2017 Wildfires and Hurricanes Indemnity Program, 33795-33809 [2018-15346]

Agencies

• DEPARTMENT OF AGRICULTURE
• Farm Service Agency

[Federal Register Volume 83, Number 138 (Wednesday, July 18, 2018)]
[Rules and Regulations]
[Pages 33795-33809]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15346]



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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

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Federal Register / Vol. 83, No. 138 / Wednesday, July 18, 2018 / 
Rules and Regulations

[[Page 33795]]



DEPARTMENT OF AGRICULTURE

Farm Service Agency

7 CFR Part 760

RIN 0560-AI39


2017 Wildfires and Hurricanes Indemnity Program

AGENCY: Farm Service Agency, USDA.

ACTION: Final rule.

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SUMMARY: The 2017 Wildfires and Hurricanes Indemnity Program (2017 
WHIP) will provide payments to eligible producers who suffered eligible 
crop, tree, bush, and vine losses resulting from hurricanes and 
wildfires that occurred in the 2017 calendar year, as authorized by the 
Bipartisan Budget Act of 2018 (BBA). This rule specifies the 
administrative provisions, eligibility requirements, application 
procedures, and payment calculations for 2017 WHIP.

DATES: Effective date: July 18, 2018.
    Comment date: We will consider comments on the Paperwork Reduction 
Act that we receive by: September 17, 2018.

ADDRESSES: We invite you to submit comments on this rule. In your 
comment, specify RIN 0560-AI39, and include the volume, date, and page 
number of this issue of the Federal Register. You may submit comments 
by either of the following methods:
     Federal Rulemaking Portal: Go to https://www.regulations.gov. Follow the instructions for submitting comments.
     Mail: Director, PECD FSA, U.S. Department of Agriculture, 
1400 Independence Avenue SW, Stop 0522, Washington, DC 20250-0522.
    Comments will be available for viewing 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.

FOR FURTHER INFORMATION CONTACT: Lisa Berry, telephone: (202) 720-7641. 
Persons with disabilities who require alternative means for 
communication should contact the USDA Target Center at (202) 720-2600 
(voice).

SUPPLEMENTARY INFORMATION: 

Background

    BBA (Pub. L. 115-123) provided $2.36 billion, available until 
December 31, 2019, for disaster assistance for necessary expenses 
related to crop, tree, bush, and vine losses related to the 
consequences of Hurricanes Harvey, Irma, Maria, and other hurricanes 
and wildfires occurring in calendar year 2017. Of the $2.36 billion 
available under BBA, the Secretary directed the Farm Service Agency 
(FSA), to provide nearly $2 billion in assistance to eligible producers 
through the 2017 WHIP.\1\ Additionally, approximately $340 million of 
the available $2.36 billion is being provided to the State of Florida 
through a block grant to address the consequences of Hurricane Irma 
including losses to citrus production expected during the 2018, 2019, 
and 2020 crop years. This final rule only covers disaster assistance 
for necessary expenses related to crop, tree, bush, and vine losses 
related to the consequences of Hurricanes Harvey, Irma, Maria, and 
other hurricanes and wildfires occurring in calendar year 2017 and does 
not discuss the terms and conditions of the block grant to Florida.
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    \1\ The 2017 WHIP is not related to the USDA program 
administered by the Natural Resources Conservation Service named the 
Wildlife Habitat Incentives Program (WHIP).
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    As mandated by BBA, the total amount of payments received under 
2017 WHIP, crop insurance under the Federal Crop Insurance Act (FCIA; 7 
U.S.C. 1501-1524), and the Noninsured Crop Disaster Assistance Program 
(NAP; 7 U.S.C. 7333) combined will not exceed 85 percent of the total 
losses for all 2017 WHIP participants with crop insurance or NAP 
coverage. Also, as required by BBA, the total amount of payments 
received under 2017 WHIP will not exceed 65 percent of the total losses 
for all participants without crop insurance or NAP coverage. BBA also 
requires all participants who receive 2017 WHIP payments to purchase 
crop insurance or NAP coverage for the next 2 available crop years, 
regardless of whether they had crop insurance or NAP coverage for 2017. 
This rule provides the eligibility requirements, application 
procedures, and payment calculation provisions for administration of 
2017 WHIP.
    Due to the variety of crops and the timing of the hurricanes and 
wildfires, 2017 WHIP covers losses resulting from the 2017 hurricanes 
and wildfires to crops that were intended for harvest in either the 
2017 or 2018 crop year.
    For clarity, throughout this final rule, the word producer is used 
to refer to those persons or legal entities who have suffered losses 
and can apply for 2017 WHIP; the term participant is used for a 
producer who applied for 2017 WHIP and has been determined eligible.

Available Funding

    FSA will make an initial payment of up to 50 percent of an eligible 
2017 WHIP participant's calculated 2017 WHIP payment. By issuing 
initial payments, FSA can quickly provide disaster assistance to those 
who have suffered severe losses while ensuring that 2017 WHIP payments 
do not exceed the available funding and those funds are distributed 
equitably among eligible producers. If funds remain available after the 
initial payment, FSA will disburse the remainder of the participant's 
payment. If eligible losses calculated based upon applications received 
exceed the amount of funding available, 2017 WHIP payments will be 
prorated using a national factor.

Eligibility

    The 2017 WHIP payments are available to eligible producers who 
suffered an eligible loss to crops, trees, bushes, and vines or 
prevented planting due to a qualifying disaster event, which includes 
wildfires and hurricanes that occurred in the 2017 calendar year, and 
conditions related to those wildfires and hurricanes, such as excessive 
rain, high winds, flooding, mudslides, and heavy smoke. The 2017 WHIP 
payments for crop losses cover only production losses; they do not 
cover quality losses. Eligible crops include those for which crop 
insurance or NAP coverage is available, excluding crops intended for 
grazing. A list of crops covered by crop insurance is available through 
RMA's Actuarial Information Browser at https://webapp.rma.usda.gov/
apps/ActuarialInformationBrowser2017/

[[Page 33796]]

CropCriteria.aspx; this list is provided for reference and includes all 
commodities for which crop insurance can be obtained including crops 
intended for grazing, which are ineligible for 2017 WHIP. NAP coverage 
is available for the following commercial crops when crop insurance 
under section 508(b) or additional coverage under sections 508(c) or 
508(h) of FCIA (7 U.S.C. 1508(b), (c), and (h)) is not available for:
     Crops grown for food, excluding livestock and their by-
products;
     Crops planted and grown for livestock consumption, 
including but not limited to grain and forage crops;
     Crops grown for fiber, excluding trees grown for wood, 
paper, or pulp products; and
     The production of aquacultural species (including 
ornamental fish), floricultural crops, ornamental nursery plants, 
Christmas tree crops, turfgrass sod, sweet sorghum, biomass sorghum, 
industrial crops, seed crops, sea grass, and sea oats.
    Grazing and livestock losses are covered by existing programs that 
are funded by the Commodity Credit Corporation (CCC) and administered 
by FSA, such as the Livestock Indemnity Program (LIP), Emergency 
Assistance for Livestock, Honeybees, and Farm-Raised Fish Program 
(ELAP) and the Livestock Forage Disaster Program (LFP), and therefore 
are not covered by 2017 WHIP, as such would be a duplication of 
benefits.
    The Tree Assistance Program (TAP) provides cost-share for 
replanting and rehabilitation of eligible trees, while 2017 WHIP 
provides payments based on the loss of value of the tree, bush, or 
vine. Therefore, participants who suffered tree, bush, and vine losses 
may receive both TAP payments and 2017 WHIP payments for the same 
acreage because 2017 WHIP and TAP pay for different losses.
    Assistance for Florida citrus tree losses will be provided through 
a grant program administered by the State of Florida so tree losses are 
not eligible for 2017 WHIP. Florida citrus crop losses, however, are 
eligible for 2017 WHIP. TAP is a cost share program that provides 
assistance for replanting trees, bushes, and vines. To the extent that 
expenses are paid via the block grant program; those expenses will not 
be eligible for TAP cost-share assistance. TAP is available only for 
expenses actually incurred by the eligible orchardist or nursery tree 
grower that are not covered, reimbursed, or paid for by anyone other 
than the eligible orchardist or nursery tree grower.
    Trees, bushes, and vines that were abandoned or not used for or 
intended for use for commercial production at the time of the loss are 
ineligible for 2017 WHIP.
    The 2017 WHIP for hurricane losses and related conditions, such as 
excessive rain and flooding, will be available for eligible farms 
located in counties that received a qualifying Presidential Emergency 
Disaster Declaration or Secretarial Disaster Designation. A list of 
counties that received qualifying hurricane declarations and 
designations is available at https://www.fsa.usda.gov/programs-and-services/disaster-assistance-program/wildfires-and-hurricanes-indemnity-program/index. Only producers in primary disaster counties 
qualify for 2017 WHIP based on the declaration or designation. 
Producers in counties that did not receive a qualifying hurricane 
declaration or designation, including those in counties contiguous to 
counties that received a Presidential declaration or Secretarial 
designation, may still apply for 2017 WHIP, but they must also provide 
supporting documentation to establish that the crop was directly 
affected by a hurricane or a related condition. The 2017 WHIP for 
losses due to wildfires and conditions related to wildfires, such as 
mudslides and heavy smoke, will be available in any county where a 
wildfire occurred, as determined by FSA county committees.

Payment Limitation

    Each person and legal entity who is either a participant or member 
of a participant will have a single 2017 WHIP payment limitation even 
though they may be eligible to receive payment for more than one crop 
year or type of loss (for example, for both crop production and tree 
losses). Once the payment limit is reached for any person or legal 
entity, the person or legal entity is not eligible to receive any 
additional 2017 WHIP payment. For example, if a person or legal entity 
reaches the maximum payment based on losses to a 2017 crop, that person 
or legal entity will not receive any additional 2017 WHIP payment, even 
though there may have been losses to a 2018 crop, due to hurricanes or 
wildfires that occurred in calendar year 2017, as well.
    The payment limitation is based on the person's or legal entity's 
average adjusted gross income (AGI) and factors in the person's or 
legal entity's average adjusted gross farm income. Farm income includes 
income from activities related to farming, ranching, or forestry. 
Specifically, a person or legal entity, other than a joint venture or 
general partnership, cannot receive 2017 WHIP payments, directly or 
indirectly, of more than $125,000, unless at least 75 percent of the 
person or legal entity's average AGI, as defined in Sec.  760.1502, is 
derived from farming, ranching, or forestry related activities. If at 
least 75 percent of the person or legal entity's average AGI is derived 
from farming, ranching, or forestry related activities and the 
participant provides the required certification and documentation, as 
discussed below, the person or legal entity, other than a joint venture 
or general partnership, is eligible to receive 2017 WHIP payments, 
directly or indirectly, up to $900,000. Average AGI and average 
adjusted gross farm income are calculated based on the person or legal 
entity's average income in 2013, 2014, and 2015, which are the relevant 
years to calculate AGI for 2017 WHIP.
    To receive more than $125,000 in 2017 WHIP payments, applicants 
must certify that as a person or legal entity they are eligible for the 
$900,000 payment limitation (that is, that at least 75 percent of the 
person's or legal entity's average AGI is derived from farming, 
ranching, or forestry related activities). That certification must be 
submitted on form FSA-892, Request for an Exception to the WHIP Payment 
Limitation of $125,000, and accompanied by a certification from a 
certified public accountant or attorney that confirms the person or 
legal entity's certification. If an applicant requesting the $900,000 
payment limitation is a legal entity, all members of that entity must 
also complete FSA-892 and provide the required certification according 
to the direct attribution provisions in Sec.  1400.105, ``Attribution 
of Payments.'' If a legal entity would be eligible for the $900,000 
payment limitation based on the legal entity's average AGI from farming 
but a member of that legal entity either does not complete a FSA-892 or 
is not eligible for the $900,000 payment limitation, the payment to the 
legal entity will be reduced for the applicable limitation that will 
apply to the share of the 2017 WHIP payment attributed to that member.

Application Process

    Producers must submit 2017 WHIP applications to their 
administrative FSA county office by the deadline that will be announced 
by the FSA Deputy Administrator for Farm Programs. A complete 2017 WHIP 
application consists of:
     FSA-890, Wildfires and Hurricanes Indemnity Program (WHIP) 
Application;
     FSA-891, Crop Insurance and/or NAP Coverage Agreement;

[[Page 33797]]

     FSA-892, Request for an Exception to the WHIP Payment 
Limitation of $125,000, if more than 75 percent of an applicant's 
average AGI is from farm income and the applicant wants to be eligible 
to receive 2017 WHIP payments of more than $125,000, up to the $900,000 
payment limitation; and
     FSA-893, 2018 Citrus Actual Production History and 
Approved Yield Record, Florida Only, for applicants requesting payments 
for losses to citrus crops located in Florida.
    Persons and legal entities who do not submit FSA-892 and a 
certification from a CPA or attorney will only be considered for the 
lower payment limitation of $125,000. If not already on file with FSA, 
applicants must also submit AD-1026, Highly Erodible Land Conservation 
(HELC) and Wetland Conservation Certification; CCC-902, Farm Operating 
Plan for Payment Eligibility; and a report of acreage on FSA-578, 
Report of Acreage, or in another format acceptable to FSA for all acres 
of each crop for which 2017 WHIP payments are being requested. 
Applicants must also submit verifiable or reliable crop records if not 
already on file for crop insurance or NAP purposes; producers who do 
not have verifiable or reliable records will have 2017 WHIP payments 
determined based on the lower of either the actual loss certified by 
the producer and determined acceptable by FSA or the county expected 
yield and county disaster yield, which is the production that a 
producer would have been expected to make based on the eligible 
disaster conditions in the county, as determined by the FSA county 
committee. Yield means unit of production, measured in bushels, pounds, 
or other unit of measure, per area of consideration, usually measured 
in acres. In no case will 2017 WHIP payments be issued or provided for 
losses that cannot be determined to have occurred to the satisfaction 
of FSA.

2017 WHIP Payments

    In general, all 2017 WHIP payments for crop production losses will 
take into consideration the difference between the expected value of 
the crop and the actual value of the crop as a result of the wildfire 
or hurricane damage. The value is determined by FSA using crop 
insurance or NAP prices. For tree, bush, and vine losses, 2017 WHIP 
payments will be based on the loss of value of the trees, bushes, and 
vines that were destroyed or damaged due to the wildfire or hurricane. 
Various factors will be considered to determine the payments, as 
explained below in detail; however, overall, the payment calculation 
includes reductions based on any additional payments that the 
participant received from crop insurance indemnities, NAP payments, and 
salvage value. Further, as noted above, 2017 WHIP is prohibited from 
paying for more than 85 percent of the total losses. Therefore, a 2017 
WHIP factor will be applied to reduce the participant's payment to 
ensure that total 2017 WHIP payments are no more than 85 percent of the 
total losses by all 2017 WHIP participants, as described below.
    The specific payment calculations that will be used for each type 
of commodity are detailed below. Each of the calculations includes 
numerous elements to determine the accurate and equitable amount to pay 
for the various losses. Some of the data will come from the 
applications while other numbers used in the calculations will be 
determined by FSA. In general, the calculations are consistent with 
previous ad hoc disaster assistance programs administered by FSA.

2017 WHIP Factors

    After the eligible loss is determined and quantified, a 2017 WHIP 
payment factor will be applied based on the level of crop insurance 
coverage or NAP coverage a participant obtained for a crop. The 
``coverage level'' is the percentage determined by multiplying the 
elected yield percentage under a crop insurance policy or NAP coverage 
by the elected price percentage. Participants who elected higher levels 
of crop insurance or NAP coverage will receive a higher level of 
compensation from the combination of the 2017 WHIP payment amount plus 
the crop insurance indemnity or NAP payment, as compared to a 
participant who elected a lower level of crop insurance or NAP 
coverage. As detailed in the following table, the 2017 WHIP factors 
will be between 65 percent, for uninsured crops, and 95 percent, for 
crops for which a producer obtained greater than an 80 percent crop 
insurance coverage level. Total 2017 WHIP payments issued to all 
participants will not exceed 85 percent of their collective losses, as 
authorized by BBA.

------------------------------------------------------------------------
                                                              2017 WHIP
                                                               payment
                       Coverage level                           factor
                                                              (percent)
------------------------------------------------------------------------
No crop insurance or No NAP coverage.......................           65
Catastrophic coverage......................................           70
More than catastrophic coverage but less than 55 percent...         72.5
At least 55 percent but less than 60 percent...............           75
At least 60 percent but less than 65 percent...............         77.5
At least 65 percent but less than 70 percent...............           80
At least 70 percent but less than 75 percent...............           85
At least 75 percent but less than 80 percent...............           90
At least 80 percent........................................           95
------------------------------------------------------------------------

    More producers obtained coverage at the lower levels than obtained 
coverage at the higher levels. Therefore, including payments to 
individual participants at 90 and 95 percent, total 2017 WHIP payments 
will not exceed 85 percent of the value of total losses.

Payment Calculation for Yield-Based Crop Losses

    The 2017 WHIP payments for yield-based crop losses will be 
calculated based on all acreage of the crop in a unit. The eligible 
crop acres will be multiplied by the 2017 WHIP yield, the price for the 
crop, and the WHIP factor, and reduced by the participant's production 
multiplied by the price, and that result will be multiplied by the 
participant's share and reduced by the gross insurance indemnity or NAP 
payment and any salvage value. Additional adjustments will be applied 
to 2017 WHIP payment calculation based on whether the crop was 
prevented planted or unharvested to account for expenses that were not 
incurred.
    The 2017 WHIP yield is the approved yield based on the producer's 
actual production history (APH) for insured and NAP-covered crops, or 
the county expected yield for uninsured crops without NAP coverage and 
participants in Puerto Rico. Using county expected yields for producers 
who did not have crop insurance or NAP coverage allows FSA to quickly 
provide disaster assistance payments to affected producers, by not 
requiring producers and FSA resources to spend additional time on the 
burden of computing approved yields, and improves integrity by not 
allowing producers who do not have adequate records an opportunity to 
provide production records from prior years. FSA recognizes that due to 
the severity of hurricanes affecting Puerto Rico, flexibility regarding 
required documentation is necessary in order to provide needed payments 
to producers who suffered extreme losses. FSA is using this streamlined 
determination for

[[Page 33798]]

yields for all 2017 WHIP applicants in Puerto Rico to provide payments 
in a timely manner to producers who suffered known severe losses but 
may be unable to provide required documentation due to the extreme 
circumstances faced by the agricultural sector. FSA's decision to 
determine the extent of eligibility differently in Puerto Rico will 
have no impact on or be a consideration for losses sustained outside of 
Puerto Rico.
    The participant's production for the crop year which suffered the 
loss (2017 or 2018, depending on the specific crop and when it would 
have been harvested) is based on their verifiable or reliable 
production records for that crop year. Reliable production records 
means evidence provided by the participant that is used to substantiate 
the amount of production reported when verifiable records are not 
available, including copies of receipts, ledgers of income, income 
statements of deposit slips, register tapes, invoices for custom 
harvesting, and records to verify production costs, contemporaneous 
measurements, truck scale tickets, and contemporaneous diaries that are 
determined acceptable by the county committee. These records may 
already be on file if the crop was covered by crop insurance or NAP. If 
not already on file, or if the participant believes that RMA or NAP 
records are inaccurate or incomplete, the participant is responsible 
for providing verifiable or reliable records as specified in Sec.  
760.1512. Participants who do not have verifiable or reliable records 
will have their payments limited to the lower of either:
     The actual loss certified by the producer and determined 
acceptable by FSA, or
     The county disaster yield, as established by the FSA 
county committee.

Payment Calculation for Value Loss Crops Losses

    Assessing loss for value loss crops, such as ornamental nursery and 
aquaculture, is significantly different than for yield-based crops. The 
participant's inventory of a typical value loss crop may fluctuate from 
week to week, sometimes rapidly, in the course of normal business 
operations for reasons that may be unrelated to a disaster. As a 
result, 2017 WHIP payments for value loss crops will be based on 
inventory and losses before and after the qualifying disaster event.
    The 2017 WHIP payments for value loss crops will be based on the 
field market value of the crop before and after the qualifying disaster 
event. Specifically, payments for value loss crops will be calculated 
using the field market value of the crop before the disaster multiplied 
by the 2017 WHIP factor, reduced by the sum of the field market value 
after the disaster and the value of losses due to ineligible causes of 
loss, multiplied by the participant's share, reduced by the gross 
insurance indemnity or NAP payment amount and salvage value of the 
crop.
    NAP value loss and tropical crop eligibility provisions in 7 CFR 
part 1437 apply to 2017 WHIP for value loss and tropical crops. Nursery 
stock of trees, bushes, and vines is considered a value loss crop 
rather than a tree, bush, or vine loss for 2017 WHIP payment 
calculations.

Payment Calculation for Tree, Bush, and Vine Losses

    Payments for trees, bush, and vine losses will be based on federal 
crop insurance principles and will be determined separately for 
different growth stages, as determined by the Deputy Administrator of 
Farm Programs, FSA. Each growth stage will have an associated price and 
damage factor to determine the value lost when a tree, bush, or vine is 
damaged and requires rehabilitation but is not completely destroyed.
    Payments will be calculated by multiplying the expected value of 
the eligible damaged and destroyed trees, bushes, or vines by the 2017 
WHIP factor, reduced by the actual value of the trees, bushes, or 
vines, and multiplied by the producer's share. FSA will subtract the 
amount of any insurance indemnity received for trees, bushes, and vines 
covered by an insurance plan and any secondary use or salvage value. 
The expected value is determined by multiplying the total number of 
trees, bushes, or vines that were damaged or destroyed by a qualifying 
disaster event by the price. The actual value is the expected value 
minus the value of the producer's loss, which is calculated by 
multiplying the number of trees, bushes, or vines damaged by a 
qualifying disaster event by the damage factor, added to the number 
destroyed by a qualifying disaster event, and multiplied by the price.
    The county committee will adjust the number of damaged and 
destroyed trees, bushes, or vines, if it determines that the number of 
damaged or destroyed trees, bushes, or vines certified by the 
participant is inaccurate.

Future Crop Insurance or NAP Coverage

    BBA requires all 2017 WHIP payment recipients to obtain coverage 
under an FCIA plan (crop insurance) or NAP coverage, as may be 
applicable and if available, for the next 2 crop years. Because sign-up 
for crop insurance and NAP coverage has already begun for some 2019 
crops and due to potential conflicts or short time periods between 2017 
WHIP sign-up dates and crop insurance and NAP application closing 
dates, FSA is requiring 2017 WHIP participants to obtain crop insurance 
or NAP for the next 2 available consecutive crop years after the crop 
year for which 2017 WHIP payments are paid, with the latest year for 
finally meeting compliance with this provision being the 2021 crop 
year. In other words, if the 2 consecutive years of coverage are not 
met by 2021 coverage year, the participant is ineligible for payments. 
Participants must obtain crop insurance or NAP, as may be applicable, 
at the 60 percent coverage level or higher, if available. If NAP 
coverage at the 60 percent coverage level is unavailable at the time of 
the timely filing of an application for coverage, the participant must 
obtain NAP catastrophic level of coverage (that is, basic 50/55 NAP 
coverage).
    There will be situations where a 2017 WHIP participant, who does 
not have to meet any adjusted gross income requirement for the 2017 
WHIP payment and for which crop insurance is not available for a 
specific crop, will have to obtain NAP coverage due to the purchase 
requirement in BBA. Section 1001D of the Food Security Act of 1985 
(1985 Farm Bill) provides that a person or entity with adjusted gross 
income in amount greater than $900,000 is not eligible to participate 
in NAP. Accordingly, in order to reconcile this restriction in the 1985 
Farm Bill and the BBA requirement to obtain NAP or crop insurance 
coverage, 2017 WHIP participants may meet the BBAs purchase requirement 
by purchasing Whole-Farm Revenue Protection crop insurance coverage, if 
eligible, or they may pay the applicable NAP service fee and premium 
despite their ineligibility for a NAP payment. In other words, the 
service fee and premium must be paid even though no NAP payment will be 
made because the adjusted gross income of the person or entity exceeds 
the 1985 Farm Bill limitation.
    The crop insurance and NAP requirements are specific to the crop 
and county (physical location county for insurance and administrative 
county for NAP) for which 2017 WHIP payments

[[Page 33799]]

are paid. This means that a producer who receives a 2017 WHIP payment 
for a crop in a county (physical location county for insurance and 
administrative county for NAP) is required to purchase crop insurance 
or NAP coverage for the crop in the county for which the producer was 
issued a 2017 WHIP payment. Producers who received a 2017 WHIP payment 
on a crop in a county and who have the crop or crop acreage in 
subsequent years, as provided in this rule, and who fail to obtain the 
2 years of crop insurance or NAP coverage must refund all 2017 WHIP 
payments for that crop in that county with interest from the date of 
disbursement. This is a condition of payment eligibility specified by 
BBA and is therefore not subject to partial payment eligibility or 
other types of equitable relief. Producers who were paid 2017 WHIP on a 
crop in a county but do not plant that crop in a subsequent year are 
not required to purchase crop insurance or NAP coverage for that 
specific crop and year.

Miscellaneous

    Applicable general eligibility requirements, including 
recordkeeping requirements and required compliance with HELC and 
Wetland Conservation provisions, are similar to those for the previous 
ad hoc crop disaster programs and current permanent disaster programs. 
All information provided to FSA for program eligibility and payment 
calculation purposes, including average AGI certifications and 
production records, is subject to spot check.

Notice and Comment

    In general, the Administrative Procedure Act (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 presentation, 
except that when the rule involves a matter relating to public 
property, loans, grants, benefits, or contracts section 553 does not 
apply. This rule involved matters relating to benefits and is therefore 
being published as a final rule without the prior opportunity for 
comments.

Effective Date

    The Administrative Procedure Act provides generally that before 
rules are issued by Government agencies, the rule is required to be 
published in the Federal Register, and the required publication of a 
substantive rule is to be not less than 30 days before its effective 
date. However, as noted above, the Administrative Procedure Act 
requirements, including the effective date delay, do not apply to 
rulemaking that involves a matter relating to benefit. Therefore, to 
provide benefits in a timely fashion, the 2017 WHIP regulations, are 
effective when published in the Federal Register.

Executive Orders 12866, 13563, 13771 and 13777

    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. Executive Order 13777, 
``Enforcing the Regulatory Reform Agenda,'' established a federal 
policy to alleviate unnecessary regulatory burdens on the American 
people.
    The Office of Management and Budget (OMB) designated this rule as 
economically 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.
    Executive Order 13771, ``Reducing Regulation and Controlling 
Regulatory Costs,'' requires that, in order to manage the costs 
required to comply with Federal regulations, that for every new 
significant or economically significant regulation issued, the new 
costs must be offset by the elimination of at least two prior 
regulations. The OMB guidance in M-17-21, dated April 5, 2017, 
specifies that ``transfers'' are not covered by Executive Order 13771 
but that changes in resource use that accompany transfer rules may 
qualify as costs or cost savings under Executive Order 13771. Although 
most of this rule's impacts are income transfers between taxpayers and 
program beneficiaries, the associated cost-benefit analysis shows a 
government administrative cost of approximately $10 million (which is 
the equivalent of $0.53 million when annualized over a perpetual time 
horizon at a 7 percent discount rate). Therefore this rule is 
considered an Executive Order 13771 regulatory action.

Cost Benefit Analysis Summary

    BBA provided up to $2.36 billion for 2017 WHIP. Early estimates 
suggest that total 2017 WHIP payments could be lower than the $2.36 
billion. However, in addition to producer payments, WHIP funds will be 
used for a $340 million block grant to Florida that will provide 
further aid to producers with damaged trees. The federal government is 
expected to expend around $10 million to manage 2017 WHIP and because 
of the 2017 WHIP mandate that producers purchase insurance, the 
government is expected to incur around $100 million in additional 
subsidy costs. The required policies will cost producers around $60 
million. USDA estimates that payment limitation savings will be at 
least $50 million.

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, 
Pub. L. 104-121), generally requires an agency to prepare a regulatory 
flexibility analysis of any rule whenever an agency is required by the 
Administrative Procedure Act 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 FSA 
is not required by Administrative Procedure Act or any law to publish a 
proposed rule for this rulemaking.

Environmental Review

    The environmental impacts of this final rule have been considered 
in a manner consistent with the provisions of the National 
Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations 
of the Council on Environmental Quality (40 CFR parts 1500-1508), and 
the FSA regulation for compliance with NEPA (7 CFR part 799). The 2017 
WHIP is mandated by BBA. The legislative intent for implementing 2017 
WHIP is to provide payments to the producers who suffered eligible 
crop, tree, bush, and vine losses resulting from 2017 hurricanes and 
wildfires.
    While OMB has designated this rule as ``economically significant'' 
under Executive Order 12866, ``. . . economic or social effects are not 
intended by themselves to require preparation of an environmental 
impact statement'' (40 CFR 1508.14), when not interrelated to natural 
or physical environmental effects. The limited discretionary aspects of 
the program (for example, use

[[Page 33800]]

of grants, and determining AGI and payment limitations) were designed 
to be consistent with established FSA disaster programs. As such, the 
Categorical Exclusions found at 7 CFR part 799.31 apply, specifically 7 
CFR 799.31(b)(6)(iv) and (vi) (that is, Sec.  799.31(b)(6)(iv) 
Individual farm participation in FSA programs where no ground 
disturbance or change in land use occurs as a result of the proposed 
action or participation; and Sec.  799.31(b)(6)(vi) Safety net programs 
administered by FSA). No Extraordinary Circumstances (7 CFR 799.33) 
exist. As such, FSA has determined that the implementation of 2017 WHIP 
and the participation in 2017 WHIP do not constitute major Federal 
actions that would significantly affect the quality of the human 
environment, individually or cumulatively. Therefore, FSA will not 
prepare an environmental assessment or environmental impact statement 
for this regulatory action.

Executive Order 12372

    Executive Order 12372, ``Intergovernmental Review of Federal 
Programs,'' requires consultation with State and local officials that 
would be directly affect 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 specified in the final rule related notice to 
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 which requires intergovernmental consultation 
with State and local officials.

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 will not have retroactive effect. 
Before any judicial action may be brought regarding the provisions of 
this rule, the administrative appeal provisions of 7 CFR parts 11 and 
780 must be exhausted.

Executive Order 13132

    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 for compliance with 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 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 required tribal consultation under Executive Order 
13175. If a tribe requests consultation, FSA will work with USDA Office 
of Tribal Relations to ensure meaningful consultation is provided.

The Unfunded Mandates Reform Act of 1995

    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 1 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.

SBREFA

    This rule is a major rule under SBREFA. SBREFA normally requires 
that an agency delay the effective date of a major rule for 60 days 
from the date of publication to allow for Congressional review. Section 
808 of SBREFA allows an agency to make a major regulation effective 
immediately if the agency finds there is good cause to do so. The 
beneficiaries of this rule have suffered extensive damage due to the 
losses from the hurricanes and wildfires that occurred in 2017. 
Therefore, FSA finds that it would be contrary to the public interest 
to delay the effective date of this rule because it would delay 
implementation of 2017 WHIP as required by BBA. The regulation needs to 
be effective to provide adequate time for producers to submit 
applications to request payments. Therefore, this rule is effective on 
the July 18, 2018.

Federal Assistance Programs

    The title and number of the Federal Domestic Assistance Program 
found in the Catalog of Federal Domestic Assistance to which this rule 
applies is 2017 Wildfires and Hurricanes Indemnity Program and 10.120.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995, the 
following new information collection request that supports 2017 WHIP 
and the block grant to Florida was submitted to OMB for emergency 
approval. OMB approved the 6-month emergency information collection. 
Since the information collection activities will continue for more than 
the approved 6 months, in addition, through this rule, FSA is 
requesting comments from interested individuals and organizations on 
the information collection activities related to 2017 WHIP and the 
block grant to Florida as described in this rule. Following the 60-day 
public comment period for this rule, the information collection request 
will be submitted to OMB for the 3-year approval to ensure adequate 
time for the information collection for the duration of 2017 WHIP.
    Title: 2017 WHIP and Block Grant to Florida.
    OMB Control Number: 0560-New.
    Form number(s) for 2017 WHIP: FSA-890, Wildfires and Hurricanes 
Indemnity Program (WHIP) Application; FSA-891, Crop Insurance and/or 
NAP Coverage Agreement; FSA-892, Request for an Exception to the WHIP 
Payment Limitation of $125,000, if applicable; and FSA-893, 2018 Citrus 
Actual

[[Page 33801]]

Production History and Approve Yield Records (Florida only).
    Type of Request: New Collection.
    Abstract: This information collection is required to support both 
the regulation in 7 CFR part 760, subpart O, for 2017 WHIP that 
establishes the requirements or eligible producers who suffered 
eligible crop, tree, bush, and vine losses resulting from 2017 
hurricanes and wildfires as specified in BBA and the block grant to 
Florida. The information collection is necessary to evaluate the 
application and other required paperwork for determining the producer's 
eligibilities and assist in producer's payment calculations.
    For the Grant to Florida, the same citrus growers are likely to 
apply for both 2017 WHIP and the grant because they will pay for 
different losses. The grant will pay for the tree replacement and 2017 
WHIP will pay for citrus crop losses. FSA expects that Florida will use 
information provided to FSA by Florida applications as part of their 
documentation for application for tree replacement payments from 
Florida through the grant. Although we do not know what application 
Florida will use for the tree replacement payment applications, we 
estimate that it will take less time to complete than the FSA 
application.
    For the following estimated total annual burden on respondents, the 
formula used to calculate the total burden hour is the estimated 
average time per response multiplied by the estimated total annual 
responses.
    Estimate of Respondent Burden: Public reporting burden for this 
information collection is estimated to average 0.6983 hours per 
response, including the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed and 
completing and reviewing the collections of information.
    Type of Respondents: Producers or farmers.
    Estimated Annual Number of Respondents: 44,124.
    Estimated Number of Reponses Per Respondent: 1.
    Estimated Total Annual Responses: 44,124.
    Estimated Average Time per Response: 0.6983 hours.
    Estimated Annual Burden on Respondents (WHIP applicants): 28,514.
    Estimated Annual Burden on Respondents (Florida Grant): 1,097.
    Estimated Total Annual Burden on Respondents: 29,611.
    For 2017 WHIP, the per form estimated burden is:

----------------------------------------------------------------------------------------------------------------
                                                                                     Number of     Total  burden
                   Form name                                Form No.                respondents        hours
----------------------------------------------------------------------------------------------------------------
Wildfires and Hurricanes Indemnity Program      FSA-890.........................          40,831          20,416
 Notification.
Crop Insurance and/or NAP Coverage............  FSA-891.........................          40,831           3,401
Request for an Exception to the WHIP Payment    FSA-892.........................          16,332           1,360
 Limitation of $125,000, WHIP only.
2018 Citrus Actual Production History and       FSA-893.........................           3,293             274
 Approve Yield Records (Florida only).
Wildfires and Hurricanes Indemnity Program      FSA-890 (continuation)..........          12,250           3,062
 Application (Continuation Sheet).
----------------------------------------------------------------------------------------------------------------

    FSA is requesting comments on all aspects of this information 
collection to help us to:
    (1) Evaluate whether the collection of information is necessary for 
the proper performance of the functions of the FSA, including whether 
the information will have practical utility;
    (2) Evaluate the accuracy of the FSA's estimate of burden including 
the validity of the methodology and assumptions used;
    (3) Enhance the quality, utility and clarity of the information to 
be collected;
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology.
    All comments received in response to this notice, including names 
and addresses when provided, will be a matter of public record. 
Comments will be summarized and included in the submission for Office 
of Management and Budget approval.

E-Government Act Compliance

    FSA is committed to complying with the E-Government Act, to promote 
the use of the internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.

List of Subjects in 7 CFR Part 760

    Dairy products, Indemnity payments, Reporting and recordkeeping 
requirements.

    For the reasons discussed above, FSA amends 7 CFR part 760 as 
follows:

PART 760--INDEMNITY PAYMENT PROGRAMS

0
1. Revise the authority citation to read as follows:

    Authority: 7 U.S.C. 4501, 7 U.S.C. 1531, 16 U.S.C. 3801, note, 
and 19 U.S.C. 2497; Title III, Pub. L. 109-234, 120 Stat. 474; Title 
IX, Pub. L. 110-28, 121 Stat. 211; Sec. 748, Pub. L. 111-80, 123 
Stat. 2131; and Title I, Pub. L. 115-123.


0
2. In part 760, add subpart O to read as follows:
Subpart O--2017 Wildfires and Hurricanes Indemnity Program
Sec.
760.1500 Applicability.
760.1501 Administration.
760.1502 Definitions.
760.1503 Eligibility.
760.1504 Miscellaneous provisions.
760.1505 General provisions.
760.1506 Availability of funds and timing of payments.
760.1507 Payment limitation.
760.1508 Qualifying disaster events.
760.1509 Eligible and ineligible losses.
760.1510 Application for 2017 WHIP payment.
760.1511 Calculating payments for yield-based crop losses.
760.1512 Production losses; participant responsibility.
760.1513 Determination of production.
760.1514 Eligible acres.
760.1515 Calculating payments for value loss crops.
760.1516 Calculating payments for tree, bush, and vine losses.
760.1517 Requirement to purchase crop insurance or NAP coverage.

Subpart O--2017 Wildfires and Hurricanes Indemnity Program


Sec.  760.1500   Applicability.

    This subpart specifies the terms and conditions for the 2017 
Wildfires and Hurricanes Indemnity Program (2017 WHIP). The 2017 WHIP 
provides disaster assistance for necessary expenses related to crop, 
tree, bush, and vine losses related to the consequences of wildfires 
and hurricanes that occurred in calendar year 2017.

[[Page 33802]]

Sec.  760.1501   Administration.

    (a) The 2017 WHIP is administered under the general supervision of 
the Administrator, Farm Service Agency (FSA), and the Deputy 
Administrator for Farm Programs, FSA. The 2017 WHIP is carried out by 
FSA State and county committees with instructions issued by the Deputy 
Administrator.
    (b) FSA 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 subpart or instructions issued by 
the Deputy Administrator.
    (c) The FSA State committee will take any action required by the 
regulations in this subpart that the FSA county committee has not 
taken. The FSA State committee will also:
    (1) Correct, or require an FSA county committee to correct, any 
action taken by the FSA county committee that is not in accordance with 
the regulations in this subpart; or
    (2) Require an FSA county committee to withhold taking any action 
that is not in accordance with this subpart.
    (d) No delegation to an FSA State or county committee precludes the 
FSA Administrator, the Deputy Administrator, or a designee, from 
determining any question arising under 2017 WHIP or from reversing or 
modifying any determination made by an FSA State or county committee.
    (e) The Deputy Administrator has the authority to permit State and 
county committees to waive or modify a non-statutory deadline specified 
in this part.
    (f) Items of general applicability to program participants, 
including, but not limited to, application periods, application 
deadlines, internal operating guidelines issued to FSA State and county 
offices, prices, yields, and payment factors established for 2017 WHIP, 
are not subject to appeal in accordance with part 780 of this chapter.


Sec.  760.1502  Definitions.

    The following definitions apply to this subpart. The definitions in 
Sec. Sec.  718.2 and 1400.3 of this title also apply, except where they 
conflict with the definitions in this section. In the event of 
conflict, the definitions in this section apply.
    2017 WHIP factor means the factor in Sec.  760.1511, determined by 
the Deputy Administrator, that is based on the crop insurance or NAP 
coverage level elected by the 2017 WHIP participant for a crop for 
which a payment is being requested; or, as applicable, the factor that 
applies for a crop of a crop year where the participant had no 
insurance or NAP coverage.
    2017 WHIP yield means, for a unit:
    (1) For an insured crop, excluding crops located in Puerto Rico, 
the approved federal crop insurance APH, for the disaster year;
    (2) For a NAP covered crop, excluding crops located in Puerto Rico, 
the approved yield for the disaster year;
    (3) For a crop located in Puerto Rico or an uninsured crop, 
excluding citrus crops located in Florida, the county expected yield 
for the disaster year; and
    (4) For citrus crops located in Florida, the yield based on 
documentation submitted according to Sec.  760.1511(c)(3), or if 
documentation is not submitted, the county expected yield.
    Actual production means the total quantity of the crop appraised, 
harvested, or assigned, as determined by the FSA State or county 
committee in accordance with instructions issued by the Deputy 
Administrator.
    Administrative county office means the FSA county office designated 
to make determinations, handle official records, and issue payments for 
the farm as specified in accordance part 718 of this title.
    Appraised production means the amount of production determined by 
FSA, or a company reinsured by the Federal Crop Insurance Corporation 
(FCIC), that was unharvested but was determined to reflect the crop's 
yield potential at the time of appraisal.
    Approved yield means the amount of production per acre, computed as 
specified in FCIC's Actual Production History (APH) Program in part 
400, subpart G of this title or, for crops not included in part 400, 
subpart G of this title, the yield used to determine the guarantee. For 
crops covered under NAP, the approved yield is established according to 
part 1437 of this title.
    Average adjusted gross farm income means the average of the portion 
of adjusted gross income of the person or legal entity that is 
attributable to activities related to farming, ranching, or forestry 
for the 2013, 2014, and 2015 tax years. The 2013, 2014, and 2015 tax 
years are the relevant years to calculate AGI for 2017 WHIP.
    Average adjusted gross income means the average of the adjusted 
gross income as defined under 26 U.S.C. 62 or comparable measure of the 
person or legal entity for the 2013, 2014, and 2015 tax years.
    Bush means, a low, branching, woody plant, from which at maturity 
of the bush, an annual fruit or vegetable crop is produced for 
commercial market for human consumption, such as a blueberry bush. The 
definition does not cover nursery stock or plants that produce a bush 
after the normal crop is harvested.
    Buy-up NAP coverage means NAP coverage 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.
    Catastrophic coverage has the meaning as defined in Sec.  1437.3 of 
this title.
    Citrus crops and citrus trees include grapefruit, lemon, lime, 
Mandarin, Murcott, orange (all types), pummelo (pomelo), tangelo, 
tangerine, tangor.
    County disaster yield means the average yield per acre calculated 
for a county or part of a county for the current year based on disaster 
events, and is intended to reflect the amount of production that a 
participant would have been expected to make based on the eligible 
disaster conditions in the county or area, as determined by the FSA 
county committee in accordance with instructions issued by the Deputy 
Administrator.
    County expected yield has the meaning assigned in Sec.  1437.102(b) 
of this title.
    Coverage level means the percentage determined by multiplying the 
elected yield percentage under a crop insurance policy or NAP coverage 
by the elected price percentage.
    Crop insurance means an insurance policy reinsured by FCIC under 
the provisions of the Federal Crop Insurance Act, as amended. It does 
not include private plans of insurance.
    Crop insurance indemnity means, for the purpose of this subpart, 
the payment to a participant for crop losses covered under crop 
insurance administered by RMA in accordance with the Federal Crop 
Insurance Act (7 U.S.C. 1501-1524).
    Crop year means:
    (1) For insurable crops, trees, bushes, and vines, the crop year as 
defined according to the applicable crop insurance policy;
    (2) For NAP eligible crops, the crop year as defined in Sec.  
1437.3 of this title;
    (3) For uninsurable trees, bushes, and vines, the 2017 crop year.
    Damage factor means a percentage of the value lost when a tree, 
bush, or vine is damaged and requires rehabilitation but is not 
completely destroyed, as determined by the Deputy Administrator.
    Eligible crop means a crop for which coverage was available either 
from FCIC under part 400 of this title, or through

[[Page 33803]]

NAP under Sec.  1437.4 of this title, that was affected by a qualifying 
disaster event.
    Eligible disaster event means a disaster event that was:
    (1) For insured crops, an eligible cause of loss under the 
applicable crop insurance policy for the crop year;
    (2) For NAP covered crops and uninsured crops, an eligible cause of 
loss as specified in Sec.  1437.10 of this title.
    End use means the purpose for which the harvested crop is used, 
such as grain, hay, or seed.
    Expected production means, for an agricultural unit, the historic 
yield multiplied by the number of planted or prevented planted acres of 
the crop for the unit.
    FCIC means the Federal Crop Insurance Corporation, a wholly owned 
Government Corporation of USDA, administered by RMA.
    Final planting date means the latest date, established by RMA for 
insurable crops, by which the crop must initially be planted in order 
to be insured for the full production guarantee or amount of insurance 
per acre. For NAP eligible crops, the final planting date is as defined 
in Sec.  1437.3 of this title.
    Growth stage means a classification system for trees, bushes, and 
vines based on a combination of age and production capability, 
determined by:
    (1) The applicable insurance policy for insurable trees, bushes, 
and vines; or
    (2) The Deputy Administrator for trees, bushes, and vines for which 
RMA does not offer an insurance policy.
    Harvested means:
    (1) For insurable crops, harvested as defined according to the 
applicable crop insurance policy;
    (2) For NAP eligible single harvest crops, that a crop has been 
removed from the field, either by hand or mechanically;
    (3) For NAP eligible crops with potential multiple harvests in 1 
year or harvested over multiple years, that the producer has, by hand 
or mechanically, removed at least one mature crop from the field during 
the crop year;
    (4) For mechanically-harvested NAP eligible crops, that the crop 
has been removed from the field and placed in a truck or other 
conveyance, except hay is considered harvested when in the bale, 
whether removed from the field or not. Grazed land will not be 
considered harvested for the purpose of determining an unharvested or 
prevented planting payment factor.
    Insurable crop means an agricultural crop (excluding livestock) for 
which the producer on a farm is eligible to obtain a policy or plan of 
insurance under the Federal Crop Insurance Act (7 U.S.C. 1501-1524).
    Multi-use crop means a crop intended for more than one end use 
during the calendar year such as grass harvested for seed, hay, and 
grazing.
    Multiple cropping means the planting of two or more different crops 
on the same acreage for harvest within the same crop year.
    Multiple planting means the planting for harvest of the same crop 
in more than one planting period in a crop year on different acreage.
    NASS means the National Agricultural Statistics Service.
    NAP means the Noninsured Crop Disaster Assistance Program under 
section 196 of the Federal Agriculture Improvement and Reform Act of 
1996 (7 U.S.C. 7333) and part 1437 of this title.
    NAP covered crop means a crop for which the producer on a farm 
obtained NAP coverage.
    NAP eligible crop means an agricultural crop for which the producer 
on a farm is eligible to obtain NAP coverage.
    NAP service fee means the amount the producer must pay to obtain 
NAP coverage.
    Planted acreage means land in which seed, plants, or trees have 
been placed, appropriate for the crop and planting method, at a correct 
depth, into a seedbed that has been properly prepared for the planting 
method and production practice normal to the USDA plant hardiness zone 
as determined by the county committee.
    Prevented planting means the inability to plant an eligible crop 
with proper equipment during the planting period as a result of an 
eligible cause of loss, as determined by FSA.
    Price means price per unit of the crop or commodity and will be:
    (1) For an insured crop under a crop insurance policy that 
establishes a price to determine liability, that established price;
    (2) For an insured crop under a crop insurance policy that does not 
establish a price to determine crop insurance liability, the county 
average price, as determined by FSA;
    (3) For a NAP covered crop or uninsured crop, the average market 
price determined in Sec.  1437.12 of this title; or
    (4) For a tree, bush, or vine, the price determined by the Deputy 
Administrator based on the species of tree, bush, or vine and its 
growth stage.
    Production means quantity of the crop or commodity produced 
expressed in a specific unit of measure including, but not limited to, 
bushels or pounds. Production under this subpart includes all harvested 
production, unharvested appraised production, and assigned production 
for the total planted acreage of the crop on the unit.
    Qualifying disaster event means a hurricane or wildfire or related 
condition that occurred in the 2017 calendar year.
    Related condition means damaging weather or an adverse natural 
occurrence that occurred as a direct result of a hurricane or wildfire, 
as determined by FSA, such as excessive rain, high winds, flooding, 
mudslides, and heavy smoke, as determined by the Deputy Administrator.
    Repeat crop means, with respect to production, a commodity that is 
planted or prevented from being planted in more than one planting 
period on the same acreage in the same crop year.
    RMA means the Risk Management Agency.
    Salvage value means the dollar amount or equivalent for the 
quantity of the commodity that cannot be marketed or sold in any 
recognized market for the crop.
    Secondary use means the harvesting of a crop for a use other than 
the intended use.
    Secondary use value means the value determined by multiplying the 
quantity of secondary use times the FSA-established price for that use.
    Tree means a tall, woody plant having comparatively great height, 
and a single trunk from which an annual crop is produced for commercial 
market for human consumption, such as a maple tree for syrup, or papaya 
or orchard tree for fruit. It includes immature trees that are intended 
for commercial purposes. Nursery stock, banana and plantain plants, and 
trees used for pulp or timber are not considered eligible trees under 
this subpart.
    Tropical crops is defined in Sec.  1437.501 of this title.
    Tropical region is defined in Sec.  1437.502 of this title.
    Unharvested payment factor means a percentage established by FSA 
for a crop and applied in a payment formula to reduce the payment for 
reduced expenses incurred because commercial harvest was not performed.
    Uninsured means a crop that was not covered by crop insurance or 
NAP for the crop year for which a 2017 WHIP payment is being requested.
    Unit means, unless otherwise determined by the Deputy 
Administrator, basic unit as defined in part 457 or Sec.  1437.9 of 
this title, for ornamental nursery production, includes all eligible 
plant species and sizes.
    Unit of measure means:

[[Page 33804]]

    (1) For insurable crops, the FCIC-established unit of measure; and
    (2) For NAP eligible crops, the established unit of measure used 
for the NAP price and yield.
    USDA means the U.S. Department of Agriculture.
    USDA Plant Hardiness Zone means the 11 regions or planting zones as 
defined by a 10 degree Fahrenheit difference in the average annual 
minimum temperature.
    Value loss crop has the meaning specified in subpart D, of part 
1437 of this title.
    Vine means a perennial plant grown under normal conditions from 
which an annual fruit crop is produced for commercial market for human 
consumption, such as grape, kiwi, or passion fruit, and that has a 
flexible stem supported by climbing, twining, or creeping along a 
surface. Nursery stock, perennials that are normally propagated as 
annuals such as tomato plants, biennials such as strawberry plants, and 
annuals such as pumpkin, squash, cucumber, watermelon, and other melon 
plants, are excluded from the term vine in this subpart.
    Yield means unit of production, measured in bushels, pounds, or 
other unit of measure, per area of consideration, usually measured in 
acres.


Sec.  760.1503   Eligibility.

    (a) Participants will be eligible to receive a 2017 WHIP payment 
under this subpart only if they incurred a loss to an eligible crop, 
tree, bush, or vine due to a qualifying disaster event, as further 
specified in this subpart.
    (b) To be an eligible participant under this subpart a producer who 
is a person or legal entity must be a:
    (1) Citizen of the United States;
    (2) Resident alien; for purposes of this subpart, resident alien 
means ``lawful alien;''
    (3) Partnership consisting of citizens of the United States or 
resident aliens; or
    (4) Corporation, limited liability company, or other organizational 
structure organized under State law.
    (c) If any person who would otherwise be eligible to receive a 
payment dies before the payment is received, payment may be released as 
specified in Sec.  707.3 of this title. Similarly, if any person or 
legal entity who would otherwise been eligible to apply for a payment 
dies or is dissolved, respectively, before the payment is applied for, 
payment may be released in accordance with this subpart if a timely 
application is filed by an authorized representative. Proof of 
authority to sign for the deceased producer or dissolved entity must be 
provided. If a participant is now a dissolved general partnership or 
joint venture, all members of the general partnership or joint venture 
at the time of dissolution or their duly authorized representatives 
must sign the application for payment. Eligibility of such participant 
will be determined, as it is for other participants, based upon 
ownership share and risk in producing the crop.
    (d) Growers growing eligible crops under contract for crop owners 
are not eligible unless the grower is also determined to have an 
ownership share of the crop. Any verbal or written contract that 
precludes the grower from having an ownership share renders the grower 
ineligible for payments under this subpart.
    (e) A person or legal entity is not eligible to receive disaster 
assistance under this subpart if it is determined by FSA that the 
person or legal entity:
    (1) Adopted any scheme or other device that tends to defeat the 
purpose of this subpart or any of the regulations applicable to this 
subpart;
    (2) Made any fraudulent representation; or
    (3) Misrepresented any fact affecting a program determination under 
any or all of the following: This subpart and parts 12, 400, 1400, and 
1437 of this title.
    (g) A person ineligible for crop insurance or NAP under Sec. Sec.  
400.458 or 1437.16 of this title, respectively, for any year is 
ineligible for payments under this subpart for the same year.
    (h) The provisions of Sec.  718.11 of this title, providing for 
ineligibility for payments for offenses involving controlled 
substances, apply.
    (i) As a condition of eligibility to receive payments under this 
subpart, the participant must have been in compliance with the Highly 
Erodible Land Conservation and Wetland Conservation provisions of part 
12 of this title for the applicable crop year for which the producer is 
applying for 2017 WHIP benefits, and must not otherwise be precluded 
from receiving payments under parts 12, 400, 1400, or 1437 of this 
title or any law.


Sec.  760.1504   Miscellaneous provisions.

    (a) All persons with a financial interest in the legal entity 
receiving payments under this subpart are jointly and severally liable 
for any refund, including related charges, which is determined to be 
due to FSA for any reason.
    (b) In the event that any application for payment under this 
subpart resulted from erroneous information or a miscalculation, the 
payment will be recalculated and any excess refunded to FSA with 
interest to be calculated from the date of the disbursement.
    (c) Any payment to any participant under this subpart will be made 
without regard to questions of title under State law, and without 
regard to any claim or lien against the commodity, or proceeds, in 
favor of the owner or any other creditor except agencies of the U.S. 
Government. The regulations governing offsets and withholdings in part 
792 of this chapter apply to payments made under this subpart.
    (d) Any participant entitled to any payment may assign any 
payment(s) in accordance with regulations governing the assignment of 
payments in part 792 of this chapter.
    (e) The regulations in parts 11 and 780 of this title apply to 
determinations under this subpart.


Sec.  760.1505   General provisions.

    (a) For loss calculations, the participant's unit structure will 
be:
    (1) For an insured crop, the participant's existing unit structure 
established in accordance with part 457 of this title;
    (2) For a crop with NAP coverage, the participant's existing unit 
structure established in accordance with part 1437 of this title;
    (3) For an uninsured crop, the participant's unit structure 
established in accordance with part 1437 of this title.
    (b) FSA county committees will make the necessary adjustments to 
assign production or reduce the 2017 WHIP yield when the county 
committee determines:
    (1) An acceptable appraisal or record of harvested production does 
not exist;
    (2) The loss is due to an ineligible cause of loss;
    (3) The loss is due to practices, soil type, climate, or other 
environmental factors that cause lower yields than those upon which the 
historic yield is based;
    (4) The participant has a contract providing a guaranteed payment 
for all or a portion of the crop; or
    (5) The crop was planted beyond the normal planting period for the 
crop.
    (c) Assignment of production or reduction in yield will apply for 
practices that result in lower yields than those for which the historic 
yield is based.
    (d) Eligibility and payments for 2017 WHIP will be determined based 
on a unit's:
    (1) Physical location county for insured crops; and
    (2) Administrative county for NAP covered crops and uninsured 
crops.

[[Page 33805]]

    (e) FSA may separate or combine types and varieties as a crop for 
2017 WHIP eligibility and payment purposes when specific credible 
information as determined by FSA shows the crop of a specific type or 
variety has a significantly different or similar value, respectively, 
when compared to other types or varieties, as determined by the Deputy 
Administrator.
    (f) Unless otherwise specified, all the eligibility provisions of 
part 1437 of this title apply to value loss crops and tropical crops 
under this subpart.
    (g) The quantity or value of a crop will not be reduced for any 
quality consideration unless a zero value is established based on a 
total loss of quality.
    (h) FSA will use the best data available to calculate a 2017 WHIP 
payment at the time 2017 WHIP payments are calculated. If additional 
data or information is provided or becomes available after a 2017 WHIP 
payment is issued, FSA will recalculate the payment amount and the 
producer must return any overpayment amount to FSA. In all cases, 2017 
WHIP payments can only issue based on the payment formula for losses 
that affirmatively occurred.


Sec.  760.1506   Availability of funds and timing of payments.

    (a) An initial payment will be issued for 50 percent of each 2017 
WHIP payment calculated according to this subpart, as determined by the 
Secretary. The remainder of the calculated 2017 WHIP payment will be 
paid to a participant only after the application period has ended and 
any crop insurance indemnity or NAP payment the participant is entitled 
to receive for the crop has been calculated and reported to FSA, and 
then only if there are funds available for such payment as discussed in 
this subpart.
    (b) In the event that, within the limits of the funding made 
available by the Secretary, approval of eligible applications would 
result in payments in excess of the amount available, FSA will prorate 
payments by a national factor to reduce the payments to an amount that 
is less than available funds as determined by the Secretary. FSA will 
prorate the payments in such manner as it determines equitable.
    (c) Applications and claims that are unpaid or prorated for any 
reason will not be carried forward for payment under other funds for 
later years or otherwise, but will be considered, as to any unpaid 
amount, void and nonpayable.


Sec.  760.1507   Payment limitation.

    (a) For any 2017 WHIP payments for the 2017 or 2018 crop year 
combined, a person or legal entity, other than a joint venture or 
general partnership, is eligible to receive, directly or indirectly, 
2017 WHIP payments of not more than:
    (1) $125,000, if less than 75 percent of the person or legal 
entity's average adjusted gross income is average adjusted gross farm 
income; or
    (2) $900,000, if not less than 75 percent of the average adjusted 
gross income of the person or legal entity is average adjusted gross 
farm income.
    (b) For 2017 WHIP eligibility, a person or legal entity's average 
adjusted gross income and average adjusted gross farm income are 
determined based on the 2013, 2014, and 2015 tax years.
    (c) To be eligible for more than $125,000 in 2017 WHIP payments, a 
person or legal entity must submit FSA-892 and provide a certification 
in the manner prescribed by FSA from a certified public accountant or 
attorney that at least 75 percent of the person or legal entity's 
average adjusted gross income was average adjusted gross farm income. 
Persons or legal entities who fail to provide FSA-892 and the required 
certification may not receive a 2017 WHIP payment, directly or 
indirectly, of more than $125,000.
    (d) The direct attribution provisions in part 1400 of this chapter 
apply to 2017 WHIP for both payment limitation as well as in 
determining average AGI as defined and used in this rule.


Sec.  760.1508   Qualifying disaster events.

    (a) A producer will be eligible for 2017 WHIP payments for a crop, 
tree, bush, or vine loss only if the producer suffered a loss to the 
crop, tree, bush, or vine on the unit due to a qualifying disaster 
event.
    (b) For a loss due to hurricane and conditions related to 
hurricanes, the crop, tree, bush, or vine loss must have occurred on 
acreage that was physically located in a county that received a:
    (1) Presidential Emergency Disaster Declaration authorizing public 
assistance for categories C through G or individual assistance due to a 
hurricane occurring in the 2017 calendar year; or
    (2) Secretarial Disaster Designation for a hurricane occurring in 
the 2017 calendar year.
    (c) A producer with crop, tree, bush, or vine losses on acreage not 
located in a physical location county that was eligible under paragraph 
(b)(1) of this section will be eligible for 2017 WHIP for losses due to 
hurricane and related conditions only if the producer provides 
supporting documentation that is acceptable to FSA from which the FSA 
county committee determines that the loss of the crop, tree, bush, or 
vine on the unit was reasonably related to a qualifying disaster event 
as specified in this subpart. Supporting documentation may include 
furnishing climatological data from a reputable source or other 
information substantiating the claim of loss due to a qualifying 
disaster event.
    (d) For a loss due to wildfires and conditions related to wildfire 
in the 2017 calendar year, all counties where wildfires occurred, as 
determined by FSA county committees, are eligible for 2017 WHIP; a 
Presidential Emergency Disaster Declaration or Secretarial Disaster 
Designation for wildfire is not required. The loss of the crop, tree, 
bush, or vine must be reasonably related to wildfire and conditions 
related to wildfire, as specified in this subpart's definition of 
qualifying disaster event.


Sec.  760.1509   Eligible and ineligible losses.

    (a) Except as provided in paragraphs (b) through (e) of this 
section, to be eligible for payments under this subpart the unit must 
have suffered a loss of the crop, tree, bush, or vine, or prevented 
planting of a crop, due to a qualifying disaster event.
    (b) A loss will not be eligible for 2017 WHIP if any of the 
following apply:
    (1) The cause of loss is determined by FSA to be the result of poor 
management decisions, poor farming practices, or drifting herbicides;
    (2) The cause of loss was due to failure of the participant to re-
seed or replant to the same crop in a county where it is customary to 
re-seed or replant after a loss before the final planting date;
    (3) The cause of loss was due to water contained or released by any 
governmental, public, or private dam or reservoir project if an 
easement exists on the acreage affected by the containment or release 
of the water;
    (4) The cause of loss was due to conditions or events occurring 
outside of the applicable growing season for the crop, tree, bush, or 
vine; or
    (5) The cause of loss was due to failure of a power supply or 
brownout.
    (c) The following types of loss, regardless of whether they were 
the result of an eligible disaster event, are not eligible losses:
    (1) Losses to crops intended for grazing;
    (2) Losses to crops for which FCIC coverage or NAP coverage is 
unavailable;
    (3) Losses to volunteer crops;
    (4) Losses to crops not intended for harvest;
    (5) Losses of by-products resulting from processing or harvesting a 
crop,

[[Page 33806]]

such as, but not limited to, cotton seed, peanut shells, wheat or oat 
straw, or corn stalks or stovers;
    (6) Losses to home gardens; or
    (7) Losses of first year seeding for forage production, or immature 
fruit crops.
    (d) The following losses of ornamental nursery stock are not 
eligible losses:
    (1) Losses caused by the inability to market nursery stock as a 
result of lack of compliance with State and local commercial ordinances 
and laws, quarantine, boycott, or refusal of a buyer to accept 
production;
    (2) Losses affecting crops where weeds and other forms of 
undergrowth in the vicinity of nursery stock have not been controlled; 
or
    (3) Losses caused by the collapse or failure of buildings or 
structures.
    (e) The following losses for honey, as a crop, where the honey 
production by colonies or bees was diminished, are not eligible losses:
    (1) Losses caused by the unavailability of equipment or the 
collapse or failure of equipment or apparatus used in the honey 
operation;
    (2) Losses caused by improper storage of honey;
    (3) Losses caused by bee feeding;
    (4) Losses caused by the application of chemicals;
    (5) Losses caused by theft;
    (6) Losses caused by the movement of bees by or for the 
participant;
    (7) Losses caused by disease or pest infestation of the colonies, 
unless approved by the Deputy Administrator;
    (8) Losses of income from pollinators; or
    (9) Losses of equipment or facilities.
    (f) Qualifying losses for trees, bushes, and vines will not include 
losses:
    (1) That could have been prevented through reasonable and available 
measures; and
    (2) To trees, bushes, or vines that were abandoned or were not in 
use or intended for commercial operation at the time of the loss.


Sec.  760.1510   Application for 2017 WHIP payment.

    (a) The 2017 WHIP application must be submitted on a completed form 
FSA-890, Wildfires and Hurricanes Indemnity Program Application, to the 
FSA county office serving as the farm's administrative county office by 
the close of business on a date that will be announced by the Deputy 
Administrator.
    (b) Once signed by a producer, the application for payment is 
considered to contain information and certifications of and pertaining 
to the producer regardless of who entered the information on the 
application.
    (c) The producer applying for 2017 WHIP payment certifies the 
accuracy and truthfulness of the information provided in the 
application as well as any documentation filed with or in support of 
the application. All information is subject to verification or spot 
check by FSA at any time, either before or after payment is issued. 
Refusal to allow FSA or any agency of the Department of Agriculture to 
verify any information provided will result in the participant's 
forfeiting eligibility for 2017 WHIP. FSA may at any time, including 
before, during, or after processing and paying an application, require 
the producer to submit any additional information necessary to 
implement or determine any eligibility provision of this subpart. 
Furnishing required information is voluntary; however, without it FSA 
is under no obligation to act on the application or approve payment. 
Providing a false certification will result in ineligibility and can 
also be punishable by imprisonment, fines, and other penalties.
    (d) The application submitted in accordance with paragraph (a) of 
this section is not considered valid and complete for issuance of 
payment under this subpart unless FSA determines all the applicable 
eligibility provisions have been satisfied and the participant has 
submitted all of following completed forms and information:
    (1) FSA-891, Crop Insurance and/or NAP Coverage Agreement;
    (2) Report of all acreage for the crop for the unit for which 2017 
WHIP payments are requested, on FSA-578, Report of Acreage, or in 
another format acceptable to FSA;
    (3) AD-1026, Highly Erodible Land Conservation (HELC) and Wetland 
Conservation Certification; and
    (4) FSA-892, Request for an Exception to the WHIP Payment 
Limitation of $125,000, if the applicant is requesting 2017 WHIP 
payments in excess of the $125,000 payment limitation; and
    (5) FSA-893, 2018 Citrus Actual Production History and Approved 
Yield Record, Florida Only, for participants applying for payment for a 
citrus crop located in Florida.
    (e) Application approval and payment by FSA does not relieve a 
participant from having to submit any form required, but not filed, 
according to paragraph (d) of this section.


Sec.  760.1511  Calculating payments for yield-based crop losses.

    (a) Payments made under this subpart to a participant for a loss to 
yield-based crops, including losses due to prevented planting, are 
determined for a unit by:
    (1) Multiplying the eligible acres by the 2017 WHIP yield in 
paragraph (c) of this section by the price;
    (2) Multiplying the result from paragraph (a)(1) of this section by 
the applicable 2017 WHIP factor in paragraph (b) of this section;
    (3) Multiplying the applicable production in paragraph (d) of this 
section by the price;
    (4) Subtracting the result from paragraph (a)(3) of this section 
from the result of paragraph (a)(2) of this section;
    (5) Multiplying the result from paragraph (a)(4) of this section by 
the participant's share in paragraph (e) of this section;
    (6) Multiplying the result from paragraph (a)(5) of this section by 
the applicable payment factor in paragraph (f) of this section;
    (7) Subtracting the amount of the gross insurance indemnity or NAP 
payment from the result from paragraph (a)(6) of this section; and
    (8) Subtracting the secondary use or salvage value of the crop from 
the result from paragraph (a)(7) of this section.
    (b) If the NAP or crop insurance coverage is at the coverage level 
listed in the first column, then the 2017 WHIP factor is listed in the 
second column:

------------------------------------------------------------------------
                                                              2017 WHIP
                       Coverage Level                           factor
                                                              (percent)
------------------------------------------------------------------------
(1) No crop insurance or No NAP coverage...................           65
(2) Catastrophic coverage..................................           70
(3) More than catastrophic coverage but less than 55                72.5
 percent...................................................
(4) At least 55 percent but less than 60 percent...........           75
(5) At least 60 percent but less than 65 percent...........         77.5
(6) At least 65 percent but less than 70 percent...........           80
(7) At least 70 percent but less than 75 percent...........           85
(8) At least 75 percent but less than 80 percent...........           90
(9) At least 80 percent....................................           95
------------------------------------------------------------------------

    (c) The 2017 WHIP yield is:
    (1) The producer's APH for insured crops under a crop insurance 
policy that has an associated yield and for NAP covered crops, 
excluding all crops located in Puerto Rico;
    (2) The county expected yield for crops located in Puerto Rico and 
uninsured crops, excluding citrus crops located in Florida; or
    (3) For uninsured citrus crops located in Florida:
    (i) Determined based on information provided on FSA-893 and 
supported by

[[Page 33807]]

evidence that meets the requirements of Sec.  760.1513(c), or
    (ii) If FSA-893 and supporting documentation are not submitted, the 
county expected yield.
    (d) The production used to calculate a 2017 WHIP payment will be 
determined as specified in Sec.  760.1513.
    (e) The eligible participant's share of a 2017 WHIP payment is 
based on the participant's ownership entitlement share of the crop or 
crop proceeds, or, if no crop was produced, the share of the crop the 
participant would have received if the crop had been produced. If the 
participant has no ownership share of the crop, the participant is 
ineligible for 2017 WHIP.
    (f) Payment factors will be used to calculate payments for crops 
produced with significant and variable production and harvesting 
expenses that are not incurred because the crop acreage was prevented 
planted, or planted but not harvested, as determined by FSA. The use of 
payment factors is based on whether the crop acreage was unharvested or 
prevented planted, not whether a participant actually incurs or does 
not incur expenses. Payment factors are generally applicable to all 
similarly situated participants and are not established in response to 
individual participants. Accordingly established payment factors are 
not appealable under parts 11 and 780 of this title. A crop that is 
intended for mechanical harvest, but subsequently grazed and not 
mechanically harvested, will have an unharvested payment factor 
applied.
    (g) Production from all end uses of a multi-use crop will be 
calculated separately and summarized together.


Sec.  760.1512   Production losses; participant responsibility.

    (a) For any record submitted along with the certification of 
production, the record must be either a verifiable or reliable record 
that substantiates the certification to the satisfaction of the FSA 
county committee. If the eligible crop was sold or otherwise disposed 
of through commercial channels, a record of that disposition must be 
provided to FSA with the certification.
    (1) Acceptable production records include:
    (i) RMA or NAP records, if accurate and complete;
    (ii) Commercial receipts;
    (iii) Settlement sheets;
    (iv) Warehouse ledger sheets or load summaries; or
    (v) Appraisal information from a loss adjuster acceptable to FSA.
    (2) If the eligible crop was farm-stored, sold, fed to livestock, 
or disposed of by means other than verifiable commercial channels, 
acceptable records for these purposes include:
    (i) Truck scale tickets;
    (ii) Appraisal information from a loss adjuster acceptable to FSA;
    (iii) Contemporaneous reliable diaries; or
    (iv) Other documentary evidence, such as contemporaneous reliable 
measurements.
    (3) Determinations of reliability with respect to this paragraph 
will take into account, as appropriate, the ability for FSA to review 
and verify or compare the evidence against the similarity of the 
evidence or reports or data received by FSA for the crop or similar 
crops. Other factors deemed relevant may also be taken into account.
    (b) If RMA or NAP records are not available, or if the FSA county 
committee determines the RMA or NAP records as reported by the insured 
or covered participant appear to be questionable or incomplete, or if 
the FSA county committee makes inquiry, the participant is responsible 
for:
    (1) Retaining and providing, at time of application and whenever 
required by FSA, the best available verifiable or reliable or other 
production records for the crop;
    (2) Summarizing all the production evidence;
    (3) Accounting for the total amount of unit production for the 
crop, whether or not records reflect this production;
    (4) Providing the information in a manner that can be easily 
understood by the FSA county committee; and
    (5) Providing supporting documentation if the FSA county committee 
has reason to question the disaster event or that all production has 
been taken into account.
    (c) FSA may verify the production evidence submitted with records 
on file at the warehouse, gin, or other entity that received or may 
have received the reported production.
    (d) Participants must provide all records for any production of a 
crop that is grown with an arrangement, agreement, or contract for 
guaranteed payment.


Sec.  760.1513   Determination of production.

    (a) The harvested production of eligible crop acreage harvested 
more than once in a crop year includes the total harvested production 
from all the harvests in the crop year.
    (b) If a crop is appraised and subsequently harvested as the 
intended use, the actual harvested production must be taken into 
account to determine payments. FSA will analyze and determine whether a 
participant's evidence of actual production represents all that could 
or would have been harvested.
    (c) For all crops eligible for loan deficiency payments or 
marketing assistance loans (see parts 1421 and 1434 of this title) with 
an intended use of grain but harvested as silage, ensilage, cabbage, 
hay, cracked, rolled, or crimped, production will be converted to a 
whole grain equivalent based on conversion factors as previously 
established by FSA.
    (d) If a participant does not receive compensation based upon the 
quantity of the commodity delivered to a purchaser, but has an 
agreement or contract for guaranteed payment for production, the 
determination of the production will be the greater of the actual 
production or the guaranteed payment converted to production as 
determined by FSA.
    (e) Production that is commingled between crop years, units, 
ineligible and eligible acres, or different practices before it was a 
matter of record or combination of record and cannot be separated by 
using records or other means acceptable to FSA will be prorated to each 
respective year, unit, type of acreage, or practice, respectively. 
Commingled production may be attributed to the applicable unit, if the 
participant made the unit production of a commodity a matter of record 
before commingling and does any of the following, as applicable:
    (1) Provides copies of verifiable documents showing that production 
of the commodity was purchased, acquired, or otherwise obtained from 
beyond the unit;
    (2) Had the production measured in a manner acceptable to the FSA 
county committee; or
    (3) Had the current year's production appraised in a manner 
acceptable to the FSA county committee.
    (f) The FSA county committee will assign production for the unit 
when the FSA county committee determines that:
    (1) The participant has failed to provide adequate and acceptable 
production records;
    (2) The loss to the crop is because of a disaster condition not 
covered by this subpart, or circumstances other than natural disaster, 
and there has not otherwise been an accounting of this ineligible cause 
of loss;
    (3) The participant carries out a practice, such as multiple 
cropping, that generally results in lower yields than the established 
historic yields;
    (5) A crop was late-planted;
    (6) Unharvested acreage was not timely appraised; or

[[Page 33808]]

    (7) Other appropriate causes exist for such assignment as 
determined by the Deputy Administrator.
    (g) The FSA county committee will establish a county disaster yield 
that reflects the amount of production producers would have produced 
considering the eligible disaster events in the county or area for the 
same crop. The county disaster yield for the county or area will be 
expressed as either a percent of loss or yield per acre. The county 
disaster yield will apply when:
    (1) Unharvested acreage has not been appraised by FSA or a company 
reinsured by FCIC; or
    (2) Acceptable production records for harvested acres are not 
available from any source.
    (h) In no case will the production amount of any applicant be less 
than the producer's certified loss.


Sec.  760.1514   Eligible acres.

    (a) Eligible acreage will be calculated using the lesser of the 
reported or determined acres shown to have been planted or prevented 
from being planted to a crop.
    (b) Initial crop acreage will be the payment acreage for 2017 WHIP, 
unless the provisions for subsequent crops in this section are met. 
Subsequently planted or prevented planted acre acreage is considered 
acreage for 2017 WHIP only if the provisions of this section are met. 
All plantings of an annual or biennial crop are considered the same as 
a planting of an initial crop in tropical regions as defined in part 
1437, subpart F, of this title.
    (c) In cases where there is double cropped acreage, each crop may 
be included in the acreage for 2017 WHIP only if the specific crops are 
approved by the FSA State committee as eligible double cropping 
practices in accordance with procedures approved by the Deputy 
Administrator.
    (d) Except for insured crops, participants with double cropped 
acreage not meeting the criteria in paragraph (c) of this section may 
have such acreage included in the acreage for 2017 WHIP on more than 
one crop only if the participant submits verifiable records 
establishing a history of carrying out a successful double cropping 
practice on the specific crops for which payment is requested.
    (e) Participants having multiple plantings may receive payments for 
each planting included only if the planting meets the requirements of 
part 1437 of this title and all other provisions of this subpart are 
satisfied.
    (f) Losses due to prevented planting are eligible for 2017 WHIP 
only if the loss was due to a qualifying disaster event. Provisions of 
parts 718 and 1437 of this title specifying what is considered 
prevented planting and how it must be documented and reported will 
apply to 2017 WHIP. Crops located in tropical regions are not eligible 
for prevented planting.
    (g) Subject to the provisions of this subpart, the FSA county 
committee will:
    (1) Use the most accurate data available when determining planted 
and prevented planted acres; and
    (2) Disregard acreage of a crop produced on land that is not 
eligible for crop insurance or NAP.
    (h) If a farm has a crop that has both FSA and RMA acreage for 
insured crops, eligible acres for 2017 WHIP will be based on the lesser 
of RMA or FSA acres.


Sec.  760.1515   Calculating payments for value loss crops.

    (a) Payments made under this subpart to a participant for a loss on 
a unit with respect to value loss crops are determined by:
    (1) Multiplying the field market value of the crop immediately 
before the qualifying disaster event by the 2017 WHIP factor specified 
in Sec.  760.1511(b);
    (2) Subtracting the sum of the field market value of the crop 
immediately after the qualifying disaster event and the value of the 
crop lost due to 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 participant's share;
    (4) Multiplying the result from paragraph (a)(3) of this section by 
the applicable payment factor;
    (5) Subtracting the gross insurance indemnity or NAP payment from 
the result from paragraph (a)(4) of this section; and
    (7) Subtracting the secondary use or salvage value of the crop from 
the result from paragraph (a)(5) of this section.
    (b) In the case of an insurable value loss crop for which crop 
insurance provides for an adjustment in the guarantee, liability, or 
indemnity, such as in the case of inventory exceeding peak inventory 
value, the adjustment will be used in determining the 2017 WHIP payment 
for the crop.
    (c) In the case of a NAP eligible value loss crop for which NAP 
provides for an adjustment in the level of assistance, such as in the 
case of unharvested field grown inventory, the adjustment will be used 
in determining the 2017 WHIP payment for the crop.


Sec.  760.1516   Calculating payments for tree, bush, and vine losses.

    (a) Payments will be calculated separately based on the growth 
stage of the trees, bushes, or vines, as determined by the Deputy 
Administrator.
    (b) Payments made under this subpart to a participant for a loss on 
a unit with respect to tree, bush, and vine losses are determined by:
    (1) Multiplying the expected value (see paragraph (c) of this 
section) of the trees, bushes, or vines immediately before the 
qualifying disaster event by the 2017 WHIP factor specified in Sec.  
760.1511(b);
    (2) Subtracting the actual value (see paragraph (d) of this 
section) of the trees, bushes, or vines immediately after the 
qualifying disaster event from the result of paragraph (b)(1) of this 
section;
    (3) Multiplying the result of paragraph (b)(2) of this section by 
the participant's share;
    (4) Subtracting the amount of any insurance indemnity received from 
the result of paragraph (b)(3) of this section; and
    (5) Subtracting the value of any secondary use or salvage value 
from the result of paragraph (b)(4) of this section.
    (c) Expected value is determined by multiplying the total number of 
trees, bushes, or vines that were damaged or destroyed by a qualifying 
disaster event by the price.
    (d) Actual value is determined by:
    (1) Multiplying the number of trees, bushes, or vines damaged by a 
qualifying disaster event by the damage factor;
    (2) Adding the result of paragraph (d)(1) of this section and the 
number of trees, bushes, or vines destroyed by a qualifying disaster 
event;
    (3) Multiplying the result of paragraph (d)(2) of this section by 
the price; and
    (4) Subtracting the result of paragraph (d)(3) of this section from 
the expected value from paragraph (c) of this section.
    (e) The FSA county committee will adjust the number of damaged and 
destroyed trees, bushes, and vines, if it determines that the number of 
damaged or destroyed trees, bushes, or vines certified by the 
participant is inaccurate.
    (f) Citrus trees located in Florida are ineligible for payment 
under this section.


Sec.  760.1517   Requirement to purchase crop insurance or NAP 
coverage.

    (a) For the first 2 consecutive crop years for which crop insurance 
or NAP coverage is available after the enrollment period for 2017 WHIP 
ends, but no later than the 2021 crop year, a participant who receives 
2017 WHIP payments for a crop loss in a county must obtain:
    (1) For an insurable crop, crop insurance with at least a 60 
percent

[[Page 33809]]

coverage level for that crop in that county; or
    (2) For a NAP eligible crop:
    (i) NAP coverage with a coverage level of 60 percent, if available 
for the applicable crop year, or NAP catastrophic coverage if NAP 
coverage is not offered at a 60 percent coverage level for that crop 
year.
    (ii) Participants who exceed the average adjusted gross income 
limitation for NAP payment eligibility \1\ for the applicable crop year 
may meet the purchase requirement specified in paragraph (a)(2)(i) of 
this section by purchasing Whole-Farm Revenue Protection crop insurance 
coverage, if eligible, or paying the NAP service fee and premium even 
though the participant will not be eligible to receive a NAP payment 
due to the average adjusted gross income limit but will be eligible for 
the WHIP payment.
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    \1\ See Sec. Sec.  1400.500(a) and 1400.1(a)(4) of this title.
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    (b) For the first 2 consecutive insurance years for which crop 
insurance is available after the enrollment period for 2017 WHIP ends, 
but no later than the 2021 crop year, any participant who receives 2017 
WHIP payments for a tree, bush, or vine loss must purchase a plan of 
insurance for the tree, bush, or vine with at least a 60 percent 
coverage level.
    (c) If a producer fails to obtain crop insurance or NAP coverage as 
required in paragraphs (a) and (b) of this section, the producer must 
reimburse FSA for the full amount of 2017 WHIP payment plus interest 
that the producer received for that crop, tree, bush, or vine loss. A 
producer will only be considered to have obtained NAP coverage for the 
purposes of this section if the participant applied and payed the 
requisite NAP service fee and paid any applicable premium by the 
applicable deadline and completed all program requirements, including 
filing an acreage report as may be required under such coverage 
agreement.

Richard Fordyce,
Administrator, Farm Service Agency.
[FR Doc. 2018-15346 Filed 7-16-18; 8:45 am]
 BILLING CODE 3410-05-P