreage. It is unclear as to which set of determined acreage is 
ultimately used as the limiting factor when total acreage in the 
producer's operation as well as first insured crop acres and second 
crop acres are all multiplied by the determined percentage.
    Response: FCIC agrees with the commenter and has changed the 
language to remove the reference to second crop acreage.
    Comment: A commenter questioned if the revised language in section 
15(h)(5) of the Basic Provisions only applies to policies with added 
land or if it includes situations in which there is no added land but 
the number of double cropping acres have increased through different 
crop rotations. The commenter assumed based on the language included as 
a part of the final rule the intent of this new language addresses both 
added land and other situations where there is no added land but the 
number of double cropping acres have been increasing. If this is indeed 
the intent, the commenter recommended that FCIC consider changing or 
adding to the language in 15(h)(5)(i) that indicates ``. . . if you 
acquired additional acreage, you may apply the percentage of acre . . 
.'' which implies that this computation only applies when additional 
acreage has been acquired.
    Response: The phrase ``acquired additional acreage'' in section 
15(h)(5) of the Basic Provisions is intended to apply to a net 
acquisition of acreage. For example, if a producer loses 50 acres of 
land and gains 20 acres, the double cropping multiplier would not apply 
because the total acreage in the producer's operation is not greater 
than in previous years. Another example would be if a producer loses 50 
acres of land and gains 60 acres, the double cropping multiplier would 
apply because the total acreage in the farming operation is 10 net 
acres greater than in previous years. FCIC has revised the language 
accordingly.
    Comment: A commenter questioned whether or not the computations 
from this new section are meant to apply in the situation where the 
first insured crop is planted and the second crop is prevented from 
being planted (also does not specifically address where the first 
insured crop is planted and the second crop is planted). The commenter 
did not see any language addressing this situation but assumed that 
FCIC would calculate double cropping history acres in the same manner. 
This was addressed in the previous Basic Provisions by the language in 
section 15(i) as follows (language addresses both planted and prevented 
planting acreage of both the first and second crop that are double 
cropped):
    (i) The receipt of a full indemnity or prevented planting payment 
on both crops that are double cropped is limited to the number of acres 
for which you can demonstrate you have double cropped or that have been 
historically double cropped as specified in section 15(h).
    The commenters assumption is that the computations laid out in 
section 15(h)(5) of the Basic Provisions is intended to encompass both 
situations. However, since the language is no longer included as a part 
of the lead in to the calculation, FCIC may want to consider adding 
this language back in so that it is clear this calculation is intended 
to cover both of these situations (section 15(h) does address a full 
indemnity or a full prevented planting payment for a first insured crop 
when a second crop is planted). At the very least, the Prevented 
Planting Loss Adjustment Standards Handbook will need to make sure and 
include additional instructions for computing double crop acres for 
these situations.
    Response: FCIC thanks the commenter for their comments. Section 
15(h)(5)(i) is intended to apply to situations where the first insured 
crop is planted and incurs an insurable loss or the first insured crop 
is prevented from planting and a second crop is planted. Section 
17(f)(5) is the applicable section when a first insured crop is planted 
and the second crop is prevented from planting. FCIC has revised the 
language in section 15 accordingly.
    Comment: A commenter stated the change to double crop history seems 
to be a positive move, using a producer's history of double cropping to 
aid in calculating the use of newly added land. If a producer has a 
history of double cropping every year, it is highly likely that a 
percentage of the added land would be double cropped also. The change 
to the double crop language will add more complexity to the 
calculation. Before, it was simple--what you had is what you got.
    Response: FCIC thanks the commenter and appreciates their input.
    Comment: A commenter suggested revising 15(h)(5)(i)(B) to state ``. 
. . (In the example above, 50 divided by 100 equals 50 percent of the 
first insured crop acres that were double cropped in 2015, and 70 
divided by 100 equals 70

[[Page 28992]]

percent that were double cropped in 2016)''.
    Response: FCIC agrees and has made changes accordingly.

Executive Orders 12866, 13563, and 13771

    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 emphasized 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 not significant 
under Executive Order 12866, ``Regulatory Planning and Review,'' and 
therefore, OMB has not reviewed this rule. The rule is not subject to 
Executive Order 13771, ``Reducing Regulation and Controlling Regulatory 
Costs.''

Paperwork Reduction Act of 1995

    Pursuant to the provisions of the Paperwork Reduction Act of 1995 
(44 U.S.C. chapter 35), the collections of information in this rule 
have been approved by OMB under control numbers 0563-0053.

E-Government Act Compliance

    FCIC is committed to complying with the E-Government Act of 2002, 
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.

Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) 
establishes requirements for Federal agencies to assess the effects of 
their regulatory actions on State, local, and tribal governments and 
the private sector. This rule contains no Federal mandates (under the 
regulatory provisions of title II of the UMRA) for State, local, and 
tribal governments or the private sector. Therefore, this rule is not 
subject to the requirements of sections 202 and 205 of UMRA.

Executive Order 13132

    It has been determined under section 1(a) of Executive Order 13132, 
Federalism, that this rule does not have sufficient implications to 
warrant consultation with the States. The provisions contained in this 
rule will not have a substantial direct effect on States, or on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.

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.
    The Federal Crop Insurance Corporation 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 E.O. 13175. If a Tribe requests consultation, the 
Federal Crop Insurance Corporation will work with the Office of Tribal 
Relations to ensure meaningful consultation is provided where changes, 
additions and modifications identified herein are not expressly 
mandated by Congress.

Regulatory Flexibility Act

    FCIC certifies that this regulation will not have a significant 
economic impact on a substantial number of small entities. Program 
requirements for the Federal crop insurance program are the same for 
all producers regardless of the size of their farming operation. For 
instance, all producers are required to submit an application and 
acreage report to establish their insurance guarantees and compute 
premium amounts, and all producers are required to submit a notice of 
loss and production information to determine the amount of an indemnity 
payment in the event of an insured cause of crop loss. Whether a 
producer has 10 acres or 1000 acres, there is no difference in the kind 
of information collected. To ensure crop insurance is available to 
small entities, the Federal Crop Insurance Act (Act) authorizes FCIC to 
waive collection of administrative fees from beginning farmers or 
ranchers and limited resource farmers. FCIC believes this waiver helps 
to ensure that small entities are given the same opportunities as large 
entities to manage their risks through the use of Federal crop 
insurance. A Regulatory Flexibility Analysis has not been prepared 
since this regulation does not have an impact on small entities, and, 
therefore, this regulation is exempt from the provisions of the 
Regulatory Flexibility Act (5 U.S.C. 605).

Federal Assistance Program

    This program is listed in the Catalog of Federal Domestic 
Assistance under No. 10.450.

Executive Order 12372

    This program is not subject to the provisions of Executive Order 
12372, which require intergovernmental consultation with State and 
local officials. See the Notice related to 7 CFR part 3015, subpart V, 
published at 48 FR 29115, June 24, 1983.

Executive Order 12988

    This rule has been reviewed in accordance with Executive Order 
12988 on civil justice reform. The provisions of this rule will not 
have a retroactive effect. The provisions of this rule will preempt 
State and local laws to the extent such State and local laws are 
inconsistent herewith. With respect to any direct action taken by FCIC 
or to require the insurance provider to take specific action under the 
terms of the crop insurance policy, the administrative appeal 
provisions published at 7 CFR part 11 must be exhausted before any 
action against FCIC for judicial review may be brought.

Environmental Evaluation

    This action is not expected to have a significant economic impact 
on the quality of the human environment, health, or safety. Therefore, 
neither an Environmental Assessment nor an Environmental Impact 
Statement is needed.

List of Subjects in 7 CFR Part 457

    Crop insurance, Reporting and recordkeeping requirements. Final 
Rule.

    Accordingly, as set forth in the preamble, the Federal Crop 
Insurance Corporation amends 7 CFR part 457 as follows:

PART 457--COMMON CROP INSURANCE REGULATIONS

0
1. The authority citation for part 457 continues to read as follows:


    Authority:  7 U.S.C. 1506(l) and 1506(o).


[[Page 28993]]



0
2. Amend Sec.  457.8, in the Common Crop Insurance Policy, as follows:
0
a. In section 1 by revising the definition of ``practical to replant'' 
and ``replanted crop;'' and
0
b. In section 15 by revising paragraph (h).
    The revisions read as follows:


Sec.  457.8  The application and policy.

* * * * *

Common Crop Insurance Policy

* * * * *
1. Definitions
* * * * *
    Practical to replant. Our determination, after loss or damage to 
the insured crop, that you are able to replant to the same crop in such 
areas and under such circumstances as it is customary to replant and 
that replanting the insured crop will allow the crop to attain maturity 
prior to the calendar date for the end of the insurance period. We may 
consider circumstances as to whether: (1) It is physically possible to 
replant the acreage; (2) seed germination, emergence, and formation of 
a healthy plant is likely; (3) field, soil, and growing conditions 
allow for proper planting and growth of the replanted crop to reach 
maturity; or (4) other conditions exist, as provided by the Crop 
Provisions or Special Provisions. Unless we determine it is not 
practical to replant, based on the circumstances listed above, it will 
be considered practical to replant through: (1) The final planting date 
if no late planting period is applicable; (2) the end of the late 
planting period if the late planting period is less than 10 days; or 
(3) the 10th day after the final planting date if the crop has a late 
planting period of 10 days or more. We will consider it practical to 
replant regardless of the availability of seed or plants, or the input 
costs necessary to produce the insured crop such as seed or plants, 
irrigation water, etc.
* * * * *
    Replanted crop. The same agricultural commodity replanted on the 
same acreage as the insured crop for harvest in the same crop year if: 
(1) The replanting is specifically made optional by the policy and you 
elect to replant the crop and insure it under the policy covering the 
insured crop; or (2) Replanting is required by the policy. The crop 
will be considered a replanted insured crop and no replanting payment 
will be paid if we have determined it is not practical to replant the 
insured crop and you choose to plant the acreage to the same insured 
crop.
* * * * *
15. Production Included in Determining an Indemnity and Payment 
Reductions
* * * * *
    (h) You may receive a full indemnity, or a full prevented planting 
payment for a first insured crop when a second crop is planted on the 
same acreage in the same crop year, if each of the following conditions 
are met, regardless of whether or not the second crop is insured or 
sustains an insurable loss:
    (1) Planting two or more crops for harvest in the same crop year in 
the area is generally recognized by agricultural experts or organic 
agricultural experts;
    (2) The second or more crops are customarily planted after the 
first insured crop for harvest on the same acreage in the same crop 
year in the area;
    (3) Additional coverage insurance offered under the authority of 
the Act is available in the county on the two or more crops that are 
double cropped;
    (4) In the case of prevented planting, the second crop is not 
planted on or prior to the final planting date or, if applicable, prior 
to the end of the late planting period for the first insured crop;
    (5) You provide records, acceptable to us, of acreage and 
production specific to the double cropped acreage proving that:
    (i) You have double cropped acreage in at least two of the last 
four crop years in which the first insured crop was planted and incur 
an insurable loss or the first insured crop is prevented from being 
planted and a second crop is planted. If you acquired additional land 
for the current crop year you may apply the percentage of acres that 
you have previously double cropped to the total cropland acres that you 
are farming this year (if greater) using the following calculation:
    (A) Determine the number of acres of the first insured crop that 
were double cropped in each of the years for which double cropping 
records are provided (For example, records are provided showing: 100 
acres of wheat planted in 2016 and 50 of those acres were double 
cropped with soybeans; and 100 acres of wheat planted in 2017 and 70 of 
those acres were double cropped with soybeans);
    (B) Divide each result of section 15(h)(5)(i)(A) by the number of 
acres of the first insured crop that were planted in each respective 
year (In the example above, 50 divided by 100 equals 50 percent of the 
first insured crop acres that were double cropped in 2016 and 70 
divided by 100 equals 70 percent of the first insured crop acres that 
were double cropped in 2017);
    (C) Add the results of section 15(h)(5)(i)(B) and divide by the 
number of years the first insured crop was double cropped (In the 
example above, 50 plus 70 equals 120 divided by 2 equals 60 percent); 
and
    (D) Multiply the result of 15(h)(5)(i)(C) by the number of insured 
acres of the first insured crop (In the example above, 60 percent 
multiplied by the number of wheat acres insured in 2018); or
    (ii) The applicable acreage was double cropped (by one or more 
other producers, and the producer(s) will allow you to use their 
records) for at least two of the last four crop years in which the 
first insured crop was grown on it; and
    (6) If you do not have records of acreage and production specific 
to the double cropped acreage, as required in section 15(h)(5), but 
instead have records that combine production from acreage you double 
cropped with records of production from acreage you did not double 
crop, we will allocate the first and second crop production to the 
specific acreage in proportion to the liability for the acreage that 
was and was not double cropped.
* * * * *

    Dated: June 20, 2017.
Robert Ibarra,
Acting Administrator.
[FR Doc. 2017-13242 Filed 6-26-17; 8:45 am]
 BILLING CODE 3410-08-P